Case: Ashok Vs. State Of Maharashtra

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 Shubhangis 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 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 days 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 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, accuseds 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 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 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 Courts 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 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.

Reasoning:
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 weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt.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 weapon from the accused etc., non-explanation of death of the deceased, may lead to a presumption of guilt.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 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 Trialreasoning 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 the deceased wife when his parents would visit, is the only allegation against the accused-appellant.