This article is written by Pranjali Aggarwal of the University Institute of Legal Studies, Panjab University, Chandigarh. This article explains the circumstantial evidence, the last seen theory according to Indian law, important case laws related to theory, and other countries in which this theory is used.

Introduction

As quoted by the Honorable Supreme Court in the case of Ramanand v. State of Himachal Pradesh (1981) that ‘Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth’. The concept of circumstantial evidence arises because in each case the direct evidence could not be found so the Court has to rely on circumstantial evidence for deciding upon the matter. The last seen theory is also based on the same lines as in some criminal cases when there is no direct or tangible evidence regarding how the offence has been committed or who committed the offence then the last resort for deciding the case is this theory based on circumstances of the case. According to this theory, if a person is the last seen with the deceased just before his death or within a reasonable period of his death that no other person could have intervened in between them then the presumption can be taken that he (the person who was last seen) is the author of the crime. And thus the burden of proof shifts on him to negate this fact and if he is not able to give a lucid and sufficient explanation about his innocence then the presumption becomes even stronger.

Circumstantial evidence under Indian law

The term circumstantial evidence has been defined by Peter Murphy as “evidence from which the desired conclusion may be drawn but which requires the tribunal of fact not only to accept the evidence presented but also draw an influence from it”. There can be several examples of circumstantial evidence like – death threats by A to the deceased, A was seen behaving weirdly before the offence was committed. The term circumstantial evidence in India was used by Sir James Stephen for the first time stating that these facts depend on other facts and they exist if it is proved that the other facts existed. This means that the inference is drawn according to the reasonable prudent man on the basis of the pre-existing fact that has already been proved. The inference drawn can be right or wrong. 

For eg- if we see a person running from a room with blood-stained clothes where a dead body is lying, one can draw the presumption that he murdered or other inference that he tried to help that person. Thus, the circumstantial evidence does not establish complete guilt until every evidence is negating the innocence of an accused. The whole chain of facts and circumstances of the case should be so complete from which the existence of principal fact can be legally or inferred or presumed and there should be no suspicions, conjectures in the minds of court regarding the guilt of the accused then the person can be convicted on the basis of circumstantial evidence only as mentioned by the Hon’ble Supreme Court in the case of State of Haryana v. Jagbir Singh (2003). 

Under the Indian Evidence Act, 1872 the word ‘circumstantial evidence’ has not been used directly but in Section 3 the definition of the word ‘Proved’ mentions that if the existence of any fact is so probable that the prudent man will believe it to exist then that fact is considered to be proved. This implies the admissibility of circumstantial evidence that is based on logical inferences in Indian law. The direct evidence and circumstantial evidence are at par if the whole chain of events that happened collectively point towards the guilt of the accused cogently and unerringly. If there is any doubt that the accused is innocent or the chain of events is not complete then the benefit of the doubt will be given to the accused as there is a presumption in law that every person is innocent until proven guilty. 

When a decision can be given based on circumstantial evidence

As decided in the case of Sudama Pandey v. State of Bihar (2001) following pointers should be kept in mind for proving the matter with the help of circumstantial evidence:

• The circumstances from which the inferences are being drawn should be fully proved that they existed.
• All the facts that are being proved should support the hypothesis of the guilt of the accused.
• The chain of circumstances should be well connected and complete so that it is conclusive. 
• The circumstances should toss out every possibility of the accused being innocent.

The doctrine of last seen theory

The foundation of this theory lies on the principle of probability, cause, and connection as no fact takes place in isolation. Basically, it means that if an event takes place then other events also take place which are the probable consequences of a major event or is related to it either retrospectively or prospectively. These inferences or presumptions are drawn logically according to how a reasonably prudent man will connect the dots in the particular scenario.

This theory derives its relevance from Section 7 of the Indian Evidence Act which is called the “Doctrine of Inductive Logic” in which it is stated that if any fact related to the occasion, cause, or effect lead to the circumstance in which that thing occurred or it provided an opportunity for the occurrence of that thing then those facts will be relevant. And in the last seen theory also the person who was the last present with the victim would have a reasonable opportunity to commit the crime. 

