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section 106 last seen theory








Supreme Court of India

Nizam & Anr vs State Of Rajasthan on 4 September, 2015

Undoubtedly, “last seen theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “last seen theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on “last seen theory”. “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.


Elaborating the principle of “last seen alive” in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, Apex Court held as under:- “23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain."


Delhi High Court

Arvind @ Chhotu vs State on 10 August, 2009

The last seen theory relates to evidence which is not direct evidence i.e. is circumstantial evidence. It is settled law that to sustain a conviction on circumstantial evidence, the chain of circumstances has to be so complete that the finger of accusation unerringly points towards the guilt of the accused and rules out the innocence.


The foundation of the last seen 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.


As observed in the decisions reported as (2002) 6 SCC 715 Mohibur Rahman Vs. State of Assam, there may be cases where a single circumstance is of a kind that a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the deceased suffered death or should own the responsibility for homicide.


Thus, at the heart of the matter of a circumstantial evidence is the principle: of a rational mind being persuaded to reach an irresistible conclusion qua the guilt of the accused.


It is the quality of evidence and not the number which matters. A criminal trial is not a race at which the winner is determined with reference to the length run by the prosecution or the defence. It is also not a number game where the number of circumstances would determine the guilt or otherwise.


We can do no better other than to refer to an illustration, aptly illustrated in the decision reported as 2000 (8) SCC 382 State of W.B. Vs. Mir Mohammad Omar & Ors.


Debating on the issue whether the sole evidence of an accused being last seen in the company of the deceased would be sufficient to sustain a conviction, the Supreme Court held that the presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position.


The legislative foundation to the said rule of inference was located in Section 114 of the Evidence Act which empowers the Court to presume the existence of any fact which is likely to have happened. In that process, the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.


The illustration by the Court succeeds the aforenoted legal principles culled out by the Court in para 33 of the decision. The hypothetical illustration highlighted by the Courts is of a boy being kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappearing with the prey. The question posed is: what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere.


The answer is provided: in such a case, the only inference of reasonable certainty is that the boy was killed by the kidnappers unless the kidnappers explain otherwise.


Would it make any difference if the dead body of the kidnapped boy is found after 10 days. To our mind, with reference to the hypothetical case posed by the Supreme Court, it would make no difference. The reason is that, if a person has no lawful reason to be in the company of another person, as in the case of kidnapping, whatever may be the length of time between the incident of kidnapping and the victim being found dead, unless the kidnapper explains the time and place where he parted company with the prey, the kidnapper must own the guilt.


There is another legal principle on which aforesaid inference can be founded. Section 106 of the Evidence Act embodies the legal principle that where a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The philosophy behind Section 106 of the Evidence Act is that a knowledge of a person rests in his brain or his mind. It can never be accessed or exposed by the opposite party; at a criminal trial, the opposite party being the prosecution. The only rider which needs to be noted, on the applicability of Section 106 of the Evidence Act is, at a criminal trial, that the prosecution must reach the stage by leading cogent and clinching evidence where further deadlock can be broken only by accessing the knowledge of the accused and only when the silence of the accused or not giving an explanation by the accused would attract the adverse inference against him.


It is settled law that in the evaluation of evidence, circumstances surrounding a fact play a very important role. Indeed, denuding circumstance in which a fact occurred would render the evidence fairly sterile and incapable of any meaningful appreciation.


The various judicial pronouncements which have been referred to by learned counsel for the parties show, far from there being any divergence in the judicial opinion, a common signature tune. The common golden thread running down and spanning; infusing life, in the various judicial pronouncements is the circumstance surrounding a fact kept in view by the Court while evaluating evidence pertaining to the deceased and the accused being last seen alive followed by the dead body of the deceased being recovered. Indeed, with reference to the circumstances surrounding the fact of being seen last it has been held that on the facts and circumstances of a particular case the sole evidence of the deceased and the accused being last seen alive was sufficient wherefrom the finger of guilt could unerringly be pointed against the accused, who rendered no satisfactory explanation as to when the accused and the deceased parted company. In cases where the circumstances were such that it could not be held that there was a possibility of an outsider intervening, it was held that in the absence of any further evidence, the highly suspicious conduct of being last seen alive remained a mere suspicion and did not attain the status of proof."





Bodhraj @Bodha & Ors. vs. State of Jammu & Kashmir (2002) 8 SCC 45 .

Explaining the last-seen theory, in para 31 it was observed as under:-


"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last 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 would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A-1 and A-2 were seen together by witnesses i.e. PWs 14, 15 and 18; in addition to the evidence of PWs 1 and 2."

