TOMASO BRUNO & ANR. versus STATE OF U.P.
[2015] 1 S.C.R. 721, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
[2015] 1 S.C.R. 721 
TOMASO BRUNO & ANR. 
v. 
STATE OF U.P. 
(Criminal Appeal No.142 of 2015) 
JANUARY 20, 2015 
[ANIL R. DAVE, KURIAN JOSEPH AND 
R. BANUMATHI, JJ.] 
A 
B 
Penal Code, 1860 - s. 302134 - Murder - Prosecution 
case that two foreign nationals committed murder of another C 
foreign national on their trip to India as tourists - Offence took 
place inside the privacy of the hotel room in which the 
appellant and the deceased were staying together and only 
the appellants had the opportunity to commit the offence -
Appellants' case is that at the relevant time they had gone out 
D 
and on returning back to the hotel room found the condition 
of their friend very serious and immediately informed the hotel 
manager about the same and with the assistance of the hotel 
staff, took him to the hospital - On basis of the evidence, 
conviction and sentence uls. 302134 by courts below - On 
appeal, held: On facts, CCTV footage being a crucial piece 
of evidence, it is for the prosecution to have produced the best 
evidence which is missing - Non-production of CCTV footage 
being best evidence casts doubt on the prosecution case -
Courts below did not notice the faulty investigation as also the 
absence of symptoms of strangulation in the medical reports 
-
Circumstances and the evidence adduced by the 
prosecution do not form a complete chain pointing to the guilt 
of the accused - Appellants given benefit of doubt and the 
order of conviction set aside - Evidence.
Evidence Act, 1872 - s. 658 - Admissibility of electronic 
records - Murder case -
CCTV cameras installed in the 
prominent places - CCTV footage - Effect of non-production 
- Held: CCTV footage is a strong piece of evidence to prove 
E 
F 
G 
721 
H
722 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
whether the accused remained inside the room and whether 
they were responsible for the commission of a crime -
Omission to produce CCTV footage by the prosecution, which 
is the best evidence, raises serious doubts about the 
prosecution case. 
B 
Allowing the appeal, the Court 
HELD: 1.1. In the instant case, the courts below did 
not properly appreciate the evidence and the gap in the 
chain of circumstances sought to be established by the 
C prosecution. The courts below ignored the importance of 
best evidence i.e. CCTV camera and also did not notice 
the absence of symptoms of strangulation in the medical 
reports. Upon consideration of the facts and 
circumstances of the case, the circumstances and the 
D evidence adduced by the prosecution do not form a 
complete chain pointing to the guilt of the appellants-
foreign national and the benefit of doubt is to be given 
to the appellants. Thus, the conviction of the appellants 
u/s.302/34 IPC is set aside. [Para 42] [747-C-E] 
E 
F 
1.2. With the increasing impact of technology in 
everyday life and as a result, the production of electronic 
evidence in cases has become relevant to establish the 
guilt of the accused or the liability of the defendant. 
Electronic documents strictu sensu are admitted as 
material evidence. With the amendment to the Evidence 
Act in 2000, Sections 65A and 658 were introduced into 
Chapter V relating to documentary evidence. [Para 25]
[737-E-F] 
G 
1.3. 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. On facts of the case, to invoke 
H Section 106 of the Evidence Act, the burden was for the
TOMASO BRUNO & ANR. v. STATE OF U.P. 
723 
prosecution to establish that the appellants remained 
A 
inside the hotel room at the relevant time. PW-1-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 
B 
have been best evidence to prove whether the accused 
remained inside the room and whether or not they have 
gone out and whether they were responsible for the 
commission of a crime. CCTV footage being a crucial 
piece of evidence, it is for the prosecution to have c 
produced the best evidence which is missing. Omission 
to produce CCTV footage which is the best evidence, 
raises serious doubts about the prosecution case. [Para 
21, 22] [736-B-G] 
1.4. PW 1-hotel manager stated that he saw the CCTV 
D 
footage at the relevant time and on the fateful night no 
person was having ingress or egress to the said room. 
