Last Seen Theory – Prosecution To Establish When Deceased Was Seen With Accused And Time Of Death – Bombay HC

In this context, the Division Bench comprising Justice Sadhana S. Jadhav and Justice Milind N. Jadhav observed –

"Last seen theory by itself is not sufficient to prove that the accused are the authors of the fatal injuries sustained by the deceased. In fact, the prosecution has to establish the time when the deceased was lastly seen in the company of the accused and the time of death. Unless there is proximity in the time of last seen and the time of death, the evidence cannot be taken into consideration to convict the accused."

Thus, the High Court acquitted the two accused aged 32 years and 19 years charged with assaulting and killing a deranged man.

In this case, it was alleged that under the pretext of giving food to the mentally ill person, the accused started to assault him and killed him, and threw his body in a well stating that the deceased (mentally ill man) was infact a demon. The post-mortem report of the deceased showed that the deceased died of intracranial hemorrhage due to head injury.

The Trial Court had convicted the Appellants-Accused under Section 302 IPC and had sentenced them to life imprisonment levied a fine of Rs. 10,000 each in default to suffer R.I for six months. The Appellants were also convicted under Section 201 IPC and sentenced to suffer R.I. for 5 years and pay a fine of Rs. 5,000 each in default to suffer R.I. for 3 months.

Aggrieved, the Appellants-Accused approached the High Court.

The High Court noted that in this case, the evidence is the nature of the circumstances of last seen theory and extra-judicial confession to PW 9. The Court also noted that both PW 8 and PW9 were under the influence of alcohol throughout the period which led to the murder of the deceased.

The Bench further added that it is true the accused had no animus or intention to assault the deceased much less to kill him. The identity of the deceased had not been established. In this context, the Court opined –

"The deceased was also not apprehended when he was attempting to commit theft. It is the case of the P.W. 8 and P.W. 9 that the accused had assaulted only with fists and blows. There is no recovery of weapon. However, according to P.W. 4, the assault was with a hard and blunt object. The evidence in the nature of extrajudicial confession is week, since there is no material on record to show that it was a voluntary disclosure to its fullest extent."

The Court also held that the Prosecution had failed to establish that PW8 and PW9 had seen the deceased in the company of the accused. The only description is that he was a mentally ill person. But the identity of the person as the deceased has not been established, thus the Bench observed –

"The statement of P.W. 8 and P.W. 9 are recorded after the arrest of the accused. Therefore, again there is no material to show that it was on the basis of their statement that the accused were arrested."

Accordingly, the Court held that the Prosecution had failed to establish the guilt of the accused beyond reasonable doubt and acquitted them of all the charges leveled against them, and allowed the appeal. The Court set aside and quashed the impugned order of the Trial Court.

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