“In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents.”- Justice Krishna Iyer, V.R.
One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he is proved to be guilty. Article 11(1) of the Universal Declaration of Human Rights, 1948 provides that everyone charged with a penal offence had the right to be presumed innocent until proved guilty according to law. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. India is a signatory to the Covenant. Right to fair trial and presumption of innocence, are the twin essentials of administration of criminal justice. Once if a person is held to be not guilty of a criminal charge, he enjoys the benefits of such presumption of innocence which could be interfered with by the Courts only for compelling reasons and not merely because another view was possible on appreciation of evidence.’
The burden of proof in a criminal case lies on the State. The policy has been that let thousand criminals be acquitted one innocent must not be punished. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
However, with the development of ‘Last seen together,’ principle, the investigation system and the Courts have been a little bit relieved of the burden of proof. When the principle could be invoked, the burden of proof would be shifted to the accused to explain any intervening facts after the last seen together with the victim of any criminal offence. In this paper an attempt is made to analyze the principle of ‘Last seen together,’ inter alia with the help of the latest case law.
According to Sir Alfred Wills the following rules are to be specially observed relating to circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the ‘factum probandum’[fact to be proved]; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts [facts that lead to indicate guilt] must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. The Courts in India have been following the above rules adopting the ‘last seen together’ principle.
In Arun Bhakta @ Thulu v. State of West Bengal, speaking through Dr. Arijit Pasayat, J the Court held that the offence could be proved by circumstantial evidence also. The principal fact or ‘factum probandum’ may be proved indirectly by means of certain inferences drawn from factum probans, i.e., the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the facts in issue that taken together. They form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.’
It was opined that the presence of the accused at the place of the offence or his being seen last with the deceased were also relevant. This is sometimes referred to as the test of “last seen together” as a piece of circumstantial evidence.
Last Seen Together
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 circumstance of ‘last seen together ‘does not by itself and necessarily lead 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.
‘Last Seen Together’ but Acquitted
The Supreme Court has acquitted the accused appellants in the following cases despite the fact that they were last seen together with the deceased/victims.
In Jaswant Gir v. Punjab the Apex Court observed that even assuming that the deceased had accompanied the accused in their vehicle, that circumstance by itself did not lead to the irresistible conclusion that the appellant and his companion had killed the deceased and thrown the dead body in the culvert. It could not be presumed that the appellant and his companions were responsible for the murder, though grave suspicion arose against the accused. There was considerable time-gap between the deceased boarding the vehicle of the appellant and the time when PW 11 found the dead body. In the absence of any other links in the chain of circumstantial evidence, it was held not possible to convict the appellant solely on the basis of the "last-seen" evidence.
In State of Goa v. Sanjay Thakran the deceased honeymoon couple arrived in Goa from Mumbai and stayed in a hotel. They went for sight-seeing at Ozran, Vagator with Vincent, the car driver. He had also taken them for the sight-seeing trip a day earlier as well. However, in the light of the factors that evidence regarding the recovery of the incriminating materials from the accused persons has been discarded; that there has been sufficient time gap between the instances when the accused persons were last seen together with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused have been rightly given the benefit of doubt by the courts below.It is interesting to note that the State even on appeal, could not prove the case as it merely based on the last seen together and the other evidence was not convincing.
In Sk. Yusuf v. West Bengal, the Supreme Court has reiterated its observation in State of U.P. v. Satish that the last seen theory comes into play where the time gap between the point of time when the accused and 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. It was held that where there is a long time-gap between “last seen together” and the crime, and there is the possibility of other persons intervening, it is hazardous to rely on the theory of “last seen together”. Even if time gap is less and there is no possibility of others intervening, it is safer to look for corroboration.
In Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh, the three appellants are serving life sentences for committing murder of deceased Dile Ram. They were never on bail and have, thus, completed over ten years of incarceration. The deceased was last seen being chased by the appellants yelling at him and shouting that they would not spare him. Sunil Rai allegedly made an extra judicial confession to the effect that he along with the other accuseds hit the deceased with brickbats and stones at about 9:00pm in the night between March 29 and 30, 2001, causing injuries to him that led to his death. The judgments and orders of the High Court and the trial Court were held completely unsustainable as the witnesses had turned hostile and medical examinations were not supporting the prosecution story. The extra judicial confession was not written and reliable. Time gap between the last seen together and the death was so large and there was no reliable additional evidence to establish the crime. Unfortunately, the accused had suffered 10 years in jail before the Apex Court held the acquitted.
Rape Murder of Girl Child-Rarest of Rare Cases
In State of Maharashtra v. Suresh, the accused respondent was already an accused in another rape case of an 8 yrs. old girl and had got acquitted. He went to the house of deceased Sneha @ Gangu 4 yrs. old. The deceased was then playing near the gate of her house. After the respondent left the house, no one in that house had seen Gangu alive. There was evidence that the respondent took Gangu to the shop of Mahadeo, and later to the shop of Motiram, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for sexually ravishing that little child and smothering her to death. The spot was pointed out by the respondent [after his arrest] wherefrom the dead body of Gangu was traced out. The accused could not give any explanation whatsoever for the injuries on his private parts. The Supreme Court reversed the Lower Courts judgment and convicted the respondent basing on last seen principle as there was other circumstantial and medical evidence.
Shivaji @ Dadya Shankar Alhat v. State of Maharashtra was a gruesome rape murder case of tiny young girl aged 9 yrs studying 5th class. As the accused, [a B.A., B.Ed., teacher,] offered fuel wood, the deceased had gone with him together to the Hills. She was last seen in the company of the deceased and injury on the abdomen and the rope by which the deceased was strangulated were recovered at the instance of the accused and the fact that the accused had absconded and was arrested from a place where he was hiding and the presence of blood on his cloth was a relevant factor. The plea of alibi set up has not been established. Supreme Court had confirmed the death penalty.
Md.Mannan @ Abdul Mannan v. State of Bihar, was another ghastly rape murder case of an 8 years old girl. The appellant was working as Mason in the House of Devi Kant Jha, grand- father of deceased (PW-8); He had sent the deceased Kalyani Kumari to the betel-shop to get betel. He had proceeded towards the betel-shop few minutes after the deceased left. He was last seen with the deceased going together on a bicycle. He made a confession leading to the recovery of dead body from a field. The dead body of Kalyani Kumari had injury on the private parts, her nails were munched and there were marks of bruises all over the body. The rape and murder by the appellant on the victim girl has been proved by medical evidence. The Apex Court conceded that it was the ‘rarest of the rare’ cases and confirmed the death penalty. Interestingly, the judgment of Chandramauli Kr. Prasad, J., quoted no judicial precedents at all.
Rajendra Pralhadrao Wasnik v. The State of Mahrashtra, was yet another brutal, gruesome rape murder case of a 3 year old girl. The accused had taken the victim Vandana from her home on the pretext of purchasing her biscuits. Neither Vandana nor the accused returned to the house. The accused was seen with the deceased at the bus stand. Thereafter, the nude body of Vandana was found in the field, the next day. The Apex Court held that on the basis of the `last seen together' theory and other direct and circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. The Court opined that the accused had committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable. The Court found no justifiable reason to interfere with the judgment of the High Court confirming the death penalty. Thus, the Courts have been requiring the accused to explain any intervening fact after the’ last seen together’ with the deceased whenever there was medical or other evidence corroborating with the last seen together.
In Joseph s/o Kooveli Poulo v. State of Kerala, the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company. On the information furnished by the appellant, the jewels of the deceased which were sold by the appellant, were seized. The Court had convicted the accused for the offence of murder basing on the last seen together principle but gave the benefit of doubt to the accused for the offence under S. 376 as there was no other incriminating evidence to prove the offence of rape.
