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Dr. Mohan Rao Bolla
Ph,D in Law, UGC NET qualified working as Principal, Sri Prasunna College of Law, NR Peta, Kurnool. 518004
A
n overview of the Judicial Decisions
“In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make
criminal justice potent and realistic. A balance has to be struck between chasing enhance possibilities as good
enough to set the delinquent free arid chopping the logic of preponderant probability to, punish marginal
innocents.”– Justice Krishna Iyer, V.R. [2] (http://www.legalindia.in/wp-admin/post-new.php#_ftn2)
One of the fundamental principles of criminal jurisprudence is that an accused is presumed to be innocent till he
is proved to be guilty.[3] (http://www.legalindia.in/wp-admin/post-new.php#_ftn3) Article 11(1) of the Universal
Declaration of Human Rights, 1948 provides that everyone charged with a penal offence had the right to be
presumed innocent until proved guilty according to law. Presumption of innocence is a human right as envisaged
under Article 14(2) of the International Covenant on Civil and Political Rights.[4] (http://www.legalindia.in/wp-
admin/post-new.php#_ftn4) India is a signatory to the Covenant.[5] (http://www.legalindia.in/wp-admin/post-
new.php#_ftn5) Right to fair trial and presumption of innocence, are the twin essentials of administration of
criminal justice. [6] (http://www.legalindia.in/wp-admin/post-new.php#_ftn6) Once if a person is held to be not
guilty of a criminal charge, he enjoys the benefits of such presumption of innocence which could be interfered
with by the Courts only for compelling reasons and not merely because another view was possible on
appreciation of evidence.’[7] (http://www.legalindia.in/wp-admin/post-new.php#_ftn7)
However, with the development of ‘Last seen together,’ principle, the investigation system and the courts have
been a little bit relieved of the burden of proof. When the principle could be invoked, the burden of proof would
be shifted to the accused to explain any intervening facts after the last seen together with the victim of any
criminal offence. In this paper an attempt is made to analyze the principle inter alia with the help of the latest
case law.
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Circumstantial Evidence
It was opined that the presence of the accused at the place of the offence or his being seen last with the deceased
were also relevant. This is sometimes referred to as the test of “last seen together” as a piece of circumstantial
evidence.[13] (http://www.legalindia.in/wp-admin/post-new.php#_ftn13)
The theory of ‘last seen together’ is one where two persons are ‘seen together’ alive and after an interval of time,
one of them is found alive and the other dead. If the period between the two is short, presumption as to the
person alive being the author of death of the other can be drawn. Time gap should be such as to rule out
possibility of somebody else committing the crime. Last seen together principle is one of the latest principles
which is taken into consideration in establishing the guilt of the accused. In the absence of eye-witnesses and
tangible evidence, it is the last resort of the prosecution in a murder case – the person last seen with the victim is
presumed to be the murderer, thus, shifting the onus onto the accused to prove otherwise or come up with an
alibi.[14] (http://www.legalindia.in/wp-admin/post-new.php#_ftn14) The foundation of the theory is based on
principles of probability and cause and connection. Where a fact has occurred with a series of acts, preceding or
accompanying it, it can safely be presumed that the fact was possible as a direct cause of the preceding or
accompanying acts, unless there exists a fact which breaks the chain upon which the inference depends.[15]
(http://www.legalindia.in/wp-admin/post-new.php#_ftn15)
The circumstance of ‘last seen together ‘does not by itself and necessarily lead to the inference that it was the
accused who committed the crime? There must be something more establishing connectivity between the
accused and the crime! There may be cases where on account of close proximity of place and time between the
event of the accused having been ‘last seen’ with the deceased and the factum of death a rational mind may be
persuaded to reach an irresistible conclusion that either the accused should explain how and in what
circumstances the victim suffered the death or should own the liability for the homicide.[16]
(http://www.legalindia.in/wp-admin/post-new.php#_ftn16)
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In State of Goa v. Sanjay Thakran[21] the deceased couple arrived in Goa from Mumbai for their honeymoon and
stayed in a hotel. the couple went for sight-seeing at Ozran, Vagator with P.W.13-Vincent, who was the car driver.
