LAST SEEN TOGETHER

 

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 alibi1.  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 homicide2.  

 

‘Last Seen Together’ but Acquitted  

 

The Supreme Court has acquitted the accused appellants in the following cases despite the

fact that they were last seen together with the deceased/victims.

 

In Jaswant Gir v. Punjab,3the Apex Court observed that even assuming that the deceased had

accompanied the accused in their vehicle, that circumstance by itself did not lead to the

irresistible conclusion that the appellant and his companion had killed the deceased and

thrown the dead body in the culvert. It could not be presumed that the appellant and his

companions were responsible for the murder, though grave suspicion arose against the

accused. There was considerable time-gap between the deceased boarding the vehicle of the

1SC 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/, [2006 (10) SCALE2 AIR 2002 SC 30643 2005(12) SCC 438

appellant and the time when PW 11 found the dead body. In the absence of any other links in

the chain of circumstantial evidence, it was held not possible to convict the appellant solely

on the basis of the "last-seen" evidence.

 

In State of Goa v. Sanjay Thakran 4 the deceased honeymoon couple arrived in Goa from

Mumbai and stayed in a hotel.  They went for sight-seeing at Ozran, Vagator with Vincent,

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. 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.

 

In SK. Yusuf v. West Bengal5,  the Supreme Court has reiterated its observation in State of

U.P. v. Satish 6 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”7. Even if time gap is less and there is

no possibility of others intervening, it is safer to look for corroboration8. 

 

In Sunil Rai @ Paua & Ors vs Union Territory, Chandigarh9,  the three appellants are serving

life sentences for committing murder of deceased Dile Ram. They were never on bail and

have, thus, completed over ten years of incarceration. The deceased was last seen being

chased by the appellants yelling at him and shouting that they would not spare him. Sunil Rai

allegedly made an extra judicial confession to the effect that he along with the other accuseds

4 2007 (3) SCALE 7405 2011 ALL MR (Cri) 2365. (S.C.)6 2005 (3) SCC 1147 2003 S.C.C. (Crim) 20: 2002 Cr.L.J. 46648 [2006 (10) SCC 172]9 2010 Cr.L.J. 769;

hit the deceased with brickbats and stones at about 9:00pm in the night between March 29

and 30, 2001, causing injuries to him that led to his death. The judgments and orders of the

High Court and the trial Court were held completely unsustainable as the witnesses had

turned hostile and medical examinations were not supporting the prosecution story. The extra

judicial confession was not written and reliable. Time gap between the last seen together and

the death was so large and there was no reliable additional evidence to establish the crime.

Unfortunately, the accused had suffered 10 years in jail before the Apex Court held the

acquitted.

 

Rape Murder of Girl Child-Rarest of Rare Cases

 

In  State of Maharashtra v. Suresh10,  the accused respondent was already an accused in

another rape case of an 8 yrs. old girl and had got acquitted. He went to the house of deceased

Sneha @ Gangu 4 yrs. old.  The deceased was then playing near the gate of her house. After

the respondent left the house, no one in that house had seen Gangu alive. There was evidence

that the respondent took Gangu to the shop of Mahadeo, and later to the shop of Motiram,

and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue for

sexually ravishing that little child and smothering her to death. The spot was pointed out by

the respondent [after his arrest] wherefrom the dead body of Gangu was traced out. The

accused could not give any explanation whatsoever for the injuries on his private parts. The

Supreme Court reversed the Lower Courts judgment and convicted the respondent basing on

last seen principle as there was other circumstantial and medical evidence.  

 

Shivaji @ Dadya Shankar Alhat v. State of Maharashtra11 was a gruesome rape murder case

of tiny young girl aged 9 yrs studying 5th class. As the accused, [a B.A., B.Ed., teacher,]

offered fuel wood, the deceased had gone with him together to the Hills. She was last seen in

the company of the deceased and injury on the abdomen and the rope by which the deceased

was strangulated were recovered at the instance of the accused and the fact that the accused

had absconded and was arrested from a place where he was hiding and the presence of blood

on his cloth was a relevant factor. The plea of alibi set up has not been established. Supreme

Court had confirmed the death penalty.

