'Last Seen Theory' Not Independently Sufficient To Convict For Murder: Gauhati HC Acquits Man Allegedly Last Seen By Witnesses With Deceased

The Gauhati High Court on Tuesday (November 13) acquitted a man convicted of murder on the ground of "last seen theory", while holding that theory does not apply in the present case and is also not independently sufficient to sustain conviction.

It also said that without there being other supporting materials of credence, extra-judicial confession also cannot be the basis of a conviction.

Taking note of evidence in the matter a division bench of Justice Sanjay Kumar Medhi and Justice Mitali Thakuria in its order said, "...it is found that the “last seen theory” though tried to be projected is wholly inconsistent. The same has also to be examined from the point of view of the evidence of the Doctor who had performed the postmortem as well as the report itself. As per the report, the death was within 12 hrs and the examination time was 1.45 PM on 18.02.2018. On the other hand, the “last seen together” even if presumed was between 8 to 9 PM on 17.02.2018". 

"By following the aforesaid principles, we are of the considered opinion that the aspect of “last seen theory” cannot be made applicable in the instant case and in any case cannot be independently sufficient to sustain the conviction. On the other aspect of extra-judicial confession as has been held, the same is a weak piece of evidence and without there being other supporting materials trustworthy of credence, the same cannot be the basis of a conviction," it added. 

In the present case an FIR was lodged by the brother of the deceased on February 18, 2018 alleging that some unknown miscreant had left his younger brother near the Kali Mandir after killing him. On the basis of the FIR, the investigation was done and the charge sheet was submitted. During the trial, fifteen prosecution witnesses were examined and certain documents were also exhibited including the sketch map. The Trial Court on February 17, 2020 convicted the appellant and sentenced him to undergo life imprisonment under Section 302 of IPC. The conviction is mainly on the ground of “last seen together” and extra-judicial confession allegedly made before one of the prosecution witnesses's by the appellant. Against this judgment the appellant approached the high court. 

The Amicus Curiae submitted that the conviction in the present case is wholly unsustainable as the materials to base such conviction is absolutely lacking. It was further submitted that the prosecution witness had claimed to have seen the fighting and he had separated the deceased and the appellant, whereafter they had gone away in different directions. Furthermore, the witness had also claimed to have intervened in the fight  however, he did not say anything about the presence of another prosecution witness in separating the deceased and the appellant.

The Amicus Curiae argued that the post-mortem examination time was 1:45 PM on February 18, 2018 and the death, as per the medical opinion was stated to be within 12 hours. It was submitted that according to one of the prosecution witness on whose evidence the judgment of the Trial Court has been based, the fight had occurred sometime between 9 pm and 10 pm and therefore the time of death as per the post-mortem report would not be consistent.

Lastly, it was argued that impugned judgment is based on extra-judicial confession which is a weak piece of evidence.

On the other hand, Additional Public Prosecutor submitted that there are sufficient evidence including the aspect of 'last seen together' and the extra-judicial confession. It was argued that the extra-judicial confession made by PW10 (prosecution witness) was voluntary and without any coercion. It was further highlighted that there was no instance of any animosity of the PW10 (prosecution witness) with the appellant which could have propelled him to make such deposition claiming that a confession was made before him.

The Court noted that in the instant case there was no recovery of any weapon which might have been used for commission of the offence. It was further observed by the Court that evidence of PW8 did not match with the version of PW10 who also claims to be present when the deceased and the appellant were fighting near the peepal tree. PW10 claims to have stopped the fight whereafter he had gone to his house.

After the perusal of the evidence of the prosecution witnesses, the Court remarked that the aspect of application of the “last seen theory” would be against the principles of criminal jurisprudence wherein, a guilt cannot be presumed but has to be proved beyond any reasonable doubt.

Wi the aspect of extra-judicial confession, the Court noted:

“The said PW10 had stated that the accused had told him in his house that he had killed the deceased. No other aspects or details have been narrated as to under what circumstances the appellant would come to his house to make the confession. No time has been mentioned as to when the appellant had come to his house and the same becomes important inasmuch as the fighting near the peepal tree, as per the evidence on record is between 8 to 9 PM. It may be mentioned that the incident was of 17.02.2018 and in a rural area 8 to 9 PM in February can be considered as late in the evening.”

Thus, The Court opined that the materials on record including the evidence would not be sufficient to come to a conclusion of guilt of the appellant.

Accordingly, the Court set aside the impugned judgment of the Trial Court and acquitted the appellant by giving him benefit of doubt.

Case Title: Kumru Bhumij v. The State of Assam

Case No.: CRL.A(J)/6/2021

Citation: 2024 LiveLaw (Gau) 83

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