ASHOKversusSTATE OF MAHARASHTRA

                   [2015] 6 S.C.R. 375


                         ASH OK                              A
                            v.
               STATE OF MAHARASHTRA
            (Criminal Appeal No.2224 Of 2011)
                                                             B
                    MARCH 11, 2015
 [PINAKI CHANDRA GHOSE AND N.V. RAMANA, JJ.]
Evidence Act, 1872 - s. 106 - Burden of proof under -
Admission of last seen together rule - On facts, murder of c
wife and two daughters - Husband last seen together with
the deceased - Conviction and sentence of husband for
offences uls. 302, 201, 498A /PC by the courts below holding
that the onus of proof was on-the husband to explain and
prove his case due to admission of last seen together which D
the husband had failed to explain - On appeal, held:
Prosecution did not bring any clinching evidence in support
of last seen together theory so as to shift the burden of proof
on the husband - Thus, the prosecution evidently failed to
prove the guilt of the husband beyond doubt - Order of E
conviction and sentence of the husband set aside - Penal
Code, 1860- ss. 302, 201, 498A
      Allowing the appeal, the Court
      HELD: 1.1 The initial burden of proof is on the F
prosecution to bring sufficient evidence pointing
towards guilt of accused. However, in case of last seen
together, the prosecution is exempted to prove exact
happening of the incident as the accused himself would
have special knowledge of the incident and thus, would G
have burden of proof as per Section 106 of the Evidence
Act. Therefore, last seen together itself is not a
conclusive proof but along with other circumstances
surrounding the incident, like relations between the
accused and the deceased, enmity between them, H
                          375
376        SUPREME COURT REPORTS               (2015] 6 S.C.R.


A     previous history of hostility, recov~ry of weapon from
      the accused etc., non-explanation of death of the
      deceased, may lead to a presumption of guilt. [Para 13]
      [384-D-F]

B           1.2 In the instant case, the prosecution failed to
    discharge its initial burden itself. Therefore, the question
    of burden of proof shifting to the accused to explain the
    happening of incidents did not arise. The delay of one
    month in filing FIR at the very face of it makes the entire
C case of the prosecution as concocted and an
    afterthought. There is no explanation as to why did the
    parents of the wife not make any complaint or FIR
    immediately after the recovery of her dead body. It is
    surprising that nowhere in the case of the prosecution
D the delay was explained. The accused had put a very
    consistent story at all stages of the case starting from
    the missing report to the Section 313 statement without
    any inconsistency. The statement made by the appellant·
    sounds a plausible story and prosecution did nothing
E to really counter this version. The Sessions Judge found
    that the story was unreliable as the accused had failed
  . to put on record the bill for the fuel which he went to fill
    in the bike. However, this reasoning is far from the reality
F as it is well known that not too many people would ask
    for receipts when refueling their vehicles in India and
    the accused may not have expected to do so. [Para 16,
    17] [386-C-H; 387-A]

         1.3 With respect to the shifting of burden of proof
G on the accused to explain the happening on the date of
  incident, the prosecution relied on the motive that
  accused-appellant was hoping to get Rs.2 lakhs from
  wife's aunt. But it is logically flawed since the death of
H wife would not make accused-appellant a rightful
          ASHOK v. STATE OF MAHARASHTRA                    377


  claimant of that amount. Moreover, this motive did not A
  explain the murder of the two daughters. Lack of justified
  motive would adversely affect the case of the
  prosecution as the instant case is solely based on
. circumstantial evidence.[Para 18] [387-B-D]
                                                              B
         1.4 There is no merit in the trial court's reasoning
  in finding the facts that accused asked his colleague
 to prepare dinner, filing missing report on the next
  morning and leaving the family at the Gas Agency as
  incriminating pieces of evidence. The accused could C
  have asked his friend and colleague to prepare dinner
  in normal course as he would have got late in returning
  from the village. Further, it was but natural for the
  accused to search and try to find out his family even
  before he would go to the police. It was not unnatural D
  to have registered a missing report the very next
  morning. Also, leaving wife and two daughters at Gas
  Agency was not so unusual and would depend from
  person to person. With respect to previous incidents,
  all that is proved is demand of dowry by the in-laws E
  and the accused-appellant. The allegation that husband
 would not sleep with the deceased wife when his
 parents would visit, is the only allegation against the
 accused-appellant. [Para 19] [387-E-H]
                                                              F
         1.5 The prosecution has not brought any
 clinching evidence in support of last seen together
 theory so as to shift the burden of proof on the.
 accused-appellant. Thus, the prosecution evidently
 failed to prove the guilt of the accused-appellant G
 beyond doubt. The judgment and order passed by the
 High Court as also by the trial court are set aside. [Para
 20] [388-A-B]
                                                             H
378        SUPREME COURT REPORTS                (2015] 6 S.C.R.


