Last seen theory means wherein time two persons were ‘seen together’ and later it is found that one of them is dead and the other is alive. So, the time gap between the person seen together and the person found dead is crucial.
The Doctrine of Last Seen Evidence
INTRODUCTION
Evidence can be defined as a set of rules determining the disputed question of fact in judicial inquiries. The literal meaning of term evidence means proof, be it oral, documentary, circumstantial, direct, or any relevant material acceptable in the court of law.
Dealing with the evidence arising from circumstances, which are not direct but equally relevant are given as much important as direct evidence.
In most of the criminal cases, direct evidence is often hard to be found, thus the whole case becomes dependent on circumstantial evidence. Circumstantial evidence implies when all the evidences are clubbed together to form a complete chain of events in such a way that the accused is established to be guilty. The chain of events must be without any reasonable doubt, and each segment of evidence in the chain must be individually proven and must be relevant as direct evidence.
The chain of events must conform to an important concept of the law of evidence i.e. “Res-Gestae”: which means that in a chain of events, evidence produced of such events should form part of the same transaction. This concept has been given force under Section 6 of the Indian Evidence Act, 1872. The principle of the doctrine of ‘res gestae’ is that whenever a contract, crime or any transaction is a fact in issue, then the evidence can be given of every fact which forms a part of the same transaction, and the facts surrounding the happening of such events are called ‘res gestae’. The court lays emphasis at “De recent” i.e. where the time span between the point of time when the deceased and the accused were last seen alive and when the former is found dead, is so short then the chances of any person except the accused being the initiator of the crime becomes impossible. Now if the accused wants to prove in the court that at the time of commencement of the offence, he was not present with the deceased person, he needs to produce plea of alibi in the court of law. Then the onus of proof shifts to the accused as he has the knowledge according to section 106 of the Indian Evidence Act, 1872.
THEORY
Last seen theory means wherein time two persons were ‘seen together’ and later it is found that one of them is dead and the other is alive. So, the time gap between the person seen together and the person found dead is crucial. This principle is one of the late origins which is taken into consideration for establishing the guilt of the accused. The time in between is very crucial here, between the two persons ‘last seen together’. If the time span between the two is short, then the presumption against the surviving person being the accused of causing the death of the other stands strong. The timespan must be such that it rules out the risk of somebody else committing the offence. The base of the theory of ‘last seen together’ is principles of probability cause and connection. It is an emulation of circumstantial evidence. Thus in the absence of any eyewitness or tangible evidence, this theory is a last resort for the prosecution. The court may also look for other circumstantial or corroborative evidence. Therefore last seen theory can only be taken as conclusive evidence only if the time gap between the accused and the deceased seen together is very small.
The basic rule of the criminal jurisprudence in India is that the onus of proof is always on prosecution. It is a rule of law that the accused shall be presumed to be innocent until he is proven guilty beyond the reasonable doubt and the accused has got the right to take benefit of some reasonable doubt. The doctrine of ‘last seen together’ shifts the burden of proof from the prosecution to the accused.
CASE LAWS DEFINING THE CONCEPT OF LAST SEEN TOGETHER
Anjan Kumar Sharma vs. State of Assam[1]
In this case, the victim was last seen with the accused persons in a bungalow before she went missing and later found dead on the railway track near that bungalow. The accused were acquitted by the trial court. An appeal was made in Guwahati High Court, where the court established the ‘last seen theory’ as the victim was last seen alive together with accused so, the burden to proof was on the accused persons to explain and exculpate themselves. In the absence of any satisfactory explanation by the accused the High Court reversed the acquittal and convicted them under sections 302, 201 read with 34 of the Indian Penal Code and sentenced life imprisonment. The prosecution relied upon blood samples, post mortem report, and ‘last seen theory’ to form a chain of evidence.
A later appeal was made in Supreme Court of India were in the court reversed the judgment of Guwahati High Court and acquitted the accused due to lack of corroborative evidence and held that there existed no conclusive proof of corroboration of the statement of investigation, and bloodstain found on murder weapon could not be established. Also stating that ‘last seen together’ cannot be the only ground to hold accused guilty, connectivity must be established. The circumstances of ‘last seen together’ does not by itself conclusively lead to an inference that it was accused who committed the crime. Also, the court held that in the absence of conclusive and consistent proof of circumstantial chain of evidence which leads to only ‘hypothesis of guilt’ against the accused then, only circumstances of ‘last seen together’ cannot be made the basis of conviction.
