Tomaso Bruno And Anr. vs State Of U.P.
2012 Latest Caselaw 4539 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 53
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5043 of 2011
 

 
Petitioner :- Tomaso Bruno And Anr.
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Samit Gopal,G.S. Chaturvedi,Vibhu Sanker
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

We have heard Sri Gopal Saran Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal and Sri Vibhu Shanker, Advocates on behalf of the appellants and Sri Arunendra Singh, learned Additional Government Advocate for the State-respondent.

This criminal appeal is directed against the judgement and order dated 23rd July, 2011 passed by the Additional Sessions Judge, Court No.-13, Varanasi in Session Trial No. 299 of 2010 (State of U.P. vs. Tomaso Bruno and Another) arising out of case Crime No. 34 of 2010 under Section 302 read with Section 34 of the Indian Penal Code, Police Station- Chetganj, District Varanasi.

Under the judgement, both the appellants before this Court have been convicted of an offence under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced with life imprisonment and fine of Rs. 25,000/- each, in case of default to undergo imprisonment for one more year.

The case of the prosecution, as reflected from the records, is as follows:

Accused, Tomaso Bruno and Elisa Betta Bon Compagni along with deceased Francesco Montis, all of Italian nationality, hired a room in Hotel Buddha situate at Ram Katora, Police Station Chetganj, District Varanasi on 31st January, 2010 at 05:00 P.M. They were allotted room no. 459. The condition of Italian tourist, Francesco Montis deteriorated and for that reason, his remaining two companions took him to the S.S.P.G. Hospital, Varanasi at 08:00 A.M. on 4th February, 2010. The doctors at the said hospital declared Francesco as brought dead.

Awadhesh Kumar Chaubey, Home Guard submitted a memo with the Kotwali, Varanasi, which was transmitted to Police Station Chetganj, Varanasi informing the death of Francesco Montis on 4th February, 2010 at 1130 hours. It was entered at G.D. Report No. 21. Another report was received on 4th February, 2010 at 1150 hours regarding the death of Francesco Montis from Ram Singh, Manager of the Buddha Hotel (P.W.1), this was entered at G.D. Report No. 24 on 4th February, 2010. Another report was received at Police Station Chetganj at 2328 hours from the Ward Boy of the S.S.P.G. Hospital Varanasi namely, Dinanath about the death of Francesco Montis. According to the information reports, Francesco Montis expired between 08:00 to 09:00 A.M. on 4th February, 2012.

On the said reports, investigation was initiated. Inquest report, papers for transmission of the dead body, picture of the dead body along with letter addressed to the Chief Medical Officer and other relevant papers for the post-mortem marked as Exhibits Ka-3, Ka-15, Ka-16 and Ka-17 were prepared on 4th February, 2012. The dead body was transmitted to the post-mortem house situate at S.S. P.G. Hospital, Varanasi through constable Salig Ram Chaubey (P.W.7) along with constable Harish Chandra Rai and entry regarding transmission of the dead body was made in the General Diary of the Police Station Chetganj, Varanasi on the said date. However, on 4th February, 2010 post-mortem of the dead body could not be performed and the dead body was kept at Mortuary of the S.S.P.G. Hospital, Varanasi. Entry regarding the said fact was made by Salig Ram Chaubey (P.W. 7) in the G.D., which was marked as Exhibit-Ka 4. On 5th February, 2010 the dead body was again transmitted to the post-mortem House situate at B.H.U. and the post-mortem was performed on the dead body of Francesco Montis by one Dr. R.K. Singh (P.W.-10). The post-mortem report is marked as Exhibit Ka-10. Cause of death was disclosed as Asphyxia as a result of strangulation.

Under order of the Chief Medical Officer in pursuance to the direction issued by the District Magistrate, second post-mortem was performed on 6th February, 2010 at 10:45 P.M. by a panel of the doctors, headed by Dr. R.K. Pradhan (P.W.11) at I.M.S., B.H.U. This report was marked as Exhibit Ka-11. The cause of death has been mentioned as Asphyxia as a result of strangulation. Both the post mortem reports disclose following ante-mortem injuries:

First post-mortem report:

"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 right side neck 5 cm outer of mid line 8 cm below right ear.

4. Multiple abraded contusion an area of 5 cm x 4 cm on left side neck.

6 cm outer to mid line & 7 cm below left ear.

5. Lacerated wound 2 cm x 1 cm x muscle deep on front of mid line of lower lip.

6. Abraded contusion 2 cm x 2 cm on outer aspect of left knee joint.

Internal Examination:

Membranes of head congested. Sub arachnoid Haematoma present, Spinal cord not opened, Pleura congested, Trachea contused, no abnormality detected in larynx, both the lungs congested, Pericardium congested. Chambers of heart full, peritoneum congested, 100 Gms digested food was found in stomach, small intestine contained digested food and gas and large intestine contained faecal matter and gas, pancreas, spleen, kidneys congested, bladder was empty. In the opinion of the doctor, cause of death was Asphyxia as result of strangulation. However viscera preserved for chemical analysis to exclude poisoning."

Second post-mortem report:

"Ante-mortem Injury:

1. Multiple abraded contusion present in area of 5 cm x 3 cm on the right side of neck 5 cm outer to mid line and 8 cm below right ear.

2. Multiple abraded contusion in area of 5 cm x 4 cm on left side neck 6 cm outer to mid line and 7 cm below left ear.

3. Lacerated wound 2 cm x 1 cm x muscle deep on the front of middle of lower lip.

4. Abraded contusion 2 cm x 2 cm on outer aspect of left knee joint.

5. On opening of scalp contusion 2 cm x 2 cm on mid of forehead 3 cm above root of nose present.

6. On opening the scalp, contusion 4 cm x 3 cm on left side head 2 cm above left ear.

Internal Examination:

No abnormality detected in Vertebrae walls, ribs and cartilages. Scalp opening was normal, Membranes of brain were congested. Brain was decomposing and sub arachnid, haematoma was found, Pleura was congested, larynx was normal. Trachea was contused. Braonchi was normal. Both lungs were in decomposing stage. Membranes of heart were congested. Both chambers were empty. Blood pressures were normal. Pericardium was congested. 15 x 15 teeth were found in buccal cavity and no abnormality detected . Contents of stomach were already preserved. Small intestine contained mucous and gas, large intestine contained faecal matter and gas. Pancreas was decomposing, Spleen already preserved. Bladder was empty, no abnormality in organs of generation.