A Trimukh Marotiu Kirkan v. State of Maharashtra (2006)10
  SCC 106; Ram Guiab Chaudhary v. State of Bihar 2001 (3)
  Suppl. SCR 279: (2001) 8 SCC 311; Nika Ram v.State of
  H.P. 1973 (1) SCR 428: (1972) 2 SCC 80; Kanhaiya Lal v.
  State of Rajasthan 2014 (3) SCR 744: (2014) 4 SCC 715;
B Harivadan Babubhai Patel v. State of Gujarat 2013 (10 )
  SCR 889 : (2013) 7 SCC 45 - referred to.
                       Case Law Reference
      (2006)10 sec 106        referred to           Para 9
c     2001 (3) Suppl. SCR 279 referred to           Para 10
      1973 (1) SCR 428        referred to           Para 11
      2014 (3) SCR 744        referred to           Para 12
      2013 (10) SCR 889       referred to           Para 14

D           CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No. 2224 of 2011.

         From the Judgment and Order dated 13.12.2010 of
  the High Court of Judicature at Bombay, Nagpur Bench,
E Nagpur in Criminal Appeal No. 296 of 2010.

            Gaurav Agrawal for the Appellant.

            Shankar Chillarge AGA (State of Maharashtra),
      Aniruddha P. Mayee for the Respondent.
F
            The Judgment of the Court was delivered by

         PINAKI CHANDRA GHOSE, J. 1. This criminal
  appeal arises from final order and judgment dated 13
G December 2010 of the High Court of Bombay, Nagpur Bench
  in Criminal Appeal No. 296 of 2010 whereby the High Court
  has upheld the conviction and sentence of the accused-
  appellant. The accused-appellant was convicted by the
  Sessions Judge, Gadchiroli for offences under Sections 302,
H 201 and 498A of Indian Penal Code, 1960, for the murder of
           ASHOK v. STATE OF MAHARASHTRA                                379
             [PINAKI CHANDRA GHOSE, J.]

his wife Shubhangi and two daughters being Namrata and A
Janhavi. He was sentenced, inter a/ia, for life imprisonment
and a fine of Rs.1 lakh, and in· default of payment of fine,
rigorous imprisonment of five years, for offence under Section
302 of the Indian Penal Code. Sentences for offence under
Sections 201 and 498A of Indian Penal Code were to run B
concurrently.

         2. The facts of the case are thatAshok, the appellant
herein was the husband of Shubhangi, (deceased herein)
and they had two daughters, Janhavi (5% years old) and                   C
Namrata (3% years old), both deceased. The accused-
appellant and Shubhangi were married on 4th May, 2001
according to customs. The two were related to each other
 prior to marriage as first cousins from the side of the
Shubhangi's mother. At the time of their engagement, the                 D
accused-appellant was pursuing D.Ed. Education and for
 completing the said course, Rs.50,000/- was given along
with a 5 gm gold ring and one 15 gm gold chain. In addition,
 Rs.1 lakh was spent on the marriage arrangement.
Thereafter, in 2004 Ashok finished D.Ed. and got a job of                E
'shikshan sevak' atArer Navargaon. Till now Shubhangi was
staying at her matrimonial home but after the accused-
appellant got a job, they both started staying at a rented
house in Arer Navargaon. Admittedly, they had cordial                    F
relations for 6 years of marriage but they got strained after 6
years. It is alleged that once they shifted to Arer Navargaon
the parents of the accused-appellant used to visit them on
festivals. On their visits, it is alleged, the father of the accused-
appellant and the accused-appellant used to talk secretly                G
and the accused-appellant would not sleep with Shubhangi.
It is further alleged that the father of the accused-appellant
used to taunt that his son could have got a better earning
lady as his wife and also that Shubhangi had a squint in her
one eye.                                                                 H
380      SUPREME COURT REPORTS                 (2015] 6 S.C.R.