( The circumstances of the facts of last seen alive; pertaining to the place, the time and the distance between the place where the deceased was last seen alive and the dead body was found and the time-gap of the two events needs to be noted.)



Delhi High Court in its recent decision in Lalu Pasi v State, MANU/DE/3657/2017, noted, as under, on the "last seen principle":


"45. On the "last seen theory", the Supreme Court has this to say, in Nizam (supra)(in paras 12, 14, 15 and 18 of the report):

"12. Based on the evidence of PWs 1 and 2, the courts below expressed the view that the motive for murder of Manoj was the lust for the money which Manoj was carrying. The courts below based the conviction of the appellants on the circumstances "last seen theory" as stated by PWs 1 and 2 along with the recovery of bilty and receipt by PW 6 on which the name of the accused person (Nizam) was printed. The appellants are alleged to have committed the murder of Manoj for the amount which Manoj was carrying. But neither was the amount of Rs. 20,000 nor any part of it recovered from the appellants. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. The absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution.

14. The courts below convicted the appellants on the evidence of PWs 1 and 2 that the deceased was last seen alive with the appellants on 23-1-2001. Undoubtedly, the "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "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."

Elaborating the principle of "last seen alive" in State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254, Apex Court held as under: (SCC p. 265, para 23) "23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohamed, In re., AIR 1960 Mad 218 "

The above judgment was relied upon and reiterated in Kiriti Pal v. State of W.B., (2015) 11 SCC 178.

18. In view of the time gap between Manoj being left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that the appellants and the deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the "last seen theory"; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory."

(Emphasis supplied)

Ganpat Singh (supra), too, is instructive on the parameters of the "last seen theory", and holds, after referring to a catena of earlier authorities, as under:

"Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the Accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows:

'The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.' "

(Emphasis supplied)

In another recent judgment, Anjan Kumar Sarma v State of Assam, MANU/SC/0656/2017, the Supreme Court, relying on its earlier decision in State of Goa v Sanjay Thakran, (2007) 3 SCC 775, expostulated thus, on the "last seen theory":

"22. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:-

"34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case."


Delhi High Court

Arvind @ Chhotu vs State on 10 August, 2009


(i) Last-seen is a specie of circumstantial evidence and the principles of law applicable to circumstantial evidence are fully applicable while deciding the guilt or otherwise of an accused where the last-seen theory has to be applied.


(ii) It is not necessary that in each and every case corroboration by further evidence is required.


(iii) The single circumstance of last-seen, if of a kind, where a rational mind is persuaded to reach an irresistible conclusion that either the accused should explain, how and in what circumstances the deceased suffered death, it would be permissible to sustain a conviction on the solitary circumstance of last-seen.


(iv) Proximity of time between the deceased being last seen in the company of the accused and the death of the deceased is important and if the time gap is so small that the possibility of a third person being the offender is reasonably ruled out, on the solitary circumstance of last-seen, a conviction can be sustained.


(v) Proximity of place i.e. the place where the deceased and the accused were last seen alive with the place where the dead body of the deceased was found is an important circumstance and even where the proximity of time of the deceased being last seen with the accused and the dead body being found is broken, depending upon the attendant circumstances, it would be permissible to sustain a conviction on said evidence.


(vi) Circumstances relating to the time and the place have to be kept in mind and play a very important role in evaluation of the weightage to be given to the circumstance of proximity of time and proximity of place while applying the last-seen theory.


(vii) The relationship of the accused and the deceased, the place where they were last seen together and the time when they were last seen together are also important circumstances to be kept in mind while applying the last seen theory. For example, the relationship is that of husband and wife and the place of the crime is the matrimonial house and the time the husband and wife were last seen was the early hours of the night would require said three factors to be kept in mind while applying the last-seen theory.


The above circumstances are illustrative and not exhaustive. At the foundation of the last-seen theory, principles of probability and cause and connection, wherefrom a reasonable and a logical mind would unhesitatingly point the finger of guilt at the accused, whenever attracted, would make applicable the theory of last-seen evidence and standing alone would be sufficient to sustain a conviction.



In the case of Harbans Singh and Anr. v. State of Punjab, , the Apex Court stated :


"What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittals the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the Appellate Court comes to the conclusion that the view taken by the lower Court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a Court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."


Section 110:

Supreme Court of India

Nazir Mohamed vs J.Kamala And Ors. on 27 August, 2020

"In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.

A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.

The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.

A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence."




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