Supreme Court: Under which circumstances S 106 of Evidence Act will operate against either a husband or wife staying under the same roof and were last seen together?

 It will also be relevant to refer to the following observations of this Court in the case of Gargi (supra):

33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar,   MANU/SC/0201/1974 : (1974) 4 SCC 193 in the following: (SCC p. 197, para 10)

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused. {Para 21}

22. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased.

Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the Accused.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1348 of 2013 +

Decided On: 02.03.2021

Shivaji Chintappa Patil Vs. State of Maharashtra

Hon'ble Judges/Coram:

Rohinton Fali Nariman and B.R. Gavai, JJ.

Author: B.R. Gavai, J.

Citation: MANU / SC / 0136 / 2021,AIR 2021 SC 1249,( 2021 ) 5 SCC 626,[ 2021 ] 2 SCR 617

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Supreme Court explains the law relating to last seen theory

 Circumstance Two: Last Seen Theory

15. The next circumstance that is to consider is the last seen theory. It is well established that this is a weak piece of evidence and cannot be the sole basis of conviction.7 We may further refer to certain judgments that expand upon the application of this theory.

15.1 In Ravasaheb v. State of Karnataka   MANU/SC/0248/2023 : 2023:INSC:238 : (2023) 5 SCC 391, a three Judge Bench (which included two of us, Nath and Karol JJ.) observed thus:

29. On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the Accused, proximity of time to the recovery of the body of the deceased, etc. The Accused is bound to give an explanation Under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established - pleading securely to the conviction of the Accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. [Satpal v. State of Haryana [Satpal v. State of Haryana,   MANU/SC/0492/2018 : 2018:INSC:436 : (2018) 6 SCC 610] and Ram Gopal v. State of M.P. [Ram Gopal v. State of M.P.,   MANU/SC/0139/2023 : 2023:INSC:133 : (2023) 5 SCC 534]]

[See also: Sanjay v. State of U.P.   MANU/SC/0312/2025 : 2025:INSC:317]

15.2 The application of Section 106 of the Indian Evidence Act, 1872, doesn't absolve the prosecution of its duty to establish its case against the Accused, beyond reasonable doubt. [See: Sawal Das v. State of Bihar   MANU/SC/0201/1974 : 1974:INSC:4 : (1974) 4 SCC 193 and Shivaji Chintappa Patil v. State of Maharashtra   MANU/SC/0136/2021 : 2021:INSC:136 : (2021) 5 SCC 626]

15.3 In applying the last-seen theory, Courts should keep in mind the totality of the circumstances, or the case put forward by the prosecution. In other words, also to be seen is, what preceded and followed the Accused person being last seen with the deceased. [See: Surajdeo Mahto v. State of Bihar   MANU/SC/0505/2021 : 2021:INSC:379 : (2022) 11 SCC 800]

15.4 In Veerendra v. State of M.P.   MANU/SC/0641/2022 : 2022:INSC:565 : (2022) 8 SCC 668, referring to Nizam (supra) it was observed that when the time between the 'last seen' and the 'time of occurrence' is significant, conviction thereon would not be advisable or sustainable.

15.5 The converse of the above is that the theory comes into play "where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible." [See: Bodhraj v. State of J&K MANU/SC/1463/2002 : (2002) 8 SCC 45, State of U.P. v. Shyam Behari   MANU/SC/1093/2009 : 2009:INSC:432 : (2009) 15 SCC 548 and Sambhubhai Raisangbhai Padhiyar v. State of Gujarat MANU/SC/1349/2024 : 2024:INSC:987 : (2025) 2 SCC 399]

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1672 of 2019 

Decided On: 15.07.2025

Kattavellai Vs. State of Tamilnadu

Hon'ble Judges/Coram:

Vikram Nath, Sanjay Karol and Sandeep Mehta, JJ.

Author: Sanjay Karol, J.

Citation: 2025 INSC 845, MANU/SC/0917/2025.

Read full judgment here: Click here.

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What is meaning of last seen theory?

 Last seen theory means that if the accused was last seen in the company of the deceased, and the time gap between that point and the death is so small that intervention by any other person becomes unlikely, the court may draw an adverse inference against the accused.