In the opinion of the doctors, cause of death was Asphyxia as a result of strangulation"

It may be recorded that both the post-mortem reports disclose identical ante-mortem injuries and same cause of death.

On 5th February, 2010, a case under Section 302 of the Indian Penal Code was registered as Case Crime No. 34 of 2010 at Police Station Chetganj, District Varanasi against unknown persons on the basis of the post-mortem report and other evidence at 23.25 hours. The G.D. Entry regarding registration of the case was made at report no. 57 dated 5th February, 2010 at 23.25 hours, a photo copy of the same was marked as Exhibit Ka-9. P.W. 12 Sub-Inspector Sagir Ahmad began investigation into the case at 00:10 hours on 6th February, 2010, after copying the relevant G.D. Entry pertaining to the case. The Investigating Officer (P.W.12) proceeded to place of occurrence i.e. Hotel Budha and recorded statement of Manager Ram Singh (P.W.1) and made spot inspection of the place of incident on pointing out by Ram Singh (P.W. 1). The place of occurrence was the room no. 459 of Hotel Buddha, Ram Katora, Varanasi, situate at second floor. During spot inspection, P.W. 12 collected the Bed-sheet, Pillow and a Towel and other things. The Bed-sheet contained marks of urine and stools. A black brown stain of the size of lip was found on the pillow cover. These things were sealed for onward transmission to the Forensic Science Laboratory for chemical examination. He also prepared a list of the articles taken possession of from the room no. 459 and a G.D. Entry was made. The original seizure memo is marked as Exhibit Ka-19. P.W. 12 tried to question the two Italian tourists namely Tomaso Bruno and Elisa Betta Bon Compagni regarding the cause of death but they insisted that they would speak only after arrival of their Advocate and refused to co-operate. P.W. 12 prepared a site plan of the place of occurrence in his own hand writing which was marked as Exhibit Ka-18.

On 5th February, 2010 the investigation was taken over by Sri Dharmbir Singh, Station House Officer, Polie Station Chetganj, Varanasi (P.W.13). He proceeded to the Hotel Buddha, the place of incident and recorded the statement of waiters Ajit and Sunder. He also contacted the two foreign tourists Tomaso Bruno and Elisa Beta, who were shifted to room no. 355 of the same hotel after incident. They declined to make any statement immediately and informed that their lawyer is about to come and thereafter they will make their statement.

On the arrival of Sri Vibhu Shankar, Advocate from Delhi, the second Investigating Officer Dharmbir Singh recorded the statement of the accused-appellants in the presence of the their Advocate. The accused-appellants stated that deceased Francesco Montis and his lady companion Elisa Beta travelled from London together and reached Mumbai on 28th December, 2009, where they met Tomaso Bruno. They visited several places of interest in India together and finally reached Varanasi on 31st December, 2010. They stayed in hotel Buddha and checked in room no. 459. Both the accused-appellants and deceased were staying in the same room. On the fateful night of 3rd February, 2010 they ordered two plates of fried rice to be served in their room and they dined together. In the morning of next day i.e. 4th February, 2010, when the surviving tourists awoke, they found that their friend Francesco Montis was lying on the bed in an unconscious state. Thereupon Elisa Beta informed the hotel counter through Intercom as follows: " my friend is very serious". Hotel manager and staff arrived and took Francesco Montis to the Hospital, where he was declared dead. Thereafter the police locked the room no. 459 and they were shifted to room no. 355. Elisa Beta also stated that she used to live in London with deceased and that Tomaso Bruno also used to visit them. Her friendship with the deceased Fracesco Montis was three years old. They did not have any inhibitions regarding sleeping together. She was not aware of any animosity between Tomaso Bruno and Francesco Montis. She clarified that marks of urine, stool and lips found on the bed-sheet and pillow cover were not of her. They evaded to reply the questions about the cause and manner of death of the deceased.

On 7th February, 2010, after recording statements of the accused-appellants and collecting other evidence, Dharmbir Singh (P.W. 13) apprised them of the grounds for arrest and arrested them in presence of their lawyer Vibhu Shanker. Arrest memo was prepared, which showed that the two Italian nationality Tomaso Bruno and Elisa Beta were arrested from room no. 355 of the hotel Buddha at 19:45 hours. They were arraigned as accused in the present case. They were taken to the police station Chetganj and kept in police lock up. Entry in this regard was made in the G.D. Vide report no. 42 at 21:50 hours on 7th February, 2010. The arrest memo of accused-appellants were marked as Exhibit Ka-20 and Ka-21 respectively. After completing the investigation, the Investigation Officer, Dharmveer Singh, P.W.13, filed charge-sheet (Exhibit-Ka 29) against the appellants under Section 302/34 of the Code of Criminal Procedure before the Magistrate concerned.

The accused were supplied copies of relevant prosecution papers, as envisaged under Section 207 of the Code of Criminal Procedure and the case was committed for trial to the Court of Sessions by the learned Magistrate concerned. This case was transferred to the Additional Sessions Judge, Court No. 13, Varanasi for trial by the learned District and Sessions Judge, Varanasi, which was registered as Sessions Trial No. 299 of 2010 (State of U.P. vs. Tomaso Bruno & Another).

The prosecution examined as many as 13 prosecution witnesses in support of its case. After conclusion of the prosecution evidence, the statement of accused was recorded under Section 313 of the Criminal Procedure Code in the presence of their counsel, Sri Vibhu Shanker, Advocate, who was so instructed by Sri Daljit Titus and Company, a firm of Advocates at New Delhi. Sri Daljit Titus was the proprietor of the firm and also the Chairman of Italian Chambers of Commerce.

