Last-Seen-Theory Can't Be Invoked Unless Prosecution Establishes Prima Facie Case: Rajasthan High Court Acquits Death Row Convicts

While setting aside death penalty and acquitting the appellants, accused for murdering a family of 6, including 4 children, Rajasthan High Court held that the importance of last-seen-together evidence could not be "over-emphasized" in a criminal trial as this by itself is not sufficient to record conviction of an accused.

The division bench of Justice Shree Chandrashekhar and Justice Chandra Shekhar Sharma opined that before the onus shifted on the accused by operation of Section 106 of the Indian Evidence Act, it must be held that the prosecution had established a prima facie case against the accused.

Section 106, Indian Evidence Act lays down that when a fact is especially in the knowledge of a person, the burden of proving that fact rested upon them.

“Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts....The trial Judge failed to adopt the proper tests and extended unwarranted benefits to discrepant statements of the prosecution witnesses. Furthermore, the trial Judge did not focus on the basic rules of evidence and over-looked the serious lacuna in the prosecution case.”

The Court was hearing an appeal filed against the order of the Sessions Judge that has convicted the appellants for murdering a family of 6 including husband, wife and their 4 children, and sentenced them to death. The Sessions Judge had opined that the appellants were a menace to the society who could not be let off.

After scrutinizing the last-seen together evidence, the Sessions judge had held that such evidence was clinching and conclusive as to the guilt of the appellants.

The Court perused the evidence on record at length, and concluded that the identification of the accused persons involved in the crime was not free from suspicion.

It was observed that the importance of last-seen-together evidence in a criminal trial could not be over-emphasized since that by itself was not sufficient to record the conviction of an accused.

Reference was made to the Apex Court case of Rajender @ Rajesh @ Raju v State in which it was held that if a person was last seen with the deceased, he must offer explanation about how he parted company, and if he failed burden under Section 106 was not discharged. However, this did not mean that section 106 shifted the burden of proof of a criminal trial on the accused. Such burden always rested on the prosecution.

The Court further opined that, “A person who is facing a charge of murder may be a close relative, friend, co-worker or co-villager of the deceased and there may be circumstances, purely casual or accidental, in which both have been seen together. For example, a person is seen with a friend/co-worker/ co-villager in a market place, fair, movie show, or at the Airport or Railway Station and this may be just a coincidence and chance meeting, but, that by itself would not become an incriminating circumstance so as to fuel the last-seen-together theory. Therefore, as a general rule in every case an inference on complicity of the accused cannot be raised by invoking section 106 of the Evidence Act.”

In this background, it was held that before invoking Section 106, it had to be first shown that the facts were pre-dominantly and without exception within the knowledge of the accused still he had failed to furnish an explanation which was probable and satisfactory.

In relation to the present case, the Court opined that the prosecution had failed miserably in establishing that the victims were last seen alive in the company of the appellants.

Furthermore, the Court highlighted that the appellants were charged under Section 34, IPC that laid down the principle of joint liability in relation to acts done by several person in furtherance of common intention.

As per the prosecution story, the motive behind the murder was the alleged illicit relationship between the murdered woman and the father of one of the accused (Sharafat).

The Court held that it was well settled that merely because it was shown that all the accused carried the same intention but independently of each other, was not enough to attract the application of Section 34, IPC.

“There is no iota of evidence to establish that Rajesh Kumar (other accused) had any motive or reason to join hands with Sharafat to commit murder of six persons. The Prosecution has completely failed to establish that Sharafat and Rajesh Kumar shared common intention to abduct Md. Yunus, Chand Tara and their four children, to kill them and cause disappearance of their dead bodies.”

In this light, the Court held that the prosecution evidence was completely hazy and the conviction of the appellants was based on assumption and presumptions.

Accordingly, the conviction and the death penalty of the appellants was set aside, and they were acquitted of the charges.

Title: State of Rajasthan v Sharafat & Anr, and other connected matter

Citation: 2025 LiveLaw (Raj) 210

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