Guest Post: The Curious Case of Last Seen Evidence

(This is a guest post by Manya Gupta)

The doctrine of last seen evidence “LS” is one of the major kinds of evidence under the IEA “Act” which provides for an inference of guilt on the accused if they are last seen with the deceased, and subsequently the victim is found dead.

It is deduced from Section 7 of the Act which provides for fact(s) which is the occasion, cause or effect, immediate or otherwise, of a relevant fact, or a fact in issue to be relevant under the scheme of the Act.

It is one of the most interesting pieces of evidences in the circumstantial chain; since it effectively denotes a period of vacuum wherein the whereabouts of the accused and the victim are unknown and there is a gap in the timeline in which nothing is known about the whereabouts of either; this gap is then sought to be filled under what fundamentally is, an assumption; since the victim was last seen with the accused, the accused must have committed the act.

While this serves as an important piece of evidence and is a crucial part of the circumstantial chain, the inherent nature of this kind of evidence requires careful consideration and testing since it only relies on what essentially, is a gap in the factual timeline. Therefore, it has been reaffirmed, in Satpal Singh that LS evidence cannot be a basis for sole conviction, and must be corroborated.

The concern of this piece is an attempt to dissect the judicial process of evaluating last seen evidence and address inherent problems in considering such evidence. It shall also attempt to analyse possible safeguards that can be used by courts as preventive rule-based jurisprudence in LS evidence.

Context and Time Gap

A large majority of the uncertainty and inconsistent application of LS evidence arises from basic factual premises of the time between which the accused and deceased were seen and the time of death; the place where they were seen together etc. These factors determine whether LS evidence can even be used, and also affect the explanation and defence used by the accused.

Time gap in LS evidence is crucial, since by sheer logic, the longer the gap, the theoretical probability of the alleged fact to be true decreases. This increase has been sought to be explained by courts by several arguments, the most prominent being the possibility of interference; there has been an inconsistent judicial trend on the time gap that must be present for LS evidence to be relevant. Starting from Bodhraj, the court held that a long time gap makes LS irrelevant, and it only can be used when the time gap between the point of last seen and the discovery of the deceased is very small. This has been changed, the prevailing position is that even if there is a long duration of time, if the state is able to prove the accused was in exclusive possession of that place, LS can be considered.

The establishment of a test for time gap for the possible range of gap is left to Courts and the judicial trend of inconsistencies is evident, as observed in Reena Hazarika, that a ruling on gap is overturned at the appellate stages criticising either an unreasonable time gap; or lack of consideration to the defence explanation of the gap.

Further, there can be additional factors that can either refine, or adulterate the time gap, adding to the context for the evidence; taking the hypothetical of a crowded location such as a marker or a bar as opposed to a silent, unfrequented place, the former would call for a higher burden on the prosecution to prove a prima facie case.

This was observed in Satpal Singh, an oft cited case, where the Court stated that the last seen theory is applicable when the testimonies conclusively establish that the accused and the victim were together and an inference can only be derived by the court when there is no probability or possibility of someone interrupting them.

The Role of Presumptions in LS Evidence

Before S. 106

LS evidence, when proved is used for raising an inference under S. 106 of the Act; the accused has a burden to explain the circumstance since the accused is deemed to have special knowledge of explaining their presence. However, the prosecution needs to establish basic facts before invoking S. 106, the nature of these facts remains vague.

The initial burden on the prosecution per Reena Hazarika, which has been reaffirmed, is that mere invocation of the LS theory sans facts “cannot suffice and the prosecution must establish a prima facie case”.

This establishment of a prima facie case seems to be equivalent to the establishment of facts or foundational facts under S. 106 and thus far has not been conclusively defined, and is arbitrary especially in such evidence; is it the mere fact of proving that the accused was indeed last seen with the deceased, or is it a step above such as proving the proximity of the time gap and the probability of interference.

The Delhi High Court recently, in Gurdeep Singh, laid down principles on the usage of S. 106 and LS evidence, wherein these facts were said to be “foundational facts” and the said facts were facts like establishing a close connection between the accused and deceased and possession of the property wherein the body was found to be of the accused.

However, another position taken by courts is to interpret prima facie as other circumstances, as in if the prosecution has proven other circumstances to a certain extent.

Hence, the question becomes the inconsistent burden often placed on the prosecution to establish the vague standard of a prima facie case and foundational facts.

Shifting the Burden of Proof

The second question is what happens after the prosecution has established prima facie facts i.e., what is the burden of special knowledge on the accused. If the accused is unable to disprove or explain the circumstance, the Court is empowered even ordinarily to deduce facts based on other facts and raise a presumption under S. 114.

