HYDERABAD: ‘Last seen’ theory concept plays an important role in convicting the accused in a criminal case. In addition to the circumstantial evidence, the prosecution also has to establish the said theory to ensure the conviction of the accused. Taking into account the evidence on record and totality of the circumstances of the case, the court convicts the accused by applying the concept of ‘last seen’.
In an appeal before the Supreme Court, the appellant-accused challenged the order of the trial court which imposed the death penalty on him for the rape and murder of a girl who was minor by age. This conviction was later also confirmed by the high court. In the appeal before the apex court, the appellant focused on death penalty imposed.
The counsel for the appellant-accused contended that there is no acceptable and convincing evidence to prove the guilt of the accused beyond a reasonable doubt. The trial court had convicted him based on the circumstantial evidence. However, this is not enough to record the guilt of the accused in the case.
Further, the evidence on record, the prosecution has also failed to prove the concept of ‘last seen’. Only by recording a finding that the incident is barbaric can both the trial court and the high court have recorded that the case of the prosecution falls under ‘rarest of rare’ cases, thus leading to the imposition of a death sentence. The prosecution went on to argue that all the mitigating circumstances which exist were to be considered and the penalty of death imposed is required to be modified.
‘Rarest of rare’ cases
On the other hand, the government counsel submitted that though the appellant was convicted based on circumstantial evidence, the evidence adduced is sufficient and consistent. In fact, the brother of the deceased minor girl had identified the accused as the person with whom the victim girl was last seen.
Having regard to the nature of the crime, that it is heinous and barbaric, it falls within the category of ‘rarest of rare’ cases, the government counsel argued. Hence, there are no grounds to interfere with the conviction recorded and sentence imposed on the appellant-accused, the counsel submitted.
After hearing the case and perusing the material that was placed on record, the apex court said that it was satisfied with the findings recorded by the trial court, which are based on the appreciation of oral and documentary evidence on record. Though the case totally rests on circumstantial evidence, it is to be noticed that the brother of the deceased had accompanied the victim to ‘Mela’ on the fateful day of the crime, and that the witness categorically stated that the appellant took away the girl from ‘Mela’ and he has later identified the accused in the test identification parade.
Further, another prosecution witness had also stated that he had seen the appellant with a girl on a fateful night. By applying the ‘last seen’ theory to the facts of the case and further considering the forensic and medical evidence on record, the trial court has rightly recorded guilt of the accused of the offences alleged. Even the high court has rightly confirmed the conviction, the Apex Court opined. The Supreme Court, however, was of the view that the reasons assigned by the trial court as confirmed by the high court, do not constitute special reasons to impose the death penalty on the accused. Taking into account the evidence on record and the totality of circumstances of the case, the Apex Court said that the present case will not fall within the ‘rarest of rare’ cases, and allowed the appeal in part by modifying the sentence to that of life imprisonment with actual period of 25 years, without any benefit of remission.