Written statement was filed by accused persons in order to elaborate the defence version. Separate written statements were also filed for the purpose by both the accused persons, the contents thereof were the similar. In the statement under Section 313 of the Code of Criminal Procedure, the accused persons denied the offence as alleged. They pleaded innocence and alleged that they came to this country as bona fide tourists. Unfortunately, due to malicious investigation, bogus opinion of medical experts and biased adversial prosecution, they have been falsely implicated and indicted. They are not involved in the death of their companion Francesco in any manner.

On 3rd February, 2010, Francesco was not feeling well and had a mild head-ache and therefore, they left the Hotel at around 11:00 A.M. in the morning and through Harish Chandra Ghat and Assi Ghat they reached Mohalla Assi, where they took lunch and from there they proceeded to visit Bharatmata Temple and returned to the Hotel at about 2.30 P.M. Thereafter they did not go out of the Hotel and remained stayed in the Hotel, as they had planned to enjoy famous Subahe-banaras on 4th February, 2010.

The accused came out of the Hotel at 4:00 A.M. on 4th February, 2010 and since Francesco was not well, they left him sleeping in the room. While leaving the room, the door was closed by appellant no.2 by pulling it from out side. They went walking to Dashashwamedh Ghat etc. and after roaming for some time, came back to the Hotel. On arrival at the Hotel, they found that the condition of Francesco Montis had deteriorated. With the help of the Hotel staff, they brought him to the Hospital by an Ambassador Car. They reached the Hospital at about 9:00 in the morning. Unfortunately Francesco Montis expired on the way to the Hospital.

Manager of the Buddha Hotel, namely, Ram Singh was examined as P.W. 1. He stated that three Italian tourists i.e. accused-appellants and deceased, namely, Tomasso Bruno, Elisa Beta and Francesco Montis respectively have been occupying one room at Hotel Buddha being Room No. 459 since 31st January, 2010. It was their usual practice to leave the hotel at around 09:00 to 10:00 A.M. in the morning and to return to the Hotel at around 5:00 to 5:30 P.M. in evening of the same day. They did not move out of the hotel in the evening, once they returned. It was also stated that on 4th February, 2010 at around 08:00 A.M. in morning, he received a call from appellant no.2, namely Elisa Beta that the condition of her friend i.e. Francesco Montis was very serious. On receipt of the information, P.W.-1 along with other staff of the hotel reached the room and found that the deceased, Francesco Montis was lying on bed in unconscious state. He was bodily lifted with the help of hotel staff and the accused-appellants and taken to S.S.P.G. Hospital, in a car, where he was declared brought dead.

After the first post-mortem was performed, since the accused-appellants and victim were of Italian nationality, an order was passed by the Chief Medical Officer dated 6th February, 2010 in pursuance to the direction issued by the District Magistrate for second post-mortem. The second post mortem was performed on 6th February, 2010 at 10:45 P.M. by a panel of doctors headed by Dr. A.K. Pradhan (P.W.11).

P.W.-1 in his statement categorically stated that all the three tourists resident of room no. 459, on 3rd February, 2010 returned to the hotel in the evening at around 5:00 to 5:30 P.M. After having tea, they went to their room. At around 08:00 P.M. on the same day, an order was placed for service of two plates of fried vegetable rice through intercom. The eatable was supplied to their room by waiter Ajit. After receiving the food so ordered at the door of the room, it was locked from inside. It was stated that between 08:00 P.M. in the evening till the next day 08:00 A.M. in the morning nobody else entered room no. 459, occupied by the accused-appellants and deceased. There was only one door for entry into the room. He referred to Closed Circuit Cameras (for short C.C.T.V. Camera), which were installed at all prominent places and on the corridors of all three stories of the hotel building. The monitor whereof was kept at the reception of the hotel. P.W. 1 stated that he actually saw the monitor connected to C.C.T.V. Camera during the relevant period. It was stated that Francesco Montis deceased was shifted from his hotel to the hospital by pushing him from the bed into a blanket with the help of the staff of the hotel. He was taken in a car to the hospital where he was declared brought dead.

Waiter of the Hotel Buddha, Ajit Kumar was examined as P.W.-2. In his testimony, he specifically stated that two plates of fried rice was supplied on 3rd February, 2012 at around 08:00 night, to the residents of room no. 459, which was accepted by the accused, and thereafter the door of the room was bolted by the accused Elisa Beta from inside.

Sunder, the other waiter of Hotel Buddha, was examined as P.W. 3. He stated that he had served tea to the three tourists i.e. accused-appellants and deceased, who were staying in the room no. 459, at the hotel restaurant on 3rd February, 2010 at around 05:00 to 05:30 P.M. It was further stated that the two tourists who were present in the court, took tea but their third companion, who was dead, did not take tea. When he served the tea to these tourists, he saw that the two accused were sitting on the same side of the table and were hugging, kissing and cuddling each other, while the third tourist looked subdued. After taking tea, they went for their room. He heard some noise in the night of 3rd/4th February,2010 when he was sleeping in the staff room at third floor of the hotel but he did not respond to it. Waiter Ajit and cook Anil were also sleeping there.

Vijay Prakash, another employee of the hotel, was examined as P.W. 4. He stated to have become aware of the death of Francesco Montis between 09:00 to 10:00 in the morning of 4th February, 2012. He had locked the room no. 459 after the death of Montis Francesco, till the arrival of the police and kept the keys with him. He identified the two accused, who were present in the Court. It was also stated that after the police arrived, two accused were shifted to Room No. 355. The police took them to the Police Station on 7th February, 2010. He was also a witness to the seizure memo pertaining to the bed-sheet, pillow etc. prepared on 6th February, 2010 by the Investigating Officer.

