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TMI Blog2015 (1) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... out of S.L.P.(Crl.) No. 1156/2013) - - - Dated:- 20-1-2015 - Anil R. Dave, Kurian Joseph R. Banumathi For Petitioner(s) Ms. Ranjeeta Rohtagi, Adv. For Respondent(s) Mr. M. R. Shamshad, Adv. J U D G M E N T R. BANUMATHI, J. Leave granted. 2. This appeal is directed against the judgment dated 4.10.2012 passed by Allahabad High Court in Criminal Appeal No.5043 of 2011 in which the High Court confirmed the conviction of the appellants under Section 302 read with Section 34 IPC and the sentence of life imprisonment and fine of ₹ 25,000/- imposed on each of them. 3. Briefly stated, case of the prosecution is that three Italian nationals namely Tomaso Bruno (Accused No.1), Elisa Betta Bon Compagni (Accused No. 2) and Francesco Montis (Deceased) came as tourists to India from London and reached Mumbai on 28.12.2009. After visiting several places of interest together, these persons arrived at Varanasi on 31.1.2010 and they checked in at Hotel Buddha, Ram Katora, Varanasi. The hotel management, after checking all the relevant identity proofs, allotted Room No. 459 in the hotel to them at about 5.00 p.m. For two days the accused and deceased went aroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the room and when they came back they found Francesco in a serious condition. On the basis of material collected during investigation, PW-13 arrested the accused persons after appraising them with the grounds of arrest. After completion of investigation, chargesheet under Section 302 read with Section 34 IPC was filed by the police in the court against accused Nos. 1 and 2. 6. To substantiate the charges against the accused, prosecution has examined thirteen witnesses and exhibited material documents and objects. The accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and the accused denied all of them. The accused reiterated whatever was earlier stated before I.O., that on the fateful night of 3.2.2010, they ordered two plates of fried rice and all three of them dined together. Next day morning they went out at 4.00 a.m. for Subhae Banaras , but deceased was not well and so he was left sleeping in the room. When they returned to the hotel at 8.00 a.m., Francesco Montis was lying on the bed in an unconscious condition. The second accused stated that she had informed the hotel manager that Francesco Montis was very serious and all the staff, PW-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturned to hotel room at about 8.00 A.M. cannot be subscribed or relied upon. The learned counsel vehemently contended that the medical evidence, inquest report and the presence of stool, urine stain on the bed sheet and black brown discharge from the mouth narrated in the inquest and brown black lip mark on pillow cover clearly lead to the inference of the guilt of the accused persons and upon appreciation of circumstances and the evidence adduced by the prosecution, courts below rightly convicted the appellants and the concurrent findings recorded by the courts below cannot be interfered with. 10. We have carefully considered the evidence, materials on record and the rival contentions and gone through the judgments of the courts below. 11. Admittedly, there is no eye-witness and the prosecution case is based on circumstantial evidence. The circumstances as can be culled out from the judgment of the courts below relied upon by the prosecution and accepted by the courts below to convict the appellants are:- (i) from the fateful night of 3.2.2010 till the morning of 4.2.2010, when the incident is alleged to have taken place inside the privacy of the hotel room and in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence. 15. After referring to a catena of cases based on circumstantial evidence in Shivu and Anr. vs. Registrar General, High Court of Karnataka Anr., (2007) 4 SCC 713, this Court held as under:- 12. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. { See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99; Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985 (Supp.) SCC 79), Balwinder Singh v. State of Punjab (1987) 1 SCC 16 and Ashok Kumar Chatterjee v. State of M.P (1989 Supp. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t links of evidence to conclude that from the night of 3.2.2010, till next day morning 8.00 A.M., the accused-appellants remained inside the hotel room. Be it noted, this vital evidence that the second appellant asked PW-2 Ajit Kumar-Waiter, not to disturb them till next day morning was not stated by PW-2 before the Investigating Officer, when the Investigating Officer recorded PW-2 s statement under Section 161 Cr.P.C., which in our view, seriously affects the credibility of PW-2. The courts below ignored this vital aspect observing that it is only an explanation or introduction to the testimony of PW-2. 18. Be that as it may, an important circumstance relied upon by the prosecution and accepted by the courts below is that the offence had taken place inside the privacy of the hotel room in which the accused and the deceased were staying together and only the accused had the opportunity to commit the offence. Prosecution mainly relied upon Section 106 of Indian Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Prosecution mainly relied upon the circumstance that the occurrence was ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance was also placed upon the judgment of this Court in Munshi Prasad Ors. vs. State of Bihar, (2002) 1 SCC 351. 21. The defence plea offered by the appellants was that in the wee hours of 4.2.2010, they had gone out and returned to the hotel only to find out the serious condition of Francesco Montis. The appellants being foreign nationals who visited India as tourists, it would not have been possible for them to examine any witness either from the hotel or from the place which they are said to have visited as they were tourists in India. In the facts and circumstances of the case and in the light of the statement-explanation offered by the accused that in the wee hours of 4.2.2010 they had gone out to see Subahe Banaras , in our considered view, the burden was for the prosecution to establish that they remained inside the hotel room from 3.2.2010 till the next day morning 8.00 A.M. in the hotel. 