Assam: Gauhati High Court Rejects ‘Last Seen Theory’, Acquits Murder Convict

Staff Reporter

Guwahati: The Gauhati High Court stated that the aspect of the ‘last seen theory’ cannot be made applicable in the instant case before it and, in any case, cannot be independently sufficient to sustain the conviction of the appellant.

This was stated by the division bench of Justice Sanjay Kumar Medhi and Justice Mitali Thakuria while overturning the impugned judgment dated February 17, 2020, passed by the Addl. Sessions Judge-2 (FTC), Tinsukia. The judgement in Sessions Case No. 52(T)/18, convicting the appellant and sentencing him to undergo life imprisonment u/s 302 IPC and a fine of Rs. 5,000, was held unsustainable in law and was accordingly set aside.

The bench held that the appellant is entitled to getting the benefit of the doubt and was accordingly acquitted and directed to be released forthwith unless he is required in any other case.

In the background to the case, the law was set into motion by lodging of an FIR on February 18, 2018, by one Ashok Chik, appellant and prosecution witness 2 (PW2), who is the brother of the deceased Sankar Chik. In the said FIR, the allegation was that some unknown miscreant had left his younger brother near the Kali Mandir after killing him. On the basis of the FIR, the investigation was done and the charge sheet was submitted. On the framing of the charges and denial thereof, the formal trial had begun in which 15 numbers of prosecution witnesses were examined and certain documents were also exhibited, including the sketch map.

After considering the materials of record, including the evidence, the impugned judgment had been passed, which was the subject matter of challenge in the instant case.

The division bench examined two aspects that may bring in the complicity of the appellant with the alleged offense, namely, the theory of "last seen together" and the aspect of extrajudicial confession.

So far as the aspect of the "last seen together" theory is concerned, there were three witnesses who claimed to have seen the deceased and the appellant together last. The first witness is PW8. As per this witness, he saw the deceased and the appellant fighting near a peepal tree, and on being called by PW10, he had gone there and separated the deceased and the appellant, after which they had gone away in different directions.

The second witness on the aforesaid aspect of "last seen together" is PW10, who, however, did not make even a passing reference to PW8 on intervening in the fight and separating the accused and the appellant. According to him, he had intervened in the fight, whereafter the accused and the appellant were separated.

The third witness on the aspect of last seen together was PW13. Though declared hostile, her evidence is required to be examined with her statement made under Section 164 of the Cr.P.C., and both the versions are almost similar. In her statement under Section 164 of the Cr.P.C., she had mentioned the presence of one Rajib Bakti (PW11) in her house where the quarrel had started on the issue of asking for a muffler by the appellant from the deceased. PW11, in his examination, however, does not even refer to any such event or his presence in the residence of PW13.

From the above evidence and discussions, the bench found that the "last seen theory" projected is wholly inconsistent. It was also examined from the point of view of the evidence of the doctor who had performed the post-mortem. As per the report, the death was within 12 hours, and the examination time was 1:45 PM on February 18, 2018, while they were "last seen together" between 8 and 9 PM on February 17, 2018.

Under the facts and circumstances, the bench ruled that the application of the "last seen theory" would be against the principles of criminal jurisprudence wherein guilt cannot be presumed but has to be proved beyond any reasonable doubt.

On the other aspect of extra-judicial confession, it is a settled law that such evidence is a weak piece of evidence that is necessarily required to be corroborated with other material witnesses. This was not so in this case.

 Also read: Assam: Woman, Two Others Arrested for Ex-Husband’s Murder in Dhemaji

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