Appeal against the conviction of section 302 IPC
2. The appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the IPC”), and he has been sentenced to undergo life imprisonment. According to the prosecution’s case, the appellant murdered his wife, Geeta. Her body was found in the house of the appellant at about 5:00 p.m. on the date of the incident. The case of the prosecution is that the appellant strangulated her.
Prosecution case is based on last seen together theory
3. The prosecution’s case is based on the theory of last seen together. Consequently, the prosecution contends that the appellant had not discharged the burden on him under Section 106 of the Indian Evidence Act, 1872 (for short, “the Evidence Act”). The prosecution examined two witnesses, Sonawati (PW-1) and Hirmaniabai (PW-2).
Consideration of submissions
Public Prosecutor did not confront the hostile witness with her statement under section 161 Cr.P.C
6. We have carefully perused the evidence of PW-1 and PW-2. PW-1 did not support the prosecution. She stated that in the evening, at around 5:00 p.m. on the date of the incident, her Jethani Harmania had gone to the house of the deceased to bring a stabilizer. She saw that the deceased was sleeping on a bed. She tried to wake her up, but there was no response. After that, a doctor was called who declared that the deceased had died. The witness stated that on that day, the appellant had gone to crush the stones, and he returned home at 7:00 p.m. PW-1 was declared hostile and was cross-examined by the Public Prosecutor. Unfortunately, the Public Prosecutor did not confront PW-1 with the relevant part of her statement under Section 161 of the Cr.PC. PW-2 has not deposed anything about the presence of the appellant in the house close to the time at which the dead body of the deceased was found. Even PW-2 was declared hostile.
Deceased (wife) died at 5 p.m and the husband came home by 7 p.m thus no need to invoke section 106 Evidence Act
7. For invoking Section 106 of the Evidence Act, the prosecution ought to have discharged the burden on it by adducing cogent evidence to prove the appellant’s presence at the relevant time in his house. In this case, going by the evidence of PW-1, the deceased had already died before 5:00 p.m., and the said witness stated that the appellant came back home at 7:00 p.m. There is no evidence to prove the theory of the last seen together. Therefore, the prosecution has not discharged the burden on it to prove that the appellant was last seen together with the deceased wife. Thus, Section 106 of the Evidence Act cannot be invoked to shift the burden on the appellant.
Prosecution has failed to prove the las seen together
9. Therefore, the prosecution has miserably failed to prove the only circumstance it relied upon, namely, that the appellant and the deceased were last seen together. Therefore, the prosecution has failed to bring home the charge of the offence of murder punishable under Section 302 of the IPC.
Accused acquitted
10. Hence, the impugned judgments and orders are set aside, and the appellant is acquitted of the offence alleged against him. The appellant shall be forthwith set at liberty unless his detention is required in any other case.
11. The Appeal is, accordingly, allowed.
Party
Manharan Rajwade Appellant(S) versus State of Chhattisgarh Respondent(S) – Criminal Appeal No(S). 818/2019 – 2024 INSC 560 – JULY 25, 2024 – 3 Judge bench
Manharan Rajwade vs. State of Chhattisgarh 371852017_2024-07-25