A        3. On the fateful day, i.e. 26 August 2008, as accused-
  appellant puts the story is that he took half day's leave from
  his school to visit to Wadsa, a nearby village, with his wife
  and 2 daughters to buy clothes and other things. On his way
  back, the fuel in his bike exhausted and, therefore, he
B dropped his wife and two daughters at the H.P. Gas station
  where there was a hotel also. He went to get the fuel and
  returned in 15-20 minutes. When he reached back, he found
  Shubhangi, Namrata and Janhavi missing from the place
  where he had dropped them. He has stated that after looking
C around he thought they might have left for village so he
  headed towards the village but he could not find them. He
  lodged a missing report next day at 9.30 am and also
  informed the family of Shubhangi that she, along with both
  the daughters, was missing. The father and mother of
0
  Shubhangi visited the accused-appellant at the place of
  Haribhau, accused's friend, where the accused was at that
  time. But, allegedly the accused did not talk to the parents
  of Shubhangi properly and left in search of his wife and 2
E daughters.

          4. They could not find the missing persons for three
  days until 29"' August, 2008 when a dead body was recovered
  from Sioni Ghat from the river Vainganga. The body was
F identified to be of Namrata and it was in a decomposed state,
  so the post mortem was conducted on the spot itself. It was
  revealed that the death was caused by throttling. Further it
  was found that death must have occurred within 4 hours of
  eating last meal: The last rituals were conducted at the site
G where the body was found. On the next day the body of
  Shubhangi was found in the same state as that of Namrata
  and the post mortem revealed same medical evidence.

        5. The evidence of one Pradip (PW-6) was also taken.
H He is a colleague of the accused-appellant in school. He
  deposed that on 26'h August 2008, the accused-appellant
          ASHOK v. STATE OF MAHARASHTRA                             381
            [PINAKI CHANDRA GHOSE, J.]

took half day leave from the school and while leaving asked A
him to prepare dinner as he would get late while returning
from Wadsa. PW-6 further deposed that once the dinner
was prepared, he called accused-appellant but he did not
respond. When accused-appellant returned at around 7.45
pm, the accused-appellant informed him of his missing family. B

        6. The Trial Court after appreciating the evidence of
 PW-1 (father of Shubhangi), PW-4 (mother of Shubhangi),
 PW-5 (sister of PW-4), PW-6 (Pradip, colleague of the
 accused) and PW-7 (Investigating Officer), found the                C
 appellant guilty. PWs 2 and 3 were formal witnesses. The
Trial Court noted that the case is based on circumstantial
 evidence as there was no eye witness. The motive attributed
to the accused in this case was.that PW-5, aunt of Shubhangi
 had around Rs. 2 lakhs in her bank account which she                D
 received as proceeds from the sale of her agricultural land.
 Since PW-5 was issueless, she had nominated Shubhangi
 as her heir. Allegedly, the accused-appellant had made
 demands of this amount through Shubhangi earlier and
 Shubhangi had refused to ask her aunt (PW-5) for the money.         E
 The case of the prosecution is that the accused-appellant
murdered Shubhangi for that money which PW-5 had in her
account. The Trial Court's reasoning in handing down the
conviction was that admittedly, the accused-appellant was            F
last seen together with the three deceased and according to
the learned Sessions Judge the motive was strong. In these
circumstances, the burden of proof to explain the suspicious
circumstances surrounding the death of the deceased
persons was on the accused. It was found that there was              G
unusual delay in lodging a missing report to the police as it
was lodged after whole night had passed. Also, the accused-
appellant failed to prove his case that he had gone to Wadsa
to buy clothes, oil etc. as he did not furnish any bills to prove
the story. The accused also failed to furnish the receipt for        H
382      SUPRHv•l. :'.,QURT REPORTS             [2015] 6 S.C.R.


A petrol which he allegedly went to fill dropping his family on
  the way. Also, the Trial Court found that it was improbable
  that somebody would drop his wife and two daughters on
  the road while going to the petrol pump to fill the fuel when
  the distance was walkable. In these circumstances, the
B learned Sessions Judge held that onus of proof was on the
  accused to explain and prove his case due to admission of
  last seen together.

         7. The High Court concurred with the reasoning of
C the Trial Court and found that Section 106 of the Evidence
  Act, 1872 stood attracted and that the accused-appellant
  had not explained the circumstances. Therefore, the High
  Court upheld the convictio!"1 and sentence of the appellant.

o        8. We have heard the learned counsel for both the
  sides. The main point of consideration that arises in this case
  is whether the burden of proof shifts on the accused to explain
  the death of the deceased persons due to 'last seen together'
  rule? However, before venturing to answer that question, it
E may be relevant to keep in mind following few points:

      (i) There is an unexplained delay of almost one month
      in filing the FIR. The dead bodies of Namrata and
      Shubhangi were found on 291h and 301h August, 2008
F     respectively while the FIR was filed on 271h September,
      2008.

