RAJIT RAM & ORS. V. KATESKAR NATH & ORS.

(1896) ILR
18 ALL 396.

The research proposal submitted in partial fulfilment of the course

Civil Procedure Code and Law of Limitation, for obtaining the degree
of B.B.A.,LL.B(Hons.) during the Academic Year 2020- 2021.

SUBMITTED BY:
SAKSHI TIWARI
Roll No. – 2035

SUBMITTED TO:

Faculty for Civil Procedure Code and Law of

Limitation

Dr. Meeta Mohini

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 DECLARATION BY THE STUDENT

I hereby declare that the work reported in the B.B.A. LL.B (Hons.) Project Report entitled

“Rajit Ram & Ors. v. Kateskar Nath & Ors.” submitted at Chanakya National Law

University, Patna is an authentic record of my work carried out under the supervision of

Dr. Meeta Mohini. I have not submitted this work elsewhere for any other degree or

diploma. I am fully responsible for the contents of my Project Report.

(Signature of the Candidate)

SAKSHI TIWARI

Chankaya National Law University, Patna

Date-

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 ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”

A project is a joint endeavor which is to be accomplished with utmost compassion,

diligence and with support of all. Gratitude is a noble response of one’s soul to kindness or

help generously rendered by another and its acknowledgement is the duty and joyance. I

am overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of

my heart to all those who have helped me to put these ideas, well above the level of

simplicity and into something concrete effectively and moreover on time.

This project would not have been completed without combined effort of my revered

professor Dr. Meeta Mohini whose support and guidance was the driving force to

successfully complete this project. I express my heartfelt gratitude to her. Gratitude is also

due to my parents, family, siblings, my dear friends and all those who helped me in this

project in any way. It was truly an endeavor which enabled me to embark on a journey

which redefined my intelligentsia, induced my mind to discover the various events which

led to the development of obscenity laws and their perception through this case.

Moreover, thanks to all those who helped me in any way be it words, presence.

Encouragement or blessings...

- Sakshi Tiwari

- 5th , Semester

- B.B.A LL.B

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 TABLE OF CONTENTS

Contents

ACKNOWLEDGEMENT.......................................................................................................3
1. INTRODUCTION..............................................................................................................5
Aim of Study..........................................................................................................................6
HYPOTHESIS.......................................................................................................................6
RESEARCH METHODOLOGY...........................................................................................6
SOURCES OF DATA............................................................................................................6
Material and methods.............................................................................................................6
Sources of study:....................................................................................................................6
Limitations.............................................................................................................................7
2. CASE ANALYSIS.............................................................................................................8
facts of the case......................................................................................................................8
3. CORPUS DELICTI............................................................................................................8
scope as a legal prnciple.........................................................................................................9
evolution of interpretation of corpus delicti as legal principle............................................10
evidentiary value..................................................................................................................11
4. THE LAST SEEN THEORY...........................................................................................12
5. CONCLUSION.................................................................................................................16
6. BIBLIOGRAPHY.............................................................................................................17

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 1. INTRODUCTION
Circumstantial evidence in its very context means a combination of facts creating a network
from which there is no escape for the accused, because the facts taken as a whole do not
admit any inference but the guilt of the accused. The circumstances as a whole must be
thoroughly inconsistent with the hypothesis of the innocence of the accused. 1 Indirect
Evidence is known in forensic procedure by the name of circumstantial evidence.
Circumstantial evidence is species of indirect evidence which the Municipal Law deems
sufficiently proximate to judicial decision. Any circumstantial evidence can be reasonably
made the basis of an accused person’s conviction if it is of such a character that is wholly
inconsistent with the innocent of the accused and is consistent only with his guilt. If the
circumstances proved in the case are consistent either with the innocence of the accused or
with his guilt,2 then the accused is entitled to the benefit of doubt. But it is necessary to
distinguish between facts which may be called primary or basis on the one hand and
interference of facts to be drawn from them on other. In order to make the proof of basic or
primary facts, the court has to judge the evidence in the ordinary evidence way and in the
appreciation of evidence in respect of the proof of the basic or primary facts, there is no scope
for the application of the doctrine of benefit of doubt. The court considers the evidence and
decides whether it proves a particular fact or not. When it is held that is certain fact proved
the question arises whether the fact leads to the inference of guilt of the accused person or
not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt applies,
and the inference of guilt in can be drawn only, if the proved fact is wholly inconsistent with
the innocence of the accused and is consistent only with his guilt.