22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Electronic documents strictu sensu are admitted as material evidence. With the amendment to the Indian Evidence Act in 2000, Sections 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65B is complied with. The computer generated electronic records in evidence are admissible at a trial if proved in the manner specified by Section 65B of the Evidence Act. Sub-section (1) of Section 65B makes admissible as a document, paper print out of electronic records stored in optical or magnetic media produced by a computer, subject to the fulfilment of the conditions specified in sub-section (2) of Section 65B. Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act. PW-13 stated that he saw the full video recording of the fateful night in the CCTV camera, but he has not recorded the same in the case diary as nothing substantial to be adduced as evidence was present in it. 26. Production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.P.C. and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW-1, PW-12 and PW-13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced. 30. Yet another important piece of evidence which was not produced by the prosecution is relevant to be noted. On 4.2.2010, second appellant-Elisa Betta Bon informed PW-1 Ram Singh, hotel Manager that the condition of Francesco Montis is very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnoyance of the deceased which created a motive in the long run for commission of the alleged crime by the appellants. It was submitted that prosecution has failed to establish the motive propounded against the accused persons which is an important circumstance in a criminal case based on circumstantial evidence. 33. There is, in our view, merit in the submission of the learned senior counsel for the appellants. Prosecution tried to establish the case against the accused by making improvements at various stages. The version of PW-3 that he saw A-1 and A-2 hugging, kissing and cuddling each other and that Francesco Montis was sitting on the other side of the table appearing depressed was not stated to the investigating officer PW-13 when he recorded PW-3 s statement under Section 161 Cr.P.C. Likewise, version of PW-2-Ajit Kumar that on the night of 3.2.2010, the second accused asked him not to disturb till tomorrow morning was also not mentioned in his statement recorded by the investigating officer under Section 161 Cr.P.C. 34. Where the case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been used to cause strangulation leading to the death on account of asphyxia. However, no such hard or blunt substance was found or seized from the room. Doctors have not found any physical signs of internal injuries viz. any extravasation of blood in the tissue or any laceration in the underlying muscles. Considering postmortem reports Exts Ka-10 and Ka-11 and the evidence of PWs 10 and 11, in our view, reasonable doubts arise as to the cause of death due to asphyxia as a result of strangulation. 36. Let us consider the injuries found on the body of deceased Francesco Montis vis- -vis symptoms of strangulation. As per Modi s Medical Jurisprudence And Toxicology 24th Edition. 2011, page No.453 the symptoms of strangulation are stated as under:- (b) Appearances due to Asphyxia.-The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I agree that all the above signs mentioned in this question were not present in present case. It may be present in death by asphyxia due to strangulation. But it is not necessary that all these signs must be present in every case of asphyxial death by strangulation. QUESTION : Is it correct that all the internal appearances in death by strangulation were not present in this case viz. (i) subcutaneous tissues and----------muscles are lacerated, (ii) extravasation of blood into subcutaneous tissues, (iii) fracture of cornia of hyoid bone, (iv) non fracture of superior cornia of hyoid bone, (v) non fracture or rupture in cartilage rings (vi) non rupture or fracture of trachea (vii) edema in the brain, (viii) petechial haemorrhage, (ix) petechiae in the lungs, (x) laceration in sheath of carotid arteries (xi) compression in the arteries and bones (xii) larynx and trachea containing frothy mucous were absent in present case? ANSWER As per ecchymosis around injury 3-4, it was present at the time of Post-Mortem, hence I have written injury No. 3 and 4 as ante mortem injuries. Rest of findings depend on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances, it is rather strange that no external marks were found on the body which could demonstrate that there had been a struggle. The absence of struggle and the corresponding external injuries is yet another vital aspect which had gone unnoticed by the courts below. 42. By and large, this Court will not interfere with the concurrent findings recorded by the courts below. But where the evidence has not been properly appreciated, material aspects have been ignored and the findings are perverse under Article 136 of the Constitution, this Court would certainly interfere with the findings of the courts below though concurrent. In a case based on circumstantial evidence, circumstances from which inference of guilt is sought to be drawn should be fully proved and such circumstances must be of conclusive nature pointing to the guilt of accused. There shall be no gap in such chain of circumstances. In the present case, the courts below have not properly appreciated the evidence and the gap in the chain of circumstances sought to be established by the prosecution. The courts below have ignored the importance of best evidence i.e. CCTV camera in the instant case and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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