PW-13-investigating officer stated that he saw the full 
video recording of the fateful night in the CCTV camera, 
but he did not record the same in the case diary as 
E 
nothing substantial to be adduced as evidence was 
present in it. Non-production of CCTV footage, non-
collection of call records (details) and sim details of 
mobile phones seized from the accused ca1mot be said 
to be mere instances of faulty investigation but amount 
F 
to withholding of best evidence. It is not the
case of the 
prosecution :that CCTV footage could not be lifted or a 
CD copy could not be made. [Para 25, 27] 736-G-H; 737-
A; 738-E-F] 
1.5. As per Section 114 (g) of the Evidence Act, if a 
party in possession of best evidence which will throw 
light in controversy withholds it, the court can draw an 
adverse inference against him notwithstanding that the 
onus of proving does not lie on him. Notwithstanding the 
fact that the burden lies upon the accused to establish 
G 
H
724 
SUPREME COURT REPORTS 
[2015] 1 S C R. 
A the defence plea of alibi in the facts and circumstances 
of the case, prosecution in possession of the best 
evidence-CCTV footage ought to have produced the 
same. It is a fit case to draw an adverse inference against 
the prosecution under Section 114 (g) that the 
B prosecution withheld the same as it would be 
unfavourable to them had it been produced. [Para 28] 
[738-G-H; 739-E-F] 
1.6. The submission that there was nothing like a 
love triangle between them and the deceased and they 
C are foreigners and their social values are substantially 
different from the Indians; and that the prosecution failed 
to establish the motive propounded against the accused 
persons is accepted. The evidence adduced by the 
prosecution suggesting motive is only by way of 
D improvement at the stage of trial which does not inspire 
confidence of the court. Prosecution tried to establish the 
case against the accused by making improvements at 
various stages. The version of PW-3 that he saw A-1 and 
A-2 hugging, kissing and cuddling each other and that 
E 'FM' was ~itting on the other side of the table appearing 
depressed was not stated to the investigating officer PW-
13 when he recorded PW-3's statement u/s. 161 Cr.P.C. 
as also the version of PW-2 that on the night of 3.2.2010, 
the second accused asked him 'not to disturb till 
F tomorrow morning'. [Para 32, 33, 34] [740-H; 741-A-B-F-
G; 741-C-E] 
1.7. Prosecution neither examined the
doctor nor 
produced the report that was prepared in the emergency 
G ward of the hospital. Likewise, the death intimation sent 
to the police was also not produced. The prosecution 
relied upon another circumstance that the death is 
homicidal i.e. death is due to asphyxia as a result of 
strangulation as stated in the post-mortem reports. 
H Considering postmortem reports. and the evidence of
TOMASO BRUNO & ANR. v. STATE OF U.P. 
725 
PWs 1 O and 11, reasonable doubts arise as to the cause 
A 
of death due to asphyxia as a result of strangulation. The 
conspicuous absence of symptoms of strangulation 
coupled with other circumstances militates against the 
case of the prosecution. Even if it is accepted that the 
death was due to strangulation which was caused by an 
B 
object, the non-recovery of alleged object weakens the 
prosecution case. The deceased being a strongly built 
man, the absence of struggle and the corresponding 
external injuries is yet another vital aspect which went 
unnoticed by the courts below. [Paras 30, 35, 37, 38, 41] c 
[740-C; 741-H; 743-D; 745-H; 746-A, F-H] 
C. Chenga Reddy & Ors. vs. State of A.P. 1996 (3) 
Suppl. SCR 479: (1996) 10 SCC 193; Shivu and Anr. vs. 
Registrar General, High Court of Karnataka & Anr. 2007 (2) 
SCR 555: (2007) 4 SCC 713; Padala Veera Reddy v. State 
D 
of A.P. and Ors. 1989 Supp. (2) SCC 706; Gosu Jayarami 
Reddy and Anr. vs. State of Andhra Pradesh 2011 (9) 
SCR 503 : (2011) 11 SCC 766; Munshi Prasad & Ors. vs. 
State of Bihar 2001 (4) Suppl. SCR 25: (2002) 1 SCC 351; 
Mohd. Ajmal Mohammad Amir Kasab vs. State of E 
Maharashtra 2012 (8) SCR 295: (2012) 9 SCC 1; State (NCT 
of Delhi) vs. Navjot Sandhu @ Afsan Guru 2005 (2) Suppl. 