He had also taken them for the sight-seeing trip a day earlier as well. However, in the light of the factors that
evidence regarding the recovery of the incriminating materials from the accused persons has been discarded;
that there has been sufficient time gap between the instances when the accused persons were last seen together
with the deceased persons; and in the absence of any other corroborative piece of evidence to complete the chain
of circumstances to fasten the guilt on the accused couple, the Apex Court was of the opinion that the accused
have been rightly given the benefit of doubt by the courts below. (http://indiankanoon.org/doc/585040/) It is
interesting to note that the State even on appeal could not prove the case as it merely based on the last seen together
and the other evidence was not convincing.
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also evidence that the accused had purchased the two knives used for the offence. The trial Court found the
evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The
High Court acquitted the accused but the Supreme Court restored the judgment of the Trial Court as there was
additional evidence besides the evidence of last seen together.
In Sk. Yusuf v. West Bengal, [25] (http://www.legalindia.in/wp-admin/post-new.php#_ftn25) the Supreme Court has
reiterated its observation in State of U.P. v. Satish [26] (http://www.legalindia.in/wp-admin/post-new.php#_ftn26)
that the last seen theory comes into play where the time gap between the point of time when the accused and
deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible. It was held that where there is a long time-
gap between “last seen together” and the crime, and there is the possibility of other persons intervening, it is
hazardous to rely on the theory of “last seen together”[27] (http://www.legalindia.in/wp-admin/post-
new.php#_ftn27). Even if time gap is less and there is no possibility of others intervening, it is safer to look for
corroboration. [28] (http://www.legalindia.in/wp-admin/post-new.php#_ftn28)
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and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is
unbelievable and unsustainable. The Court found no justifiable reason to interfere with the judgment of the High
Court confirming the death penalty. Thus, the Courts have been requiring the accused to explain any intervening
fact after the last seen together with the deceased whenever there was medical or other evidence corroborating with
the last seen together.
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the deceased Amardeep. After the occurrence, they were seen running together from the place of occurrence.
Such a conduct, if examined, with another circumstance i.e. the extra-judicial confession made by the appellants
before an independent witness [Phool Singh (PW.10)], held completed the chain of circumstances pointing to the
guilt of the appellants-accused.
Conclusion
By the adoption of the last seen together, there has been the tendency of the Courts, especially the Apex Court has
been going perhaps towards “…..adjusting the balance of justice and ensuring that there will be no ‘excessive
solicitude’ reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is
a false dilemma.[38] (http://www.legalindia.in/wp-admin/post-new.php#_ftn38) Only reasonable doubts belong
to the accused. Otherwise any practical system of justice will then, break down and lose credibility with the
community. The evil of acquitting a guilty person lightheartedly as a learned author (Glanville Williams) has
sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If
unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to
a public demand for harsher legal presumptions against indicated ‘persons’ and more severe punishment of
those who are found guilty…… our jurisprudential enthusiasm for presumed innocence must be moderated by
the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing
enhance possibilities as good enough to set the delinquent free arid chopping the logic of preponderant
probability to, punish marginal innocents…”
Therefore, basing on the above analysis it may be stated that ‘last seen together’ principle has been applied by the
Courts so cautiously that unless there is corroborating and circumstantial evidence, conviction has not been
given. However, the principle helps the Courts to shift the burden of proof to the accused and the accused might
establish an interface in the chain of circumstantial evidence. Otherwise, he will not get any benefit of doubt.
The latest tendency of the Court thus, is to take the aid of Sections 106 of the Indian Evidence Act, in addition to
the ‘last seen together’ principle to hold an accused person guilty whenever there is no evidence available. [39]
(http://www.legalindia.in/wp-admin/post-new.php#_ftn39)
*****
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[1]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref1) Principal, Manair College of Law, Khammam,
mohanraobolla9@gmail.com
[2]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref2) Shivaji Sahebrao
Bobade & Anr vs State of Maharashtra[2] on 27 August, 1973 1973 AIR 2622, 1974
SCR (1) 489
[3]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref3) S. Ganesan v. Rama S. Raghuraman
(http://indiankanoon.org/doc/1090129/)(2011) 2 SCC 83
[4] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref4) Entry into force 23 March 1976.