The moment when the accused fails to fulfil the burden under S. 106, the Courts apply S. 114 to raise an inference. This section will discuss what happens once S.106 has been applied and what does it take to discharge the burden on part of the accused.

The burden of special knowledge under S. 106 has its roots in the fact that some things can only be explained by some people, and it is unfair for the prosecution to prove a fact that is virtually impossible and “disproportionately difficult” for it to prove.

The special knowledge in this case, is that only the accused could know what he was doing there, and while this a reasonable assumption to make, it must be carefully done.

S. 106 has its application usually in questions of fact and requires the prosecution to prove a substantial fact; it is used either when the question is of possession of an article or facts such as residence or other general questions about the accused’s history, injuries etc. Or is applied when the prosecution has established other facts such as explanation of bodily injuries.

However, in LS, while the accused must explain their presence in the situation, the inference being made is quite starkly different; that of a serious inference that he had committed the crime. This is because the explanation is not of a simple fact in the chain, rather it is the question of whether the accused had a role to play in the death.

The presumption is of the accused killing the deceased, or having a role to play in their death since they were last seen with them, to illustrate, if the accused fails to prove their possession of bangles that were on the deceased’s hand, the inference is directly connected to the accused stealing those bangles; in LS, the inference is of a wider scope and connecting the accused’s physical presence at a location which is extended to inferring a possible role in the killing of the deceased.

While the accused is in the position to know their whereabouts, the S. 106 burden unintentionally leads to a sudden inference which jumps the gun; that the accused has played a role in the death of the deceased, since the act of the killing in LS evidence is the event that took place in vacuum and which remains unknown. Not all circumstances that complete the chain of events are equal and last seen constitutes an important circumstance and this inference is vastly different than the otherwise factual inferences that arise out of S. 106 in other offences.

It has proven to be problematic, especially when the circumstance of last seen coupled with other facts could be a basis for conviction and the question of what counts as an explanation on behalf of the accused, is legally tenuous.

An Unfair Burden on the Accused?

The aforementioned variables of context and time gap have made the job of the defence extremely difficult; the explanation is of the fact of being there and is highly subjective even for courts to decide. Since the explanation is essentially a defence of the accused having not committed the act, is often interpreted at a very high standard, thus making the essence of S. 106 and presumptions, meaningless.

Consequently, courts have ruled inconsistently across a wide spectrum of possible explanations; on one hand, they have ruled that the prosecution’s witnesses lack credibility since there was no reason for the deceased to take a lift in the accused’s car since he was proceeding in the opposite direction, giving a wide bench; and in another, have failed to consider the accused’s explanation when he was only seen with the deceased in a crowded bar.

In a similar turn of events, they have placed the burden on the accused to explain how the deceased (his wife) died by strangulation when they were sleeping in their bedroom, whereas in another, have stated that mere companionship and the fact that they were sleeping in the same room together cannot be sufficient to raise an inference.

The standard on the accused under S. 106 per Reena Hazarika, is of preponderance of probabilities, however, the explanation is often treated inconsistently and dependent on the singular judge.

I propose that rather than looking at the standard under S. 106, the Court must, while reaffirming preponderance of probabilities under S. 106, must also establish guidelines for the subsequent presumption that is made under S. 114 and delineate the scope of the inference. This standard can be derived from Reena Hazarika and the explanation on part of the accused, even if inadequate, cannot be mandatorily conclusive, something courts have rarely considered.

Famously, in the Arushi Case, the Court held that the burden of proof is on the accused servant, who was in the house under S. 106, and when he tried to explain that he was sleeping and the AC drowned all noise, the court disbelieved this, and believed the version of the prosecution without the prosecution ever having established their facts.

There seems to be a certain hesitance in courts letting a fact remain unproved, as Sekhri puts it, the Judge wrongly held the prosecution to a lesser burden, simply because there were no witnesses barring the accused and confused the persuasive burden to prove the charge and the burden under S. 106 to prove facts. If the accused fails to discharge the burden under S. 106, then a fact does not necessarily need to be held as proved by the other side and can remain unproved and inconclusive.

Conclusion

The hasty conclusions offered by an inconsistent, unprincipled application of the last seen doctrine amounts to an abuse of S. 106, per Kirti Pal and ordinary jurisprudence of presumptions; S. 106 is to be made when the fact to be proved would be disproportionately hard for the prosecution since the accused is in the only position to have “special” knowledge against all others.