 

10 Aftab Alam, J. Supreme Court Of India On 4 July, 2011Http://Indiankanoon.Org/Doc/175306/11 2000 (1) ALD Cri 606, JT 1999 (9) SC 513

Md.Mannan @ Abdul Mannan v. State of Bihar12,  was another ghastly rape murder case of

an 8 years old girl. The appellant was working as Mason in the House of Devi Kant Jha,

grand- father of deceased (PW-8); He had sent the deceased Kalyani Kumari to the betel-shop

to get betel. He had proceeded towards the betel-shop few minutes after the deceased left. He

was last seen with the deceased going together on a bicycle.  He made a confession leading to

the recovery of dead body from a field. The dead body of Kalyani Kumari had injury on the

private parts, her nails were munched and there were marks of bruises all over the body. The

rape and murder by the appellant on the victim girl has been proved by medical evidence.

The Apex Court conceded that it was the ‘rarest of the rare’ cases and confirmed the death

penalty. Interestingly, the judgment of Chandramauli Kr. Prasad, J.,quoted no judicial

precedents at all. 

 

Rajendra Pralhadrao Wasnik v. The State of Mahrashtra, 13 was yet another brutal, gruesome

rape murder case of a 3 year old girl. The accused had taken the victim Vandana from her

home on the pretext of purchasing her biscuits. Neither Vandana nor the accused returned to

the house. The accused was seen with the deceased at the bus stand. Thereafter, the nude

body of Vandana was found in the field, the next day. The Apex Court held that on the basis

of the `last seen together' theory and other direct and circumstantial evidence, the prosecution

has been able to establish its case beyond any reasonable doubt. The Court opined that the

accused had committed the crime in the most brutal manner 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.

 

Other Convictions

In Joseph s/o Kooveli Poulo v. State of Kerala14,  the deceased was taken away from the

convent by the appellant under a false pretext and she was last seen alive only in his

company. On the information furnished by the appellant, the jewels of the deceased which

12 AIR 2009 SC 5613  Chandramauli Kr. Prasad, J., Supreme Court of India, decided on 20 April, 2011,http://Indiankanoon.Org/Doc/625626/14 Ibid.

were sold by the appellant, were seized. The Court had convicted the accused for the offence

of murder basing on the last seen together principle but gave the benefit of doubt to the

accused for the offence under S. 376 as there was no other incriminating evidence to prove

the offence of rape.

 

In Mohibur Rahman and anr. v. State of Assam15,   the Apex Court considered three pieces of

incriminating circumstantial evidence against the main accused Taijuddin viz.,  i) the

deceased Rahul was last seen in the company of the accused Taijuddin ii) He gave a false

explanation about the whereabouts of the deceased and iii) the accused was having

knowledge of the dead body cut into two pieces (meaning thereby having died an unnatural

death on being subjected to deadly violence) being buried- coupled with the fact of failure on

the part of the accused to offer any reasonable explanation of any of the said circumstances-

to hold sufficient to fasten the liability of murder on the accused. The  Court on the other

hand held that merely because the other accused/appellant Mohibir was last seen with the

deceased a few unascertainable number of days before the death of the deceased, he cannot

be held liable for the offence of having caused the death of the deceased without any further

evidence to establish the crime. Therefore, Taijuddin’s conviction was upheld and Mohibir

was acquitted by the apex court.

 

In   Anil Kumar v. State Rep. by Inspector of Police16 the Sessions Court relying primarily on

the evidence of P W.2 (P W.1 having turned hostile) and P W.3 the Doctor and the recovery

of the murder weapon, a knife, at the instance of the appellant, and the fact that the deceased

and the appellant had been last seen together in the van, convicted the appellant. The

conviction was affirmed by the High Court. But, the Apex Court held that the Lower Courts

conviction could not be sustained as ‘the medical evidence far from supporting the

prosecution story destroys its very substratum.’

 

In Ravindra Reddy v. Shaik Masthan and ors,17 A1, A2 and the deceased were last seen

together going on a scooter by PW 9. Later the deceased was found dead. In pursuance of