30-second answer

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Can Partial Circumstantial Evidence Sustain a Criminal Conviction? A Legal Analysis

  The court concludes that last seen theory, extrajudicial confession is not proved. Recovery of weapon under section 27 proved and court comes to conclusion that the answer given under 313 CPC is false. Whether accused can be held guilty?

An examination of conviction possibilities when key circumstantial evidence fails to meet judicial standards

Introduction

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Supreme Court: Basic concept of last seen theory in criminal case

 It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.

There is considerable force in the argument of counsel for the State that in the facts of this case as well it should be held that the respondent having been seen last with the deceased, the burden was upon him to prove what happened thereafter, since those facts were within his special knowledge. Since, the respondent failed to do so, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidence Act. This circumstance, therefore, provides the missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.

Supreme Court of India

State Of Rajasthan vs Kashi Ram on 7 November, 2006

Bench: B.P. Singh, Tarun Chatterjee

Citation;(2006)12 SCC 254 : AIR 2007 SC 144.

Read full judgment here: Click here.

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Supreme Court: Conviction of accused will be vitiated if the court fails to consider and either accept or refuse defence of accused taken U/S 313 of CRPC by giving reasons in writing

Section 313, Code of Criminal Procedure cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an Accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial Under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath Under Section 313(2), Code of Criminal Procedure The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the Accused takes a defence after the prosecution evidence is closed, Under Section 313(1)(b) Code of Criminal Procedure the Court is duty bound Under Section 313(4) Code of Criminal Procedure to consider the same. The mere use of the word 'may' cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an Accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken Under Section 313 Code of Criminal Procedure, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the Accused taken Under Section 313 Code of Criminal Procedure and to either accept or reject the same for reasons specified in writing. {Para 16}

  IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1330 of 2018.

Decided On: 31.10.2018

Reena Hazarika Vs. State of Assam

Hon'ble Judges/Coram:

Rohinton Fali Nariman and Navin Sinha, JJ.

Author: Navin Sinha, J.

Citation:  MANU/SC/1249/2018,(2019) 13 SCC 289.

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Should the court convict an accused only based on the “last seen” circumstance?

The last seen theory comes into play where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible.It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the Accused and the deceased were last seen together. {Para 31}

24. In Jaswant Gir v. State of Punjab MANU/SC/2585/2005 : (2005) 12 SCC 438), this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed.

Again, in Nizam and Ors. v. State of Rajasthan MANU/SC/0964/2015 : 2016 (1) SCC 550, it was held as follows:

Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on 23.01.2001. Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the Accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the Accused and the Accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.

25. In the present case, save the "last seen" theory, there is no other circumstance or evidence. Importantly, the time gap between when the deceased was seen in the company of the Accused on 09-10-1999 and the probable time of his death, based on the post mortem report, which was conducted two days later, but was silent about the probable time of death, though it stated that death occurred approximately two days before the post mortem, is not narrow. Given this fact, and the serious inconsistencies in the depositions of the witnesses, as well as the fact that the FIR was lodged almost 6 weeks after the incident, the sole reliance on the "last seen" circumstance (even if it were to be assumed to have been proved) to convict the Accused-Appellants is not justified.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 972 of 2013

Jabir and Ors.  Vs. The State of Uttarakhand

Hon'ble Judges/Coram:

S. Ravindra Bhat and Pamidighantam Sri Narasimha, JJ.

Author: S. Ravindra Bhat, J.

Decided On: 17.01.2023

Citation: MANU/SC/0044/2023

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How to appreciate evidence if there are Oral and written multiple dying declarations?

Following are the principles laid down by the Hon’ble Supreme Court in case of Purushottam Chopra and another Vs. State (Government of NCT of Delhi) (supra), which are summed up as under :

“(1) A dying declaration could be the sole basis of

conviction even without corroboration, if it inspires

confidence of the Court.

(2) The Court should be satisfied that the declarant was

in a fit state of mind at the time of making the

statement; and that it was a voluntary statement,

which was not the result of tutoring, prompting or

imagination.

(3) Where a dying declaration is suspicious or is

suffering from any infirmity such as want of fit state

of mind of the declarant or of like nature, it should

not be acted upon without corroborative evidence.

(4) When the eyewitnesses affirm that the deceased

was not in a fit and conscious state to make the

statement, the medical opinion cannot prevail.

