Last seen together theory

 “It refers to the principle that if two people were last seen together, and one of them is later found dead , the person who was last seen with the deceased may be presumed to have some connection with the crime. It is not conclusive evidence by itself but can be used to strengthen the case against the accused in the absence of direct evidence. For example –  ‘A’  is last seen with ‘B’ in a secluded area, and shortly after, his body is discovered, the “last seen together” theory can be used to link B to A’s death.”

According to Bentham, witnesses are the eyes and ears of justice, but in many cases, no witnesses are available to the Prosecution to prove the commission of offence . In such cases circumstances which establish the commission of offence are proved before the court. One of such circumstances is the fact that accused and deceased were together just before the commission of offence by accused against deceased. This is known as the Theory of Last Seen Together. This theory  implies that the accused and deceased were last seen together just before the commission of offence and  if the time gap between the point of time when the accused and the deceased were last seen together and when the deceased is found dead is so small that the possibility of any   person other than the accused  having committed the crime becomes impossible. The court may presume that the accused has committed the crime.

 Under what section of evidence act, can this fact be proved?

 The fact that accused and deceased were seen together is relevant under Section 5 of Bharatiya Sakshya Adhiniyam ,2023 (Section 7 of Indian Evidence Act 1872) as it might have given an opportunity to the accused to commit the offence. This fact may also be relevant under Section 4 of Bharatiya Sakshya Adhiniyam ,2023 (Section 6 of Indian Evidence Act 1872) as forming the part of same transaction.

So the fact that the deceased was last seen with the accused is relevant, but what will be the evidentiary value of this fact?

The accused and deceased were seen together lastly is not conclusive proof of the guilt of the accused. In other words, it does not conclusively prove that the accused has committed the offence. It may lead the court only to  presume rebuttably  the guilt of the accused. While making such presumptions court may take into consideration  facts like relationship between the accused and deceased, whether there was any enmity between them, previous history of hostility, recovery of weapon from the accused, non-explanation of his conduct by accused ,aversive  statement on behalf of the accused made when enquired about the death of the deceased. In simple words for its evidentiary weightage this theory relies on the proximity in time and place. The closer in time a witness’ testimony about seeing the deceased or accused is to the crime, the stronger it can be as evidence. For example:

• Immediate Time Proximity: If a witness states they saw the deceased in the company of the accused just minutes before a crime is believed to have occurred, it helps establish a link between the accused and the crime.
• Extended Time Proximity: If the accused was last seen hours or days before the crime, it could weaken the argument, as it introduces the possibility of intervening events, alibis, or other persons during the period in between.Note: Time here means the ‘Time of Injury/Death ,Not the Time of recovery of the dead body’.Medical evidence can be very crucial to prove the time of injury and time of death through various techniques as given below:
• Wound healing: The rate of healing or changes in the appearance of wounds over time can indicate how long it has been since the injury occurred.
• Infection or Decomposition: If the injury leads to infection or the body starts decomposing, these factors can give an approximate time frame of when the injury happened.
• Body Temperature (Algor Mortis): After death, the body begins to cool at a predictable rate. The forensic pathologist can estimate the time of death by measuring the body temperature and comparing it to standard cooling rates, taking environmental conditions into account.
• Rigor Mortis: This refers to the stiffening of muscles after death. Rigor mortis typically begins within 2-6 hours after death, peaks around 12 hours, and then dissipates after 24-48 hours. The presence, progression, and release of rigor mortis can provide clues about the time of death.
• Decomposition: The stage of decomposition also helps determine the time of death. The rate of decomposition is influenced by environmental factors, such as temperature, humidity, and the presence of insects (which are often used in forensic entomology to estimate time of death).
• Stomach Contents: If the deceased has recently eaten, examining the contents of the stomach can give clues as to when deceased died. The digestion process takes time, so the amount of digestion can be used to estimate when the deceased had their last meal, providing an approximate time frame for death. 

Then during trial, medical evidence can be proved to establish the time of death.

The location where the deceased was last seen is equally important in linking a accused to a crime scene or establishing context:

• Close to the Crime Scene: If the last seen place is near where the crime occurred (such as near a murder scene or a location related to the crime), it strengthens the likelihood that the person last seen in the vicinity might have been involved.
• Distant or Unrelated Place: If the last seen location is far from the crime scene, it may diminish the relevance of the theory, as there could be no direct connection to the crime

This fact that the accused was last seen together with the deceased at a place proximate to the crime scene, can be proved through an eyewitness. Such statement provides direct that places accused and deceased at a particular location at a relevant time. However, such witness must be a natural witness – meaning someone who was naturally present at the scene. 

Last Seen Together Theory and section 109 of Bharatiya Sakshya Adhiniyam ,2023 (Section 106 of Indian Evidence Act,1873):

Presumption of such guilt against the accused shifts the burden of proof on the accused. This shifting of burden of proof on the accused is by virtue of section 106 of Indian Evidence Act. Section 106 provides that burden to prove a fact which is in knowledge of any person is on such a person only. So where a presumption is raised as to the guilt of the accused because of the fact that he was last seen with the deceased, burden  shifts on the accused to explain his innocence by establishing the facts to which he only has the knowledge. However, such a burden may be discharged by preponderance of probability. He may prove that he has separated at some point of time from the deceased, or some third person might have intervened, or the accused was somewhere else at the time of crime. 

So as far as the evidentiary value of the last seen theory is concerned it may be concluded that last seen theory comes to the rescue of prosecution but it by itself is not sufficient to prove the guilt of the accused, the court shall look for corroboration to bring home the guilt of the accused.