Tomaso Bruno & Anr vs State Of U.P

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 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'.

5. 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. On 5.2.2010, further investigation was taken over by Shri Dharambir Singh (PW-13) who recorded the statement of the waiters in the hotel and also recorded the statement of the accused persons. The accused stated that on 4.2.2010 morning they went out at 4.00 a.m. for 'Subhae Banaras', but deceased was not well, so he was left sleeping in 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 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.

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:-

17. Adverting to the case in hand, it emerges from the evidence that the accused and deceased reached Varanasi on 31.1.2010 and checked in at hotel Buddha. On 1.2.2010 and 2.2.2010, the tourists went around to explore the city and visited important places. On 3.2.2010, since the deceased complained of mild headache, the accused and the deceased went out late at 11.00 A.M. and returned back to the hotel at 2.30 P.M. as they planned to see famous 'Subahe Bararas' the next morning. In his evidence, PW-2 Ajit Kumar stated that on the night of 3.2.2010, on order from the tourists, PW-2 served two plates of vegetable fried rice in the room. PW-2 further stated that after serving two plates of vegetable fried rice, while he was getting out of the room, second appellant Elisa Betta Bon asked him 'not to disturb till next morning' and thereafter the second appellant bolted the door from inside and thereafter no person ever visited their room. The trial court and the High Court have taken this as one of the important 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.

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.

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.

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:-

40. The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. We agree that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the post-mortem reports.

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.

Crl. A.No......../2015 arising from SLP (Crl.) No(s). 1156/2013 TOMASO BRUNO & ANR. Petitioner(s) VERSUS STATE OF U.P. Respondent(s) Date : 20/01/2015 This petition was called on for pronouncement of JUDGMENT today.

For Petitioner(s) Ms. Ranjeeta Rohtagi,Adv.

For Respondent(s) Mr. M. R. Shamshad,Adv.

Leave granted.

The appeal is allowed in terms of the signed Reportable Judgment.