Circumstantial evidence has its own limitations. Before acting on the evidence, the court
must first see whether the circumstances put forward are satisfactorily proved and whether
the proved circumstance are sufficient to bring home satisfactorily the guilt to the accused.
The established circumstance must not only be consistent with the guilt of, the accused, but at
the same time they must be inconsistent with his innocence. While appreciating
circumstantial evidence, the court should not view in isolation the various circumstances. It
must take an overall view of the matter, without substituting conjecture for legal inference.

1
S.P. Tyagi, Law of Evidence,(1st volume 2nd Edition 2008), 1956.
2
State of U.P. v. Ashok Kumar Srivastava, [1992] SC 840.

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The circumstantial evidence, however, should be scrutinised property and must be sufficient
to prove the prosecution case beyond reasonable doubt and the fact so proved must be
incompatible with the innocence of the accused. The circumstantial evidence must be of such
conclusive nature so as to point out sufficiently proximate to a principle fact, small factum
probandum, and in brief the circumstantial evidence must satisfy at least three tests.

AIM OF STUDY
 To understand the significance of “verification in plaints”.
 To analyse and understand the various aspects of the case and throw light upon them.
 To study the concept of Order VI Rule 15.
 To study the concept of Order VII Rule 11.
 To analyze and understand the provision contained in section 26(2) of CPC.
 To study the provisions of CPC with Limitation Act.
.

HYPOTHESIS
 Improper verification and non-compliance of the provision contained in Order VI
Rule 15 cannot be a ground for rejection of plaint.
 Non-filing of an affidavit under Order VI Rule 15(4) is a curable defect and does not,
itself make a plaint non est.

RESEARCH METHODOLOGY
The study is collected from the national journals and books and publication from various
websites and legislations, recent articles which give importance and more information to the
significance of verification procedure in plaints.

RESEARCH QUESTION
 What is Rajit Ram & Ors. V. Kateskar Nath & Ors.?
 Which all provisions of law were applied in this case?
 What was the judgment of this case?
 What are some similar case laws?

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SOURCES OF STUDY

The researcher has referred books, research articles, unpublished thesis and e-sources as a
part of secondary sources for the writing of the project.

METHOD OF WRITING
The method of writing followed in the course of this research is primarily analytical.

MODE OF CITATION
The researcher has followed uniform mode of citation.

LIMITATIONS

The researcher is unable to trace the primary sources needed to write about the topic as the
topic demands research in the archives which is not available to the research as admission to
the government archives is not allowed.

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 2. CASE ANALYSIS

CORUM

J Edge, Kt., Knox, Banerji.

Judgment : K John Edge

FACTS OF THE CASE

The plaint in the suit in which this reference has arisen on appeal was signed by the three
plaintiffs and was verified by them in the following: "The contents of the petition of plaint
are true to the best of my knowledge and belief." Owing to a case recently reported, namely
Balgobind Das v. Ganno Bibi3 Weekly Notes 1896 p. 75, the Bench hearing the appeal
referred the following questions to a Full Bench: "(1) Whether a plaint verified in the terms in
which the plaint in this case is verified is defective in law? (2) If so whether such a plaint can
be amended after settlement of issues? (3) Should an objection as to the form of verification
be entertained after settlement of issues and when a case has gone to trial? (4) Is a defect in
verification such as that in this case a sufficient ground for the dismissal of the suit?

