Can't Presume Husband & Wife Are Always Together, Last Seen Theory Must Be Proved: Madras HC Acquits Wife Convicted Of Husband's Murder

The bench of Justice Anand Venkatesh and Justice P Dhanabal noted that the woman was convicted purely on circumstantial evidence. The court noted that while convicting the wife, the trial court had noted that she had not discharged the burden to prove that she was not inside the house when the husband was killed.

The court ruled that merely because the parties were husband and wife, it could not be presumed that they would always be seen together. The court noted that the prosecution had not let in any evidence to show that the couple was last seen together and, in such circumstances, Section 106 of the Evidence Act would not apply to shift the burden to the accused.

“Just because the parties happened to be husband and wife, the Court cannot assume that they will always be seen together. Even in such a relationship, it is not a question of assumption and in law, it is a question of fact. Therefore, even in a case involving husband and wife, factually the prosecution has to prove by letting in evidence to the effect that they were last seen together,” the court observed.

As per the prosecution, the wife was having an illicit relationship with another man (second accused in the case) and on coming to know of it, the husband, who was working in Tiruppur returned back to the village and was working as a Coolie. It was also stated that the husband had scolded the wife and the man on seeing them together at his house.

Later, on September 29,2017, when the husband was sleeping, the wife threw a grinding stone on his head because of which he sustained grievous injuries and died. After trial, the wife was convicted under Section 302 and was sentenced to undergo life imprisonment and pay a fine of Rs 5000.

The wife, on appeal, argued that the trial court had convicted her only by relying on Section 106 of the Evidence Act on the ground that she was living with the deceased at the time of the incident and since she could not discharge the burden an adverse inference was taken. The wife argued that the prosecution had not produced any witness to prove that the couple was last seen together either on the same day or the previous day and thus the foundational facts were not established.

The State on the other hand submitted that since the wife was staying with the deceased in the same house and the incident had taken place inside the house, there was a burden of proof on her to explain what exactly happened inside the house.

The court noted that even on going through the witness testimonies, the prosecution could only establish a motive of a strained relationship between the couple. The court also noted that the alleged murder weapon was not recovered in the place of occurrence and was found 100 meters away and did not contain any bloodstains.

With respect to the last seen theory and the invocation of Section 106 of the Evidence Act, the court noted that the provision was not intended to relieve the prosecution from discharging its duty to prove foundational facts. The court noted that the prosecution had to first prove foundational facts and only then resort to Section 106 of the Evidence Act.

“It is now too well settled that Section 106 of the Act is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. 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 of the Act can be resorted to depending upon the facts and circumstances of each case,” the court said.

In the present case, the court noted that the prosecution had not proved the last seen theory, and thus Section 106 would not be applicable. The court opined that the trial court's finding, based solely on reliance of Section 106, was to be interfered with. The court thus allowed the appeal and acquitted the wife from all charged.

Counsel for Appellant: Mr. M. Jothibasu

Counsel for Respondent: Mr. A. Thiruvadikumar Additional Public Prosecutor

Case Title: Selvi v. State

Citation: 2026 LiveLaw (Mad) 110

Case No: Crl. A. (MD)No.428 of 2023