Madras High Court: In a criminal appeal under Section 302, Penal Code, 1860 (IPC), wherein a wife was accused for murdering her husband, the Division Bench of N. Anand Venkatesh* and P. Dhanabal, JJ., held that merely because the parties happened to be husband and wife, the Court cannot assume that they will always be seen together. The Court noted that the prosecution had failed to prove the last seen theory and that the alleged recovery of the weapon was unreliable. Referring to the settled position of law on Section 106, Evidence Act, 1872 (Evidence Act), the Court set aside the conviction and acquitted the wife.
Background
The case arose from allegations that the wife had strained relations with the husband owing to an illicit relationship. Subsequently, on the night of 29 September 2017, while the husband was asleep, the wife was said to have thrown a grinding stone on his head, causing fatal injuries.
The trial court convicted her under Section 302 IPC and sentenced her to life imprisonment. In appeal, however, it was argued that the conviction rested solely on Section 106, Evidence Act, 1872, without any witness establishing that the couple was last seen together.
It was argued that the prosecution had failed to discharge its burden of proving foundational facts, while the State contended that since the wife and husband were living together in the same house, the burden lay on her to explain the incident.
Analysis and Decision
The Court emphasised that Section 106, Evidence Act is not intended to relieve the prosecution from discharging its duty to prove the guilt of the wife. It was noted that the prosecution must discharge its primary onus of proof and establish the basic facts against the accused person in accordance with law, and only thereafter Section 106, Evidence Act can be resorted to depending upon the facts and circumstances of each case.
The Court referred to Anjalai v. State of T.N.1, where the Division Bench held that if the last seen theory has not been proved, Section 106, Evidence Act will have no application, and adverse inference cannot be drawn against the accused person. Further, Manharan Rajwade v. State of Chhattisgarh, (2024) 16 SCC 32, the Supreme Court held that where there is no evidence to prove the theory of last seen together, Section 106 cannot be invoked to shift the burden on the accused person.
The Court emphasised that these judgments consistently declare that Section 106, Evidence Act will come into play only if the prosecution is able to prove the theory of last seen together. It was noted that in the present case there is no material available to establish the fact that the wife and the husband were last seen together before the incident, and therefore in such an event, an adverse inference cannot be drawn against the wife and Section 106, Evidence Act cannot be resorted to.
The Court highlighted that just because the parties happened to be husband and wife, the Court cannot assume that they will always be seen together, and even in such a relationship, it is not a question of assumption but in law, a question of fact. Therefore, even in a case involving husband and wife, factually the prosecution has to prove by letting in evidence that they were last seen together. The Court held that the trial court had convicted and sentenced the wife only by resorting to Section 106, Evidence Act, and such finding rendered by the trial court is liable to be interfered with.
The Court thus allowed the criminal appeal, set aside the judgment of the Additional District and Sessions Judge dated 24 March 2023, acquitted the wife from all charges, and ordered that she be set at liberty. Accordingly, the bail bond was directed to stand cancelled.
[Selvi v. State of T.N., Crl. A. (MD) No. 428 of 2023, decided on 4-3-2026]
*Judgment authored by: Justice N. Anand Venkatesh
Advocates who appeared in this case:
For the Appellant: M. Jothibasu
For the Respondent: A. Thiruvadikumar, Additional Public Prosecutor
Buy Penal Code, 1860 HERE
1. 2023 (3) MWN (Crl.) 582 (DB)