In Mohibur Rahman and anr. v. State of Assam, the Apex Court considered three pieces of incriminating circumstantial evidence against the main accused Taijuddin viz., i) the deceased Rahul was last seen in the company of the accused Taijuddin ii) He gave a false explanation about the whereabouts of the deceased and iii) the accused was having knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural death on being subjected to deadly violence) being buried- coupled with the fact of failure on the part of the accused to offer any reasonable explanation of any of the said circumstances- to hold sufficient to fasten the liability of murder on the accused. The Court on the other hand held that merely because the other accused/appellant Mohibir was last seen with the deceased a few unascertainable number of days before the death of the deceased, he cannot be held liable for the offence of having caused the death of the deceased without any further evidence to establish the crime. Therefore, Taijuddin’s conviction was upheld and Mohibir was acquitted by the apex court.
In Anil Kumar v. State Rep. by Inspector of Police the Sessions Court relying primarily on the evidence of P W.2 (P W.1 having turned hostile) and P W.3 the Doctor and the recovery of the murder weapon, a knife, at the instance of the appellant, and the fact that the deceased and the appellant had been last seen together in the van, convicted the appellant. The conviction was affirmed by the High Court. But, the Apex Court held that the Lower Courts conviction could not be sustained as ‘the medical evidence far from supporting the prosecution story destroys its very substratum.’
In Ravindra Reddy v. Shaik Masthan and ors, A1, A2 and the deceased were last seen together going on a scooter by PW 9. Later the deceased was found dead. In pursuance of A1’s confession, knives were recovered from the house of A-3 apart from seizing the Bajaj scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold chain were recovered. There was also evidence that the accused had purchased the two knives used for the offence. The trial Court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Court as there was additional evidence besides the evidence of last seen together.
In Shanmughan v. State of Kerala the victim Raji was sleeping on the fateful day in the bed room with her husband- the appellant. There was evidence of mal-treatment of the deceased by the appellant. Nobody was present in the bed room where the appellant and the deceased were sleeping as husband and wife. The victim admittedly screamed at about 2 a.m. That attracted the inmates of the house to rush to the bed room to find the victim dead as a result of administering of poison. This was not in dispute. The victim died of cyanide poison which is a highly corrosive poison. The Court opined that without any force these injuries could not be there in a case of suicidal poison. The injuries were fresh injuries and cannot be sustained by fall on a hard substance. When the attention of the accused - appellant was specifically drawn by the trial court under S. 313 of Cr.PC to the injuries on the deceased, he did not give any answer. Therefore, taking all these facts and also the concurrent findings of the two courts, the Supreme Court was not inclined to interfere in the appeal. The appeal was accordingly dismissed.
In Shyamal Ghosh v. State of West Bengal, there were eye-witnesses who had seen the scuffling between the deceased and the accused on demand of money and the strangulation of the deceased by the accused persons and also the loading of the mutilated body parts of the deceased contained in gunny bags into Maruti Van. The body of the deceased was recovered in pieces in presence of the witnesses, have been fully established. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body was quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard and were therefore held liable.
In Jagroop Singh v. State of Punjab the accused Jagsir Singh took the deceased Jagjit Singh @ Jagga, 10 year old boy, to accompany him for plucking flowers from the field. The boy accompanied him and did not return home. He was last seen with the accused persons; the accused had made extra-judicial confessions; the dead body of the deceased was recovered from the field of the father of the accused; the weapon used in the crime was also recovered on the basis of the confession; the report of Forensic Science Laboratory, the weapon used, spade, was found stained with human blood; and the post mortem report clearly stated that the injuries found on the body of the deceased could be caused by the seized weapon….. the accused could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. Thus, the Court convicted the accused basing on last seen principle besides other corroborating evidence.