SCR 79: (2005) 11 SCC 600; Dayal Singh And Ors. vs. State 
of Uttaranchal (2012) 7 SCALE 165, Radhakrishna Nagesh 
vs. State of Andhra Pradesh 2012 (11) SCR 1114 : (2013) 
F 
11
SCC 688, Umesh Singh vs. State of Bihar 2013 (4) 
SCR 797: (2013) 4 SCC 360 - referred to. 
Modi's Medical Junsprudence And Tox1cology 24th Edn. 
2011, p 453 - referred to. 
·· 
Case Law Reference : 
1996 (3) Suppl. SCR 479 Referred to 
2007 (2) SCR 555 
Referred to 
1989 Supp. (2) SCC 706 Referred to 
Para 14 
Para 15 
Para 16 
G 
H
'· 
A 
B 
c 
D 
726 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
2011 (9) SCR 503 
Referred to 
Para 20 
2001 (4) Suppl. SCR 25 
Referred to 
Para 20 
2012 (8) SCR 295 
Referred to 
Para 26 
2005 (2) Suppl. SCR 79 
Referred to 
Para 26 
(2012) 7 SCALE 165 
Referred to 
Para 39 
2012 (11) SCR 1114 
Referred to 
Para 39 
2013 (4) SCR 797 
Referred to 
Para 39 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No. 142 of 2015. 
From the Judgment and Order dated 04.10.2012 of the 
High Court of Judicature at Allahabad in Criminal Appeal No. 
5043 of 2011. 
Harin P. Raval, Ranjeeta Rohatgi, Nikhil Rohatgi, Anando 
Mukherjee, Anirush Sharma, Divya Anand, Nipun Saxena, Jaya 
khanna for the Appellants. 
E 
lrshad Ahmad, AAG, M. R. Shamshad, Shashank Singh, 
F 
Aditya Samaddar, Anurag Rawat for the Respondent. 
The Judgment of the Court was delivered by 
R. BANUMATHI, J. 1. Leave granted. 
2. This 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 
G Section 34 IPC and the sentence of life imprisonment and fine 
of Rs. 25,000/- imposed on each of them. 
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 
H (Deceased) came as tourists to India from'London and reached
TOMASO BRUNO & ANR. v. STATE OF U.P. 
727 
[R. BANUMATHI, J.] 
Mumbai on 28.12.2009. After visiting several places of interest 
A 
together, the"se 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 
B 
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 c 
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'. 
D 
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 
E 
conducted by Sagir Ahmad-SI (PW-12) regarding death of 
deceased Francesco Montis and Ex. P12 is the inquest report. 
After inquest, the body was handed over for conducting post 
mortem.
Dr. R.K. Singh (PW-10) conducted autopsy and 
issued Ex. Ka-10, opining that the cause of death was asphyxia 
F 
due to strangulation. In pursuance of order of District Magistrate, 
by an order of Chief Medical Officer, a second post mortem 
was conducted on 6.02.2010 by the panel of doctors headed 
by Dr. A.K. Pradhan (PW-11) which is marked as Ex. Ka-11 
wherein the doctors reaffirmed the cause of death of deceased 
G 
Francesco Montis. 
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. 
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SUPREME COURT REPORTS 
(2015] 1 S.C.R. 
A 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 
B 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 
c 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 
0 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 
E 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 1.0., that on the fateful
night 
of 3.2.2010, they ordered two plates of fried rice and all three 
F 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 
G 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. 
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 
729 
[R. BANUMATHI, J.] 
7. Upon consideration of evidence, trial court convicted the 
A 
accused pe(sons 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 
B 
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 of the accused and 
c 
the courts below ignored the conditions that are required to be 
satisfied in a case based on circumstantial evidence. Learned 
D 
counsel contended that non-production of CCTV footage being 
an important piece of evidence casts a serious doubt in the 
prosecution case and non-production of such best possible 
evidence is fatal· to the prosecution case. It was further 
submitted that the courts below ought to have noticed the faulty 
investigation and non-collection of CCTV footage, sim details 
and lapses in the investigation. It was urged that the opinion of 
the doctors
that the cause of death was asphyxia due to 
strangulation is not supported by materials and this vital aspect 
has been ignored by the courts below. 
