Supreme Court on CCTV Footage as the best evidence

This post analyses the Supreme Court’s recent judgement in of Tomaso Bruno & Anr. v. State of U.P. [Criminal Appeal №142/2015] which lead to the acquittal of the appellants on the basis of the prosecution failing to adduce CCTV footage. This follows up on the recent judgement of Anvar P.V vs P.K.Basheer & Ors which has been analysed here.

Facts

The case concerned an appeal by two Italian nationals who were convicted for the murder of another Italian national during their trip to Varanasi. All three, i.e. the two appellants and the deceased were sharing a hotel room at the time of death. The cause of the death was asphyxiation and most of the evidence was circumstantial. The defence of the appellants was that the death occurred during their absence as the deceased was not feeling well and could not join them in an excursion.

The prosecution version it appears is that the appellants did not go for any such trip and hence could not avail the plea of alibi. In counter to this the defence relied on the absence of several pieces of digital evidence such as CCTV footage and SIM card details to argue that the prosecution failed to prove any such case beyond reasonable doubt.

Issue(s)

Will the absence of production of CCTV footage lead to the acquittal of the appellants?

Decision and reasoning

The reasoning of the court commences from Paragraph 21 of the Judgement. The court first notes the nature of the case and the relevance of the CCTV footage. Towards this the court notes that the case of the prosecution is largely circumstantial. There are no eye witnesses and medical evidence is limited to citing the cause of death as asphyxiation.

Further the conviction of the appellants was based on the testimony of the Hotel Manager and the Investigating Officer of the police, who stated that they saw no ingress into the hotel room of the deceased. This was based on viewing the CCTV cameras installed in the common areas of the hotel. However, the CCTV footage by itself was not adduced as evidence by the prosecution. Hence, in any case the court reasons that the CCTV footage constituted the best evidence.

The effect of non-production of not adducing the best evidence, is viewed by the Court as material suppression which leads to an adverse inference under Section 114(g) of the Evidence Act. It is important to note that the reasoning of the Court is not limited to the absence of CCTV footage. It also involves the inconsistences in the testimonies of the prosecution witnesses and the medical examination.

On the basis of the above the Court in Paragraph 42 states that,

“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.”

Analysis

1. The application of this case appears to be limited and may be only extended to prosecutions in which there are no eye witnesses and the case solely relies on circumstantial evidence. Hence, it may be distinguished on facts if it is sought to be used as a general rule stating that the absence of CCTV footage leads to an acquittal by default. Any such broad and general reading, would be incorrect in my opinion [Read Para 22].
2. Another factor which may lead to a limited reading of the rule is the location and the number of CCTV’s which are placed. This will vary as per the premises and the number of people having ingress in the area. In a hotel lobby, or in the corridor where the room is located, such CCTV footage may constitute the best evidence given the limited number of people who may go through it, however in a public area such as a bus station, CCTV footage from a distance may not constitute the best evidence [Read Para 22].
3. The Court incorrectly cites that case of State of NCT Delhi v. Navjot Sandhu (Afzal Guru — parliament attack case), which has been expressly overruled by the Supreme Court itself in its judgement of Anvar P.V vs P.K.Basheer & Ors. It is unfortunate the court cites it as an illustration for, “production of scientific and electronic evidence in court as contemplated under Section 65B of the Evidence Act is of great help to the investigating agency” [Read para 26].
4. The Court also correctly notes the position in law that the burden of claiming the plea of alibi is on the accused. Here, it disregards the concern of the High Court which upheld the conviction of the appellants by stating that they failed to by themselves make an application under Section 233 of the CrPC to produce the CCTV footage. This provision is similar to a provision on discovery, where an accused is permitted to make an application to a court, which directs the prosecution to produce certain evidence in its possession. The Supreme Court though notes this, disregards it without providing any reasoning [Read para 29].
5. Again, the Court’s determination is not limited to the CCTV footage but extends to the inconsistencies in the witness statements as well as medical examination. CCTV footage thought termed as the, best evidence is not the sole determination in the case, leading to the acquittal of the accused.