(5) The law does not provide as to who could record

dying declaration nor there is any prescribed format

or procedure for the same but the person recording

dying declaration must be satisfied that the maker is

in a fit state of mind and is capable of making the

statement

(6) Although presence of a Magistrate is not absolutely

necessary for recording of a dying declaration but to

ensure authenticity and credibility, it is expected

that a Magistrate be requested to record such dying

declaration and/or attestation be obtained from

other persons present at the time of recording the

dying declaration.

(7) As regards a burns case, the percentage and degree

of burns would not, by itself, be decisive of the

credibility of dying declaration; and the decisive

factor would be the quality of evidence about the fit

and conscious state of the declarant to make the

statement.

(8) If after careful scrutiny, the Court finds the

statement placed as dying declaration to be

voluntary and also finds it coherent and consistent,

there is no legal impediment in recording conviction

on its basis even without corroboration”.

19. Having regard to the parameters laid down by the Hon’ble

Supreme Court in case of Laxman (supra) and in case of Purushottam Copra (supra), it is absolutely necessary to examine dying declarations in the form of written as well as oral. In case of Laxman (supra), the Hon’ble Supreme Court has made it clear that oral dying declaration is admissible in evidence and there is no legal bar. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate with certification of doctor about the mental fitness of the patient. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

33. In case of Suresh Arjun Dodorkar (Sonar) Vs. State of

Maharashtra (supra), the Division Bench of this Court, bench at

Aurangabad has observed that, “where there are multiple dying

declarations and acceptance of one dying declaration falsifies the

other, the dying declarations have to be necessarily rejected. The

dying declaration has to pass all the tests of reliability as the declarant is not available for cross examination”.

In the case in hand, there are three oral dying declarations and two written dying declarations. All of them are found to be consistent about the role of the accused in setting his wife ablaze after pouring kerosene from a can in the house when both of them were alone. We are unable to accept the argument advanced by Mr. Chatterji, learned counsel for the appellant/accused in this regard.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 295 OF 2014

Sanjay Maruti Doule Vs  The State of Maharashtra

CORAM : V. K. JADHAV AND

SHRIKANT D. KULKARNI, JJ.

Pronounced on : 08.09.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

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When theory of last seen is not applicable for convicting accused for murder?

Last seen theory: Proof and effect

28. The prosecution has relied upon another circumstance that the deceased was lastly in the company of the Appellant and she had failed to explain his whereabouts as also the circumstances leading to his death.

28.1. Insofar as the 'last seen theory' is concerned, there is no doubt that the Appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the Appellant, by itself, does not mean that a presumption of guilt of the Appellant is to be drawn. The Trial Court and the High Court have proceeded on the assumption that Section 106 of the Indian Evidence Act11 directly operates against the Appellant. In our view, such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Indian Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das (supra) in the following:

10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the Accused......

28.2. On the facts of the present case, it emerges that as per the version of PW-7, the deceased was lastly in his company on 28.04.1997 when he allegedly expressed his dejection and fear as also his plan to return with luggage. The Appellant has pointed out that the deceased was with her in the morning of 29.04.1997 when he pointed out his tour programme commencing that day with scheduled return on 03.05.1997. It is not in dispute that the deceased was regularly on tour for longer durations of about two weeks in connection with his duties. The dead body was recovered on 01.05.1997 and as per post-mortem report, the probable time that had elapsed between death and postmortem (on 02.05.1997 at 12.30 p.m.) was 24 to 72 hours. On the basis of this opinion, it cannot be assumed by way of arithmetical calculation that the deceased might have met with his end on 29.04.1997. The possibility of it being a day later is not ruled out.

28.3. In the given set of circumstances, the last seen theory cannot be operated against the Appellant only because she was the wife of the deceased and was living with him. The gap between the point of time when the Appellant and deceased were last seen together and when the deceased was found dead had not been that small that possibility of any other person being the author of the crime is rendered totally improbable. In SK. Yusuf (supra), this Court has said:

21. The last seen theory comes into play where the time gap between the point of time when the Accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of the crime becomes impossible.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1046 of 2010

Decided On: 19.09.2019

 Gargi  Vs.  State of Haryana

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Whether Last seen evidence is admissible if it has not attained status of proof?

