CASE NAME: SELVI v. STATE
CASE NO.: Criminal Appeal (MD) No. 428 of 2023
COURT: Madurai Bench of Madras High Court
DATE: 4-03-2026
QUORUM: Justice N. Anand Venkatesh and Justice P. Dhanbal
FACTS:
The appellant in this case is Selvi (the accused no. 1), she was the wife of the deceased Chellapandi. The couple lived in the Kurandi Village in Virudhunagar District. In this case, according to the prosecution, Selvi was in an illicit relationship with another man (stated to be accused no. 2). When Chellapandi came to know about this other relation of the wife, several disputes arose between the husband and the wife. The deceased Chellapandi, who was working in Tiruppur and on coming to know of the illicit affair between A1 and A2, he returned to the village and was working as a Coolie
On 29th September 2017 at about 2:00 a.m., Chellapandi was sleeping in his house. Meanwhile, Selvi allegedly attacked him by throwing a grinding stone (MO2) on his head which led to his death on the spot due to the harsh injuries caused to him. Later, Selvi informed the father of the deceased (PW1) about the incident and based on his statements, an FIR was lodged on 29th September 2017 at 11:00a.m. under the section of 302 of the Indian Penal Code (BNS Section 103). The police later investigated and visited the place of occurrence and prepared an observation mahazar and a rough sketch and recovered various materials including blood-stained bed sheets and cement pieces. Almost 13 hours later, the body of the deceased was sent for post-mortem examination.
The doctors conducted the autopsy and found multiple laceration injuries on the head and other parts of the victim. Here, the cause of death was said to be the injury caused on the head and the brain. The doctors also recorded several injuries such as two lacerated injuries above the right eyebrow, injury on the right knee, injury on the left elbow, injury on the lower back, and bleeding through the nose and the left ear.
After the investigation of the police, a charge sheet was filed against the accused 1 and accused 2. they were charged for the offence of murder under Section 302 of the IPC (BNS Section 103), including murder with the common intention under section 302 read with section 34 of the IPC [BNS section 103 read with section 3(5)], section 201 read with section 302 of IPC [BNS section 238 read with section 103], and section 202 read with section 302 of IPC [BNS Section 239 read with section 103]. The case was then committed to the Additional District and Sessions Court of Virudhunagar.
The trial court convicted Selvi under Section 302 of IPC and sentenced her to life imprisonment with a fine of Rs. 5000. Here, the accused no. 2 was acquitted from all the charges as no evidence was found against him. Later, Selvi filed the present criminal appeal before the High Court.
ISSUES:
- Whether the prosecution had proved beyond reasonable doubt that the appellant Selvi committed the murder of her husband.
- Whether the conviction of the appellant based mainly on Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023] was legally valid.
- Whether the prosecution successfully proved the ‘last seen together theory’ between the accused and the deceased.
- Whether the chain of circumstantial evidence was complete enough to establish guilt.
LEGAL PROVISIONS:
- Section 302 of IPC (BNS Section 103) – Punishment for murder
- Section 34 of IPC [BNS Section 3(5)] – Acts done by several persons in furtherance of common intention.
- Section 201 of IPC (BNS Section 238) – Causing disappearance of evidence of offence.
- Section 202 of IPC (BNS Section 239) – Intentional omission to give information of offence.
- Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023] – When any fact especially within the knowledge of a person, the burden of proving that fact lies upon that person.
- Section 161 of CrPC (BNSS Section 180) – Examination of witnesses by police.
- Section 313 of CrPC (BNSS Section 351) – Examination of the accused by the court.
ARGUMENTS:
APPELLANT:
The counsel for the appellant, Mr. M. Jothibasu, argued in the court that the decision of the trial court to convict Selvi is wrong just by relying on the Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023] entirely for the judgement. Here, according to the appellant, the prosecution also failed to prove the “last seen together theory’ in the court that Selvi and Chellapandi were together in the house at the time of the incident. Hence, it was argued by the counsel of the appellants that the prosecution fails to establish the foundational fact of the case, Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023] cannot be applied in the case.
It was also emphasized by the counsel that no witness has testified that Selvi and the deceased were seen together on the previous day or at the time of the incident. Therefore, the last seen together theory was not proved by the prosecution. The appellant here relied on various prior judgments of the Supreme Court and High Courts to argue that Section 106 of the Evidence Act [Section 109 of BSA, 2023] cannot relieve the prosecution of its primary burden to prove the burden of the accused.
