With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of Supreme Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt.
In Arjun Marik v. State of Bihar [1994 Supp. (2) SCC 372], Supreme Court took the view that the where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded.
In the case of State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353], Supreme Court held that merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court.
In the case of State of U.P. v. Satish [(2005) 3SCC 114], Supreme Court had stated that the principle of last seen comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
In Sahadevan v State of Tamilnadu (2012), The court stated,
“Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
35. The statement of PW5 does not indicate the time as to when he had seen the deceased and with which of the accused. He expressed inability to even identify them. PW4 though claims to have seen them but has given a time which itself is doubtful. Even this cannot be stated with certainty that at that particular time the deceased was alive or dead. 36. In light of the abovementioned contradictions and the uncertainty of evidence, we are unable to sustain the view taken by the High Court that on the theory of last seen, the accused can be convicted. This fact is uncorroborated and suffers from apparent contradictions and discrepancies as well.”