Last seen theory can't be proved by mere presence of accused with weapon near scene of crime: SC

The Supreme Court has acquitted two persons from a case related to culpable homicide not amounting to murder, rejecting the last seen theory as part of circumstantial evidence against them.

A bench of Justices B R Gavai and Sandeep Mehta said no doubt that where the prosecution proves that the deceased was last seen in the company of the appellants and the death of the deceased has occurred soon thereafter, the burden would shift upon the appellants. However, for that, initially the prosecution will have to discharge the burden.

"Merely because the appellants were seen nearby the place where the crime occurred and the accused No. 1 was holding the chopper, it cannot be said that the deceased was last seen in the company of the appellants. In our view, this will be nothing but basing the finding of conviction on conjectures and surmises," the bench said.

Dealing with an appeal filed by Raghunatha and another, the court noted the Karnataka High Court, which converted conviction from Section 302 to 304 Part I of the IPC, had reversed the trial court's finding on the motive of crime.

"It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt," the bench said.

In the case, the court said of three circumstances, it was left with only question of recovery of weapon, chopper.

"The recovery is from an open place accessible to one and all. In any case, only on the basis of the circumstance of recovery, it cannot be said that the prosecution has proved the case beyond reasonable doubt," the bench said.

The court acquitted the appellants and ordered their release from jail after setting aside the HC's order. The trial court has convicted the appellants for murder.

It was alleged that the appellants had killed complainant's father Ramu, as they had borne some misunderstanding due to loss suffered in business.

Relying upon 'Sharad Birdhichand Sarda v. State of Maharashtra (1984), the bench said it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established.

The bench pointed out the court held that it is a primary principle that the accused ‘must be’ and not merely ‘may be’ proved guilty before a court can convict the accused.

It has been held that there is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused, the bench said.