Murder Trial - Last Seen Theory : Time At Which Deceased Was Lastly Seen With Accused Should Be Proved Conclusively : Supreme Court

While relying on ‘last seen theory’ in a case based on circumstantial evidence, the evidence on the time at which the deceased was lastly seen with the accused has to be proved conclusively, the Supreme Court reiterated recently.

“In a case rested on circumstantial evidence and ‘last seen’ theory is relied on as a link in the chain of circumstances, the evidence relating the time at which the deceased was lastly seen with the accused has to be proved conclusively as when it is proximate with the time of finding the dead body the burden to establish the innocence would be that of the accused”, a Bench of Justices Ajay Rastogi and CT Ravikumar observed.

The Bench was hearing the appeal filed by three persons who were convicted Sections under sections 302 and 34 of the Indian Penal Code, 1860 for committing the murder of one Rahul Pundlik Meshram.

The appellants were convicted based on circumstantial evidence as there were no eye-witnesses in the case. They were sentenced to suffer imprisonment for life apart from imposing a fine of Rs.500. The judgement was confirmed by the Bombay High Court.

The judgement authored by Justice Ravikumar relied on the five golden principles to deal with circumstantial evidence and last seen theory which was held in Prakash v. State of Rajasthan.

If doubt lingers with respect to the “probability or conclusiveness” of any circumstance relied by the prosecution, forming a link in the chain of circumstances pointing to the guilt of convict, despite the existence of concurrent findings, the evidence has to be scrutinized by Supreme Court, the bench said. This is to ensure that the totality of the evidence and circumstances relied on, did constitute a complete chain and it points to the guilt of the convict and it did not brook any hypothesis other than the guilt of the convict, the court explained.

As per the evidence of PW-13 with the postmortem report made the Courts below concurrently came to the conclusion that death of Rahul Pundlik Meshram is homicidal in nature, the Court noted. Next, the court discussed how in cases of circumstantial evidence, motive assumes great significance.

In the case, the prosecution alleged a motive – on September 29, 2001, the deceased along with his friend Parag Sukhdeve assaulted the brother of appellant. The Trial Court found that the prosecution had “miserably failed” to establish the alleged motive. Despite this finding, both the Trial Court and the High Court did not consider this aspect.

The circumstance mainly, relied on for confirming the conviction of the appellants was that the deceased was ‘lastly seen’ in the company of the appellants just prior to the finding of his dead body. The High Court held that the proof thereof would depend upon the quality and nature of the testimonies of Chintaman (PW-8) and Dhanraj (PW-10).

Both the Trial Court and the High Court noted the case of the prosecution that Raju Pande hurled abuses on the deceased for having assaulted the brother of accused No. 1, along with his friend Sri Parag Sukhdeve. However, a scanning of the oral testimony of PW-8 would show that he did not depose that Raju Pande hurled abuses on the deceased on the ground of assault on the brother of accused No. 1, the Court noted.

The Court deemed it fit to scan the PW-8’s evidence to find out whether his sole testimony is unimpeachable and impeccable to conclusively establish the joining up of the deceased and the accused/convicts at the house of PW-8 at the relevant point of time as alleged by the prosecution.

According to the Supreme Court bench, the courts below in the overall circumstances, ought to have carefully considered the question whether the solitary oral evidence of PW-8 would conclusively prove the factum of the deceased lastly seen in the company of the deceased. After going through the evidences, the Court stated that PW-10’s version not only failed to corroborate to the PW-8’evidence but also put it in a doubtful position. “Thus, in a nutshell the correctness of the last seen version emanating from PW-8-Chintaman becomes doubtful, especially against the appellants herein.”

The oral testimonies of PW-8 and PW-10 are at variance about the last seen and therefore, it becomes inconclusive. Owing to this, the High Court’s view was wrong, the Top Court said.

“On our careful scrutiny of the evidence of PW-8 and PW10 as above we are constrained to hold that both the Trial Court and the High Court have failed to make a proper exercise of that task taking into account the fact that the prosecution relies only on circumstantial evidence to establish the guilt of the accused. According to us, the discussion as above would go to show that virtually the evidence of PW-10 not only failed to lend corroboration to the evidence of PW-8 but also puts it under a shadow of doubt. Hence, according to us, the Hon’ble High Court went wrong in holding that as relates the said circumstantial evidence of ‘last seen’ the evidence of PW-8 gets corroboration from the evidence of PW-10 and in that view of the matter, in agreeing with the conclusion of the Trial Court that the prosecution has succeeded in proving that the deceased was lastly seen with the accused, conclusively.”

The Court also found the prosecution has miserably failed to prove the alleged motive. “In such circumstance, though the deceased had met with a homicidal death it cannot be said that the rest of the circumstantial evidence culled out by the courts below unerringly point to the culpability of the appellants in the homicidal death of Rahul Pundlik Meshram”, the Court observed.

The judgement highlighted that even the recovery of the weapon and the dress, cannot, by itself, be conclusive as the panch witnesses for their recovery also did not support the prosecution.

“In our considered view, the remaining circumstances relied on by the prosecution and held as proved by the courts below would not unerringly point to the guilt of the appellants”.

On these grounds, the Bench ordered for the acquittal of the appellants.

Case Title: Shankar Versus The State of Maharashtra | Criminal Appeal No. 954 of 2011

Citation : 2023 LiveLaw (SC) 212

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