Understanding Circumstantial Evidence and the Last Seen Theory

Posted On - 25 April, 2025 • By - Akash Pingley

Introduction

Circumstantial evidence plays a crucial role in criminal trials, relying on inference rather than direct testimony. It is because of this that it becomes important to understand the legal framework around such evidence, particularly the “last seen” theory. This is also in light of the recent Supreme Court decision in Jagdish Gond v. The State of Chhatisgarh, where it reinstated an acquittal, underscoring the limits of presumptions under Section 106 of the Evidence Act in the absence of conclusive proof of homicide.[1]

About Circumstantial Evidence

Circumstantial evidence may be indirect in nature but is crucial to the Indian legal system. As opposed to direct evidence like eyewitnesses, circumstantial evidence necessitates inference for building a link between the fact and the conclusion to be established. It is not secondary evidence but direct evidence used indirectly to prove facts.

Section 2(k) of the Bhartiya Sakshya Adhiniyam, 2023, defines a relevant fact as one which is connected to another in manners specified under the Adhiniyam. According to Section 3 of the Indian Evidence Act, 1872, evidence consists of both oral testimony by witnesses and documentary, including electronic records.

Circumstantial evidence has its roots in Roman law and is based on the maxim: “Men may tell lies, but circumstances do not.” The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra[2] enunciated five golden principles – popularly referred to as the Panchsheel of circumstantial evidence – which need to be satisfied for a conviction:

  1. Circumstances must be fully established.
  2. They must point solely to the guilt of the accused.
  3. They should be conclusive in nature.
  4. They must exclude every hypothesis except guilt.
  5. There must be a complete chain leading to no conclusion other than guilt.

Decisive judgments also emphasize its importance. In Anwar Ali v. State of Himachal Pradesh, motive was held to be a significant link but not a requirement.[3] Nagendra Sah v. State of Bihar re-emphasized that the inability to account for incriminating facts under Section 106 IEA can strengthen guilt.[4] Dilip Sariwan v. State of Chhattisgarh laid stress on establishing each link in the chain beyond reasonable doubt.[5]

While circumstantial evidence requires close examination, judiciously applied, it can be no less persuasive than direct evidence in leading to convictions.

The Last Seen Theory in Circumstantial Evidence

The last seen theory, based on English common law, is of great importance in Indian criminal law. It is based on the principle that if an accused was last seen with the victim prior to the crime and cannot provide a reasonable explanation, there is a strong presumption against them. While not definitive on its own, it is a critical piece in a chain of circumstantial evidence, especially when the time lapse between the last time the accused was seen with the victim and the crime being discovered is short.

Section 7 of the Indian Evidence Act, 1872, under which facts that provide an opportunity for the commission of the crime are admissible, Section 106 places the burden on the accused when facts are particularly within their knowledge, and Section 114 enables courts to raise presumptions from the general course of events and human behavior.

In State of U.P. v. Satish, the Supreme Court maintained the theory wherein the time gap left no space for other suspects.[6] But in Kanhaiya Lal v. State of Rajasthan, the Court warned that last seen alone cannot prove guilt; it should be coupled with other corroborative evidence to make a complete and credible chain resulting in conviction.[7]

The Recent SC Decision

Facts

  • The deceased woman, wife of the appellant, was found dead on 29.01.2017.
  • Her husband reported that he found her dead lying when he came back from his evening shift at a cement factory.
  • The initial report was lodged as unnatural death under Section 174 CrPC without any suspicion by the family.
  • Her father later filed a complaint, resulting in charges under Sections 498A, 306 r/w 34, and in alternative 302 r/w 34 IPC.
  • The Trial Court held no evidence of murder and declared the death a suicide, acquitting all three accused.
  • The High Court, on the other hand, convicted the husband alone under Section 302 IPC, holding the failure of alibi and lack of explanation under Section 106 of the Evidence Act as the grounds.

Questions before the Supreme Court

  • Whether the High Court was justified in overruling the acquittal of the Trial Court
  • Whether the invocation of Section 106 Evidence Act was appropriate.
  • Whether the medical evidence and circumstantial evidence justified a conviction under Section 302 IPC.
  • Presumption of Innocence Strengthened by Acquittal: The Supreme Court laid stress on the fact that when the Trial Court acquits, the burden on the appellate court is greater. Unless the judgment is perverse or illegal, it should not be lightly set aside.
  • Failure of Alibi ≠ Guilt: The High Court was in error to find that the accused’s failure to establish his alibi was sufficient to convict him. The prosecution bears the burden of proving guilt, and failure to prove alibi does not in itself establish guilt.
  • Section 106 Evidence Act: It comes into play only after the prosecution has proved a prima facie case. In this case, no homicidal death evidence was led on record. Therefore, the burden under Section 106 could not be raised.
  • Medical Opinion: The ligature mark was on the anterior part of the neck, but the medical witness (PW-8) could not definitely hold an opinion regarding cause of death due to strangulation or murder.
  • Sharad Birdhichand Sarda v. State of Maharashtra[8]: The Court once again emphasized that circumstantial evidence has to constitute a complete chain, which clearly establishes guilt. That test was not fulfilled in this case.

The Court’s Decision

  • The High Court was wrong in setting aside the soundly reasoned acquittal by the Trial Court in the absence of clear, trustworthy, or conclusive evidence.
  • The prosecution did not establish that the death was a homicide, much less that it was perpetrated by the appellant.
  • The conviction rested solely on failure to account for the death of the wife and lack of alibi, which is legally inadequate.
  • Conviction under Section 302 IPC overturned, acquittal by Trial Court reinstated.

Conclusion

Circumstantial evidence, while indirect, carries significant probative value in the creation of a rational and conclusive chain leading to guilt. The last seen theory, though considerable, cannot form the sole basis for a conviction by itself without support of corroboration. The Jagdish Gond ruling reiterates the boundaries of presumption under Section 106 as well as the stricter standard for acquittal reversal. Courts need to walk cautiously in relying on inferences so that the burden of proof continues to rest on the prosecution to establish guilt beyond reasonable doubt.

[1] https://www.livelaw.in/pdf_upload/1773420242025-04-07-594934.pdf.

[2] Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.

[3] Anwar Ali v. State of Himachal Pradesh, AIR 2020 SC 4519.

[4] Nagendra Sah v. State of Bihar, Criminal Appeal No. 1903 of 2019, Supreme Court.

[5] https://highcourt.cg.gov.in/hcbspjudgement/judgements_web/CRA191_23(20.08.24)_6.pdf.

[6] https://digiscr.sci.gov.in/admin/judgement_file/judgement_pdf/2005/volume%201/Part%20I/state%20of%20u.p._satish_1700564303.pdf.

[7] Kanhaiya Lal v. State of Rajasthan, 2014 AIR SCW 1828.

[8] Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116.