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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.  

1. 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

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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.  

2. The  facts  of  the  case  are  that  Ashok,  the  appellant  

herein was the husband of Shubhangi, (deceased herein) and  

they had two daughters, Janhavi (5½ years old) and Namrata  

(3½  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

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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.  

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  

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

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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.

4. 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

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Namrata  and  the  post  mortem  revealed  same  medical  

evidence.  

5. 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.  

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 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

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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

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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.  

7. 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.

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 may be relevant to keep in mind following few  

points:

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(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.

9. 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

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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.”

10. 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.

11. 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.  

12. The latest judgment on the point is  Kanhaiya Lal v.  

State of Rajasthan, (2014) 4 SCC 715.  In  this  case this

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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.

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 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

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weapon from the accused etc., non-explanation of death of  

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 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;

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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.

15. Now, it may be noted that following lackings in 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.

(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  

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

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that  money.  In  any  case,  this  motive  is  completely  

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 26th August  

2008.   

16. 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.

17. Secondly, the accused had put a very consistent story  

at all stages of the case starting from the missing report to

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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.

18. 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

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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.

19. 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

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the deceased wife when his parents would visit, is the only  

allegation against the accused-appellant.  

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  

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.

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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)