LAST SEEN TOGETHER THEORY
The theory of ‘last seen together’ is one where two persons are ‘seen together’ alive and after an interval of time, one of them is found alive and the other dead. If the period between the two is short, presumption as to the person alive being the author of death of the other can be drawn. Time gap should be such as to rule out possibility of somebody else committing the crime. Last seen together principle is one of the latest principles which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and tangible evidence, it is the last resort of the prosecution in a murder case – the person last seen with the victim is presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an alibi. The foundation of the theory is based on principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.
The circumstance of ‘last seen together’ does not by itself and necessarily leads to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime! There may be cases where on account of close proximity of place and time between the event of the accused having been ‘last seen’ with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
In ‘Bodhraj V. State of J&K’ – 2002 (9) TMI 858 – SUPREME COURT the Supreme Court held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
In ‘State of Rajasthan V. Kashi Ram’ – 2006 (11) TMI 660 – SUPREME COURT the Supreme Court held that the provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus if a person last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation to discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not thrown any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link, which completes the chain.
In ‘Krishnan V. State of Tamil Nadu’ – (2014) 5 SCC (Cri) 66 there is unexplained delay of six days in lodging the FIR. As per the prosecution story, the deceased Manikandan was last seen on 04.04.2004 at Vadakkumelur village during Panguni Uthiram Festival at Mariyamman temple. The body of the deceased was taken from the bore well by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.
In ‘State of Karnataka V. Chand Basha’ – 2015 (9) TMI 1450 – SUPREME COURT one Ganesh, a daily wage mason went missing on 16.1.2001. On 21.01.2001 one D. Ramu, dhobi, saw a dead body floating in a well near the dhobi ghat with hands tied at the back and the ankles were also tied. He informed the police and the police recorded the dead body and shifted it to mortuary. The police published the photo of the dead body in the newspaper. The father of the deceased identified the dead body as that of his own son Ganesh. The police caused investigation. On suspicion one Chand Bahsa was arrested on 23.01.2001. The investigation revealed that the accused and Ganesh had gone to a wet party at Sindhu Bar at Lingarajapuram. The bar boy, the owner of the bar testified that on 16.1.2001the accused along with one other visited the bar. Another witness a shopkeeper deposited that the accused along with one other person and bought cigarettes from his shop on 16.1.2001at 10 p.m., The accused was arrested on 23.01.2001 but the deceased was never seen as alive.
The police filed charge sheet against accused Chand Basha. The Trial court vide its judgment and order dated 14.02.2003 convicted the accused for the offence punishable under Section 302 IPC and sentenced him to rigorous imprisonment for life and a fine of ₹ 15,000/- and in default of payment of fine, further rigorous imprisonment for six months was awarded. The High Court, on appeal allowed the appeal of the respondent on the ground that the prosecution might have proved the motive but had miserably failed to prove the incriminating last seen circumstance and has also failed to provide the discovery evidence. The death may be homicidal, but there is no evidence to connect the accused with the crime.
The appellants challenged the impugned judgment of the High Court before the Supreme Court. The Supreme Court held that the prosecution relies upon the ‘last seen together’ theory which resulted into the death of Ganesh. The Supreme Court has time and again laid down the ingredients to be made out by the prosecution to prove the ‘last seen together’ theory. The Court, for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, the Supreme Court reiterated that it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. The prosecution has failed to prove the evidence which establishes the ‘last seen together’ theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused and that the accused went to the bar with one other person, but the identity of that other is not clearly established at all. The post mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001 after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established.
In ‘Nizam and another V. State of Rajasthan’ – 2015 (9) TMI 1449 – SUPREME COURT the deceased Manoj was the helper on a truck and had gone to Pune and thereafter to Barar along his first driver and second driver and from Barar they loaded the truck with pipes for destination to Ghaziabad on 23.01.2001. The accused Nizam and Shafique, the driver and cleaner also loaded in another truck with pipes from the same company on the same day at Barar and started for Ghaziabad. During this period, the drivers and cleaners of both trucks developed acquaintance with each other. While on the way to Ghaziabad, the driver Raj Kumar got into quarrel with some local persons and police detained him along with his truck. Raj Kumar instructed his second driver to hand over ₹ 20000 to Manoj with instructions to give the money to the truck owner. Manoj left for Gwalior with accused persons by truck.
On 26.01.2001 the dead body of Manoj was found under suspicious circumstances in a field near village Maniya. The case was registered under Sections 302 and 201 IPC on 26.01.2001. One bitly was recovered from the trouser of the deceased in which the name of the driver was mentioned as Nizam and Truck Number and some phone numbers. Based on this the accused and Shafique were arrested on 27.01.2001. The Additional Sessions Judge held that the appellant accused committed the murder to grab ₹ 20000 and the prosecution has established the circumstances proving the appellant accused guilty under Sections 302 and 201 IPC. The High Court also confirmed the conviction of the appellant accused.
Before the Supreme Court the appellant contended that-
the ‘last seen theory’ is not applicable to this case as there was serious contradictions as to that date of time which Manoj allegedly left with the appellants;\
the alleged amount of ₹ 20000 taken by deceased was not recovered from the possession of the appellants;
the circumstances relied upon by the prosecution are not firmly established and the circumstances do not form a complete chain establishing the guilt to the accused and the appellants are falsely roped in.
The State contended that the deceased having huge amount of money travelled in the company of the appellant. When the prosecution has established that the deceased was last seen alive in the company of the appellant, it was for the accused to explain as to what happened to the deceased and in the absence of any explanation from the accused and based on the circumstantial evidence, the Courts below right convicted the appellants and the impugned judgment warrants no interference.
The Supreme Court found that the case of prosecution is entirely based on the circumstantial evidence. In such a case the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. More over all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and total inconsistent with his innocence. The Supreme Court further observed that the deceased Manoj left in the truck on 23.01.2001. The body was recovered on 26.01.2001. The prosecution has contended that the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the evidence and then only onus can be shifted on the accused under Section 106 of the Evidence Act.
The Supreme Court further observed another evidence of Shahzad Khan who stated that the internal organ of the deceased was tied with rope and blood was oozing out from his nostrils. Mania Village, the place where the body of Manoj was recovered is alleged to be a notable place for prosecution where people from different areas come for enjoyment. The Supreme Court held that in view of the time gap between Manoj being left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that the appellants and the deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the ‘last seen theory’; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and circumstances the Supreme Court found no other corroborative piece of evidence corroborating the last seen theory. If more than inferences can be drawn, then the accused must have the benefit of doubt. The Supreme Court was satisfied that the conviction of the appellants cannot be sustained and the appeal ought to be allowed.
It may be stated that ‘last seen together’ principle has been applied by the Courts so cautiously that unless there is corroborating and circumstantial evidence, conviction has not been given. However, the principle helps the Courts to shift the burden of proof to the accused and the accused might establish an interface in the chain of circumstantial evidence. Otherwise, he will not get any benefit of doubt. The latest tendency of the Court thus, is to take the aid of Sections 106 of the Indian Evidence Act, in addition to the ‘last seen together’ principle to hold an accused person guilty whenever there is no evidence available.