The Last Seen Moment: Evidence and Implications in Criminal Cases

A Division Bench of Supreme Court consisting of Judges Bela M. Trivedi and Shri Prasanna B. Varale passed a judgment dated 27^th February 2025 in case of State of Chhattisgarh versus Ashok Bhoi upholding the acquittal of two accused persons in a murder case and held that – “Allowing the guilty to evade accountability based on mere fanciful doubts does not uphold the principles of justice as defined by law. Nevertheless, it is firmly established that suspicion, no matter how compelling, cannot substitute for concrete evidence.”

The current appeals have been submitted by the State of Chhattisgarh, contesting the decision made by the High Court of Chhattisgarh at Bilaspur, which acquitted the Respondent-Accused Ashok Bhoi of the charges brought against him. Additionally, the High Court dismissed the Acquittal Appeal filed by the State regarding the Respondent’s Acquittal.

Facts:

On 15.01.2006, Swapnil had got somewhere out and had not returned. His brother Suhash was sent to find him out. After some time, Swapnil came back home but Suhash did not returned. At about 9 PM, telephone call was received on Swapnil’s number demanding a ransom of Rs. 2 lacs for getting Suhash back. An FIR was lodged by father Uttamlal at about 10:45 PM.

On 17.01.2006, at the instance of juvenile offender, the dead body of the deceased was found in an abandoned house. On Further Investigation, Ashok Bhoi was taken into custody. Following a thorough examination of the evidence presented, the Additional Sessions Judge in Durg found Ashok Bhoi guilty of offenses under Section 364-A and 302 of the Indian Penal Code, while co-accused Vikash Khubwani was acquitted of all charges.

 

Issues:

The entire case of prosecution was based on circumstantial evidence. It was because of absence of eye witness to the alleged incident. One of the prosecution witnesses had seen the deceased along with accused at about 6-7 PM on the date of incident i.e., 15.06.2006. The question arose- Would this evidence of “last seen together” be sufficient to prove the charges against the accused?

Theory of “Last seen together”

The theory found its roots in English Common Law principle. It lays down that if a person is last seen with the deceased with no credible explanation, there is a strong presumption they are responsible for the crime.

Position of Last Seen Theory in Indian Evidence Act, 1872 (IEA)

Section 7: lays down those facts which are the Occasion, Cause or Effect of Relevant Facts or Facts in Issue, or which constitute the State of Things under which they happened, or which afforded an Opportunity for their Occurrence or Transaction, are relevant.

Section 106: It states that Burden of Proof on the Accused when certain Facts are especially within their knowledge.

Section 114 indicates that courts are permitted to assume the existence of Specific Facts when other pertinent facts are established through the ordinary course of natural occurrences, human behaviour, and both public and private affairs.

The court held- The theory of “last seen together” was based at Section 106 of Indian Evidence Act which states that the burden of proof lies on the person having special knowledge of a specific fact. If the prosecution is able to prove last seen theory, the burden shifts on accused to explain the said incriminating evidence.

The court held:” It is well settled that suspicion, howsoever strong, cannot take the place of proof. In circumstantial evidence, the Entire Chain of Circumstances must be clearly established by leading reliable Evidence and these circumstances must lead to irrestible conclusion leading to guilt of the Accused”.

The Supreme Court upheld the Judgment of High Court acquitting the Accused Persons.

 

Analysis of the Judgment:

The High Court pointed out that during Investigation the statement of concerned person from STD-PCO was not recorded to substantiate the allegation that phone call was made by Ashok Bhoi. It was the duty of prosecution to prove the guilt of accused beyond reasonable doubt by other circumstances in case based on circumstantial evidence. It failed to do so leading to acquittal of the accused.

 

TRISHA SAXENA

SENIOR LEGAL ASSOCIATE

THE INDIAN LAWYER & ALLIED SERVICES