The judgment delivered in Anjalai v. State by the Inspector of Police, Vadalur Police Station, Cuddalore District, reported in 2023 (3) MWN (Crl.) 582 (DB) which also involved a husband and wife, where the deceased was the husband and the wife was the accused. The prosecution in this case too relied on the section 106 of the Evidence Act [Section 109 of BSA, 2023], where the division bench held that – where the last seen together theory has not been proved, section 106 of the Evidence Act [Section 109 of BSA, 2023] will have no application and adverse inference cannot be drawn against the accused person.
Hence, it was contended that the conviction was unsustainable in law and should be set aside by the High Court.
RESPONDENT:
The prosecution in this case, Mr. A. Thiruvadikumar, examined the 22 witnesses and he argued that particularly PW4 & PW5, showed that the accused and the deceased were living together in the same house. And since the incident occurred inside the house, Selvi had the responsibility to explain the situation. Even Selvi’s behaviour after the incident was noted to be weird and suspicious. The incident took place at 2:00 a.m. and at around 6:00 a.m., she met a neighbour but did not mention anything about the death of her husband. Later, when that neighbour came to her house at 7:00 a.m., still she didn’t disclose the incident in front of him, which made the prosecution to become suspicious about Selvi.
Further, the recovery of the grinding stone and the presence of the deceased’s blood group on certain materials were relied upon as additional circumstantial evidence. And therefore, it was held by the prosecution that the decision of the trial court should be upheld.
ANALYSIS:
The High Court examined the entire scene being presented in front of it and found that the prosecution case was entirely based on the circumstantial evidence present at the crime scene. Other than that, the prosecution does not have any theory to prove Selvi’s accusation. In this case, the prosecution tried to establish 3 main circumstances which are – Motive (the alleged relationship of Selvi with another man is reasonable enough to plan for the murder of the husband), the last seen theory (that Selvi and the deceased were together in the house), and the conduct of the accused after the incident and the recovery of the material objects as evidence in this case. And based on these circumstances, the court found several loopholes and weaknesses in the arguments made by the prosecution in the case.
The court also analysed that many witnesses turned hostile and did not support the prosecution and the extra judicial confession by Selvi was hence, not proved. The only witness that showed the disputed side of Selvi and Chellapandi was the mother of Selvi, who stated that, 2 days before the incident, Selvi visited her and told her about her illicit relationship with other man. But PW4 (the mother of accused) did not provide any evidence proving that Selvi was present in the house at the time of the incident.
Court also emphasised about the meeting with the neighbour as well, he also did not testify that he had seen Selvi with the deceased before the incident. Therefore, from all these witnesses, the Last Seen Together Theory was not established.
The court analysed that, Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023] cannot be used unless the prosecution first performs its primary duty of establishing the foundational facts of a case, such as the presence of the accused at the crime scene at the time of the incident the burden cannot be shifted to the accused.
JUDGMENT:
The High Court in this case held that the court had wrongly convicted Selvi by improperly applying the Section 106 of the Indian Evidence Act [Section 109 of BSA, 2023]. Here, since the prosecution failed to establish the ‘last seen together theory’ and the other crucial links in the chain of the circumstantial evidence, the conviction could not be sustained.
Therefore, the High Court allowed the appeal and set aside the decision given by the Trial Court and acquitted Selvi of all the charges made against her and the bail bond was cancelled and she was set at liberty.
CONCLUSION:
This case highlighted the fundamental principle of the criminal law that the burden of proving the guilt of the accused always lies on the prosecution and not on the accused. The court clarified that Section 106 of the Evidence Act cannot be used to shift the burden of proof from the prosecution to the accused unless the prosecution has already established the basic facts such as the ‘last seen together theory’ circumstance.
Since the prosecution in this case failed to prove the last seen together theory and the chain of the circumstantial evidence connecting the accused to the murder of the deceased Chellapandi, the High Court held that the conviction was unsafe and therefore acquitted the appellant.
“PRIME LEGAL is a National Award-winning law firm with over two decades of experience across diverse legal sectors. We are dedicated to setting the standard for legal excellence in civil, criminal, and family law.”
WRITTEN BY: MEENAKSHI DANGI
read the judgment copy here