Chintu Kumar, another employee of the Hotel Buddha, was examined as P.W. 5. He stated that he had earlier taken the three Italian tourists for outing on a Tempo driven by one Kashi. He had also taken them for walk in the city. The tourists used to return to the Hotel in the after noon at around 03:00 P.M. The deceased used to sit at Ghat, while two tourists i.e. accused-appellants, enjoyed boating etc. They laughed and talked with each other, they used to hold hands and waist of each other and often kissed. He stated to have accompanied Francesco Montis to the Hospital along with Manger Ram Singh and two accused-appellants on Tavera driven by Uma Shanker.

Uma Shaker was examined as P.W. 6. He stated that on 4th February, 2010 at about 08:15 in the morning, the foreign tourists, who were present in the Court accompanied the deceased in his vehicle Tavera U.P. 65 AR 5800, driven by him to the Hospital along with Manager and other hotel employees.

Constable No. 15 Salig Ram Chaubey of Police Station Chetganj, Varanasi was examined as P.W. 7. He stated that he accompanied Sub-Inspector Sagir Ahmad along with constable Harish Chand Rai to the S.S.P.G. Hospital where inquest report of the body of the deceased was prepared. He along with Harish Chandra Rai after inquest proceedings carried the dead body to the post-mortem house, Varanasi.

Constable Pramod Singh was examined as P.W. 8. He stated that on 4th February, 2010, he was posted at Chetganj Police Station. He had prepared the memo of death of Francesco Montis and a G.D. Entry in that regard was made by him vide report no. 21 at 11:30 hours.

Head Constable Umesh Kumar Sharma was examined as P.W. 9. He proved the G.D. Entry No. 57 prepared on receipt of the post-mortem report.

Dr. R.K. Singh, who had conducted the first post-mortem on 5th February, 2010 was examined as P.W. 10, he proved the post-mortem report dated 5th February, 2010, which was marked as Exhibit Ka-10.

Dr. A.K. Pradhan, head of the panel of doctors, which performed the second post-mortem report, on 6th February, 2010 at 10:45 P.M., was examined as P.W. 11. He proved the second post-mortem report, which was marked as Exhibit Ka-11.

Sub-Inspector Sagir Ahmad was examined as P.W. 12. He was the first investigating officer. He proved the inquest report, which was marked as Exhibit Ka-12. He further stated that during inquest, he found bruises on both sides of the neck of the deceased and some black forth emerging from the mouth and nose, as was described in the inquest report.

Station House Officer, Police Station Chetganj, Dharmbir Singh was examined as P.W. 13. He was the second investigating officer. He submitted the charge-sheet. He also recorded the statement of accused-appellants in the presence of their Advocate Vibhu Shanker.

Extract of visitor registers consisting of description of accused-appellants and deceased was produced and marked as Exhibit Ka1. Information in writing given by Ram Singh (P.W.1) dated 4th February, 2010 supplied to the Chetganj Police Station, Varanasi regarding death of Francesco Montis was marked as Exhibit-Ka2. Inquest report prepared by the Sub-Inspector Sagir Ahmad (P.W.12) was marked as Exhibit-Ka12. Relevant police papers including the photographs of the dead body, report of transmission of the dead body addressed to the Chief Medical Officer for arrangement of post-mortem were marked as Exhibits-Ka-3, Ka-15, Ka-16 and Ka-17. Entry made in general diary qua the dead body being kept in the Mortuary on 4th February, 2010, as the post-mortem could not be performed on that day, was marked as Exhibit-Ka-4. Entry made in general diary qua dead body being kept in Mortuary on 5th February, 2010 after first post-mortem, was marked as Exhibit-Ka-5. Entry made in general diary qua filing of post-mortem report and other papers before the Chetganj Police Station was marked as Exhibit Ka-6. G.D. Entries were marked as Exhibits Ka-7 to Ka-9. First post-mortem report dated 5th February, 2010 was marked as Exhibit-Ka10. Second post-mortem report dated 6th February, 2010 was marked as Exhibit Ka-11. The original seizure memo was marked as Exhibit-Ka-19. Site plan of the place of occurrence was marked as Exhibit-Ka-18. The arrest memos of appellants were marked as Exhibit- Ka- 20 and Ka-21. Filing of paper on record regarding post-mortem of the deceased was marked as Exhibit Ka-13. Fard was marked as Exhibit-Ka25. Fard Supardaginama written by the counsel of the accused-appellants was marked as Exhibit-Ka26.

The accused-appellants were examined under Section 313 of the Code of Criminal Procedure. According to them, they have been falsely implicated and they were not aware of the reasons for the death of Francesco Montis. It was there case that they do not understand Hindi. However, as interpreted by their counsel, the statement of P.W. 1 Ram Singh was a bundle of lies. The accused themselves took the deceased in unconscious state to the hospital in car. They had left the hotel in the wee hours of 4th February, 2010 for the purposes of sight seeing and for enjoying the famous sun-rise of Banaras. On return they found that Francesco Montis was in bad shape. They do not know whether any one entered the room or not during the intervening period. Francesco Montis had not accompanied them in the early morning of 4th February, 2010, as he was not well. It was specifically stated that they know nothing about the internal injuries of the deceased but the external injuries might have been caused to the deceased, while he was being shifted to the Hospital, as he was stout and heavy. The second post-mortem was never conducted and the second post-mortem report is a verbatim narration of the contents of the first post-mortem. Their statements recorded by the Investigating Officer were also termed, as fabricated. False hood was being created against them. The accused-appellants also filed written statement in order to elaborate the defence version. Separate written statements were filed for the purpose by both the accused. In the written statement, it was specifically stated that the accused had left room no. 459 in the morning at around 04:00 A.M. on 4th February, 2010 for enjoying the famous Subahe-banaras. On the said date, Francesco Montis was not feeling well, therefore, he was left sleeping in the room. The door of the room was closed by appellant no.2 Elisa Beta by pulling the door from outside. They went for a walking to Dashashwamedh Ghat etc. and came back to the hotel at around 08:00 A.M. in the morning. They found that the condition of Francesco Montis had deteriorated. They took Francesco Montis to the hospital with the help of hotel staff. Before they could reach the hospital at around 09:00 A.M. Francesco Montis expired.

