DOCTRINE OF LAST SEEN THEORY

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RISHABH SACHDEVA 24 Jan 2020

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DOCTRINE OF LAST SEEN THEORY

DOCTRINE OF LAST SEEN THEORY

WHAT IS LAST SEEN THEORY

Last seen together theory is one in which two people are ' seen together ' and one is found alive after an interval of time, and another is dead. Last seen theory may by itself be a poor kind of evidence establishing conviction on the same. Last seen together principle is one of the latest principle which is taken into consideration in establihing the guilt of the accused. Doctrine of last seen, if proved, shifts the burden of proof onto the accused, placing on him the onus to explain how the incident occurred and what happened to the victim who was last seen with him. If there is a failure on part of the accused to furnish any explanation in this regard, as in the case in hand, or furnishing false explanation would give rise to a strong presumption against him, and in favour of his guilt, and would provide an additional link in the chain of circumstances

CASE LAWS DEFINING THE CONCEPT OF LAST SEEN THEORY

Reena Hazarika Vs. State of Assam Criminal Appeal No.1330 of 2018

The deceased resided at the tenured premises belonging to the brothers Manoj Kumar Deka, Dipen Deka and Bhrigumoni Deka along with the appellant and his son, aged around 9 years. The appellant is alleged to have attacked the deceased on the night of 10.05.2013 that was interfering. The landlords said he heard noises and when he went there, he found the deceased with a head injury attributable to a fall, but the deceased was otherwise correct. Because of rains and the unavailability of an ambulance they were unable to send him to hospital. The Trial Court and the High Court hold the present case to be a matter of circumstantial evidence.

Mr. Manoj deposed that the deceased had told him about at 11:00 p.m. On 10.05.2013 that he suffered a head injury due to a fall and that the witness did not provide any first aid to the deceased when he and his brother Dipen tried to call an ambulance at approximately 12:00 am. Contrary to Manoj statement, his brother declared that he had been woken up at approximately 23:00 am. The complainant weeping and telling him her husband had sustained head injury. The deceased is then said to have told the witness himself the accident wasn't serious.

Defence taken by the appellant under Section 313 Cr.P.C. as follows: I saw my husband lying with bleeding wound in the bed. Manoj Deka and his brothers come here on my cry with a drink in one brother's hand. Afterwards I saw Manoj Deka put Dettol on my husband's bite. I rang out to 108 ambulances too.When, I wanted to call police Manoj Deka, my phone was snatched from me. There arrived on my criing neighboring peoples. I tried to take my husband to hospital, but my Manoj Deka and others failed to take him to Hospital because of non-cooperation. It expired around 9.30 that night and Manoj Deka and other neighbors were sitting down. Manoj Deka has subsequently falsely implicated me. I think my husband was physically assaulted.

SUPREME COURT OBSERVATION

The facts and circumstances of the case, the essence of the evidence available coupled with the manner in which it was examined, leave us persuaded that, in the case of circumstantial evidence, the ties in the chain of circumstances can not be said to have been formed leading to the inescapable conclusion that the appellant was the deceased's assailant, inconsistent with any likelihood of innocence.

2. MANOHARAN VS STATE BY INSPECTOR OF POLICE

Mohanakrishnan borrowed a vehicle that picked up two kids, a 10-year-old girl and her 7-year-old brother from outside a Hindu Temple as the kids prepared to go to school. This Mohanakrishnan was seen in the aforementioned vehicle by PW.3, the priest of the particular Vinayakar Temple and by PW.9, the two children's grandmother, taking the kids away. Instead, Mohanakrishnan took the kids to a gas pump around 8.15 a.m. That same day, at 9.30 a.m. The Appellant was picked up from his Angalakuruchi home.