9. Mr. lrshad Ahmad, learned Additional Advocate General 
appearing for the respondent-State submitted that without 
evidence of their complicity in the crime, there 1s no reason as 
E 
F 
to why PW-1 Ram Singh, the hotel manager or the police 
G 
persorinel would implicate two foreign nationals who came to 
India as tourists. It was further contended that inside the hotel 
room, the appellants were admittedly with the deceased and 
the appellants failed to account for the manner and time of 
death of the deceased inside the room. It was held that the 
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SUPREME COURT REPORTS 
[2015) 1 S.C.R. 
A 
defence set up by the accused persons that they had gone on 
sight seeing and 'Subahe Banaras' at the wee hours on 
4.2.2010 and returned to hotel'room at about 8.00 A.M. cannot 
be subscribed or relied upon. The learned counsel vehemently 
contended that the medical evidence, inquest report and the 
B presence of stool, urine stain on the bed sheet and black brown 
discharge from the mouth narrated in the inquest and brown 
black lip mark .on pillow cover clearly lead to the inference of 
the guilt of the accused persons and upon appreciation of 
circumstances and the evidence adduced by the prosecution, 
c courts below rightly convicted the appellants and the concurrent 
findings recorded by the courts below cannot be interfered with. 
D 
10. We have carefully considered the evidence. materials 
on record and the rival contentions and gone through the 
judgments of the courts below. 
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 
E below to convict .the appellants are:-
F 
G 
H 
(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;
TOMASO BRUNO & ANR. v. STATE OF U.P. 
731 
[R. BANUMATHI, J.] 
(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. 
A 
B 
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 
C 
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 
D 
charge under Section 302 IPC read with Section 34 IPC. 
13. In every case based upon circumstantial evidence, in 
this case as well, the question that needs to be determined is 
whether the circumstances relied upon by the prosecution are 
proved by reliable and cogent evidence and whether all the links 
in the chain of circumstance are complete so as to rule out the 
possibility of innocence of the accused. 
14. There is no doubt that conviction can be based solely 
on the circumstantial evidence. But it should be tested on the 
touchstone of the law relating to circumstantial evidence. This 
Court in
C. Chenga Reddy & Ors. vs. State of A.P., (1996) 
10 sec 193, para (21) held as under :-
E 
F 
"21. In a case based on circumstantial evidence, the 
G 
settled law is that the circumstances from which the 
conclusion of guilt is drawn should be fully proved and such 
circumstances must be conclusive in nature. Moreover, all 
the circumstances should be complete and there should 
be no gap left in the chain of evidence. Further, the proved 
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SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
, A 
circumstances must be consistent only with the hypothesis 
of the guilt of the accused and totally inconsistent with his 
innocence. In the present case the courts below have 
overlooked these settled principles and allowed suspicion 
to take the place of proof besides relying upon some 
s 
inadmissible evidence." 
c 
D 
E 
F 
G 
H 
15. After referring to a catena of cases based on 
circumstantial evidence in Shivu and Anr. vs. Registrar 
General, High Court of Karnataka & Anr., (2007) 4 SCC 713, 
this Court held as under:-
"12. It has been consistently laid down by this Court that 
where a case rests squarely on circumstantial evidence, 
the inference of guilt can be justified only when all the 
incriminating facts and circumstances are found to be 
incompatible with the innocence of the accused or the guilt 
of any other person. {See Hukam Singh v. State of 
Rajasthan, (1977) 2 SCC 99; Eradu v. State of 
Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State 
of Karnataka (1983) 2 SCC 330, State of UP. v. Sukhbasi 
(1985 (Supp.) SCC 79), Ba/winder Singh v. State of 
Punjab (1987) 1 SCC 16 and Ashok Kumar Chatterjee 
v. State of M.P (1989 Supp. (1) SCC 560) The 
circumstances 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) sec 706, it was laid down that in a case of
TOMASO BRUNO & ANR. v. STATE OF U.P. 
