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Thursday, March 12, 2015

whether the burden of proof shifts on the accused to explain the death of the deceased persons due to 'last seen together' rule? 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 his wife. His wife 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. -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. = 2015 S.C. msklawreports


 
Sections 302, 201 and  498A  of  Indian Penal Code, 1960 -murder of his wife  and  two  daughters - cordial  relations  for 6 years of marriage -  father of the accused-appellant used to taunt that his  son
could have got a better earning lady as his wife  and  also  that  his daughter in law had a squint in her one eye -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 his and children  missing  from  the place where he had dropped them -Accused lodged a missing report next day at  9.30  am and also informed the family of his wife  that  she,  along  with  both  the daughters, was missing -  after three days   a  dead  body of daughter  was  recovered  from  Sioni  Ghat  from  the  river Vainganga -post mortem was conducted  - the death was caused by throttling with four hours of her last meal -  On  the  next day the body of  his wife  was found in the same state  as  that  of  Namrata and the post mortem revealed same medical evidence - The Trial Court's reasoning in  handing  down the conviction was that admittedly,  the  accused-appellant  was  last  seen together with the three deceased - the burden of proof  to explain the suspicious circumstances  surrounding the death of the  deceased persons was on the accused.  unusual  delay  in lodging a missing report to the police as it was lodged  after  whole  night had passed.  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. 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. - 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. - 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  person ;Conduct of the accused appellant:s  from  the  said company.; 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 his wife 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 his wife. His wife 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. -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.  = 2015 S.C. msklawreports

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