The children were then taken about 10.45 am to a remote area called the Gopalsamy Temple Hills. At which point rape was allegedly committed against a girl whose hands were tied by both Mohanakrishnan and the Appellant. The two accused then purchased what is known as cow dung powder which is nothing but a poisonous substance that is applied to cow dung to keep insects away, given that the girl had been brutally raped (her anus having ruptured). This drug, together with milk, which was also purchased by the Appellant in this case, was reportedly administered to the two children by both Mohanakrishnan and the Appellant in an attempt to end both. The kids just ate a small portion of the cow dung powder mixed with the milk and died. Mohanakrishnan and the Appellant subsequently threw both of the children at the Parambikulam-Axhiyar Project Canal ("PAP Canal") and the prosecution charged that the Appellant had tied the girl up and pushed her into the canal, while Mohanakrishnan pushed the boy into the canal. At 5 p.m. Soundararajan saw the two children's school bags floating inside the canal. The school principal was informed later on the same evening who then informed the police about 6.15 p.m. And 6.30 hours. Same afternoon. 21.00 p.m. On the same day, Mohanakrishnan went to PW.7's house an Anbu @ Gandhiraj who had informed the police that Mohanakrishnan had been arrested at 9.45 pm. That same night, at the house of PW.7. 9:30 a.m. The girl's body was recovered from the canal the next day. The present appellant was arrested on 31 October 2010, at 7.15 a.m. And the boy's body was also recovered from the canal the same day. To complete the narrative, Mohanakrishnan was shot dead by the police on 9.11.2010 in an encounter. That left only the Appellant to be tried as an accused. A confession was recorded before the Magistrate.

The trial court eventually found the appellant guilty in a thorough judgment under section 120-B, section 364-A, section 376, section 302, section 302, read with section 34 and section 201 of the Indian Penal Code. The Appellant was sentenced to life imprisonment under Section 376 IPC, and he was granted the death sentence for the crime under Section 302 IPC. In the impugned judgment the High Court of Madras set aside the conviction of the appellant pursuant to Section 120-B and 364-A of the Penal Code, but confirmed the sentences pursuant to Sections 376, 302, Section 302 read with Section 34. High Court found that the last seen theory was made out in the facts of the present case such as

1. Sundararajan – PW.3, who was the temple priest who saw Mohanakrishnan picking up the two children around 8.00 a.m. on 29.10.2010.

2. Senthil Kumar – PW.20, a tailor, who saw both the accused with the children at 10.00 a.m. on that day.

3. N. Mani - PW.25, owner of a brick kiln in the foot hills of Gopalasamy Hills, who saw both the accused with the children at roughly 10.45 a.m. as they were coming down from the Gopalasamy Hillock.

4. Saravanakumar - PW.23, owner of a bakery who sold the milk at 1.00 p.m. on the same day to the Appellant, who saw the two children with Mohanakrishnan and the Appellant; and

5. R. Soundararajan – PW. 24 who saw both the accused with the children in a Maruti van around 3.00 p.m. on the same day.

SUPREME COURT OBSERVATION

The Supreme Court, in the matter of Machhi Singh vs. State of Punjab [1983 (3) SCC 470], held that when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty.

SC have no doubt that the trial court and the High Court correctly applied and balanced aggravating circumstances with mitigating circumstances in order to find that the crime committed was cold-blooded and involves the rape of a minor girl and the most heinous possible murder of two children. SC have no hesitation in our mind that the prosecution has proved beyond reasonable doubt that Mohanakrishnan picked up the two children and later Manoharan joined him and together both the accused were last seen with the two children and thus, the prosecution has proved the kidnapping and last seen theory without any iota of doubt

Therefore, uphold and maintain conviction of the appellant under Sections 302, 376(2)(f) and (g) and 201 IPC and the sentences awarded under Sections 376(2)(f) and (g) and 201 IPC. To this extent the appeal is dismissed

Did you find this write up useful? YES 15 NO 5

NILESH 22 Jun 2023 10:00am

good

manoj 9 Oct 2020 11:09am

very useful article