‘Last Seen Theory’ Can’t be Proved by Mere Presence of Accused with Weapon Near Scene of Crime: SC

The Supreme Court has acquitted two persons in a case of murder (culpable homicide not amounting to murder), rejecting the “last seen theory” that formed part of the circumstantial evidence against them.

A bench of Justices BR Gavai and Sandeep Mehta said though there is no doubt that where the prosecution proves that the deceased was last seen in the company of the persons charged and the incident of death took place thereafter, initially, the prosecution will have to discharge the burden to prove their guilt.

“Merely because the appellants were seen nearby the place where the crime occurred and the accused no. 1 was holding the chopper, it cannot be said the deceased was last seen in the company of the appellants. In our view, this will be nothing but basing the finding of conviction on conjectures and surmises,” the bench observed.

Dealing with an appeal filed by Raghunatha and another, the court noted that the Karnataka High Court, which converted conviction from Section 302 to 304 Part I of the IPC, had reversed the trial court’s finding on the motive of crime.

“It is settled law that the suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt,” the bench said.

In the case, out of three circumstances, the court was left with the sole question of recovery of the weapon – a chopper. “The recovery is from an open place accessible to one and all. In any case, only on the basis of the circumstance of recovery, it cannot be said the prosecution has proved the case beyond reasonable doubt,” the bench said.

The court acquitted the appellants and ordered their release from jail after setting aside the Karnataka HC’s order. The trial court had convicted the appellants for murder. It was alleged that the appellants had killed the complainant’s father Ramu, as they had a misunderstanding due to losses suffered in business.

Relying on ‘Sharad Birdhichand Sarda v State of Maharashtra (1984), the bench said it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established.

The bench pointed out that in the Sharad Birdichand case, the court held that it is a primary principle that the accused “must be”, and not merely “may be”, proven guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, the bench pointed out.

It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. Further to this, the court stated that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused which must show that in all human probabilities the act must have been done by the accused “last seen”.