Last Seen Theory

          In criminal law, doctrine of last seen theory is applied as an indirect mode of evidence called circumstantial evidence when direct evidence is not available to the court in criminal prosecution of alleged offender.

        In criminal proceedings, the chain of various unbroken circumstantial evidence has to be complete so as to indicate the guilt of the accused person. On of such evidence is the “Last Seen Theory”.  Last seen theory, as a legal principle, is one of the edifices of circumstantial evidence on which the guilt of the accused person lies. The proof, that accused was last seen with victim shortly before the crime by the prosecution is very crucial to point the guilt on accused. Onus is upon the prosecution to prove the chain of unbroken last seen circumstances beyond all manner of doubt.

                                                            

    The last seen together theory as a critical piece of circumstantial evidence must accompany with  series  of chain evidence that is enough to point the guilt on the accused because it is not standalone proof of guilt.

     In regard to trial on the basis of  last seen together the prosecution must bring forth the witness who has seen victim with accused immediately without any significant delay in order to make the accused center of guilt  The delay by the Investigating Officer might become fatal to prosecution. The onus of proof lies on the witness who has knowledge that accused was last seen with victim and the person must prove beyond reasonable doubt. 

     Some of the landmark judgment on Last Seen Theory listed are -

        In case Reena Hazarika vs. State of Assam (2018), Justice Sinha ruled that simply being the last person seen with the victim was not sufficient for a conviction. He observed that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused.

 

    If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given – Judgment says.

 

    In Arjun Marik vs. State of Bihar (1994), the Supreme Court quoted to say “ it is settled law that the only circumstances of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.

 

    In another case, Bodhraj vs. State of J&K (2002) Supreme Court’s decision on last seen theory was –

 

“31.       The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased were last seen alive and when the deceased is found dead is son small that possibility of any person other than the accused being the author of the crime becomes impossible”.

 

In Jaswant Gir vs State of Punjab (2005), the Hon’ble Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed.

 

    The relevancy of last seen theory is found in Section 5 of Bharatiya Shakshya Adhiniyam, 2023 [Section 7 of Indian Evidence Act (old)] which provides that facts which are the occasion, cause or effect of fact in issue.

The occasion when the victim was last seen with the accused before his death is relevant fact.

 

    Section 109 of  BSA [Section 104 of Indian Evidence Act (old)] declares that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon that person.

 

    A, saw C playing or talking with deceased, D immediately before his death. Burden of  proving  the fact that he saw C with D is upon A.

 

    Section 119 of  BSA [Section 114 of Indian Evidence Act (old)] deals with the presumption of fact by Court which it thinks likely to have happened based on human conduct.

 

    The prosecution witness, A proves that C, the accused was last seen with D, deceased person. The Court may presume the existence of fact that C was with D and he had an opportunity to commit murder. But this proof can be rebuttable as the onus of burden of proving shift to C. In other words this proof is not conclusive proof and can be rebutted once the onus of proving shifts to the accused person.

 

In conclusion last seen together theory as type of indirect evidence or circumstantial evidence is an important principle of law of evidence on which presumption of guilt or innocence of accused is made out. But conviction or acquittal solely on the basis of last seen together is not sufficient. It must be considered along with other circumstantial evidence without breaking the link of other circumstantial evidence to form a complete picture. Circumstantial evidence or indirect evidence is applied in the Court if direct evidence is not available to prosecute the accused.