Conviction Solely Based on Last Seen Theory Unsustainable Without Proving Motive and Complete Chain of Circumstances

The informant (PW-1) alleged that on 05.11.2013, the accused Irshad called his 12-year-old son, Prince, away from home.

The boy did not return, and the informant claimed to have searched for him that night.

On 06.11.2013 at 7:00 a.m., the boy's half-burnt body was found on a garbage heap near the informant’s house.

The medical report cited death by asphyxia due to throttling.

The Trial Court convicted both Kabir Khan and Irshad under Sections 302/34 and 201 of the IPC based primarily on "last seen together" testimony from four witnesses (PW-1 to PW-4) and sentenced them to life imprisonment.

The appellants challenged this conviction, citing a lack of motive and inconsistencies in the circumstantial evidence.

1. Whether the "last seen together" theory was established by the prosecution with sufficient reliability to sustain a conviction.

2. Whether the conduct of the informant and other witnesses was consistent with human probability, thereby proving the chain of circumstantial evidence.

3. Whether the prosecution failed to establish a motive or recover incriminating material connecting the appellants to the crime.

The Court applied Section 302 (Murder), Section 34 (Common Intention), and Section 201 (Causing disappearance of evidence) of the Indian Penal Code.

It relied on the evidentiary standard for circumstantial evidence established in Gambhir v. State of Maharashtra, requiring a chain of events so complete that it leaves no escape from the conclusion of guilt.

It further applied the principle from Kanhaiya Lal v. State of Rajasthan and Ashok v. State of Maharashtra, which mandates that the "last seen" theory cannot be the sole basis for conviction without additional connectivity or the prosecution first discharging its initial burden of proof.

The informant (PW-1) claimed to have searched for his missing son but then slept peacefully, had tea in the morning, and sat outside without reporting the disappearance to the police until after the body was found—a behavior the court termed "totally unnatural".

Witnesses PW-2, PW-3, and PW-4 provided contradictory statements regarding who was present when the boy was taken and when they first learned of the disappearance.

The Court noted that despite the body being found in front of the informant's house, no motive was established, and no recovery of incriminating objects was made from the accused.

Since the prosecution failed to cogently establish the "last seen" company, the burden did not shift to the accused under Section 106 of the Evidence Act.

The High Court set aside the Trial Court's judgment of conviction dated 03.11.2020. Kabir Khan and Irshad were acquitted of all charges and ordered to be released forthwith from prison, subject to Section 437-A Cr.P.C.