There is no doubt that the verification in the present case might raise a doubt in some persons
minds as to whether the plaintiffs verifying it infant that all the averments in the plaint were
true to their knowledge. The use of the expression "to the best of my knowledge and belief"
might raise a doubt to that point, and where a plaintiff' does verify a plaint as true to his
knowledge, he had better do so in the simple words of Section 52 of the Code of Civil
Procedure, and simply say that the plaint is true, or the statements in the plaint are true, to his
knowledge. It is not necessary for a plaintiff to say that the facts which be alleges to be true to
his knowledge are also true to his belief. If matters alleged as facts are true to the plaintiff's
knowledge they must be true to his belief. Where a plaint contains averments of fact, some of
which are within the plaintiff's knowledge and, others of which are made upon information
which he believes to be true; if for example, the averments in the first three paragraphs are
made on his own knowledge, and the averments in paragraphs 4, 5 and 6 are made upon
information and not on the knowledge of the plaintiff, the verification should be, as to the
3

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averments in paragraphs 1, 2 and 3, that they are true to my knowledge, and as to paragraphs
4, 5 and 6, that they are made on information which I belive to be true. There could be no
misapprehension as to what such a verification meant. Probably, the verification in this case
was intended by the plaintiffs to be a verification that all the facts stated were true to their
knowledge. As was pointed out in Girdhari v. Kanhaiya Lal 4, the vernacular copy of the Code
of Civil Procedure is not, so far as Section 52 of the Code is concerned, an absolutely correct
translation, and is likely to mislead, persons trusting to the vernacular copy. Although the
verification in the present case is not in strict compliance with the Code, it substantially
complies with it, and after the trial had commenced with the settlement of issues, the defect,
if it was a defect, need not have been taken notice of. This was the answer to the first
question.

For the purpose of answering the remaining questions we will assume that the verification is
defective and not in compliance with Section 52 of the Code, and that it omitted to indicate
which matters were true to the knowledge of the plaintiffs and which matters, if any, were
stated on information believed to be true. Now under Section 53 the Court of First Instance,
unless acting under the orders of an appellate Court, could hot return a plaint to be amended
after the, settlement of issues; but if the plaint required amendment and the fact was only
discovered after issues had been settled, the Court could, under Section 53, Clause (c), amend
the plaint or cause it to be amended at any time before judgment. Under Clause (c) the plaint
would still remain on the file and be pact of the file, although the Court of First Instance
might depute any person, selected by it to take the plaint for example to a parda nashin
woman who was plaintiff, or to a person who, through illness, was unable to attend Court, for
the purpose of the order of the Court being complied with. Any amendment made under such
circumstances would, in our opinion, be an amendment by the Court itself. Under Clause (b)
the plaintiff need not amend at all after the plaint is returned to him, but if he does not, he
incurs the penalty of Section 54. Under Clause (c) this amendment is made by order of the
Court and the party has to comply with it. Further, if the amendment is one going to the
maintenance of the suit and the defect in the plaint is not discovered until the suit gets into a
superior Court on appeal, the appellate Court, in our opinion, can either order the amendment
to be made in that Court, or, for example in a case in which there has been not only
misjoinder of parties but misjoinder of causes of action, the appellate Court may order the
Court of First Instance to do what it ought to have done at the, proper stage of the suit, when

4
Girdhari v. Kanhaiya Lal I.L.R. 15 All. 59.

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the suit was before it, and return the plaint to the parties so that they may make their election
as to which of them is to continue the suit and may make the necessary amendments. Such a
course was pursued by this Court in Salima Bibi v. Sheikh Muhammad supra p. 131. Even
where a Court of First Instance should have returned the plaint under Clause (b) of Section 53
of the Code of Civil Procedure for amendment and did not do so, but tried the suit without
amendment, and the suit is before an appellate Court in appeal, the appellate Court need take
no notice of the defect of verification if the case comes under Section 578 of the Code of
Civil Procedure. It would be difficult to imagine any case in which a defective verification of
a plaint could affect the merits of the case or the jurisdiction of the Court; so that practically,
in our opinion, on a mere question of defect of verification, it is not necessary for an appellate
Court to pay any attention or take any steps to rectify a defect in the verification of the plaint.

The case which was reported in the Weekly Notes for 1896 p. 75, was a peculiar one. In that
case the plaint had been returned for an amendment, and when the case was before this Court
on appeal the plaint was not on the record, but was with the plaintiff in her private custody,
and not in the custody of the Court. We are authorized to say that the learned Judges who
were parties to the decision did not intend to suggest that the result of defective verification
must necessarily be the dismissal of the suit.