In Kulvinder Singh & anr v. State of Haryana as both the appellants had been seen immediately before the occurrence at the place of occurrence and the deceased had come there shortly thereafter, the Apex Court observed that the accused had an opportunity to kill the deceased Amardeep. After the occurrence, they were seen running together from the place of occurrence. Such a conduct, if examined, with another circumstance i.e. the extra-judicial confession made by the appellants before an independent witness, held completed the chain of circumstances pointing to the guilt of the appellants-accused.
In the recent Arvindkumar Anupalal Poddar v. State of Maharashtra case, the deceased and the accused were last seen together on 06.12.2001. Later, body of the deceased was recovered at the instance of the appellant. The recovery of knife from the place of occurrence, the frequent quarrels between the deceased and the accused, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, the death was homicidal and that the injuries could have been caused with the weapon marked in the case , that the appellant wanted to flee from the town itself and that the clothes seized from the appellant were found containing human blood- established the guilt of the appellant. The Apex Court quoted Prithipal Singh & ors v. State of Punjab [an illegal detention and death case] where it has been held that ‘a fact which is especially in the knowledge of any person then the burden of proving that fact is upon him and that it is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused.’ The Supreme Court has upheld the conviction of the accused.
By the adoption of the last seen together, there has been the tendency of the Courts, especially the Apex Court has been going perhaps towards “…..adjusting the balance of justice and ensuring that there will be no ‘excessive solicitude’ reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then, break down and lose credibility with the community. The evil of acquitting a guilty person lightheartedly as a learned author (Glanville Williams) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicated 'persons' and more severe punishment of those who are found guilty…… our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal innocents…”
Therefore, basing on the above analysis 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 and Section 313 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.
(Dr.) Mohan Rao B., B.Sc., M.L.,[ Ph.D]
Principal, Manair College of Law, Khammam, firstname.lastname@example.org
Shivaji Sahebrao Bobade & Anr vs State of Maharashtra on 27 August, 1973, AIR 1973 SC 2622, 1974 SCR (1) 489
Shambu Nath Mehra v. The State of Ajmer, Bose, Vivian Supreme Court of India decided on 12 March, 1956 http://indiankanoon.org/doc/1032822/ , AIR 1956 SC 404, 1956 SCR 199. See also Chandrasekharan Pillai, Dr. K.N., ‘Burden of Proof in Criminal Cases and The Supreme Court— New Trends’, (2003) 8 Scc (Jour) 49.
“It is better that ten guilty should escape than that one innocent person should suffer,” British philosopher John Stuart Mill (1806–1873) made this argument over a century ago in a speech before the British Parliament quoted by James Fieser ‘Capital Punishment, From Moral Issues that Divide Us’
“Wills' Circumstantial Evidence” (Chapter VI)
See Ram Reddy Rajesh Khanna Reddy v. Andhra Pradesh, [2006 (10) SCC 172] followed in Sirima Narasimha Rao v.Andhra Pradesh, 2010 Cr.L.J. 769;
Prof. V.Nageswara Rao, opinion expressed on the Last Seen Principle at www.lawyersclubofindia.org
‘SC uses 'last seen with' theory to convict killer,’ Times of India, Oct 26, 2006 , Yuvaraj Ambar Mohite vs State of Maharashtra, decided by Supreme Court of India on 19 October, 2006 http://www.indiankanoon.org/doc/1160791/, [2006 (10) SCALE
2011 ALL MR (Cri) 2365. (S.C.)
Bodhraj v. Jammu & Kashmir2003 S.C.C. (Crim) 20: 2002 Cr.L.J. 4664
Ram Reddy Rajesh Khanna Reddy v. Andhra Pradesh, [2006 (10) SCC 172] followed in Sirima Narasimha Rao v.Andhra Pradesh, 2010 Cr.L.J. 769;
Krishnaiyer, V.R. Shivaji Sahebrao Bobade & Anr v. State of Maharashtra on 27 August, 1973 1973 AIR 2622, 1974 SCR (1) 489