733 
[R. BANUMATHI, J.] 
circumstantial evidence such evidence must satisfy the following 
A 
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) 
(4) 
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 
the circumstantial evidence in order to sustain 
conviction must be complete and incapable of 
explanation of any other hypothesis than that of the 
guilt of the accused and such evidence should not 
only be consistent with the guilt of the accused but 
should be inconsistent with his innocence. (See 
Gambhir v. State of Maharashtra (1982) 2 SCC 
351)." 
B 
c 
D 
E 
F 
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 
G 
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 
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SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 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 
B 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 
c 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. 
D 
18. Be that as it may, an important circumstance relied 
upon by the prosecution and accepted by the courts below is 
that the offence had taken place inside the privacy of the hotel 
room in which the accused and the deceased were staying 
together and only the accused had the opportunity to commit 
E the offence. Prosecution mainly relied upon Section 106 of 
Indian Evidence Act which says that when any fact is especially 
within the knowledge of any 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 
F 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. 
G 
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 
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 
735 
[R. BANUMATHI, J.] 
in the wee hours of 4.2.2010 at 4.00 A.M., they had gone to 
A 
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, Prancesco Montis was taken to the hospital. 
B 
20. Learned counsel for the respondent~State contended 
that when the appellants have pleaded that they had gone out 
of the hotel room in the wee hours of 4.2.2010 and having taken 
plea of alibi, the burden is cast upon the accused to prove the 
C 
defence plea of alibi and the accused had not adduced any 
evidence to show that they had gone out and visited 'Subahe 
Banaras' in the early hours of 4.2.2010. Learned counsel 
submitted that the plea of alibi was rejected by the concurrent 
findings of the courts below and the same cannot lightly be 
interfered with by this Court. In support of his contention, learned 
counsel for the respondent-State relied upon the judgment of 
this Court in Gosu Jayarami Reddy and Anr. vs. State of 
Andhra Pradesh, (2011) 11 SCC 766 wherein it was observed 
D 
as under:-
"52. We may at the threshold say that a finding of fact 
concurrently recorded on the question of alibi is not 
disturbed by this Court in an appeal by special leave. The 
legal position in this regard is settled by the decision of 
E 
this Court
in Thakur Prasad v. State of M.P. (Al R 1954 
F 
SC 30 at p. 31, para 2) 
"2. The plea of alibi involves a question of fact and 
both the courts below have concurrently found that 
fact against the appellant Thakur Prasad. This 
Court, therefore, cannot, on an appeal by special 
G 
leave, go behind that concurrent finding of fact." 
For the same proposition, reliance was also placed upon 
the judgment of this Court in Munshi Prasad & Ors. vs. State 
of Bihar, (2002) 1 SCC 351. 
H
736 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
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 
B 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 
C 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. 
22. To invoke Section 106 of the Evidence Act, the main 
point to be established by the prosecution is that the accused 
D persons were present in the hotel room at the relevant 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 
E 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 
F 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 
G 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 sfated that he saw the CCTV footage at the relevant time 
ancfon the fateful night no person was havingdngress or egress 
H to the said room. PW-13-Dharambir Singh, investigating officer,
TOMASO BRUNO & ANR. v. STATE OF U.P. 
737 
[R. BANUMATHI, J.] 
also stated that he saw the full video recording of the fateful night 
A 
on CCTV but he has not recorded the same in his case diary 
as nothing substantial emerged from the same. 
24. 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 
B 
of 3.2.201 O and 4.2.2010 which is based on the CCTV footage. 
Courts below accepted the version of PW-1 and PW-13 to hold 
C 
that there was no relevant material in the CCTV footage to 
suggest that a third person entered the hotel room. The trial 
court and the High Court, in our view, erred in relying upon the 
oral evidence of PW-1 and PW-13 who claim to have seen the 
CCTV footage and they did not find anything which may be of 
relevance in the case. 