The Trial Court, after considering the material evidence led by the prosecution and the defence, recorded that the prosecution case was based on circumstantial evidence, as there was no eye witness of the incident to explain as to what actually happened to the deceased on the fateful night between 3rd February, 2010 and 4th February, 2010.

The trial Court in paragraph-33 of the impugned judgement, framed two issues, which were required to be examined in the case:

(a) Whether the death of Francesco Montis was homicidal or otherwise?

(b) If it was homicidal, whether the present accused persons are the author of the crime as alleged or in other words, whether the accused persons caused the death of Francesco Montis?

The trial court considered the evidence on the record as well as law applicable on the subject, with reference to the judgements of the Apex Court in detail and after carefully scrutiny of the material placed, came to a conclusion that the accused-appellants had done Francesco Montis to death and accordingly convicted them for an offence under Section 302 read with Section 34 of the Indian Panel Code. The accused appellants were sentenced to life imprisonment with fine of Rs. 25,000/- each, in case of default to undergo rigorous imprisonment of one year more.

Challenging the order so passed, Sri Gopal Chaturvedi, learned Senior Advocate on behalf of the accused-appellants raised following pleas:

( a) There being complete absence of motive, conviction in the facts of the case cannot be sustained.

(b) From the post-mortem reports it was established that there were superficial injuries only on the side of the neck. Although Trachea was contused but the same cannot lead to the conclusion that the deceased expired due to strangulation.

(c) The statement of the Manager of the hotel P.W.-1, Ram Singh qua nobody else having entered the room no. 459 between 04:00 A.M. to 08:00 A.M. in the morning of 4th February, 2010, was not a direct evidence, as it was based on what he had seen on the monitor connected to C.C. T.V. Camera. He therefore, submits that such statement of the witness could not have been relied upon.

(d) Lastly, it is contended that the C.C.T.V. Camera had recorded whatever had happened between 04:00 A.M. to 08:00 A.M. in morning of 4th February, 2010. The footage of the C.C.T.V. Camera was available, yet the prosecution deliberately did not produced the footage of C.C. T.V. Camera of the relevant period and date. The prosecution was aware that if the footage of the C.C.T.V. Camera is produced, it would have established that appellants had actually left the room at 04:00 A.M. in morning and had returned only at 08:00 A.M. on 4th February, 2010. This would have demolished the entire case set up by the prosecution.

(e) In the alternative it is contended that the prosecution had deliberately withheld the best evidence i.e. C.C.T.V. Footage camera, which would have either, entirely demolished the case of the prosecution or would have proved the defence of accused-appellants, as false. It should have entailed an adverse inference in view of Section 114 (g) of the Evidence Act. This piece of evidence was in exclusive possession of the prosecution.

(f) Reference was also made to the contradictions, in the evidence of the prosecution witnesses and improvement made from time to time, which according to the appellants raises doubts about the correctness of the story set up by the prosecution and therefore, had to be disbelieved.

The appellants have filed a detail chart depicting the contradictions witness wise.

Learned counsel for the accused-appellants, has placed reliance upon following judgements in support of his pleas:

"1. Gajula Surya Prakashrao vs. State of Andhra Pradesh; (2010) 1 SCC 88, paragraphs nos. 22 and 23,

2. Sharad Birdhichand Sarda vs. State of Maharashtra; (1984) 4 SCC 116, Prs. 151 to 163, 176 to 180, 182 and 218,

3. Krishnan vs. State represented by Inspector of Police; (2008) 15 SCC 430, Prs. 13,14 and 20,

4. Padala Veera Reddy vs. State of Andhra Pradesh & others; 1989 Supp. (2) SCC 706, Prs. 10,12,18,19,20,21,22 and 23,

5. Akhilesh Hajam vs. State of Bihar; 1995 Supp. (3) SCC 357, Prs. 8,12 and 13,

6. State (Delhi Administration) vs. Shri Gulzari Lal Tandon; (1979) 3 SCC 316, Prs. 3 and 4,

7. Gopal Krishnaji Ketkar vs. Mahomed Haji Latif; AIR 1968 SC 1413,

8. Yasin @ Baba vs. State of U.P.; 2005 (2) ACR 2243,

9. Sunder Lal vs. State of Rajasthan; (2007) 10 SCC 371,

10. Iddar vs. Aabida; (2007) 11 SCC 211,

11. Ramreddy Rajeshkhanna Reddy vs. State of Andhra Pradesh; (2006) 10 SCC 172,

12. Zahira Habibulla H. Sheikh vs. State of Gujrat; (2004) 4 SCC 158,

13. Om Prakash Sharma vs. Central Bureau of Investigation; (2000) 5 SCC 679,

14. Subramaniam vs. State of Tamil Nadu; (2009) 14 SCC 415,

15. Queen Empress vs. Hosh Nak; 1941 ALJR 416."

Sri Arunendra Singh, learned Additional Government Advocate on behalf of the State in reply submits that from the written statement of the accused-appellants, it was an admitted position that at least till 04:00 A.M. in the morning of 4th February, 2010, they alone were in the room no. 459 with the deceased Francesco Montis and were again present at 08.00 A.M. in the room. The plea of alibi qua accused-appellants having left the room no. 459 at 04:00 A.M. in the morning of 4th February, 2010 could not be established by any evidence. Therefore, the accused-appellants, having failed to establish the plea of alibi, have rightly been held guilty. He further submits that burden to prove the alibi was upon the accused-appellants, which they failed to establish. Reliance for the purpose has been made to the judgement of the Apex Court in the case of (1) Shaikh Sattar vs. State of Maharashtra reported in 2010 SCC (8) 430 paragraph-35, and (2) Jitendra Kumar vs. State of Haryana reported in (2012) 3 SCC (Crl.) 67 paragraph-73. It is further stated that the accused-appellants had the opportunity to enter the witness box as witness under Section 315 of the Criminal Procedure Code and to depose as witness on oath in support of their defence of having left the hotel at 04:00 A.M. on 4th February, 2010. For the reasons best known to them, they did not avail such opportunity. It is further stated that assuming without admitting that motive could not be proved but the absence of motive shall not be fatal in the facts of the present case. The law in that regard has been explained by the Apex Court, in the case of (1) Rajinder Kumar & Another vs. State of Punjab reported in AIR 1966 S.C. 1322 paragraph-11, (2) Paramjeet Singh Alias Pamma vs. State of Uttarakhand reported in (2010) 10 SCC 439 paragraph-54, and (3) State of Gujarat vs. Anirudhsing & Another reported in (1997) 6 SCC 514 paragraph-46.