Reena Hazarika vs. State of Assam[2]
In this case, the accused was the wife of the deceased man, living with their minor daughter in a rented premise. The wife was alleged to have attacked the deceased at night. The landlords said they heard a noise and found a deceased man with head injury attributable to a fall, but the deceased was otherwise fine. They were unable to take him to the hospital due to heavy rainfall and the unavailability of the ambulance which led to his death.
The Trial Court and the High Court held the case was based on circumstantial evidence. Establishing ‘last seen theory’ that the accused (wife) was present with the deceased (husband) that night. The court noticed her unnatural conduct as she was not crying for her deceased husband and that she was the assailant of the deceased. She was convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment.
Later in appeal to the Supreme Court, the court observed that her conviction was totally based upon circumstantial evidence and opined that facts and circumstances of the case, the essence of the evidence available coupled in the manner in which it was examined. The ties in the chain of circumstances cannot be said to have been formed leading to the inescapable conclusion that the accused was the assailant of the deceased, incompatible with any possibility of the innocence of the accused. Therefore the Supreme Court reversed the judgment and acquitted the accused on the benefit of doubt.
Manoharan vs. State by Inspector of Police[3]
In this case, Mohanakrishnan picked up two children a 10 years old girl and 7 years old boy, in a car to drop them off to their school, who were waiting outside a temple. Accused picked his friend Manoharan on the way and instead of going to school, they went to a remote area on a hill. There they both committed rape against the girl. Later they poised both girl and the boy by giving poisonous milk. Later their bodies were dumped in the water canal. Later the accused were arrested and one of the accused (Mohankrishnan) died in a police encounter but the other survived, who was the appellant in the case.
The Trial Court recorded the ‘last seen together’ rule as they were last seen with the children and the facts formed a chain of events, all falling in the same transaction. Hence strong circumstantial evidence was framed against them. The Trial Court found them guilty and convicted them under section 120B, 364A, 376, 302 read with section 34 and 201 of the Indian Penal Code and sentenced to life imprisonment.
Later in an appeal in High Court of Madras, it set aside the conviction of the appellant pursuant to section 120B and 364A of the Indian Penal Code. But upheld the sentences pursuant to section 376, 302 read with 34 and 201 of the Indian Penal Code. The High Court opined the ‘last seen theory’ was made out in facts of the case as witness’s statements were making a complete chain of circumstantial evidence without any reasonable doubt against the appellant. Following are:
- The priest saw the accused picking up children from near temple in the morning. (8 AM)
- The tailor saw the accused with both the children on the same day in the morning. (10 AM)
- The owner of a brick kiln saw accused with the children coming down of the hill on the same day. (10:45 AM)
- The owner of the bakery sold milk to the accused, who also saw two children with them on the same day. (1 PM)
Later in an appeal made in the Supreme Court by the appellant, the Court opined that there was no doubt that the Trial Court and High Court correctly applied and balanced aggravating circumstances with mitigating circumstances in order to find that the crime committed was heinous, involving the rape of a minor and brutal murder of the two children. SC said that the prosecution has proved the facts beyond the reasonable doubt, that the Mohanakrishnan picked up the children and later Manoharan (appellant) joined him and together they both were ‘last seen together’ with the victims. Therefore SC upheld the decision of the High Court maintaining conviction under section 302, 376, and 201 of the Indian Penal Code and dismissed the appeal.
CONCLUSION
It can be concluded that while applying the ‘last seen together’ theory, the court needs some circumstantial evidence or corroborative evidence for convicting the accused. In this rule, the burden of proof shifts to the person accused of crime therefore accused has to prove with such evidence that the benefit of doubt arises. But if the accused is not able to provide such evidence, then the accused gets convicted.
However, the ‘last seen together’ theory does not conclusively establish the inference about the fact that the accused has committed the crime. There has to be an established link between the accused and the crime. In a situation based on close proximity of place and time between the event of accused and the factum of death, a sensible mind may be persuaded to reach a conclusion that either the accused should explain that how and under what circumstances the victim suffered the death or own the liability for the death of the victim.
[1] (2017) SCC 622
[2] MANU/SC/1249/2018
[3] MANU/TN/3690/2009
