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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 ..... 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 around the city. On 3.2.2010, the deceased complained of a mild headache on account of which, they went out late and returned early and thereafter, stayed in the room for the entire evening as they had planned to see the 'Subahe Banaras' the next morning. On 4.2.2010 at about 8.00 a.m. A-2 informed Ram Singh (PW-1), the Manager of hotel Buddha, Varanasi, that the condition of the deceased was not fine, after which the accused, PW-1 and others took the deceased to S.S.P.G. Hospital, Varanasi for treatment, where the doctors declared the ailing tourist as 'brought dead'. 4. Ram Singh (PW-1) filed a complaint regarding death of deceased Francesco Montis in the police station. Additionally, Awadhesh Kumar Choubey, Home Guard also submitted a memo informing death of Francesco Montis which was transmitted to P.S. Chetganj, Varanasi. An inquest was conducted by Sagir Ahmad-SI (PW-12) regarding death of deceased Francesco Montis and Ex. P12 is the inquest report. After inquest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tel 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 manager and accused persons took Montis to the hospital where he was declared 'brought dead'. The second accused clarified that the marks of lip on the cover were not hers. 7. Upon consideration of evidence, trial court convicted the accused persons under Section 302 read with Section 34 IPC and sentenced them to undergo life imprisonment, imposed a fine of Rs. 25,000/- each with a default clause. Aggrieved by the same, the appellants preferred appeal before the High Court wherein by the impugned judgment, High Court confirmed the conviction and the sentence. Assailing the verdict of conviction and sentence of life imprisonment, the appellants have preferred this appeal by way of special leave. 8. Mr. Harin P. Raval, learned senior counsel appearing for the appellants contended that all the circumstances relied upon by the prosecution ought to be firmly established by evidence and the circumstances must be of such nature as to form a complete chain pointing to the guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances the accused had all the opportunity to commit the offence; (ii) the accused had no plausible explanation to offer as to the injuries on the deceased and the death of the deceased; (iii) the accused failed to prove the defence plea of alibi that in the wee hours of 4.2.2010, they had gone outside the hotel for sight seeing and after returning to the hotel room, they saw the deceased unconscious; (iv) the intimacy developed between the accused alienated them from the deceased and as a love triangle was formed and prompted by this motive, the accused eliminated Francesco Montis on the fateful day; and (v) medical evidence supports prosecution version that the death was homicidal and deceased was strangulated to death. 12. Upon consideration of evidence adduced by the prosecution on the above circumstances and after referring to various judgments on circumstantial evidence, the trial court as affirmed by the High Court, found that all the circumstances suggested by the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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 the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt." 16. In Padala Veera Reddy v. State of A.P. and Ors., 1989 Supp. (2) SCC 706, it was laid down that in a case of circumstantial evidence such evidence must satisfy the following test:- "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, the burden of proving that fact is upon him. Prosecution mainly relied upon the circumstance that the occurrence was inside the hotel room and that death had occurred in the privacy of the hotel room and that the appellants have no plausible explanation for the death of Francesco Montis and the absence of explanation or untrue explanation offered by the accused point to their guilt. 19. The principle underlying Section 106 of the Evidence Act is that the burden to establish those facts, which are within his personal knowledge is cast on the person concerned, and if he fails to establish or explain those facts, an adverse inference may be drawn against him. Explaining the death of deceased Francesco Montis, the appellants have stated that in the wee hours of 4.2.2010 at 4.00 A.M., they had gone to see the famous 'Subahe Banaras' and returned back to the hotel room at 8.00 A.M. and found the condition of Francesco Montis very serious and immediately informed PW-1 about the condition of their friend and then with the assistance of the hotel staff, Francesco Montis was taken to the hospital. 