A1’s   confession, knives were recovered from the house of A-3 apart from seizing the Bajaj

scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt and gold

15 (2012) 4 SCC 3716 AIR 2002 SC 306417 Harjit Singh Bedi,  and J.M. Panchal,  Supreme Court of India on 4 August, 2009http://indiankanoon.org/doc/1326224/

chain were recovered. There was 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 Shanmughan v. State of Kerala18  the victim Raji was sleeping on the fateful day in the bed

room with her husband- the appellant. There was evidence of mal-treatment of the deceased

by the appellant. Nobody was present in the bed room where the appellant and the deceased

were sleeping as husband and wife. The victim admittedly screamed at about 2 a.m. That

attracted the inmates of the house to rush to the bed room to find the victim dead as a result of

administering of poison. This was not in dispute. The victim died of cyanide poison which is

a highly corrosive poison. The Court opined that without any force these injuries could not be

there in a case of suicidal poison. The injuries were fresh injuries and cannot be sustained by

fall on a hard substance. When the attention of the accused - appellant was specifically drawn

by the trial court under S. 313 of Cr.PC to the injuries on the deceased, he did not give any

answer. Therefore, taking all these facts and also the concurrent findings of the two courts,

the Supreme Court was not inclined to interfere in the appeal. The appeal was accordingly

dismissed.

 

In  Shyamal Ghosh v. State of West Bengal19, there were eye-witnesses who had seen the

scuffling between the deceased and the accused on demand of money and the strangulation of

the deceased by the accused persons and also the loading of the mutilated body parts of the

deceased contained in gunny bags into Maruti Van. The body of the deceased was recovered

in pieces in presence of the witnesses, have been fully established. The gap between the time

when the accused persons were last seen with the deceased and the discovery of his mutilated

body was quite small and the possible inference would be that the accused are responsible for

commission of the murder of the deceased. Once the last seen theory comes into play, the

onus was on the accused to explain as to what happened to the deceased after they were

together seen alive. The accused persons have failed to render any reasonable/plausible

explanation in this regard and were therefore held liable.

18 http://indiankanoon.org/doc/1071507 on 4 August, 2008,http://www.lawyerservices.in/Ravindra-Reddy-Versus-Shaik-Masthan-and-Others-2008-08-0419 http://indiankanoon.org/doc/133213887/ decided by the Supreme Court of India on 19 January, 2012 Bench: Asok Kumar Ganguly, T.S. Thakur

 

In Jagroop Singh v. State of Punjab20the accused Jagsir Singh took the deceased Jagjit Singh

@ Jagga, 10 year old boy, to accompany him for plucking flowers from the field. The boy

accompanied him and did not return home. He was last seen with the accused persons; the

accused had made extra-judicial confessions; the dead body of the deceased was recovered

from the field of the father of the accused; the weapon used in the crime was also recovered

on the basis of the confession; the report of Forensic Science Laboratory, the weapon used,

spade, was found stained with human blood; and the post mortem report clearly stated that

the injuries found on the body of the deceased could be caused by the seized weapon…..  the

accused could not give any explanation under Section 313 of the Code of Criminal Procedure

except choosing the mode of denial. Thus, the Court convicted the accused basing on last

seen principle besides other corroborating evidence.

 

In Kulvinder Singh & anr v. State of Haryana 21 as both the appellants had been seen

immediately before the occurrence at the place of occurrence and the deceased had come

there shortly thereafter, the Apex Court observed that the accused had an opportunity to kill

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, held completed the chain

of circumstances pointing to the guilt of the appellants-accused.

 

In the recent Arvindkumar Anupalal Poddar v. State of Maharashtra22 case, the deceased and

the accused were last seen together on 06.12.2001. Later, body of the deceased was recovered

at the instance of the appellant. The recovery of knife from the place of occurrence, the

frequent quarrels between the deceased and the accused, the theory of the deceased having

run away from the matrimonial home not properly explained by the appellant apart from the

fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife

containing blood stains, that the nature of injuries found on the body of the deceased, the

death was homicidal and that the injuries could have been caused with the weapon marked in

the case , that the appellant wanted to flee from the town itself and that the clothes seized

20 2012 SCCL.COM 306(Case No: Criminal Appeal No(s). 507 of 2007,http://indiankanoon.org/doc/32039060/21 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/118148233/22  Dr. B.S. Chauhan, J. Supreme Court Of India Decided On 11 April, 2011 Http://Indiankanoon.Org/Doc/1797027/ 

from the appellant were found containing human blood- established the guilt of the appellant.

The Apex Court quoted Prithipal Singh & ors v. State of Punjab 23 [an illegal detention and

death case] where it has been held that ‘a fact which is especially in the knowledge of any

person then the burden of proving that fact is upon him and that it is impossible for the

prosecution to prove certain facts particularly within the knowledge of the accused.’ The

Supreme Court has upheld the conviction of the accused. 

23  2012 (1) SCC 10.