Orissa HC sets aside husband’s conviction for wife’s murder for having no link in chain of circumstantial evidence & failure to prove last seen theory

Orissa High Court

Orissa High Court: In a criminal appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (‘CrPC’), seeking to assail the conviction held by the Trial Court for offence under Section 302 of the Penal Code (‘IPC’), the Division Bench of D. Dash and G. Satapathy*, JJ. allowed the appeal and set aside the impugned decision.


A First Information Report (FIR) was registered by the father of the deceased wife against the convict/ son-in-law, his family members and first wife. It was alleged that the convict killed his wife committing the offence of uxoricide. The deceased wife came to know of the convict’s child born from his previous marriage and wanted to ascertain the same with the convict. It was alleged that the convict assaulted the deceased wife often. The body of the deceased wife was found by the deceased wife’s father in the dining room of convict’s house.

The Trial Court sentenced the convict to undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default whereof, to undergo Rigorous Imprisonment for two years.

The convict, contended that the Trial Court had based the conviction entirely on conjecture and circumstantial evidence. The convict claimed the deceased was not his wife.

Analysis and Decision

The Court clarified that there was no dispute regarding the homicidal death of the deceased-wife, since the doctor’s testimony, who had conducted the post-mortem examination was unchallenged.

On scrutiny, the Court found that the testimonies of the witnesses did not uphold the ‘last seen theory’ as to none of them stated in their testimony to have seen the deceased-wife together with the convict immediately before the commitment of the crime. The testimony of the father of the deceased failed to infer that the convict was seen with the deceased shortly before her death. Additionally, the Court said that it transpired that the father reached at about 7 P.M. in the evening, whereas the prosecution’s case was that the father lodged the FIR at about 3.10 P.M. on 19-02-2015 on receipt of information from the Police. Similarly, on scrutiny of the other two witnesses, the Court concluded that the evidence did not throw any light with regards to ‘last seen theory’. Further the precise time of death of the deceased was not disclosed by the record. The Court also noted that the convict was running a Gymnasium, and some persons were present in the Gymnasium at the relevant time of occurrence.

The Court said that it is never the intention of the legislature to say that merely because two persons were residing together in a house along with others and one of them suffered homicidal death, it would not necessarily mean that the deceased was last seen in the company of others. The Court added that unless there is evidence to indicate that the deceased and the offender were last seen together just or shortly before the commission of crime, when the time gap between the two is very short, the “last seen theory” would not stand to the aid of the prosecution case. The Court said that the ‘last seen theory’ comes into play when the time gap between the point of time when the accused and deceased were seen together alive and the point of time when the death was discovered is so short, that becomes impossible for involvement of any person other than the accused to have committed the crime.

The Court, relying upon Shivaji Chintappa Patil v. State of Maharastra, 2021 (5) SCC 626, opined that the mere fact that the convict and deceased-wife resided together was not sufficient to establish the ‘last seen theory’ and the convict’s conviction could not be pressed on basis of the same.

The Court added that, if the deceased-wife was considered to be the convict’s wife, it would not give rise to any presumption that the convict might have killed her, since no evidence was tendered to indicate that the deceased-wife was last seen together with the convict shortly before her death.

It was reiterated by the Court that finding of blood stain of the deceased on the wearing apparels of the accused cannot be considered as conclusive proof of the guilt of the accused, no matter it may corroborate the other evidence.

The Court stated that finding of blood stain on the towel recovered from the convict cannot provide with conclusive proof as to the guilt of the convict. The Court further stated that it is unexpected that a person upon committing murder would keep in possession the blood-stained towel for two days from the day of committing the crime. The conflicting evidence of the witnesses with regards to place and seizure of the towel also rendered a doubt as to the possession of the same with the convict.

Regarding the delay in receipt of FIR by the Magistrate’s Court, the Court said that the FIR was registered at about 3.10 PM on 19-02-2015, but it was received after two days of its registration on 21-02-2015 and the distance between the police station and Court might be less than three kilometres. The Court said that in such situation, it was the duty of the prosecution to explain the delay of dispatch of FIR, but no such explanation was put forth.

The Court, while reiterating the principal laid down in Sharad Birdhichand Sarda v. State of Maharastra; (1984) 4 SCC 116, said that even though an offender can be convicted based on circumstantial evidence, such evidence must be definite and prove the guilt of the accused beyond all reasonable doubt. With the absence of circumstance of ‘last seen theory’, the Court held that the mere finding of a blood stained towel cannot be considered as conclusive evidence of guilt of the convict.

Thus, the Court allowed the appeal and set aside Trial Court’s decision and order. The Court directed to release the convict.

[Jeet Amaresh Satpathy v. State of Orissa, 2024 SCC OnLine Ori 1447, Decided on 21-05-2024]

*Judgment Authored by: Justice G. Satapathy

Advocates who appeared in this case :

For the Appellant: Senior Advocate D.P. Dhal

For the Respondents: ASC S.N. Das

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