2015 Supreme(SC) 48

SUPREME COURT OF INDIA
ANIL R. DAVE, KURIAN JOSEPH, R. BANUMATHI, JJ.
TOMASO BRUNO & ANR. – APPELLANTS
Versus
STATE OF U.P. – RESPONDENTS
CRIMINAL APPEAL NO. 142 of 2015 (Arising out of S.L.P.(Crl.) No. 1156 of 2013)
Decided On : 20-01-2015

IMPORTANT POINTS
Burden of proof to establish alibi lies on accused. However in exceptional case like the instant one the burden shifts to prosecution to establish the opposite.
Non production of important evidence by prosecution is not only faulty investigation but amounts to withholding information.
Absence of symptoms of strangulation raises doubts about homicidal nature of death.
While minor variations in evidence of witnesses may not provide any advantage to accused, serious variations or discrepancies will definitely provide advantage to accused.

Headnote:(a) Indian Evidence Act, 1872 – Section 106 and 65B – Deceased and accused staying in same room – In the morning deceased was reported serious and while taken to hospital was declared brought dead – Prosecution invoking section 106 and trying to capitalise on inability of the accused to prove alibi, drawing inference of their guilt – Courts below accepting – Accused being foreign nationals tourists could not produce any witness to substantiate their alibi that they had gone out for Subahe Banaras – Burden shifted on prosecution to establish that they remained in their room – Prosecution could have used CCTV footage to establish whether the accused went out as claimed or not – Admissibility of electronic evidence – Section 65B. (Para 21, 22, 26)

       (1996) 10 SCC 193; (2007) 4 SCC 713; 1989 Supp. (2) SCC 706; (2012) 9 SCC 1; (2005) 11 SCC 600 – Relied upon

       (2011) 11 SCC 766; (2002) 1 SCC 351 – Referred

       (b) Criminal trial – Circumstantial evidence – Non-production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused – Not mere faulty investigation – Amounts to withholding of best evidence – Section 114(g) – Indian Evidence Act, 1972 – Adverse inference may be drawn against prosecution for not producing the aforesaid details particularly CCTV footage while it could – Prosecution neither examining the doctor declaring the deceased ‘brought dead’ nor producing the report that was prepared in the emergency ward of the hospital – Not producing death intimation sent to the police. (Para 27, 29, 30)

       (c) Criminal trial – Prosecution making improvements at various stages – Vitiates prosecution story. (Para 33)

       (d) Criminal trial – Motive – Proof of motive – An important corroborative piece of evidence – Instantly, evidence adduced by prosecution suggesting motive – Only by way of improvement at the stage of trial not inspiring confidence. (Para 34)

       (e) Criminal trial – Cause of death – Medical report declaring asphyxia due to strangulation as cause of death – Strangulation cause by a hard blunt object – However, no such object found by prosecution – Raising reasonable doubts as to cause of death. (Para 37, 38, 40, 41)

       (f) Criminal trial – Discrepancies in evidence – Variations are natural – Minor contradictions and variations should be ignored – However, serious variations may provide advantage to accused. (Para 39)

       (2012) 7 SCALE 165; (2013) 11 SCC 688 – Relied upon

       (g) Constitution of India – Article 136 – Criminal appeal – Normally Supreme Court does not interfere with concurrent findings of courts below unless perverse – Instantly, courts below ignoring importance of best evidence of CCTV camera – Also not noticing absence of symptoms of strangulation in the medical reports – Interference warranted. (Para 42)

       Facts of the case:

       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 arrived at Varanasi on 31.1.2010 and they checked in at Hotel Buddha, Ram Katora, Varanasi.

       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. 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'.

       Dr. R.K. Singh (PW-10) conducted autopsy and issued Ex. Ka-10, opining that the cause of death was asphyxia due to strangulation.

       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.

       High Court confirmed the conviction and the sentence.

       Finding of the Court:

       Conviction of appellant cannot be sustained.

       Result: Appeal allowed.