Last seen theory: Proof and effect
28. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the Appellant and she had failed to explain his whereabouts as also the circumstances leading to his death.
28.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act11 directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:
10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused......
28.2. On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The Appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and postmortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.
28.3. In the given set of circumstances, the last seen theory cannot be operated against the Appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the Appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In SK. Yusuf (supra), this Court has said:
21. 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 is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1046 of 2010
Decided On: 19.09.2019
Gargi Vs. State of Haryana
Hon'ble Judges/Coram:
A.M. Khanwilkar and Dinesh Maheshwari, JJ.
Citation: AIR 2019 SC 4864,(2019) 9 SCC738
Read full judgment here: Click here
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