LexASHOK versus STATE OF MAHARASHTRA
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[2015] 6 S.C.R. 375 ASH OK v. STATE OF MAHARASHTRA (Criminal Appeal No.2224 Of 2011) MARCH 11, 2015 A B [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 d
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