This presumption of fact is taken under Section 114 of the Indian Evidence Act under which the court can presume that certain facts exist if some other facts are proved to be existing in the cases of natural events, human conduct, and public and private business. For instance, if A was the last person seen with B just before his murder then it can be presumed that A murdered B under this theory because A had adequate opportunity to commit the crime. But this presumption is not considered as conclusive proof for the guilt of the person and these presumptions are rebuttable by the accused. It only shifts the onus on the person to prove that he is innocent which is an exception in the criminal law as the burden of proving the guilt of the accused is on prosecution according to the principle laid down in the case of Woolmington v. Director of Public Prosecution (1935). In this case, the instances that occurred while he was last seen with the victim are exclusively known by him as this law is laid down under Section 106 of the Indian Evidence Act where the burden of proving the fact is on the person who has especially known about that particular fact or circumstance.

Though the last seen theory relieves the court from the burden of proving guilt yet it is weak evidence and it needs to be corroborated with other factors like if there was motive with the person who was last seen with the deceased or he could even administer the kind of injury that caused death. In the case of Jaswant Gir v. State of Punjab (2005), it was held by the Hon’ble Supreme Court that if the other links are not present to corroborate the theory then it is not safe to convict solely based on this theory. For instance, if an old lady who herself is not able to walk properly was last seen with the deceased and deceased died due to several injuries sustained from a knife. So, in this case, one cannot reasonably believe that the old lady committed murder thus though it will be proved that she was last seen but considering her to be guilty will not be logical. So thus the fact of last seen should also be supported by other factors in such a way that the circumstances are unerringly determinative in nature and conclusively prove the guilt of the person. The court needs to be on guard while deciding upon these kinds of matters because even minute details can change the whole scenario of the case.

How can the person prove his innocence and rebut the last seen theory?

It is not necessary that the person accused is always considered guilty once it is established that he was last seen with the person. He is given a fair chance to rebut this presumption because it is not necessary that the same situation existed as the Court predicted based on logic because every coin has two sides. These are some defences laid down in the case of Satpal Singh v. State of Haryana (2018) that can be taken by the accused to dismiss the presumption because last seen theory is not a strong piece of evidence:-

• If the accused can produce an alibi that he was with the other person at the time of the commission of the offence, then his guilt could be disproved.
• If it is proved that he was not the last person with the victim as another person interfered in between them and the accused thus shifting the guilt on the third person 
• If the accused can prove that there was a reasonable time gap between the commission of wrong and when they were seen together, the Court can presume that there are chances of intervention of any other factor because of which this particular offence was committed.
• If it is proved by the accused that the person who last saw him with the victim is not a reliable witness because of any reason that he may be a child witness or stock witness thus Court cannot rely on their statements

Important case laws related to the doctrine

Shailendra Rajdev Pasvan v. State of Gujarat (2019)

The case is as follows:

Facts of the case 

• On 5th February 2001, the complaint was lodged by Paramhansh Mangal Yadav that his son Arjun was missing from 4th February 2001.
• The complainant searched all the nearby premises and even inquired about him.
• The complaint was first recorded in the general diary only and on 14th February 2001, the complaint was recorded formally.
• Complainant (Paramhansh) stated that in the beginning Shailendra Rajdev Paswan (Appellant/Accused no. 1) was helping him in the search but he subsequently disappeared.
• Shailendra Paswan called the complainant after four days and said that he was at Vapi.
• The complainant doubted the appellant and therefore he sent his relatives to Vapi to bring him back.
• When the appellant returned from Vapi, it is alleged that he made an extra-judicial confession before 50 people.
• He confessed that he kidnapped Arjun, acting on the directions of Ramkeval Mutur Yadav (Accused no. 5) who is not on good terms with the complainant.
• Appellant no. 1 stated that he kidnapped Arjun and he handed him over to Ram Ashis and Shivnath (Appellant/Accused no. 2 and 3).
• Appellant no. 1 was arrested on 14th February 2021.
• Later on Appellants no. 2 and 3 were also arrested.
• On 13th February, a decomposed dead body with one leg amputated was found by Naginbhai Patel and Sanjay Patel on their farm. The dead body was of Arjun.
• According to police, Appellants no. 2 and 3 disclosed the place to the police where Arjun was murdered and where his body was disposed of.

