ASHOK Vs. STATE OF MAHARASHTRA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 2224 of 2011, Judgment Date: Mar 11, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2224 OF 2011
ASHOK ...APPELLANT
:VERSUS:
STATE OF MAHARASHTRA ...RESPONDENT
J U D G M E N T
Pinaki Chandra Ghose, J.
This criminal appeal arises from final order and judgment dated 13 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, 201 and 498A of Indian
Penal Code, 1960, for the murder of his wife Shubhangi and two daughters
being Namrata and Janhavi. He was sentenced, inter alia, 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 concurrently.
The facts of the case are that Ashok, the appellant herein was the husband
of Shubhangi, (deceased herein) and they had two daughters, Janhavi (5
years old) and 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
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 'shikshan sevak'
at Arer 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 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
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.
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
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 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 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
daughters.
They could not find the missing persons for three days until 29th August,
2008 when a dead body was recovered from Sioni Ghat from the river
Vainganga. The body was 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 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.
The evidence of one Pradip (PW-6) was also taken. He is a colleague of the
accused-appellant in school. He deposed that on 26th August 2008, the
accused-appellant took half day leave from the school and while leaving
asked 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.
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 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
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. 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 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 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
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
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.
The High Court concurred with the reasoning of 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 conviction and sentence of the appellant.
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 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 29th and 30th
August, 2008 respectively while the FIR was filed on 27th 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 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.
The "last seen together" theory has been elucidated by this Court in
Trimukh Marotiu Kirkan v. State of 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 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 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 on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong presumption
against him."
In Ram Gulab Chaudhary v. State of Bihar, (2001) 8 SCC 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 side of the accused about the
boy, there was every justification for drawing an inference that they had
murdered the boy.
In Nika Ram v. State of H.P., (1972) 2 SCC 80, it 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.
The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan,
(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 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.
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 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.
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 the deceased, may lead to a presumption of guilt.
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 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 :
Taking half day casual leave on 26th August 2008.
Last seen when all the deceased were in the company of accused-appellant.
Mysterious disappearance of the three deceased persons from the said
company.
Conduct of the accused appellant:
requiring the colleague to prepare the dinner;
reporting to police about the missing on the next day;
attitude of the accused appellant in presence of the relatives of the
deceased;
leaving of 2 daughters and wife at H.P. Gas Agency.
falsity in defence
disliking towards the deceased.
Demand of amount which was kept in the name of Shubhangi by Shalinibai.
Post-mortem Report.
Now, it may be noted that following lackings in the case of prosecution
cannot be overlooked:
The FIR was lodged after a delay of one month and no explanation has been
given for such delay.
There has been no previous incident of any physical cruelty committed by
the accused against the any of the deceased.
The motive as alleged by the prosecution, even if accepted does not explain
how will the accused get 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
irrelevant for explaining the death of the daughters.
The prosecution has not given its own story at all with respect to what
things transpired on 26th August 2008.
Keeping the above points in 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 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 immediately after the recovery of her dead body. It is surprising
that nowhere in the case of the prosecution this delay has been explained.
Secondly, 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. He states that on 26th August 2008 while returning from
Wadsa, he exhausted fuel in the bike so dropped his wife and two daughters
at HP Gas Agency to go back to get fuel from the 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 record the bill
for the fuel which he went to fill in the bike. However, we find this
reasoning far from the reality as it is 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.
With respect to the shifting of burden of proof on 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 a rightful claimant of that
amount. Moreover, this motive does 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 evidence.
Further, we find 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 HP Gas Agency as
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 to find out his family even before he would go to the
police. We do 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 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.
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 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.
....................................J
(Pinaki Chandra Ghose)
....................................J
(N.V. Ramana)
New Delhi;
March 11, 2015.
ITEM NO.1B COURT NO.12 SECTION IIA
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 2224/2011
ASHOK Appellant(s)
VERSUS
STATE OF MAHARASHTRA Respondent(s)
Date : 11/03/2015 This appeal was called on for pronouncement of
judgment today.
For Appellant(s) Mr. Gaurav Agrawal, Adv.
For Respondent(s) Mr. Shankar Chillarge, Adv.
Mr. Aniruddha P. Mayee, Adv.
Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice N.V.
Ramana.
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
in terms of the signed reportable judgment.
(R.NATARAJAN) (SNEH LATA SHARMA)
Court Master Court Master
(Signed reportable judgment is placed on the file)
For the Latest Updates
Join Now