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High Court of J&K&L upheld the Order of Conviction in a case based on Circumstantial Evidence, Also discussed Last Seen Theory and Test Identification Parade.

The division Bench of the High Court of J&K&L has disposed of a long pending appeal after twelve years and has ultimately upheld the order of conviction passed by the Court of Learned Sessions Judge, Reasi whereby the appellant was sentenced to imprisonment for life.

In the judgment authored by Justice Rajesh Sekhri, various elements of a criminal case based solely on circumstantial evidence have been elaborately discussed by the Court. The Court was considering a conviction appeal against the judgment and order of sentence maintained by the trial court who had sentenced the accused with the imprisonment for life for the commission of offence under section 302 RPC.

While considering the appeal, the Court noted that entire case of the prosecution was based on circumstantial evidence and Last Seen Theory and thus discussed these aspects of law in length.

Law relating to ‘Last Seen Theory’:

The Court while elaborating the law relating to the theory of last seen observed that;

46. The law relating to the last seen theory is by and large crystallized now. It no longer remains res integra now that “last seen theory” is one of the vital links in the chain of circumstances from which conclusion of guilt is drawn and once the theory of last seen is proved by the prosecution, the burden shifts on the accused to explain as to the cause of death of the deceased

47. Section 106 of the Evidence Act, 1872 (the Evidence Act, for short) envisages that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon the said person. The “last seen theory”, is based on this principle of law and if a person is last seen with the deceased, the said person is obliged to explain as to the death of the deceased. In a case which hinges on the circumstantial evidence, if an accused fails to offer plausible explanation in discharge of the burden placed on him under section 106 of the Evidence Act, it provides an additional link in the chain of circumstances proved against him.

However, the Court noted that the accused cannot be convicted solely on the basis of last seen together as it only provides an additional link in the chain of circumstances against the accused.

The Court also referred to the judgment of the Supreme Court rendered in case titled Nizam v. State of Rajasthan reported as (2016) 1 SCC 550 wherein the principles of last seen theory has been laid down;

“Last seen theory” is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. But, it is not prudent to base conviction solely on “last seen theory”. Such theory should be applied taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long it would be unsafe to base conviction on „”last seen theory”. It is safer to look for corroboration from other circumstances and evidence adduced by prosecution.” (Emphasis Supplied)

Test Identification Parade:

In this regard the Court observed;

The law relating to the test identification parade is well settled. The object of test identification parade is to test the observation and memory of a witness as to the identification of an accused who is stranger to him. As a general rule of law dock identification of an accused for the first time in the Court is a substantive piece of evidence and can form the basis for conviction without the same being corroborated by any other evidence. The test identification parade simply corroborates the same. Since the probative value of dock identification of an accused, being inherently of a weak character, is not much, therefore, test identification of an accused is considered a safe rule of prudence.

The Court referred to the judgment of the Supreme Court titled Dana Yadav Alias Dahu and Ors. v. State of Bihar reported as AIR 2002 SC 3225 wherein it has been ruled;

It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.


While placing heavy reliance on the Judgment of the Supreme Court titled Nizam v. State of Rajasthan reported as (2016) 1 SCC 550, the Court observed that;

72. The legal position regarding the importance of motive in cases relating to circumstantial evidence is trite now. Although failure to prove motive in such cases is not fatal by itself. However, if prosecution is able to establish its case on motive, it will also be a corroborative piece of evidence.

Conduct of Accused Person:

The Court said that in a case based on circumstantial evidence the conduct of the accused is to kept in mind.

The Court observed that the legal position is that when incriminating circumstances are put to an accused and the said accused either offers no explanation or offers an explanation which he fails to prove and same is found to be untrue, then it becomes an additional link in the chain of circumstances. The conduct of an accused preceding, attending and following the crime is also relevant fact in such cases.

While upholding the judgment delivered by the trial Court, the Court analysed the aspect of quantum of punishment and held;

Law provides only two options between death sentence and imprisonment for life for conviction under Section 302 RPC. Life imprisonment is the rule and death sentence is an exception. The capital punishment or the extreme penalty of death sentence is resorted to only when life sentence is found altogether inadequate. If we recall the manner, in which, the life of the deceased, the only son of his parents and an engineer by profession has been taken away by none other than his wife and her paramour, within six days of his marriage and ask the common man about the sentence, the common man without any hesitation would propose death sentence for the appellant in view of the enormity of the crime committed by him, but the legal parameters do not permit us. Learned trial Court has rightly balanced the aggravating and mitigating circumstances before handing down conviction upon the appellant. Although prosecution has established a complete unbroken chain of circumstances to prove guilt of the appellant, but there is nothing on the record to suggest that appellant has any criminal background, which calls for imposition of extreme penalty of death sentence. Undoubtedly, the crime committed by the appellant is unpardonable but keeping in view the legal parameters the present case does not fall in the category of „rarest of the rare case‟. Thus considered, we are of the opinion that appellant has been rightly sentenced, by learned trial Court, for the minimum imprisonment prescribed under law i.e. imprisonment for life for the offence committed by him under Section 302 RPC.

Case details:
Title: Romesh Thakur vs State of J&K and Anr.
CRA No. 21/2010, DOD: 30-12-2022

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