According to the leaned Additional Government Advocate, once it was established that it was the accused-appellants who alone were with the deceased on the fateful day and time in room no. 459 of Buddha Hotel, the burden was upon the accused-appellants to have shown as to what actually happened to the deceased, which resulted in his death. He relies upon the judgement of the Apex Court in the case of (1) Raj Kumar Prasad Tamarkar vs. State of Bihar & Another reported in (2007) 3 SCC Criminal 716 paragraph 25, (2) Trimukh Maroti Kirkan vs. State of Maharashtra reported in 2006 SCC (10) 681, paragraphs-15 and 18 and (3) State of Rajashthan vs. Kashi Ram reported in 2006 SCC (12) 254 paragraph-22 in support of his plea.

According to the learned Additional Government Advocate, circumstantial evidence in the facts of the present case leads to only one presumption i.e. guilt of the accused-appellants and no other presumption in the facts of the present case can be drawn.

Sri Gopal Chaturvedi, learned Senior Advocate on behalf of the accused-appellants in rejoinder explains that defence of the accused was not a plea of alibi, their stand in fact was that they had left the hotel at 04:00 A.M. in the morning on 4th February, 2012 and were absent from the room during the relevant period.

According to the learned counsel for the appellants, the chain of events has not been completed, so as to lead to the conclusion that it was the appellants, who had done the deceased to death as no material was brought on record to establish that anybody else had entered room no. 459 between 04:00 A.M. to 08:00 A.M. in the morning on 4th February, 2010. He also refers to Section 315 (1) (b) of the Criminal Procedure Code for alleging that if the accused-appellants had not entered the witness box, no adverse inference can be drawn. Learned counsel for the appellants has placed reliance upon the judgement of the Apex Court in the cases of Gopal Krishnaji Ketkar and Yasin @ Baba (Supra).

We have considered the submissions made by the learned counsel for the parties and have examined the records of the present criminal appeal.

Before adverting to the merits of the contentions raised on behalf of the parties, it would be worthwhile to record that this Court made pointed query to the learned counsel for the accused-appellants, namely, (a) whether Trachea can be contused without any external pressure being applied upon the victim and if so, all necessary material based on text books, law on the subject or otherwise be referred to. It has been fairly stated by the learned Senior Counsel for the accused-appellants before this Court that Trachea cannot be contused without any external pressure being applied upon the victim and that there is no material in text books or otherwise to the contrary. This Court then asked the learned counsel for the accused-appellants that in view of the post-mortem reports that Trachea of the deceased was contused, and there were ante-mortem injuries on the body of the deceased, can it be said that Francesco Montis has suffered a natural death or was it homicidal. The answer given to the question is that the accused-appellants are not aware as to how deceased has expired.

In view of the two post-mortem reports, which specifically disclose that Trachea of the deceased was contused and that there were ante-mortem injuries on the body of the deceased both on the neck and the face coupled with, the statement made by the learned counsel for the appellants before this Court that the Trachea cannot be contused except when physical pressure is applied from outside, this Court has no hesitation to record that the death of Francesco Montis has been caused not because of any natural circumstance, but because of unnatural acts. It was homicidal. In the facts of this case, we find that the conclusion drawn by the Trial Court in respect of the first issue as framed and noticed above, is justified and based on true and correct appreciation of the evidence on record.

Having reached the said conclusion that the death of Montis was homicidal, we shall now examine as to whether the prosecution has been able to establish the guilt of the accused in the matter of death of Francesco Montis beyond reasonable doubt or not.

In the written statement filed on behalf of the appellants-accused before the trial court, it has been admitted that the deceased along with co-accused were residing in Hotel Buddha at Varanasi since 31st January, 2010. It was also admitted that they along with deceased were exclusively within the four corners of the Room No. 459 in Hotel Buddha at least upto 04:00 A.M. on 4th February, 2010.

The relevant portion of the written statement filed separately by the two-accused, which is identical in nature reads as follows :

"On 3-2-2010 Francesco was not feeling well and had a mild headache and therefore we left hotel at around 11.00 in the morning and through Harishchandra Ghat-Assi Ghat, we reached Mohalla Assi where we took lunch. From there we went to Bharat Mata Temple and returned hotel at about 2:30 p.m., and thereafter we did not go out of the hotel and stayed in the hotel.

As we had planned to take a tour and enjoy famous Subah-Banaras on 4-2-2012, I alongwith Elisabeta Boncompagni came out of the hotel at 4:00 a.m. and since Francesco was not well so we left him sleeping in the room. Room was closed by Elisabetta Boncompagni by pulling the door from outside. From the hotel we went walking to Dashashwamedh Ghat, Rajendran Prasad Ghat etc. and after roaming for some time came back to the hotel. After returning to our room in the hotel we saw that Francesco's condition had deteriorated. We took Francesco out of the hotel with the help of hotel staff and took him to the hospital in an Ambassador car along with the hotel staff-Chinto and reached hospital at around 9:00 in the morning. Unfortunately, Francesco died on the way to the hospital."

From the said admission, as made in the written statement of the accused, what follows is that upto 04:00 A.M. in the morning on the fateful day of 4th February, 2010, the two accused were with the deceased in the room no. 459 of the Hotel Buddha. Francesco Montis is alleged to have been left behind as he was not well. After roaming for some time, they returned and found that the condition of Francesco Montis had deteriorated. The appellants did not notice anything unnatural in the room after they returned in the morning nor did they make any complaint about any injury being caused to the Francesco Montis by some one.