Appeal in the Supreme Court

The High Court reversed the decision of the Trial Court and convicted the accused. This judgment by the High Court was challenged by the accused on the grounds that the evidence relied upon was not credible. It was alleged that the testimonies of both the prosecution witnesses vary and are debatable as :

• Both the prosecution witnesses did not reveal the conduct of Appellant no. 1 initially to the police or the complainant while they were aware of the fact that the search for the missing child is being carried on.
• And the scenario stated by Kashiben that she saw Arjun from her terrace on the terrace of the complainant was not reasonably believable because there is a reasonable distance between the two houses.

Basis of the decision of the Supreme Court 

The Hon’ble Supreme Court relied on the following grounds to pronounce the judgment:

• Firstly, taking the principle laid down in the case of Sharad Birdichand Sharda v. State of Maharashtra (1984) into consideration, according to which the circumstantial evidence should be complete and cogent. The guilt of the accused should be unerringly established and any other inference except the guilt of the accused cannot be drawn from the circumstances. 
• Another case that was reiterated in this judgment was Anjan Kumar Sharma v. State of Maharshtra (2017). The principle laid down, in this case, is that if the last seen theory is to be established then the duration of the accused and deceased last seen together and the recovery of the dead body should be minimal. So that the possibility of another person interfering could be ruled out and the possibility of the accused being the author of the crime could be established. In the cases where there exists a long time gap for the establishment of the last seen theory, then the guilt of the accused cannot be concluded from it as it would be hazardous for the accused. 
• Moreover, the extra-judicial confession is a weak piece of evidence as stated in Sahadevan v. State of Tamil Nadu (2012) and thus cannot be relied upon if the principles laid down by Jagroop Singh v. State of Punjab (2012) are not fulfilled.

Held 

In this case, all the circumstances when taken into consideration do not point out the guilt of the accused as there were discrepancies in the testimonies of the witnesses. Moreover, there is a long time gap between the accused and deceased seen together and recovery of the body. Both of them were seen together on 4th February, 2001 and the body was recovered on 13th February, 2001. According to the medical reports, the approximate time for the death was 2 to 3 days before post-mortem. Thus, considering the time duration, the guilt of the accused is weakened. The extra-judicial confession cannot be relied upon because there was no witness to corroborate the statements that were allegedly made in the confession. 

And as the settled law for the case to be entirely based on the circumstantial evidence is that:

• Every aspect of the circumstance that leads to the guilt of the accused should be proved beyond reasonable doubt by the prosecution.
• And all the circumstances should cogently depict the guilt of the accused.

But in this case, there were several incongruities and suspicions and the guilt was not established beyond a reasonable doubt. The decision cannot be based on a half-baked situation. Thus, the Hon’ble Supreme Court ordered the acquittal of the accused.

Surajdeo Mahto v. State of Bihar

In the recent case of Surajdeo Mahto v. State of Bihar (2021), where the appeal was filed by the accused that the conviction cannot lie only based on last seen theory but the Court observed that the prosecutor has rightly relied on the case of the State of Rajasthan v. Kashi Ram (2006) where it was said that if the following conditions are fulfilled then the person can be convicted on the basis of the last seen theory only:

• if the fact of last seen theory is established then the accused need to prove and provide sufficient explanation under what circumstances he departed the deceased; and
• if there was no explicit description of the circumstances, the Court can take adverse inference in this scenario; and 
• if the motive for the murder is also proved then it establishes a vital link in the chain of evidence.

Held

As in this case firstly the accused was not able to explain the whereabouts of the deceased and even absconded after the murder. The existence of motive with the accused was also established by the prosecution through evidence. Thus, the appeal was dismissed by the Court and the accused was convicted.

Digamber Vaishnav & Anr. v. State of Chattisgarh

In the case of Digamber Vaishnav & Anr. v. State of Chattisgarh (2019), it was held that there should be reasonable proximity between the time of seeing the person and recovery of the body to point the needle towards the person last seen with the deceased. And in this case, it was upheld that only the fact that they were last seen together cannot be the sole criteria to convict the accused. Last seen theory plus all other circumstances negating the innocence of the accused should be established to convict the accused on the basis of the doctrine of last seen.

