Padman Bibhar v. State of Odisha: Last Seen Theory cannot be sole basis of Conviction

by Author

Date of decision- 21 May 2025

Bench: Sanjay Karol J. and Prashant Kumar Mishra J.

Introduction

Recently, the Supreme Court in the case of Padman Bibhar v. State of Odisha, ruled that ‘last seen together’ cannot be the sole basis of conviction in the matters pertaining to Section 302 [1] of Indian Penal Code, 1860. The case actually reiterates the legal position established in previous cases such as Sharad Birdhichand Sarda v. State of Maharashtra , Sujit Biswas v. State of Assam, Kanhaiya Lal v. State of Rajasthan and Rambraksh @ Jalim v. State of Chhattisgarh .

‘Last seen together’ theory is the rule of Evidence which is generally invoked by the Prosecution to build its case on circumstantial evidence. This doctrine is mostly invoked in homicidal cases to establish a cogent chain of circumstantial evidence. This theory comes into play when the gap between the time when the accused and the deceased were last seen alive and the time when the deceased was found dead is so small that the probability of any person other than the accused being the perpetrator of crime becomes impossible.[2]

However, in plethora of cases, the Supreme Court has held that ‘last seen together’ cannot be the sole basis of the conviction in homicidal cases and it must be corroborated by other piece of evidences to form a cogent chain of circumstantial evidence. Section 7 (acts which are the occasion, cause or effect of facts in issue), 106 (Burden of proving fact especially within knowledge) and 114 (Court may presume existence of certain facts) of the Indian Evidence Act, 1872 (corresponding to Sections 5, 109 and 119 of Bharatiya Sakshya Sanhita 2023) forms the basis of this doctrine.

Facts of the case

An appeal was filed against the conviction of accused under Section 201 and 302, Indian Penal Code by the High Court of Odisha at Cuttack. The sole ground of the conviction was that the accused and the deceased were last seen together, after which the deceased was found dead. The Prosecution case was primarily based on the fact that accused and appellant were last seen together before the deceased was found dead.

Issue

Two main issues involved in the case were as follows:

Whether there is sufficient conclusive evidence to establish that the appellant has committed the murder?
Whether last seen together can be the sole basis of conviction?

Held

The Supreme Court overturned the decision of the High Court and acquitted the accused.

Reasoning

The Court stated that “we are of the opinion that the nature of circumstantial evidence available against the appellant though raises doubt that he may have committed murder but the same is not so conclusive that he can be convicted only on the basis of evidence on ‘last seen together’”. There was no other incriminating evidence other than the evidence of last seen together. Neither any motive of crime was proved on the part of the appellant. The Court therefore, held that the ‘last seen together’ cannot be the sole basis of conviction unless supported by any other piece of evidence. The Court analyzed the following landmark decision:

Sharad Birdichand sarda v State of Maharashta[3]– This is a landmark case when it comes to the proof of circumstantial evidence. In this case, the Supreme Court laid down certain guidelines for establishing circumstantial evidence by the Prosecution:

Chain of evidence must be complete;
The circumstances must be conclusive;
Facts established by the Prosecution must be pointing towards the guilt of the accused;
Circumstances established by the Prosecution must be pointing towards the guilt of the accused.
Circumstances relied upon should exclude every possible hypothesis except the one to be proved.

Kanhaiya Lal v. State of Rajasthan[4]– It is a landmark case related to the doctrine of last seen together. In this case, the Supreme Court held that the ‘last seen together’ is a weak piece of evidence. The circumstance of last seen together does not necessarily provides an inference that the accused has committed the crime. It needs something more to prove the connection between the accused and the crime.

Rambraksh @ Jalim v. State of Chhattisgarh[5], Krishnan v. State of T.N.[6], Arjun Marik v. State of Bihar[7], Bodhraj v. State of J&K[8]– In all of these cases, it was held that there must be some other positive evidences along with the evidence of last seen together, in order to complete the chain of circumstantial evidence. Last seen together cannot be the sole of the conviction.

Sujit Biswas v. State of Rajasthan – In this case, the Supreme Court held that even if there is a grave suspicion that the accused has committed the offence, such suspicion cannot take the place of proof. There is a difference between ‘may be proved’ and ‘will be proved’. The difference between the two must be fulfilled by ‘clear, cogent and unimpeachable evidence’ produced by the Prosecution. Once the complete chain of circumstantial evidence is proved which point towards the guilt of the accused, the accused can be convicted on basis of such evidence.

Conclusion

It can be concluded that ‘last seen together’ cannot be the sole basis of conviction. This is the current legal position which has been established by the decision of the Supreme Court in various cases. Such evidence must be supported by other pieces of evidence.

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