“A person cannot be convicted merely on the basis of last seen together theory in the absence of other concrete evidence” Supreme Court

A Supreme Court bench of Justices Chandrachud and Bela Trivedi have held that the courts cannot convict a person solely based on “last seen together” theory in the absence of other concrete evidence.

The judgment, authored by Justice Bela Trivedi pertains to an incident of 1994 wherein two lovers belonging to Kumar and Gaur caste were found hanging. It was found during investigation that the families of the deceased did not accept the love affair. The doctor, who conducted the post mortem opined that the ligature mark over her neck was antemortem in nature, and the cause of death appeared to be Asphyxia due to hanging. It was further opined that the death had occurred within 8 to 10 days prior to the bodies being discovered and that the nature of the death was suicidal. The prosecution argued that the boy was last seen watching TV at the Panchayat while his brother called him back home rubbing an axe on a water pump and killed by asphyxiating him. It was further argued that the the brother and his friends then murdered the girl as well.

The Sessions Court framed the charge against the four accused for offences under section 302, in the alternative under section 302 read with section 34 of IPC in addition to offence under section 3(2)(v) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities), Act, 1989. The prosecution examined 16 witnesses and also adduced documentary evidence. The sessions judge convicted them and awarded them a lime imprisonment. The accused appealed the same before the High Court, the High Court confirmed the conviction and sentence imposed on the brother, however set aside the conviction and sentence imposed on the other accused.

The High Court convicted the brother on certain extra judicial confession made by a co-accused and based on the “Last Seen Together” theory. The counsel for the accused argued that there were major contradictions in their evidence as regards the extra judicial confession made and further submitted that conviction cannot be based on the extra judicial confession made by the co-accused, which is of a very weak kind of evidence. Arguing against the ‘Last seen theory’, he submitted that the statement of a witness who had allegedly last seen the victim with his brother, was recorded after 4 months of the incident. He further argued that the “last seen” took place 10 days prior to the date on which the dead bodies were found in and there being long time gap between the day the deceased was allegedly last seen with the appellant and the day when his dead body was found. It was brought to the court’s notice that it was very risky to convict a person solely on such evidence. He further submitted that the doctor who had performed the postmortem had also opined that the cause of death was asphyxia as a result of hanging and the nature was suicidal. He concluded that thus, in absence of any clear or cogent evidence against the appellant, both the courts had committed gross error in convicting the appellant.

The court on hearing the submission of the parties noted that it is undisputed that the entire case of the prosecution is based on the circumstantial evidence, as there was no eye witness to the alleged murder. The court noted that the law on the appreciation of circumstantial evidence is that the circumstances concerned “must or should be” established and not “may be” established. The court held that the accused “must be” and not merely “may be” guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures.The court held “the entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused.”

On conviction based on extra-judicial confession, the court held that an extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, a conviction for the offence of murder should not be made only on the evidence of extra judicial confession. The court further held that an extra judicial confession attains greater credibility and evidentiary value if it is supported by chain of cogent circumstances and is further corroborated by other prosecution evidence.

On the theory of “Last Seen Together” the court noted that in the circumstances of the present case, the witness who saw the victim and his brother did so ten days prior to the bodies were discovered and that the time gap between the two incidents i.e., the day when they were seen together and the dead body was found is quite big. The court held “it is difficult to connect the present appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution.”

The court held that If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, the accused could not have been convicted merely on the basis of the theory of “Last seen together”. The court further held that

Case title : Chanderpaul Vs State of Chattisgarh