D 
25. With the advancement o~ information technology, 
scientific temper in the individual and at the institutional level 
is to pervade the methods of investigation. With the increasing 
impact of technology in everyday life and as a result, the 
production of electronic evidence in cases has become relevant 
to establish the guilt of the accused or the liability of the 
defendant. Electronic documents strictu sensu are admitted as 
material evidence. With the amendment to the
Indian Evidence 
·. Act in 2000, Sections 65A and 658 were introduced into 
Chapter V relating to documentary evidence. Section 65A 
provides that contents of electronic records may be admitted 
as evidence if the criteria provided in Section 658 is complied 
with. The computer generated electronic records in evidence 
E 
F 
are admissible at a trial if proved in the manner specified by 
G 
Section 658 of the Evidence Act. Sub-section (1) of Section 
658 makes admissible as a document, paper print out of 
electronic records stored in optical or magnetic media produced 
by a computer, subject to the fulfilment of the conditions 
specified in sub-section (2) of Section 658. Secondary 
H
738 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
evidence of contents of document can also be led under Section 
65 of the Evidence Act. PW-13 stated that he saw the full video 
recording of the fateful night in the CCTV camera, but he has 
not recorded the same in the case diary as nothing substantial 
to be adduced as evidence was present in it. 
B 
26. Production of scientific and electronic evidence in court 
as contemplated under Section 658 of the Evidence Act is of 
great help to the investigating agency and also to the 
prosecution. The relevance of electronic evidence is also 
C evidi::!nt 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 
D 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 
E 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 
F of mobile
phones seized from the accused cannot be said to 
be mere instances of faulty investigation but amount to 
withholding of best evidence. It is not the case of the 
prosecution that CCTV footage could not be lifted or a CD 
copy could not be made. 
G 
28. As per Section 114 (g) of the Evidence Act, if a party 
in possession of best evidence which will throw light in 
controversy withholds it, the court can draw an adverse 
inference against him notwithstanding that the onus of proving 
does not lie on him. The presumption under Section 114 (g) of 
H the Evidence Act is only a permissible inference and not a
TOMASO BRUNO & ANR. v. STATE OF U.P. 
739 
[R. BANUMATHI, J.] 
necessary inference. Unlike presumption under Section 139 of 
A 
Negotiable Instruments Act, where the court has no option but 
to draw statutory presumption under Section 114 of the 
Evidence Act. Under Section 114 of the Evidence Act, the 
Court has the option; the court may or may not raise 
presumption on the proof of certain facts. Drawing of 
8 
presumption under Section 114 (g) of Evidence Act depends 
upon the nature of fact required to be proved and its importance 
in the controversy, the usual mode of proving it; the nature, 
quality and cogency of the evidence which has not been 
produced and its accessibility to the party concerned, all of 
C 
which have to be taken into account. It is only when all these 
matters are duly considered that an adverse inference can be 
drawn against the party. 
29. The High Court held that even though the appellants 
alleged that the footage of CCTV is being concealed by the 
prosecution for the reasons best known to the prosecution, the 
accused did not invoke Section 233 Cr.P.C. and they did not 
make any application for production of CCTV camera footage. 
The High Court further observed that the accused were not able 
to discredit the testimony of PW-1, PW-12 and -PW-13 qua 
there being no relevant material in the CCTV camera footage. 
Notwithstanding the fact that the burden lies upon the accused 
to establish the defence plea of alibi in the facts and
circumstances of the case, in our view, prosecution in 
possession of the best evidence-CCTV footage ought to have 
produced the same. In our considered view, it is a fit case to 
draw an adverse inference against the prosecution under 
Section 114 (g) of the Evidence Act that the prosecution 
withheld the same as it would be unfavourable to them had it 
been produced. 
30. Yet another important piece of evidence which was not 
produced by the prosecution is relevant to be noted. On 
4 .2.2010, second appellant-Elisa Betta Bon informed PW-1 
Ram Singh, hotel Manager that the condition of Francesco 
D 
E 
F 
G 
H
740 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 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 
8 
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 
C 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 
D 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 depression in the mind of Francesco 
E Montis which led to the animesity which prompted the appellants 
to commit the murder of deceased Francesco Montis. In this 
regard, reliance is placed upon statement of PW-3 Sunder 
(Waiter) who stated that on 3.2.2010, tourists of Room No. 459 
ordered two cups of
tea in the restaurant. He served two cups 
F of tea to the occupants of Room No. 459 at the hotel restaurant 
and he noticed A-1 and A-2 were sitting on one side of the table 
hugging, kissing and cuddling each other whereas the 
deceased who was sitting on the other side of the table looked 
gloomy and depressed. Reliance is also placed on evidence 
G of PW-2 Ajit Kumar (Waiter) who stated that on the night of 
3 2 2010. when PW-2 served vegetable fried rice, A-2 told him 
not to disturb them till tomorrow morning'. 