      (ii) The prosecution has not put forth any story or any
      version of its own as to how was the murder of three
G     persons committed by the accused.

      (iii) There is no question asked even in Section 313
      statement of the accused as to whether he killed the
      deceased persons.

H         9. The "last seen together" theory has been elucidated
          ASHOK v. STATE OF MAHARASHTRA                         383
            [PINAKI CHANDRA GHOSE, J.]

 by this Court in Trimukh Marotiu Kirkan v. State of A
 Maharashtra, (2006)10 SCC 106, in the following words:

    "Where an accused is alleged to have committed the
  · murder of his wife and the prosecution succeeds in
    leading evidence to show that shortly before the             B
    commission of crime they were seen together or the
    offence takes place in the dwelling home where the
    husband also normally resided, it has been consistently
  · held that if the accused does not offer any explanation
    how the wife received injuries or offers an explanation      C
    which is found to be false, it is a strong circumstance
    which indicates that he is responsible for commission
    of the crime. Thus, the doctrine of last seen together
    shifts the burden of proof on the accused, requiring
    him to explain how the incident had occurred. Failure        D
    on the part of the accused to furnish any explanation
    in this regard, would give rise to a very strong
    presumption against him."

         10. In Ram Guiab Chaudhary v. State of Bihar,           E
 (2001) 8 sec 311, the accused after brutally assaulting a
boy carried him away and thereafter the boy was not seen
alive nor his body was found. The accused, however, offered
 no explanation as to what they did after they took away .the
boy. It was held that for absence of any explanation from the    F
side of the accused about the boy, there was every
justification for drawing an inference that they had murdered
the boy.

          11. In Nika Ram v. State of H.P., (1972) 2 SCC 80, it G
. was observed that the fact that the accused alone was with
  his wife in the house when she was murdered with a "Khukhri"
  and the fact that the relations of the accused with her were
  strained would, in the absence of any cogent explanation by
  him, point to his guilt.                                      H
384         SUPREME COURT REPORTS               [2015] 6 S.C.R.


A         12. The latest judgment on the point is Kanhaiya Lal
  v. State ofRajasthan, (2014) 4 SCC 715. In this case this
  Court has held that the circumstance of last seen together
  does not by itself and necessarily lead to the inference that
  it was the accused who committed the crime. There must be
B something more establishing the connectivity between the
  accused and the crime. Mere non-explanation on the part of
  the accused by itself cannot lead to the proof of guilt against
  the accused.
c          13. From the study of above stated judgments and
  many others delivered by this Court over a period of years,
  the rule can be summarized as that the initial burden of proof
  is on the prosecution to bring sufficient evidence pointing
0 towards guilt of accused. However, in case of last seen
  together, the prosecution is exempted to prove exact
  happening of the incident as the accused himself would have
  special knowledge of the incident and thus, would have
  burden of proof as per Section 106 of Indian Evidence Act.
E Therefore, last seen together itself is not a conclusive proof
  but along with other circumstances surrounding the incident,
  like relations between the accused and the deceased, enmity
  between them, previous history of hostility, recovery of
  weapon from the accused etc., non-explanation of death of
F the deceased, may lead to a presumption of guilt.

         14. Here another judgment in Harivadan Babubhai
  Patel v. State of Gujarat, (2013) 7 SCC 45, would be
  relevant. In this case, this Court found that the time gap
G between the death of the deceased and the time when he
  was last seen with the accused may also be relevant. In the
  present case, the Sessions Judge found following
  incriminating evidence against the accused :

H     (i)   Taking half day casual leave on 26th August 2008.
          ASHOK v. STATE OF MAHARASHTRA                      385
            [PINAKI CHANDRA GHOSE, J.]

  (ii) Last seen when all the deceased were in the            A
  company of accused-appellant.

  (iii) Mysterious disappearance of the three deceased
  persons from the said company.
                                                              B
  (iv) Conduct of the accused appellant:

     a)    requiring the colleague to prepare the dinner;

     b)   reporting to police about the missing on the
          next day;                                           C

     c)   attitude of the accused appellant in presence
          of the relatives of the deceased;

     d)   leaving of 2 daughters and wife at H.P. Gas
                                                              D
          Agency.