Quoted in Noor Aga v. State of Punjab & Anr decided on 9 July, 2008, http://indiankanoon.org/doc/1584447/
(http://indiankanoon.org/doc/1584447/)
[5]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref5) See also K.G. Kannabiran,’ Safegaurd
the rights of the accused and also Recommendations of the Malimath Committee on reforms of
Criminal Justice System (http://www.pucl.org/Topics/Law/2003/malimath-recommendations.htm),’
http://www.pucl.org/Topics/Law/2003/malimath.htm
(http://www.pucl.org/Topics/Law/2003/malimath.htm)
[6]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref6) Swatanter Kumar, J . in Govindaraju
@ Govinda v. State Rep. by Sriramapuram P.S. & Anr.
http://www.indiankanoon.org/doc/107929320/
(http://www.indiankanoon.org/doc/107929320/) (2012) 4 SCC 722
[7]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref7) Supreme Court of India A.K. Patnaik
J, Swatanter Kumar, J decided on 15 March, 2012.http://www.indiankanoon.org/doc/107929320/
(http://www.indiankanoon.org/doc/107929320/), (2012) 4 SCC 722
[8]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref8) Shambu Nath Mehra v. The State of
Ajmer, Bose, Vivian Supreme Court of India decided on 12 March, 1956
http://indiankanoon.org/doc/1032822/ (http://indiankanoon.org/doc/1032822/) , AIR 1956 SC 404,
1956 SCR 199. See also Chandrasekharan Pillai, Dr. K.N., ‘Burden of Proof in Criminal Cases and
The Supreme Court— New Trends’, (2003) 8 Scc (Jour) 49.
[9]
(http://www.legalindia.in/wp-admin/post-new.php#_ftnref9) “It is better that ten guilty should
escape than that one innocent person should suffer,” British philosopher John Stuart Mill (1806–
1873) made this argument over a century ago in a speech before the British Parliament quoted by
James Fieser ‘Capital Punishment, From Moral Issues that Divide Us’
http://www.utm.edu/staff/jfieser/class/160/7-cap-pun.htm (http://www.utm.edu/staff/jfieser/class/160/7-cap-
pun.htm)
[1
0] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref10) Jagroop Singh v. State of Punjab
(http://www.supremelaw.in/2012/07/jagroop-singh-vs-state-of-punjab.html) /case
(http://indiankanoon.org/doc/118148233/case) decided by Supreme Court of India on 20 July, 2012,
http://indiankanoon.org/doc/118148233
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[1 [1
2] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref12) Supreme Court of India
decided the on 5 December, 2008 http://indiankanoon.org/doc/768382/
(http://indiankanoon.org/doc/768382/) , 2009-1-L.W. (Crl.) 573
[1
3] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref13) Prof. V.Nageswara Rao, opinion
expressed on the Last Seen Principle at www.lawyersclubofindia.org
[1
4] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref14) ‘SC uses ‘last seen with’
theory to convict killer,’ Times of India, Oct 26, 2006 , Yuvaraj Ambar Mohite vs State of
Maharashtra, decided by Supreme Court of India on 19 October, 2006
http://www.indiankanoon.org/doc/1160791/ (http://www.indiankanoon.org/doc/1160791/),
[2006 (10) SCALE
[1
5] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref15) Delhi High Court Deepak Chadha v.