It is, therefore, apparent that whatever has happened to Francesco Montis had taken place between 04:00 A.M. to 08:00 A.M. on 4th February, 2010. Francesco Montis was taken to hospital immediately where he was declared brought dead.

In order to establish their innocence, the accused had pleaded that they left the hotel at 04:00 A.M. and returned at 08:00 A.M. This defence is a plea of alibi, which had to be established by the accused. The accused did not lead any evidence to establish that they had left the hotel at 04:00 A.M. or were not present in the room between 04:00 A.M. To 08:00 A.M.

It was their case before the trial court that being foreign tourist, possibly they could not produce any local person in evidence.

The trial court rightly recorded that the accused could have themselves entered the witness box and to have deposed on oath in support of their defence.

The Apex Court in the case of Shaikh Sattar (Supra) has held held that the burden to establish the alibi is on the accused. The proposition has been reiterated by the Apex Court in the case of Jitendra Kumar (Supra).

The Apex Court laid down that the plea of alibi has to be proved so as to completely exclude the possibility of presence of appellants at the place of occurrence at the relevant time.

We after examining the records find that this burden has not been discharged by the appellants.

Once it is established that accused were last seen with the deceased alone, then it was obligatory upon them in the facts of the case to inform as to what happened to Francesco Montis. They were exclusively within the four corners of the Room No. 459 at the relevant time and date. The accused have failed to furnish any explanation as to how the Trachea of the deceased was contused and how injuries were caused to Montis or how he suffered an unnatural death.

The Apex Court in its latest judgment in the case of Shyamal Ghosh vs. State of West Bengal, reported in (2012) 7 SCC 646, paragraphs 63 and 72 to 77 has explained that once the last seen theory comes into play onus shifts upon the accused to explain as to what has happened to deceased after the accused and deceased were last seen alive. The Apex Court has further explained that there must be reasonable proximity of time between the period the accused and deceased were last seen together and the time when the fact of deceased having expired comes to light. The Apex Court has further explained that what would be reasonable has to be determined in the facts and circumstances of each case. This principal has been explained in the judgments of the Apex Court in the case of (1) Raj Kumar Prasad Tamarkar Vs. State of Bihar and another reported in (2007) 3 SCC (Cri) 716 paragraph-25, (2) Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 paragraphs-15 and 18, and (3) State of Rajasthan Vs. Kashi Ram reported in (2006) 12 SCC 254 paragraph-22.

We may now deal with the contention raised on behalf of the appellants point wise.

So far as, the issue of absence of motive is concerned, we may record that the Hon'ble Supreme Court of India in the case of Paramjeet Singh alias Pamma Vs. State of Uttarakhand reported in (2010) 10 SCC 439 paragraph 54 has specifically held as follows :

"54. So far as the issue of motive is concerned, the case is squarely covered by the judgment of this Court in Suresh Chandra Bahri. Therefore, it does not require any further elaborate discussion. More so, if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. (Vide State of Gujarat v. Anirudhsing.)"

In the background of the law so explained, we may record that in the facts of the case, there are suggestions, both in the evidence of the staff of the hotel, as well as in the inference drawn by the trial court about there being a motive, because of physical relationship between the two accused to the disliking of the deceased Francesco Montis, but the same may not detain us for long, inasmuch as even in the absence of motive, as pleaded, we find that the chain of circumstantial evidence is complete and the prosecution has been able to bring home the charge against the accused.

The appellants, in support of their defence, have vehemently argued that the C.C. T.V. Camera footage should have been produced by the prosecution, as it was the best evidence. Since the best evidence had not been produced, an adverse inference had to be drawn against the prosecution in view of Section 114 (g) of the Evidence Act.

We may consider this objection in two parts. First, as to whether the C.C. T.V. Camera footage should have been necessarily produced by the prosecution and in absence thereof, the evidence led by the prosecution is not sufficient to bring home the charge. Second even when no application was made by the appellants under Section 233 of the Code of Criminal Procedure for production of the footage, as documentary evidence, can any adverse inference under Section 114 (g) be drawn against the prosecution in the facts of the case.

So far as the first part of the objection is concerned, we may record that the Manager of the hotel in his testimony as P.W. 1 had specifically deposed that the footage of the C.C. T.V. camera was examined by the Investigating Officer twice or thrice and after such thorough examination of the footage, it was found that it was useless, as nothing objectionable could be noticed therein. Again, P.W. 12, the first Investigating Officer, in his testimony stated that the C.C. T.V. Camera footage was examined by him and nothing objectionable was noticed therein and it was for this reason that nothing was recorded in case diary. Similarly, P.W. 13, the second Investigating Officer, in his testimony stated that the entire footage recording was examined by him and after examining the footage, he did not find anything, which may be of relevance in the case. He specifically deposed that from the C.C. T.V. Camera, nothing could be gathered with regard to the investigation and, therefore, it was not noticed in the case diary. He also specifically deposed that it is wrong to allege that the C.C. T.V. Camera footage established that the accused were not guilty and that the prosecution was concealing the footage deliberately.

Such statements of prosecution witnesses had taken place in presence of the appellants and their counsel. In their statement, under Section 313 Code of Criminal Procedure, the appellants did allege that the footage of C.C. T.V. is being concealed, but for the reasons best known to them, they did not invoke Section 233 of the Code of Criminal Procedure and did not make any application for C.C.T.V. Camera footage being produced. They were not able to discredit the testimony of P.W. 1, P.W. 12 and P.W. 13 qua there being nothing material in the C.C. T.V. Camera footage.

We are of the view that the evidence on record is sufficient to establish that there was no material in the footage, which had any relevance with reference to the incident, which had taken place in Room No. 459 on the relevant day. The accused did not lead any evidence worth its name to establish that they left the hotel at 04:00 A.M. on the relevant date The first part of the objection has, therefore, to be answered against the appellants.