  (v) falsity in defence

  (vi) disliking towards the deceased.
                                                              E
  (vii) Demand of amount which was kept in the name of
  Shubhangi by Shalinibai.

  (viii)Post-mortem Report.

       15. Now, it may be noted that following lackings in    F
the case of prosecution cannot be overlooked:

  (1) The FIR was lodged after a delay of one month
  and no explanation has been given for such delay.
                                                              G
  (2) There has been no previous incident of any
  physical cruelty committed by the accused against the
  any of the deceased.

  (3) The motive as alleged by the prosecution, even if
                                                              H
  accepted does not explain how will the accused get
386       SUPREME COURT REPORTS                  [2015) 6 S.C.R.


A      the money which is in the bank account of Shailinibai
       by killing Shubhangi. Shubhangi was merely a nominee
       in that account and did not own the money. Her death
       would not have made accused a rightful claimant of
       that money. In any case, this motive is completely
B      irrelevant for explaining the death of the daughters.

       (4) The prosecution has not given its own story at all
       with respect to what things transpired on 26'h August
       2008.
c
          16. Keeping the above points jn mind, we are of the
  opinion that in the present case the prosecution has failed
  to discharge its initial burden itself. Therefore, the question
  of burden of proof shifting to the accused to explain the
D happening of incidents does not arise. First and foremost,
  the delay of one month in filing FIR at the very face of it
  makes the entire case of the prosecution as concocted and
  an afterthought. There is no explanation as to why did the
  parents of Shubhangi not make any complaint or FIR
E immediately after the recovery of her dead body. It is
  surprising that nowhere in the case of the prosecution this
  delay has been explained.

          17. Secondly, the accused had put a very consistent
F story at all stages of the case starting from the missing report
  to the Section 313 statement without any inconsistency. He
  states that on 26'h August 2008 while returning from Wadsa,
  he exhausted fuel in the bike so dropped his wife and two
  daughters at HP Gas Agency w go back to get fuel from the
G petrol pump. When he returned in 15-20 minutes, there was
  no sign of Shubhangi and two daughters. This, to us, sounds
  a plausible story and prosecution has done nothing to really
  counter this version. The Sessions Judge found that this
  story was unreliable as the accused had failed to put on
H record the bill for the fuel which he went to fill in the bike.
          ASHOK v. STATE OF MAHARASHTRA                           387
            [PINAKI CHANDRA GHOSE, J.]

However, we find this reasoning far from the reality as it is      A
well known that not to many people would ask for receipts
when refueling their vehicles in India and the accused may
not have expected to do so.

        18. With respect to the shifting of burden of proof on     B
the accused to explain the happening of 26 August 2008,
the prosecution has relied on the motive that accused-
appellant was hoping to get Rs.2 lakhs from Shalinibai. But
as we have already noted above, it is logically flawed since
the death of Shubhangi would not make accused-appellant            C
a rightful claimant of that amount. Moreover, this motive. aoes
not explain the murder of the two daughters. Lack of justified
motive would adversely affect the case of the prosecution
as the present case is solely based on circumstantial
                                                                   D
evidence.

        19. Further, we find no merit •n 1he Trial Court's
 reasoning in finding the facts that accused asked his
colleague to prepare dinner, filing missing report on the next
 morning and leaving the family at HP Gas Agency as E
incriminating pieces of evidence. The accused could have
asked his friend and colleague to prepare dinner in normal
course as he would have got late in returning from Wadsa.
Further, it was but natural for the accused to search and try F
to find out his family even before he would go to the police.
We dci not find it was unnatural to have registered a missing
report the very next morning. Also, leaving wife and two
daughters at HP Gas Agency is not so unusual and would
depend from person to person. With respect to previous G
incidents, all that is proved is demand of dowry by the in-
laws and the accused-appellant. The allegation that husband
would not sleep with the deceased wife when his parents
would visit, is the only allegation against the accused-
appellant.                                                     H
388          SUPREME COURT REPORTS             [2015) 6 S.C.R.


A        20. From the above discussion, we conclude that the
  prosecution has not brought any clinching evidence in
  support of last seen together theory so as to shift the burden
  of proof on the accused-appellant. In light of this, the
  prosecution has evidently failed to prove the guilt of the
B accused-appellant beyond doubt. Therefore, the appeal is
  allowed and the judgment and order passed by the High
  Court as also by the Trial Court are set aside. The appellant
  is directed to be released forthwith if not required in
  connection with any other case.
c
      Nidhi Jain                                   Appeal allowed.




D