20. Learned counsel for the respondent-State contended that when the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case. 23. In his evidence, PW-1 has stated that he monitors the affairs of the hotel on CCTV while sitting in reception. PW-1 further stated that he saw the CCTV footage at the relevant time and on the fateful night no person was having ingress or egress to the said room. PW-13-Dharambir Singh, investigating officer, also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency and also to the prosecution. The relevance of electronic evidence is also evident in the light of Mohd. Ajmal Mohammad Amir Kasab vs. State of Maharashtra, (2012) 9 SCC 1, wherein production of transcripts of internet transactions helped the prosecution case a great deal in proving the guilt of the accused. Similarly, in the case of State (NCT of Delhi) vs. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600, the links between the slain terrorists and the masterminds of the attack were established only through phone call transcripts obtained from the mobile service providers. 27. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non-production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bon informed PW-1 Ram Singh, hotel Manager that the condition of Francesco Montis is very serious. On hearing this, PW-1 immediately went to room No. 459 where he saw the appellants were sitting and the deceased was lying unconscious. Thereafter, he immediately came down to the reception and along with hotel staff went back to the room and then they lifted Francesco Montis by wrapping him in a blanket and took him to the hospital. PW-6-Uma Shankar had driven the car and Francesco Montis was taken to the emergency ward. PW-1 and other witnesses have stated that on examination of Francesco Montis, doctor declared him 'dead'. Prosecution has neither examined the doctor nor produced the report that was prepared in the emergency ward of the hospital. Likewise, the death intimation sent to the police was also not produced. The report prepared by the doctor who examined Francesco Montis and declared him dead would have been yet another important piece of evidence which would have contained earliest version of the accused and other relevant details. 31. Motive for the crime suggested by the prosecution is that physical intimacy and expression of love between the appellants had caused de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence. In the case at hand, evidence adduced by the prosecution suggesting motive is only by way of improvement at the stage of trial which, in our view, does not inspire confidence of the court. 35. Yet another circumstance relied upon by the prosecution is that the death is homicidal i.e. death is due to asphyxia as a result of strangulation as stated in Exs. Ka-10 and Ka-11 post-mortem reports. The first post-mortem on the body of Francesco Montis was done on 5.2.2010 by PW-10-Dr. R.K. Singh. Then in pursuance to the direction issued by the District Magistrate as per the order of Chief Medical Officer, second post-mortem was performed on 6.2.2010 by a panel of doctors and the second post-mortem report is Ext. Ka-11. The first post-mortem report discloses the following injuries:- "Ante-Mortem Injury: 1. On opening scalp, contusions 2 cm x 2 cm on the mid of forehead 3 cm above root of nose. 2. On opening scalp, contusion 4 cm x 3 cm on left side head 2 cm above left ear. 3. Abraded contusion (multiple) in area of 5 cm x 3 cm on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid. (ii) Internal Appearance.- The neck and its structures should be examined after removing the brain and the chest organs, thus allowing blood to drain from the neck to the blood vessels. There is extravasation of blood into the sub-cuataneous tissues under the ligature mark or finger marks, as well as in the adjacent muscles of the neck, which are usually lacerated. Sometimes, there is laceration of the sheath of the carotid arteries, as also their internal coats with effusion of blood into their walls. The cornua of the hyoid bone may be fractured also the superior cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. These should be carefully dissected in situ as they are difficult to distinguish from dissection artefacts in the neck....." 37. PW-10 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since death and manner of causing injuries. The aforesaid symptoms suggested in the question were not present in this case. It is not necessary that these symptoms must be present in every case of death by strangulation." 38. Of course PW-10 has explained that by and large the above symptoms of strangulation as put up to him in the questions would be present in cases of strangulation. PW-10 further stated that those symptoms need not necessarily be so in all cases of strangulation. In our considered view, the conspicuous absence of symptoms of strangulation coupled with other circumstances militates against the case of the prosecution. 39. It is a settled proposition of law recently reiterated in the following cases viz. Dayal Singh And Ors. vs. State of Uttaranchal (2012) 7 SCALE 165, Radhakrishna Nagesh vs. State of Andhra Pradesh, (2013) 11 SCC 688, Umesh Singh vs. State of Bihar (2013) 4 SCC 360 that there is possibility of some variations in the exhibits, medical and ocular evidence and it cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of justice in favour of the accused. Where contradictions and variations are of a seri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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