If Last Seen Theory Is Established, Accused Should Explain Circumstances In Which He Departed Company Of Deceased: Supreme Court

Once the fact of last seen is established, an adverse inference can be drawn against the accused if he fails to explain the circumstances in which he departed the company of the deceased, the Supreme Court reiterated in a judgment today.

The bench comprising CJI NV Ramana, Justices Surya Kant and Aniruddha Bose was disposing a criminal appeal arising out of a murder case of the year 1987. The Trial Court convicted the accused duo under Section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment. The Patna High Court later affirmed the conviction in the year 2010.

In appeal, the Court noted that the conviction of the accused is based on circumstantial evidence regarding (i) Last seen theory; (ii) Motive & (iii) false information provided and subsequent conduct of the accused. The accused's main contention in the appeal was that the conviction, which is merely on the basis of 'last seen theory', is unsustainable.

The court observed that the last seen theory is applied where the time interval between the point of when the accused and the deceased were last seen together, and when the victim is found dead, is so small that the possibility of any other person other than the accused being the perpetrator of crime becomes impossible. Referring to recent judgment in Satpal v. State of Haryana, the court observed that unless the fact of last seen is corroborated by some other evidence, the fact that the deceased was last seen in the vicinity of the accused, would by itself, only be a weak kind of evidence

"30. We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused.", the court said.

The prosecution, the court said, in the present case has undoubtedly established that the deceased was last seen alive in the company of the accused. The prosecution had relied on the decision in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254,, to urge that in situations when the deceased was last seen in the company of the accused, a presumption would arise that the said accused murdered the deceased. Regarding this, the bench observed: 

35. Counsel for the State appears to be right in relying upon the decision of this Court in Kashi Ram (Supra) to assert that once the fact of last seen is established, the Accused must offer some explanation as to the circumstances in which he departed the company of the deceased. This position of law, as covered under section 106 of the IEA, was duly considered in the case of Satpal Singh (Supra), wherein, this Court clarified that if the accused fails to offer any plausible explanation, an adverse inference can be drawn against the accused."

In this case, the court noted that accused were unable to offer any explanation as to circumstances in which he departed from the company of the deceased. Thus, the court said that there is no reason to disbelieve the prosecution version of last seen theory against the accused. 

38. If motive in a case is attributed to an accused(s) and thereafter proved, the probability of the crime being committed by the said accused is intensified. It is for this reason, that in cases of overwhelming circumstantial evidence, proof of motive will be an important piece of corroborative evidence, as well as, form a vital link in the chain of evidence.

Referring to evidence on record, the bench observed that motive is established in this case.

The court also observed that there is post occurrence circumstantial evidence led against the first accused, namely, that he did not disclose the whereabouts of the deceased and then surreptitiously disappeared from the scene till he surrendered in Court. There is no such allegation of being evasive or absconding post occurrence levelled against the other accused, the bench noted. The bench also rejected the plea of juvenility taken by the first accused.

Thus, the conviction and sentence as regards the first accused was confirmed and the second accused was acquitted of the charges.

Case: Surajdeo Mahto vs. State of Bihar ; CrA 1677 of 2011

Coram: CJI NV Ramana, Justices Surya Kant and Aniruddha Bose

Citation: LL 2021 SC 351 

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