State decided on 20 January, 2012, http://indiankanoon.org/doc/193001449/
(http://indiankanoon.org/doc/193001449/) Mr. Justice Pradeep Nandrajog Hon’ble Ms. Justice Pratibha
Rani
[1
6] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref16) Mohibur Rahman and anr. v. State of
Assam Case decided by Supreme Court of India on 21 August, 2002
http://www.indiankanoon.org/doc/1445643 (http://www.indiankanoon.org/doc/1445643), AIR 2002 SC
3064
[1
7] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref17) Decided by Supreme Court of India on
10 December, 1999 http://indiankanoon.org/doc/1037935/ (http://indiankanoon.org/doc/1037935/) , 2000
(1) ALD Cri 606, JT 1999 (9) SC 513
[1 [1
8] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref18) 2000(5) SCC 197
[2 [2
0] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref20) (2005) 12 SCC 438
[2
2] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref22) http://indiankanoon.org/doc/1071507
(http://indiankanoon.org/doc/1071507) on 4 August, 2008, http://www.lawyerservices.in/Ravindra-
Reddy-Versus-Shaik-Masthan-and-Others-2008-08-04 (http://www.lawyerservices.in/Ravindra-Reddy-
Versus-Shaik-Masthan-and-Others-2008-08-04)
[2
3] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref23)
http://indiankanoon.org/doc/1796205/ (http://indiankanoon.org/doc/1796205/), decided on 5
September, 2008, AIR 2009 SC 56
[2
4] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref24) Harjit Singh Bedi, and J.M. Panchal,
Supreme Court of India on 4 August, 2009 http://indiankanoon.org/doc/1326224/
(http://indiankanoon.org/doc/1326224/)
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[2 [2 [2
6] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref26) 2005 (3) SCC 114
7] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref27) Bodhraj v.
Jammu & Kashmir2003 S.C.C. (Crim) 20: 2002 Cr.L.J. 4664
[2
8] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref28)
Ram Reddy Rajesh Khanna Reddy v. Andhra Pradesh, [2006 (10)
SCC 172] followed in Sirima Narasimha Rao v.Andhra Pradesh,
2010 Cr.L.J. 769;
[2
9] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref29) Chandramauli Kr. Prasad, J.,
Supreme Court of India, decided on 20 April, 2011, http://Indiankanoon.Org/Doc/625626/
(http://indiankanoon.org/Doc/625626/)
[3 [3
0] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref30) Ibid.
[3
2] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref32)
http://indiankanoon.org/doc/133213887/ (http://indiankanoon.org/doc/133213887/) decided by the
Supreme Court of India on 19 January, 2012 Bench: Asok Kumar Ganguly, T.S. Thakur
[3
3] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref33) 2012 SCCL.COM 306
(http://supremecourtcaselaw.com/showresult.asp?ID=13291)(Case No: Criminal Appeal No(s). 507 of
2007, http://indiankanoon.org/doc/32039060/ (http://indiankanoon.org/doc/32039060/)
[3
4] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref34)
http://www.supremelaw.in/2012/07/jagroop-singh-vs-state-of-punjab.html
(http://www.supremelaw.in/2012/07/jagroop-singh-vs-state-of-punjab.html), case decided by Supreme
Court on July 20, 2012 in Criminal Appeal No. 67 of 2008, http://indiankanoon.org/doc/118148233/
(http://indiankanoon.org/doc/118148233/)
[3
5] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref35) Dr. B.S. Chauhan, J. Supreme Court
Of India Decided On 11 April, 2011 Http://Indiankanoon.Org/Doc/1797027/
(http://indiankanoon.org/doc/1797027/)
[3
6] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref36) Fakkir Mohamed Ibrahim Kalifulla,
J., Supreme Court of India decided on 26 July, 2012 http://www.indiankanoon.org/doc/60317361/
(http://www.indiankanoon.org/doc/60317361/)
[3
7] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref37) 2012 (1) SCC 10. Decided by the
Supreme Court on 4 November, 2011 http://www.indiankanoon.org/doc/342168/
(http://www.indiankanoon.org/doc/342168/)
[3
8] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref38) Krishnaiyer, V.R. Shivaji Sahebrao
Bobade & Anr v. State of Maharashtra on 27 August, 1973 1973 AIR 2622, 1974 SCR (1) 489
[3
9] (http://www.legalindia.in/wp-admin/post-new.php#_ftnref39) See Prithipal Singh &
Ors v. State of Punjab 2012 (1) SCC 10. Decided by the Supreme Court on 4 November,
2011 http://www.indiankanoon.org/doc/342168/
(http://www.indiankanoon.org/doc/342168/)
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3/12/2018 An overview of the Judicial Decisions on "Last Seen Together" - Legal News / Law News & Articles - Free Legal Helpline - Legal Tips : Legal India
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