The Gauhati High Court on Tuesday (November 13) acquitted a man convicted of murder on the basis of the “last seen theory”, while holding that this theory does not apply in the present case and is not either more sufficient, on its own, to justify a conviction.

He also said that without other evidence, extrajudicial confessions cannot form the basis for a conviction either.

Taking note of the evidence in the case, a division bench of Justice Sanjay Kumar Medhi And Justice Mitali Thakuria in his order it was said: “…we see that the “last seen theory”, although we tried to project it, is totally incoherent. This also needs to be looked at from the perspective of the testimony of the doctor who performed the autopsy as well as the report itself. According to the report, the death occurred within 12 hours and the examination time was at 1:45 p.m. on 18.02.2018. On the other hand, the “last seen together”, even if it is presumed, took place between 8 p.m. and 9 p.m. on 02/17/2018.

“Following the aforesaid principles, we are of the view that the aspect of ‘last seen theory’ cannot be made applicable in the present case and can in no way be independently sufficient to support the conviction On the other aspect of the extra-judicial confession as it was accepted, it is a weak piece of evidence and without there being other credible supporting elements, it does not. cannot form the basis of a conviction“, he added.

In the present case, an FIR was lodged by the brother of the deceased on February 18, 2018, alleging that an unknown miscreant had left his younger brother near the Kali Mandir after killing him. Based on the FIR, investigation was conducted and charge sheet was submitted. During the trial, fifteen prosecution witnesses were examined and some documents were also produced, including the sketch. On February 17, 2020, the trial court convicted the appellant and sentenced him to life imprisonment under Section 302 of the IPC. The conviction is based mainly on the “last seen together” and the extrajudicial confessions that the appellant allegedly made in front of one of the prosecution witnesses. The appellant approached the High Court against this judgment.

The Amicus Curiae held that the conviction in the present case is completely untenable because the elements on which to base such a conviction are absolutely lacking. It was further submitted that the prosecution witness claimed to have seen the fighting and that he separated the deceased and the appellant after which they went in different directions. Furthermore, the witness had also claimed to have intervened in the fight, but he said nothing about the presence of another prosecution witness during the separation of the deceased and the appellant.

The Amicus Curiae argued that the autopsy time was set at 1:45 p.m. on February 18, 2018 and death, according to medical opinion, would have occurred within 12 hours. It was submitted that according to one of the prosecution witnesses on whose testimony the trial court’s judgment was based, the fight occurred between 9 p.m. and 10 p.m. and, therefore, the time of death according to the autopsy report would not be consistent.

Finally, it was argued that the contested judgment is based on extrajudicial confessions which constitute weak evidence.

On the other hand, the Additional Attorney General argued that there is sufficient evidence, including the aspect of ‘last seen together’ and extrajudicial confessions. It was submitted that the extrajudicial confession made by PW10 (prosecution witness) was voluntary and without any coercion. It was further pointed out that there was no instance of animosity on the part of PW10 (prosecution witness) towards the appellant which could have induced him to give such a statement claiming that confessions had been made before him.

The Court notes that in this case no weapon was recovered which could have been used to commit the offense. The Court further observed that the testimony of PW8 did not tally with the version of PW10, who also claims to be present when the deceased and the appellant were fighting near the nugget tree. PW10 claims to have stopped the fight after going to his house.

After reading the testimony of the prosecution witnesses, the Court observed that the aspect of applying the “last seen theory” would run counter to the principles of criminal jurisprudence according to which guilt cannot be presumed but must be proven beyond a reasonable doubt. .

Concerning the aspect of extrajudicial confessions, the Court noted:

“The said PW10 had stated that the accused told him at home that he had killed the deceased. No other aspects or details were reported as to the circumstances under which the appellant would come to his house to make a confession. No time was mentioned as to when the appellant had come to his house and this becomes significant as the fighting near the peepal tree, according to the evidence on record, took place between 8 p.m. 9 p.m. It is worth mentioning that the incident took place on 17.02.2018 and in a rural area, 8 p.m. to 9 p.m. in February can be considered late in the evening..”

Thus, the Court considered that the documents placed in the file, including the evidence, would not be sufficient to conclude that the appellant was guilty.

Accordingly, the Court set aside the impugned judgment of the trial court and acquitted the appellant by giving him the benefit of doubt.

Case Title: Kumru Bhumij v. The State of Assam

Case No: CRL.A(J)/6/2021

Citation: 2024 LiveLaw (Gau) 83

Click here to read/download the order