In some cases, though there was a huge time gap between the occurrence of the event and the time when they were last seen together and the prosecution can establish the fact that no other person could have interfered or intervened as there was an exclusive possession of the accused to the place where the incident occurred, then based on this also the last seen theory can be established and presumption can be taken despite a huge time gap as held in the case of Satpal Singh v. the State of Haryana.

Krishna Mahadevan Chavan v. State of Maharashtra

In the case of Krishna Mahadev Chavan v. State of Maharashtra (2021), it was held that even if the last seen theory was established but when the entirety of circumstances was considered, they portray suspicions then the judgment cannot be delivered solely on the basis of the last seen theory. In this case, as a fact of homicidal death was unclear and uncertain, so the accused was acquitted because guilt was not established beyond a reasonable doubt.

Which other countries follow similar doctrines?

There are several jurisdictions in the world in which the doctrine of last seen is applied. Nowadays, its usage has become popular also because every time the case does not have direct evidence implanted. Some of the countries that follow the doctrine of last seen are:-

Nigeria

The Nigerian law does not expressly mention the doctrine of last seen in the statute but has a plethora of judgments that have made the doctrine a settled law. In the case of Madu v. State (2012), the Court explained the application of the law. According to this doctrine, the presumption is taken that the person last seen with the deceased owes them absolute responsibility of death. And if the accused was last seen and the circumstantial evidence against him is overwhelming and he is not able to give a justified explanation about the circumstances under which he departed the accused, then the Court can convict the person based on the last seen doctrine.

Bangladesh

In the Shajneen murder case (2018) (daughter of Transcom Group Chairman Latifur Rahman), it was held that the last seen theory is a part of circumstantial evidence, and if all the circumstances negate the innocence of the accused then he can be convicted on the basis of it. 

Conclusion

The last seen theory no doubt is an important doctrine in Indian Evidence in law as if once proved it shifts the burden on the accused to prove his innocence. However, it does not completely discharge the prosecution of his duty to prove the guilt of the accused beyond a reasonable doubt. The prosecution has to present a complete linkage of the accused with the murder of the deceased i.e. there was an opportunity with him as they were last seen together, he had the motive to do the crime and even other circumstantial evidence like his behavior, non-explanation of the situation to prove the guilt. This is based on the fact that in Criminal law the yardstick for proving the guilt of the accused is beyond a reasonable doubt. The decision should not be based upon suspicions, surmises, and conjectures. In cases where even a single situation leads to the suspicion that the accused is innocent then he cannot be convicted. The accused will be given the benefit of doubt because our criminal law is based on the principle that no innocent should be punished. The Court should be extra-cautious while deciding the case based on circumstantial evidence so that there is no miscarriage of justice but if the last seen theory is corroborated by other evidence then it can be adhered to convict the accused based on circumstantial evidence only and that would be a valid conviction.

References

• https://www.google.com/amp/s/www.livelaw.in/amp/top-stories/supreme-court-last-seen-theory-accused-circumstances-deceased-178887
• https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.soolegal.com/roar/doctrine-of-last-seen-theory&ved=2ahUKEwiV8LHe8aPyAhUPqZUCHSG7DkQQFnoECBcQAg&sqi=2&usg=AOvVaw2iLDZkaPe6dkT4ocYIxUpc
• https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.scconline.com/blog/post/tag/last-seen-theory/&ved=2ahUKEwiV8LHe8aPyAhUPqZUCHSG7DkQQFnoECBIQAg&sqi=2&usg=AOvVaw2zU0qoS9YwCYTUtcpCEzAZ
• https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.latestlaws.com/latthe est-news/supreme-court-last-seen-alive-weak-circumstantial-evidence-sustain-conviction-murder-case/&ved=2ahUKEwi7neyI8qPyAhVexTgGHYnoAxc4ChAWegQIARAC&usg=AOvVaw3m1XPCF6HKUwY7wLOXiKw1
• https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.newindianexpress.com/states/telangana/2019/sep/30/last-seen-theory-has-to-be-established-to-convict-the-accused-2040960.amp&ved=2ahUKEwi7neyI8qPyAhVexTgGHYnoAxc4ChAWegQIBhAC&usg=AOvVaw1cmnkXrFrxcxOsqZCq3-Fe
• http://lawyersclubbangladesh.com/en/2019/03/30/circumstantial-evidence-and-the-principle-of-last-seen-theory-and-motive/

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