Pinaki Chandra Ghose, J.— This criminal appeal arises from the final order and judgment dated 13-12-2010 of the High Court of Bombay, Nagpur Bench in Ashok v. State of Maharashtra Criminal Appeal No. 296 of 2010, decided on 13-12-2010 (Bom) whereby the High Court has upheld the conviction and sentence of the appellant-accused. The appellant-accused was convicted by the Sessions Judge, Gadchiroli for offences under Sections 302, 201 and 498-A of the Penal Code, 1860, for the murder of his wife Shubhangi and two daughters being Namrata and Janhavi. He was sentenced, inter alia, to life imprisonment and a fine of Rs 1 lakh, and in default of payment of fine, rigorous imprisonment for five years, for offence under Section 302 of the Penal Code. The sentences for offence under Sections 201 and 498-A of the 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 appellant-accused and Shubhangi were married on 4-5-2001 according to customs. The two were related to each other prior to marriage as first cousins from the side of Shubhangi's mother. At the time of their engagement, the appellant-accused was pursuing DEd 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 DEd and got a job of “shikshan sevak” at Arer Navargaon. Till now Shubhangi was staying at her matrimonial home but after the appellant-accused 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 appellant-accused used to visit them on festivals. On their visits, it is alleged, the father of the appellant-accused and the appellant-accused used to talk secretly and the appellant-accused would not sleep with Shubhangi. It is further alleged that the father of the appellant-accused 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 26-8-2008, as the appellant-accused puts the story is that he took half-day 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 HP 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 a.m and also informed the family of Shubhangi that she, along with both the daughters, was missing. The father and mother of Shubhangi visited the appellant-accused at the place of Haribhau, the 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 29-8-2008 when a dead body was recovered from Sioni Ghat from 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.
4. The evidence of one Pradip (PW 6) was also taken. He is a colleague of the appellant-accused in school. He deposed that on 26-8-2008, the appellant-accused 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 appellant-accused but he did not respond. When the appellant-accused returned at around 7.45 p.m, the appellant-accused informed him of his missing family.
5. 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 eyewitness. 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 appellant-accused 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 appellant-accused 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 appellant-accused 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 appellant-accused 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.
6. 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 appellant-accused had not explained the circumstances. Therefore, the High Court upheld the conviction and sentence of the appellant.
7. 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:
7.1 There is an unexplained delay of almost one month in filing the FIR. The dead bodies of Namrata and Shubhangi were found on 29-8-2008 and 30-8-2008 respectively while the FIR was filed on 27-9-2008.
7.2 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.
7.3 There is no question asked even in the Section 313 CrPC statement of the accused as to whether he killed the deceased persons.
8. The “last seen together” theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , (2007) 1 SCC (Cri) 80, in the following words:
“22. 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 onto 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.**”
9. In Ram Gulam Chaudhary v. State of Bihar (2001) 8 SCC 311 , 2001 SCC (Cri) 1546, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body 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.
10. In Nika Ram v. State of H.P (1972) 2 SCC 80 , 1972 SCC (Cri) 635, 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.
11. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan (2014) 4 SCC 715 , (2014) 2 SCC (Cri) 413. 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.
12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the 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 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, 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.
13. Here another judgment in Harivadan Babubhai Patel v. State of Gujarat (2013) 7 SCC 45 , (2013) 3 SCC (Cri) 27, 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.
14. In the present case, the Sessions Judge found following incriminating evidence against the accused:
(i) Taking half-day casual leave on 26-8-2008.
(ii) Last seen when all the deceased were in the company of the appellant-accused.
(iii) Mysterious disappearance of the three deceased persons from the said company.
(iv) Conduct of the appellant-accused:
(a) requiring the colleague to prepare the dinner;
(b) reporting to police about the missing on the next day;
(c) attitude of the appellant-accused in presence of the relatives of the deceased;
(d) leaving of two daughters and wife at HP gas agency.
(v) Falsity in defence.
(vi) Disliking towards the deceased.
(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 the 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 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 Shalinibai 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.
(4) The prosecution has not given its own story at all with respect to what things transpired on 26-8-2008.
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 the Section 313 CrPC statement without any inconsistency. He states that on 26-8-2008 while returning from Wadsa, he exhausted fuel in the bike, so he dropped off 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 the 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 reality as it is well known that not too many people would ask for receipts when refuelling 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 26-8-2008, the prosecution has relied on the motive that the appellant-accused 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 the appellant-accused 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.
19. Further, we find no merit in the trial court's reasoning in finding the facts that the 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 the 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 appellant-accused. The allegation that husband would not sleep with the deceased wife when his parents would visit, is the only allegation against the appellant-accused.
20. From the above discussion, we conclude that the prosecution has not brought any clinching evidence in support of the last seen together theory so as to shift the burden of proof on the appellant-accused. In light of this, the prosecution has evidently failed to prove the guilt of the appellant-accused beyond doubt. Therefore, the appeal is allowed and the judgment and order Criminal Appeal No. 296 of 2010, decided on 13-12-2010 (Bom) 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.