However, extending the same treatment to S. 106 under last seen is dangerous, best explained by the House of Lords in Attygale v. R, stating that “if S. 106 is to be interpreted as, in a murder case, for the accused to prove he did not commit the murder, because who could know better than him whether he did or did not”, it would defeat the purpose of the balance of burden of proofs in criminal law.

Aarushi-Hemraj Murder Case and the Last Seen Theory

The events that took place at the Talwar household on 15-16 May, 2008 will probably remain a mystery forever. Four persons entered the house on 15th night, and presumably went to sleep in the house; in the morning 14 year old Aarushi Talwar was found murdered in her room. The parents said they were asleep and initially suspected the servant Hemraj, who was later also found murdered on the terrace that same day. It was the classic whodunit. The police, many believed, botched their investigation which led to several delays. Ultimately, though, we had a decision: the parents were found guilty of having murdered their only daughter. The court believed the prosecution case, that Mr Talwar found his daughter in a "compromising position" with the servant and killed them both and was aided by his wife. 

There are, sadly, many holes left in the lengthy decision of the Sessions Judge which will hopefully receive greater consideration at the appeal. Here, I am only concerned with the prosecution (and Court) placing great reliance upon the "last seen theory". The idea is simple: the victims were last seen alive by the accused person within closed bounds, so what happened to them is something they must explain. It doesn't require much thought to argue that such a theory can put the accused in a fix. Will the Court believe me if I say I don't know what happened?

The Last Seen Theory

Section 106 of the Evidence Act 1872 places a burden upon an accused to prove facts especially within his knowledge. Also look at the definitions of proved, disproved and not proved before you proceed. So, suppose you were seen going inside a room alone with your friend, who was murdered minutes later by an assassin who fled. The police don't believe you and charge you for murder. At trial, how the death occurred is a fact, within your special knowledge. The burden to prove that the death occurred in the way you allege rests upon you, but not to the standard of beyond reasonable doubt [Sawal Das v. State of Bihar, AIR 1974 SC 2276]. What if you fail to do so? If the Court believes the prosecution, then your fact is disproved. If neither party convinced the judge, the fact remains not proved.

This is at the heart of the last seen theory, a tool relied upon the the prosecution to shore up a case based on circumstantial evidence. The Prosecution must leave no other possibility open, to make "what happened" a fact "especially" within the knowledge of the accused, which must be explained by him. Only if the fact is proved or disproved can it become relevant to judgment, so mere failure to discharge the burden should statutorily be not enough to merit adverse inference. How does the Prosecution put forth the last seen theory? It must establish (a) the time when the accused was last seen with the deceased, (b) the time of death, and (c) strong link between the two to rule out possibility of any intervention from outside [See, Bodhraj v. State of Jammu & Kashmir, (2002) 8 SCC 45; Mohd. Azad v. State of West Bengal, (2008) 15 SCC 449; Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646]. 

Applying it to the Facts

The prosecution case sought to establish a chain of circumstances so concrete, that it pointed to only one conclusion: the accused's guilt. A large hole was sought to be plugged by the last seen theory. Nobody else was in the house that night, so the accused must explain what happened.

Were initial requirements fulfilled though, for the last seen theory to be pressed? Everyone was last seen together at about 9.30 PM on 15 May 2008. There was a possible 3 hour gap between this and Aarushi's death. For Hemraj, an ambiguous time of death creates a possible 4-5 hour gap. This is huge, especially because the house had no security guard to check if anyone entered stealthily at night (nothing could show a break-in, but the possibility of entering by invitation was not considered). 

Even if this was sufficient, what about the explanation by the accused? They said they were asleep, and any noise was drowned out by the AC. The court chose to disbelieve this, perhaps because it made too much sense. Instead, it bought the story that a 14 year old had willingly opened her room to invite her 45 year old servant for intercourse, only to have been caught by her father in the act who killed them both. 

Mistaken as to Law?

The decision is overburdened by citing and discussing case law. In a rare insight into its approach, the Court explains at page 86: 

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would, undoubtedly, be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation [emphasis supplied].

I believe the Judge gives himself away here. He wrongly holds the prosecution to a lesser burden, simply because there were no witnesses barring the accused, Further, he confuses the persuasive burden to prove the charge and the burden under Section 106 to prove facts. If the accused proved the deaths occurred as per their story, its an acquittal. But, is a failure to prove your case always the end? No. The fact may remain not proved by either side. What that means here is that while the facts show the deceased persons were murdered, how this occurred remained not proven by either side. Such a conclusion would logically mean, that the accused persons could not be found guilty of murder.

Only time will tell how these issues are framed and decided in the pending appeal.