Burden On Accused Kicks In When Last Seen Theory Is Established: Supreme Court While Acquitting Murder Convict

A two-judge Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah relied on Chandrappa v State of Karnataka, (2007) 4 SCC 415 and held that, “an appellate court, in the case of an acquittal, must bear in mind that there is a double presumption in favour of the accused. It was also emphasised that when two views are possible, the one favouring the accused is to be leaned on.”

The appellant and another individual were co-accused in a murder case. Both were initially acquitted by the trial court. The prosecution alleged that the appellant and the co-accused had murdered the victim due to his illicit relationship with the appellant's sister. They were also accused of attempting to destroy evidence by burning the victim's body.

The trial court had acquitted both accused individuals due to a lack of evidence, including failure to prove that the deceased was last seen in their company and a lack of extra-judicial confession evidence. The State of Karnataka appealed the acquittal of the appellant to the High Court. The High Court overturned the appellant's acquittal but upheld the acquittal of the co-accused.

Senior Advocate Kiran Suri appeared for the Appellant and Advocate V. N. Raghupathy appeared for the Respondents.

The appellant's defense argued that the High Court erred in reversing the acquittal, primarily because there was a discrepancy in witness testimony regarding who had taken the deceased away, casting doubt on the theory of "last seen" with the appellant. They also questioned the reliability of the testimony of a key witness who had turned hostile during the trial.

The respondent-state's argument relied on the principle that when the accused was the last person seen with the victim, the onus is on the accused to explain what happened to the victim. Failure to provide a satisfactory explanation can be considered as evidence against the accused.

The Court found that the judgment could not be sustained due to major discrepancies in witness statements, particularly regarding who took the deceased away. This discrepancy raised doubts about the appellant's involvement in the crime. The Court also noted that it was highly improbable that the deceased would agree to go to the appellant's house late at night if there was strong animosity between them. Additionally, the Court found it suspicious that the deceased's family did not report him as missing for more than two days, given the allegations against the appellant.

The Court emphasized that the burden on the accused to explain their actions only arises when the "last seen" theory is established. In this case, there was doubt about whether the deceased was last seen with the appellant. The Court said, “The burden on the accused would, therefore, kick in, only when the last seen theory is established. In the instant case, at the cost of repetition, that itself is in doubt.”

The Court cited legal precedents to support its stance that the burden of proof should not shift to the accused unless there is clear evidence of the accused being last seen with the victim.

The Court highlighted the need for corroborative evidence in cases relying on circumstantial evidence, and in this case, there was insufficient corroboration. The Court observed, “In the present case, given that there is no definitive evidence of last seen as also the fact that there is a long time-gap between the alleged last seen and the recovery of the body, and in the absence of other corroborative pieces of evidence, it cannot be said that the chain of circumstances is so complete that the only inference that could be drawn is the guilt of the appellant.”

The Court invoked the presumption of innocence in favor of the accused and emphasized that when doubts exist, the benefit should go to the accused relying on the Supreme Court judgment in Chandrappa case.

The Court ultimately allowed the appeal, setting aside the conviction and sentence imposed by the High Court.

Cause Title: R. Sreenivasa v. State of Karnataka, [2023INSC803]

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