32. On behalf of the appellants, it was submitted that there 
was nothing like a love triangle between them and the deceased 
H and they are foreigners and their social values are substantially
TOMASO BRUNO & ANR. v. STATE OF U.P. 
741 
[R. BANUMATHI, J.] 
different from the Indians. It was submitted that merely because 
Francesco Montis and Tomaso Bruno (first appellant) were 
accompanied by Elisa Betta Bon (second appellant) and all 
three were staying in the room, it cannot be inferred that intimacy 
developed between appellants to the annoyance of the 
decea~ed which .created a motive in the long run for 
commission of the alleged crime by the appellants. It was 
submitted that prosecution has failed to establish the motive 
propounded against the accused persons which is an important 
circumstance in a criminal case based on circumstantial 
evidence. 
33. There is, in our view, merit in the submission of the 
learned senior counsel for the appellants. Prosecution tried to 
establish the case against the accused by making 
improvements at various stages. The version of PW-3 that he 
saw A-1 and A-2 hugging, kissing and cuddling each other and 
that Francesco Montis was sitting on the other side of the table 
appearing depressed was not stated to the investigating officer 
PW-13 when he recorded PW-3's statement under Section 161 
Cr.P.C. Likewise, version of PW-2-Ajit Kumar that on the night 
of 3.2.2010, the second accused asked him 'not to disturb till 
tomorrow morning' was also not mentioned in his statement 
recsrded by the investigating officer under Section 16 1 Cr.P .C. 
34. Where the case is based on circumstantial evidence, 
proof of motive 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-1 O 
and Ka-11 post-mortem reports. The first post-mortem on the 
A 
B 
c 
D 
E 
F 
G 
H
742 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
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. 
B The first post-mortem report discloses the following injuries:-
c 
D 
E 
F 
G 
H 
"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,
TOMASO BRUNO & ANR. v. STATE OF U.P. 
743 
[R. BANUMATHI, J.] 
kidneys congested, bladder was empty. In the opinion of 
A 
the doctor, cause of death was asphyxia as result of 
strangulation. However, viscera preserved for chemical 
analysis to exclude poisoning." 
In the second post-mortem Ext. Ka-11, substantially there 
were no changes except signs of decomposition. Second post-
mortem reiterates that cause of death is "asphyxia as a result 
of strangulation". According to the medical opinion, a hard blunt 
substance appears to have been used to cause strangulation 
leading to the death on account of asphyxia. However, no such 
hard or blunt substance was found or seized from the room. 
Doctors have not found any physical signs of internal injuries 
viz. any extravasation of blood in the tissue or any laceration in 
the underlying muscles. Considering postmortem reports Exts 
Ka-10 and Ka-11 and the evidence of PWs 10 and 11, in our 
view, reasonable doubts arise as to the cause of death due to 
asphyxia as a result of strangulation. 
36. Let us consider the injuries found on the body of 
deceased Francesco Montis vis-a-vis symptoms of 
strangulation. As per Modi's Medical Jurisprudence And 
Toxicology 24th Edition. 2011, page No.453 the symptoms of 
strangulation are stated as under:-
"(b) Appearances due to Asphyxia.-The face is puffy 
and cyanosed, and marked with pete6hiae. The eyes are 
prominent and open. In some cases, they may be closed. 
The conjunctivae are
congested and the pupils are dilated. 