So far as the plea of adverse inference under Section 114 (g) of the Evidence Act being drawn against the prosecution for not producing the C.C. T.V. Camera footage is concerned, we may record that such inference against the prosecution could have been drawn only if the appellants had moved an application under Section 233 of the Criminal Procedure Code for the footage being produced in evidence and the prosecution had failed to respond to the application or the order directing production of the C.C.T.V. Footage, if any, by the Court. The accused-appellants themselves did not seek production of the C.C. T.V. Camera footage. From the evidence of P.W. 1, P.W. 12 and P.W. 13, it was established that the C.C. T.V. Camera footage did not have any relevant material having a bearing on the incident and, therefore, the prosecution had not produced the same. The plea of adverse inference being drawn in the circumstances of the case, therefore, deserves to be rejected.

Learned counsel for the appellants placed reliance upon Section 311 Cr.P.C. for suggesting that the trial court was duty bound to summon the C.C. T.V. Camera footage even if the prosecution has not relied upon the same to bring home the charge.

Section 311 Cr.P.C. reads as follows :

"311. Power to summon material witness, or examine person present. -

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

From the simple reading of Section 311 it is apparently clear that it contemplates summoning of witnesses only at any stage of the proceedings or examination of the persons present including the power to recall/re-examine any person already examined, if his evidence appears to be essential for the just decision of the case. The legislature has not conferred any power upon the trial court to summon any documentary evidence under Section 311 Code of Criminal Procedure. The document, on which the accused propose to rely and wants to be produced have to be summoned under Section 233 (3) of the Code of Criminal Procedure.

Relevant portion i.e. sub-Section 3 of Section 233 reads as follows :

"233 Entering upon defence........

(3) - If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. "

We may reiterate that the statement of the prosecution witnesses, P.W.1, P.W. 12 and P.W. 13, with regard to there being nothing material in C.C. T.V. Camera footage was recorded in the presence of the accused and their counsel. They were aware about C.C. T.V. Camera footage being not produced as evidence by the prosecution yet, neither they made any application under Section 233 (3) Cr.P.C. for such footage being produced nor they led any evidence to contradict the testimony of the witnesses P.W. 1, P.W. 12 and P.W. 13.

Shri Chaturvedi, learned Senior Advocate then contended that the Manager of the hotel had stated as P.W. 1, that no person had entered Room No. 459 between the relevant period during the intervening night of 3rd and 4th February, 2010. Such statement was with reference to the Monitor installed at the reception and connected to the C.C. T.V. Cameras, installed in the corridor of the third floor of the hotel. This according to him is not direct evidence and, therefore, under Section 60 of the Evidence Act could not be relied upon.

The contention so raised has to be rejected by the Court inasmuch as the Manager of the hotel had specifically stated that he had witnessed the T.V. Monitor installed at the reception counter, which was connected to the C.C.T.V. Camera live and on the basis of what he saw, he deposed that nobody had entered the room between the relevant period in the night intervening 3rd and 4th February, 2010. Such evidence of the Manager is the direct evidence of what he had seen himself on the T.V. Monitor live connected with the C.C.T.V. Cameras installed in the corridor of the third floor. Therefore, it cannot be said that his evidence was not direct evidence and had to be rejected in view of Section 60 of the Evidence Act.

Learned counsel for the appellants handed over a chart to the Court, for establishing the variations in the statement of the witnesses including P.W. 1, the Manager of the hotel; P.W. 2, Ajit Kumar, the Waiter; P.W. 3, Sundar, another Waiter; P.W. 5, Chintu, the Masalchi of the hotel; P.W. 12, Sagir Ahmad, the first Investigating Officer and P.W. 13, Dharm Veer Singh, the second Investigating Officer. He, therefore, submitted that the story of the prosecution had to be disbelieved.

We have examined the Chart so supplied in detail. The discrepancies, which have been pointed out, are not in respect of the relevant period i.e. the period between 04:00 A.M. to 08:00 A.M. in the morning of 4th February, 2010. The discrepancies, in respect of statements, are of earlier periods, which, in our opinion, do not effect the prosecution story and the chain of circumstantial evidence. The discripanceis are found to be trivial and are not on a material issue. The evidence on record leads us to only one conclusion in the facts of the case, namely, that the deceased has been done to death by the accused-appellants.

Learned counsel for the appellants also referred to various text books supplied to the Court for contradicting the medical opinion regarding strangulation being the cause of death of the deceased Montis.

The Apex Court in the case of Piara Singh & Others vs. State of Punjab reported in (1977) 4 SCC 452, Paragraph-7, has explained the impact of medical text books, vis-a-vis, the medical experts. Even otherwise, it is not necessary for this Court to enter into the necessity of the contradiction as pointed out, specifically, in view of the statement of learned counsel for the appellants himself as recorded above that the Trachea cannot be contused unless physical pressure from outside is applied. Moreover the medical evidence clinchingly establishes that the death of Montis was homicidal.

Having examined the material on record we may record that the prosecution on the basis of the evidence, laid by it, has been able to bring home the charge against the accused. The various links in the chain of the circumstantial evidence are complete. The circumstances are consistent only with the hypothesis of guilt of the accused to the extent that it cannot be explained on any other hypothesis. The chain of evidence, as established by the prosecution, do not leave any reasonable ground for the conclusion except to arrive at the conclusion with all human probability that the act has been done by the accused-appellants.

In view of the aforesaid, we see no good ground to interfere with the judgment and order of the trial court.

The appeal is, therefore, dismissed.

(Arun Tandon, J.)

(Vijay Prakash Pathak, J.)

Order Date :- 27.9.2012

Sushil-Sunil Gupta/-

Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5043 of 2011

Petitioner :- Tomaso Bruno And Anr.

Respondent :- State Of U.P.

Petitioner Counsel :- Samit Gopal,G.S. Chaturvedi,Vibhu Sanker

Respondent Counsel :- Govt. Advocate

Hon'ble Arun Tandon,J.

Hon'ble Vijay Prakash Pathak,J.

Dismissed.

For order see order of date passed on the separate sheets.

(Arun Tandon, J.)

(Vijay Prakash Pathak, J.)

Order Date :- 27.9.2012

Sushil-Sunil Gupta/-