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