Petechiae are seen in the eyelids and the conjunctivae. The 
lips are blue. Bloody foam escapes from the mouth and 
nostrils, and sometimes, pure blood issues from 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 
B 
c 
D 
E 
F 
G 
H
A 
B 
c 
D 
744 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
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 Dr. R.K. Singh was subjected to lengthy cross-
examination in the trial court which appears to have spread over 
a number of days. When PW-1 O was confronted with the injuries 
found on the body of Francesco, he has stated that there was 
E no injury found in the Superior Cornua of Thyroid bone and no 
frothy mucous was found in the larynx and trachea. By going 
through the evidence of PW-10, it is seen that it was elicited 
from PW-10 that the prominent symptoms of strangulation were 
conspicuously absent. It is apposite to refer to two questions 
F a.id answers elicited
from PW-10 which are extracted 
hereunder:-
QUESTION: Is it correct that in the present case that none 
of the external appearances in cases" of death by 
strangulation viz. the petechiae in the eye, the puffiness and 
G 
swollen face and protruding out of tongue and petechiae 
in tongue and bloody foam from the mouth and bulging out 
of eyes, swelling in tongue, bruising and the base of the 
neck, nails and finger marks on the neck and hands are 
clenched were present in this case? 
H
TOMASO BRUNO & ANR. v. STATE OF U.P. 
745 
[R. BANUMATHI, J.] 
ANSWER: As I said earlier all these signs depend on 
A 
mode of death and it varies from person to person and 
time of the post mortem, time of death and how death was 
caused. I agree that all the above signs mentioned in this 
question were not present in present case. It may be 
present in death by asphyxia due to strangulation. But it is 
B 
not necessary that all these signs must be present in every 
case of asphyxia! death by strangulation. 
QUESTION: Is it correct that all the internal appearances 
in death by strangulation were not present in this case viz. 
C 
(i) subcutaneous tissues and-----muscles are 
lacerated, (ii) extravasation of blood into subcutaneous 
tissues, (iii) fracture of cornia of hyoid bone, (iv) non fracture 
of superior cornia of hyoid bone, (v) non fracture or rupture 
in cartilage rings (vi) non rupture or fracture of trachea (vii) 
edema in the brain, (viii) petechial haemorrhage, (ix) 
petechiae in the lungs, (x) laceration in sheath cit carotid 
arteries (xi) compression in the arteries and bones (xii) 
larynx and trachea containing frothy mucous were absent 
in present case? 
D 
E 
ANSWER As per ecchymosis around injury 3-4, it was 
present at the time of Post-Mortem, hence I have written 
injury No. 3 and 4 as ante mortem injuries. Rest of findings 
depend on mode of death and timing of Post Mortem 
since death and manner of causing injuries. The aforesaid 
F 
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 
G 
questions would be pr~sent 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 
H
746 
SUPREME COURT REPORTS 
[2015] 1 S.C.R. 
A 
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 
8 
Uttarancha/ (2012) 7 SCALE 165, ~adhakrishna 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 
arid it·cannot be ruled out. BUfit is not that every minor variation 
C or inconsistency would tilt the balance of justice in favour of the 
accused. Where contradictions and variations are of a serious 
nature, which apparently or impliedly are destructive of the 
substantive case sought to be proved by the prosecution, they 
may provide an advantage to the accused. 
D 
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 
E 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 
F 
about the cause of death stated in the post-mortem reports. 
41 . Even if we were• to accept that the death was due to 
strangulation which was caused by an object, the non-recovery 
of alleged object weakens the prosecution case. Furthermore, 
it has to be pointed out that it has come in evidence that the 
G deceased was a strongly built man and in the circumstances, 
it is rather strange that no external marks were found on the 
body which could demonstrate that there had been a struggle. 
The absence of struggle and the corresponding external injuries 
is yet another vital aspect which had gone unnoticed by the 
H courts below.
TOMASO BRUNO & ANR. v. STATE OF U.P. 
747 
[R. BANUMAT~l, J.] 
42. By and large, this Court will not interfere with the 
concurrent findings recorded by the courts below. But where the 
evidence has not been properly appreciated, material aspects 
have been ignored and the findings are perverse under Article 
136 of the Constitution, this Court would certainly interfere with 
the findings of the courts below though concurrent. In a case 
based on circumstantial evidence, circumstances from which 
inference of guilt is sought to be drawn should be fully proved 
and such circumstances must be of conclusiv~ nature pointing 
to the guilt of accused. There shall be no gap in such chain of 
circumstances. 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 
A 
B 
c 
the absence of symptoms of strangulation in the medical 
0 
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. 
Nidhi Jain 
Appeal allowed. 
, 
E