Limitations of "Last Seen Theory" in Criminal Law

 

INTRODUCTION

 

Recently, the Hon’ble Supreme Court in the case of Jabir and Others v. State of Uttarakhand, 2023 SCC OnLine SC 32, discussed the limitations of the “Last Seen Theory” in Criminal Jurisprudence that is used to secure conviction of the accused persons in cases where there is an absence of direct eyewitnesses. For more on “Last Seen Theory”, please refer to my earlier Post, that could be accessed by clicking here.

 

LAST SEEN THEORY

 

The “Last Seen Theory” is generally applicable in cases where there are no eyewitnesses to the crime and the case of the prosecution rests entirely upon circumstantial evidence. However, there are three basic requirements that need to be satisfied for application of the “Last Seen Theory”: -

 

a. Time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found, should be minimal.

 

b. Every link in the chain of circumstances necessary to establish the guilt must be proved beyond reasonable doubt.

 

c. All the circumstances must be consistent unequivocally pointing towards the guilt of the accused.

 

Thus, the circumstantial evidence as well as the chain connecting those evidences ought to lead to an inescapable conclusion that the crime was committed by the accused and none else. According to the Court, “such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”

 

PANCHSHEEL OF PROOF

 

To further elucidate, the Court also discussed the case of Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, wherein the Five Golden Principles or Panchsheel of the Proof of a Case based on Circumstantial Evidence were laid down: -

 

1. The Accused ‘must be’ and not merely ‘may be’ guilty before a court can convict him or her.

 

2. The facts so established should only and only point out towards the guilt of the accused.

 

3. The circumstances should be of a conclusive nature and tendency.

 

4. The circumstances should exclude every possible hypothesis except the one to be proved.

 

5. The Chain of Evidence must be complete without leaving any reasonable ground for the innocence of the accused.

 

It is pertinent to note here that the Panchsheel are pointing towards a case where the accused ‘must be’ guilty and are consciously excluding the cases where the accused ‘may be’ guilty.

 

LIMITATIONS OF LAST SEEN THEORY

 

In this light, let us discuss the limitations of the “Last Seen Theory” or the situations where circumstantial evidence and consequent conviction by application of “Last Seen Theory” may not be appropriate: -

 

A. “Cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together” [Bodhraj v. State, (2002) 8 SCC 45].

 

B. In the absence of any other links in the chain of circumstantial evidence, the accused cannot be convicted solely on the basis of ‘last seen together.’ [Jaswant Gir v. State of Punjab, (2005) 12 SCC 438]

 

C. ““Last Seen Theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.” [Nizam v. State of Rajasthan, (2016) 1 SCC 550]

 

D. Unexplained delay in lodging of FIR may hinder in proving that “the time gap between the point of time when the accused and the 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.”  [Bodhraj v. State, (2002) 8 SCC 45]

 

CONCLUDING REMARKS

 

My own view is also that the “Last Seen Theory” should be used a tool of last resort by the prosecution to prove its case. The process of Investigation and Prosecution should be such that reliable witnesses pointing towards the guilt of the accused are present. There are indeed circumstances where there are no direct eyewitnesses but even in such cases, proper investigation along with expert evidence can make sure that “Last Seen Theory” is applied in light of the above-stated Panchsheel of Proof and no shortcoming or lacuna exists.