‘Last Seen Together’ Evidence

Source: The Hitavada      Date: 07 Aug 2017 10:27:17


It is clear from this 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 additional link which
completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of explanation cannot be made the basis of conviction.

IN THE judgement of the case - Anjan Kumar Sharma & Others vs State of Assam delivered on May 23, 2017, Justice L Nageswara Rao and Justice Navin Sinha, at the Supreme Court, have held that in a case revolving around the circumstantial evidence of ‘last seen together’, in absence of (reasonable) explanation, would provide an additional link, to complete the chain in a case where the other links have been satisfactorily made out.


In 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 appellants with Jitendra Nath Kakati alias Jit Kakati were charged for committing offences under Section 302, 376(2)(g), 201 read with Section 34 IPC, 1860. Accused Jit Kakati was separately charged under Section 366-A IPC. The appellants and Jit Kakati were acquitted of all the charges framed against them.


The High Court reversed the acquittal and convicted the appellants and Jit Kakati for offences under Sections 302, 201 read with Section 34 IPC and sentenced them to life imprisonment after acquitting them for an offence under Section 376(2)(g) read with Section 34 IPC.
Jit Kakati was acquitted for offence under Section 366-A IPC.


Aggrieved by the conviction under Sections 302 read with 34 IPC, the appellants filed these appeals. Jit Kakati had also filed appeal which abated due to his death.


The appellants and Jit Kakati worked as Asstt Managers of Gotanga tea estate at the relevant time. Appellant -3 was working as a Welfare Officer of Sangsua tea estate and appellant-4 was working as Asst Manager of Gobindapur tea estate. Both Gotanga and Sangsua estates were under the same management. Jit Kakati and Anjan Kumar Sharma were living in Bungalow No 17 in Gotanga tea estate. Jit Kakati was staying in one part of the director’s bungalow situated in Sangsua tea estate, when he was working as Asst Manager there, prior to his transfer to Gotanga tea estate. Even after his transfer, he was in occupation of the director’s bungalow at Sangsua estate.


Rekha Dutta was residing in a house near the director’s bungalow at Sangsua. Jit developed intimacy with Rekha. On December 27, 1992, Rekha went inside that bungalow to fetch water. Jit called her inside and she was inside the bungalow for a considerable period of time. Her elder brother Jibon, who was a guard there, was informed, who sent her another sister Jun Moni to the bungalow to look for Rekha. She saw Rekha sitting with Jit in a room of the bungalow. After receiving this information Jibon went inside and talked with Jit questioning his conduct.


Jit informed Jibon that he proposed to marry Rekha. She was seen last with Jit at that bungalow on December 27, 1992, till 9 pm by two prosecution witnesses - Fulu and Bhai. On not being able to locate Rekha, her relatives made enquiries unsuccessfully and approached the police at Pulibar in Jorhat district with the complaint that Rekha had eloped with Jit at 4.30 pm on December 27, 1992 and since then her whereabouts were not known.


An FIR in this regard was registered at 10.15 am on December 29, 1992. At about 1.50 pm, the Investigating Officer received an information about a dead body lying on the railway track.


He saw severed pieces of a girl’s dead body lying on the track. The body was cut into pieces by the train. The body parts were found lying scattered within 40 feet area. The head and left leg were not found with other parts of the body. The body was identified as of Rekha by her elder brother Jibon, on the basis of the clothes she was wearing.
According to the Supreme Court, it is no more res integra that suspicion cannot take the place of legal proof, for sometimes, unconsciously it may happen to be a short step between moral certainty and the legal proof. At times it can be a case of “may be true”. But there is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions.


It is settled law that inferences drawn by the court have to be on the basis of established facts and not on conjectures - Sujit Biswas vs State of Assam (2013). The inference that was drawn by the High Court that the death was caused on December 28, 1992 within the time of 48 hours as mentioned in the post mortem report is not correct. The post mortem was conducted on December 30, 1992, at 12 noon and it was opined by the Prosecution Witness (PW) 11 that the death occurred 24 hours to 48 hours prior to the time of post mortem examination.


Even if the time is stretched to the maximum of 48 hours, the death was after 12 noon on December 28, 1992.
The deceased was in the company of the accused till 9 pm on December 27, 1992. The inference drawn by the High Court that the accused killed the deceased on December 28, 1992 at night and thrown the body on the railway track is not on the basis of any proved facts. The Trial Court is right in holding that there is no evidence on record to show that the deceased was with the accused after 12 noon on December 28, 1992.


The prosecution relied upon nine circumstances to prove the charges against all the accused. The autopsy report stated that the death of the victim was due to the ante mortem incised wound found on the skull which could have been caused by material Exhibit-3 (khukri). The Supreme Court has expressed agreement with the Trial Court that the recovery of the khukri was not supported by any independent witnesses.


The prosecution also failed to prove that there were blood stains on the said khukri. The bloodstains found in the bathroom of the bungalow no 17 were sent for examination which resulted in a negative report.


These circumstances not being proved would leave only two circumstances against the accused that the accused was last seen together with the deceased and the absence of any explanation forthcoming by the accused.
The circumstance of last seen together cannot by itself form the basis for holding the accused guilty of the offence.


It is clear from this 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.


Due to the lack of chain of circumstances which lead to the only hypothesis of guilt against the accused, the Supreme Court has allowed the appeal, set aside the impugned judgement of the Gauhati High Court and acquitted the appellants of the charges of Sections 302, 201 read with 34 IPC.