The following 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 Rs. 25,000/- imposed on each of them.
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 Page 2 2 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, and 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’.
On the basis of the postmortem report and other materials, First Information Report in Case No. 34 of 2010 was registered on 5.2.2010. PW-12-Sagir Ahmad (SI) had taken up the investigation and proceeded to the place of occurrence i.e. hotel Buddha. During the spot-investigation, PW-12 collected bed-sheet, pillow, a towel and other material objects. The bed sheet contained marks of urine and stools and a black brown stain of the size of lip was found on the pillow cover. PW-12 also collected other articles from the room and also prepared Ex. P18- site plan at the place of occurrence.
Admittedly, there is no eye-witness and the prosecution case is based on circumstantial evidence. 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 prosecution against the appellants are proved beyond reasonable doubt and form a complete chain pointing to the guilt of the accused beyond any reasonable doubt and on those findings, convicted the appellants for the charge under Section 302 IPC read with Section 34 IPC. 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. The trial court as well as the High Court ignored this crucial aspect of non-production of CCTV footage. The trial court as well as the High Court relied on the oral testimony of PW-1- Ram Singh, hotel manager, that no one entered Room No. 459 between the relevant period on the intervening night of 3.2.2010 and 4.2.2010 which is based on the CCTV footage.
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 also have not noticed the absence of symptoms of strangulation in the medical reports. Upon consideration of the facts and circumstances of the case, we are of the view that the circumstances and the evidence adduced by the prosecution do not form a complete chain pointing to the guilt of the accused and the benefit of doubt is to be given to the accused and the conviction of the appellants is liable to be set aside. 43. In the result, conviction of the appellants under Section 302/34 IPC is set aside and the appeal is allowed. Appellants be released forthwith.