While motive is not necessarily of the essence in a case of direct evidence, it attains significance in a case of circumstantial evidence particularly when the other circumstances have not been proved beyond reasonable doubt. In the present case, the ‘last seen’ evidence cannot be vouched for particularly because the two accused were not last seen with the deceased at the place where the dead body was ultimately found.

27. In Arvind @ Chhotu v. State ILR (2009) Supp. (1) Delhi 704, this Court observed as under:

“106. Thus, the circumstance relatable to the place, where the deceased was last seen in the company of the accused as also the circumstance of the place where the dead body was found does not rule out anything happening involving a third person. Thus, howsoever suspicious may be the evidence of last seen, the same has not attained the status of proof.”

28. In this case too, it may be observed that even though the evidence of ‘last seen’ may give rise to suspicion, it has not attained the status of proof.

In the High Court of Delhi at New Delhi

(Before S. Muralidhar and I.S Mehta, JJ.)

Crl.A 360/2002

Chhatar Pal v. State 

Crl.A 360/2002 and Crl.A 721/2002

Decided on January 18, 2018

Citation: 2018 SCC OnLine Del 6678

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Whether court can convict accused on the basis of evidence of hostile witness?

 It is settled law that the evidence of a hostile witness can be

relied upon to the extent to which it supports the prosecution version of

the incident. In the case of Bhajju alias Karan Singh versus State of M.P.

reported in (2012)2 C CrLR (Supreme Court) 358 the Apex Court, while

discussing the effect of hostile witnesses held as follows in paragraphs 36and 37 of the judgement: “36. It is settled law that the evidence of

hostile witnesses can also be relied upon by the prosecution to the

extent to which it supports the prosecution version of the incident.

The evidence of such witnesses cannot be treated as washed off the

records, it remains admissible in trial and there is no legal bar to

base the conviction of the accused upon such testimony, if

corroborated by other reliable evidence. Section 154 of the Act

enables the Court, in its discretion, to permit the person, who calls a

witness, to put any question to him which might be put in crossexamination

by the adverse party.”

“37. The view that the evidence of the witness who has been called

and cross-examined by the party with the leave of the court, cannot

be believed or disbelieved in part and has to be excluded altogether,

is not the correct exposition of law. The Courts may rely upon so

much of the testimony which supports the case of the prosecution

and is corroborated by other evidence. It is also now a settled canon

of criminal jurisprudence that the part which has been allowed to be

cross-examined can also be relied upon by the prosecution”.

 In the High Court at Calcutta

Criminal Appellate Jurisdiction

 Appellate Side

Present:

The Hon’ble Justice Aniruddha Bose

 And

The Hon’ble Justice Asha Arora

 C.R.A 713 of 2006

 Mahadeb Mal@ Geru V The State of West Bengal

Judgment on : 15th November, 2016

Citation: 2017 CRLJ 470 Cal

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When "last seen theory" is not proved?

  This evidence of   both these witnesses is unequivocal to the
effect that they had not seen properly the female passenger who has alighted
from   the   rickshaw   with   the   appellant   and   therefore,     they   were   not   in
position to identify her photograph or even to give her description. In such
situation, the first circumstance of, “appellant and the deceased last seen
together”  cannot   be   said   to   be   proved   at   all.       The   very   crux   of   the
circumstance of, “last seen”  is the accused and the deceased being seen
together. If in the instant case, witnesses are not able to identify the female
passenger who was with the appellant, then question of proving “last seen”
circumstance does not arise.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.160 OF 2009
Vijay Vitthal Jadhav  ]

V/s.
The State of Maharashtra  ]

CORAM  : SMT. V. K. TAHILRAMANI, ACTING C.J. & 
DR. SHALINI PHANSALKAR­JOSHI, J. 
DATE      : 1ST FEBRUARY 2016.
Citation; 2016 ALLMR(CRI) 1188

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Burden of proof on prosecution Vs Burden of proof on accused as per S 106 of evidence Act

It is not necessary to multiply with authorities. The principle is well settled. The provisions ofSection 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.

Supreme Court of India

State Of Rajasthan vs Kashi Ram on 7 November, 2006

Bench: B.P. Singh, Tarun Chatterjee

Citation;(2006)12 SCC 254 : AIR 2007 SC 144,

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