What the bench said answers the four questions referred to the Full Bench With these
answers the appeal went back to the Bench which made the reference.

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 3. CORPUS DELICTI

Corpus delicti is a term from Western Jurisprudence referring to the principle that a crime
must be proved to have been committed before a person can be convicted of committing that
crime. It is one of the most important concepts in investigation of crime. It may be explained
by stating two extreme examples one is that it means that in the absence of finding the dead
body it cannot be stated that the murder has taken place. Second is to state that for filing a
Civil Suit it has to be shown that there is cause of action. Likewise for initiating criminal
action it has to be shown that crime has taken place. In between there is the view that it is the
evidence that the crime has occurred.

SCOPE AS A LEGAL PRNCIPLE

In the AngloAmerican legal system, the concept has its outgrowth in several principles. Many
jurisdictions hold as a legal rule that an accused's extra judicial confession of an accused
alone, is not sufficient to prove the guilt of the accused beyond reasonable doubt. A corollary
to this rule is that an accused cannot be convicted solely upon the testimony of an

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accomplice. Some jurisdictions also hold that without first showing independent
corroboration that a crime happened, the prosecution may not introduce evidence of the
accused's statement. Corpus delicti is one of the most important concepts in a murder
investigation. When a person disappears and cannot be contacted, police may initiate a man
missing case. If, during the course of the investigation, Police believe that he/she has been
murdered, then a "body" of evidentiary items, including physical, demonstrative and
testimonial evidence, must be obtained to establish that the missing individual has indeed
been murdered before a suspect can be charged with homicide. 5 The best and easiest
evidence in these cases is shown about the physical body of the deceased. However, in the
event that a physical body is not present or has not yet been discovered, it is possible to prove
that crime took place if sufficient circumstantial evidence is presented to prove the matter
beyond a reasonable doubt.6 For example, the presence of blood stains at the home of missing
person, identifiable as that of missing person, in sufficient quantity to indicate
exsanguination, demonstrates—even in the absence of a corpse—that the possibility that no
crime has occurred, and the missing person is merely missing, is not reasonably credible. In
general, all corpus delicti requires at least:

1. The occurrence of the specific injury; and

2. some intentional, knowing act as the source of the injury.

For example in Homicide: 1) An individual has died 2) as a result of action (or inaction) by
another person

The doctrine of corpus delicti is the requirement that the state prove that a crime has been
committed prior to allowing a confession to be admitted into evidence. The primary function
of the rule is to reduce the risk of convicting an accused based on his confession for a crime
that did not occur. Other justifications include the reduction of confessions produced by
coercive tactics and the encouragement of thorough Police investigations.

5
Prithi vs State of Haryana, (2010) 8 SCC 5363.
6
Ibid.

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EVOLUTION OF INTERPRETATION OF CORPUS DELICTI AS LEGAL
PRINCIPLE

Sir Matthew Hale (Lord Chief Justice of the Court of King's Bench) was of the opinion that
he would never convict any person of murder or manslaughter, unless the facts were proved
to be done, or at least the body found dead.7

The aforesaid statement of Sir Matthew Hale has not been accepted in England, Ireland, New
Zealand and other common law countries as it is. In England the legal position is stated in
Halsbury's Laws of England, 2nd Edition 449 thus: where no body or part of a body has been
found which is proved to be that of the person alleged to have been killed, an accused person
should not be convicted of either murder or manslaughter, unless there is evidence either of
the killing or of the death of the person alleged to be killed.8

A sixJudge Bench of Irish Court of Crown in the case of Rex v. Patrick McNicholl 9 speaking
through Sir James Campbell, C.J., with regard to the statement of Sir Matthew Hale, said that
it is not an inflexible legal maxim, but is a wise and necessary caution to be addressed by the
presiding Judge to the jury. The Bench held that in a charge of murder, by proof of the corpus
delicti is meant proof of the factum of murder, and that the accused committed the murder or
took part in its commission. Such proof may be established by the confession of the accused
without proof of the finding of the dead body.

In The King v. Horry10, the New Zealand Court of Appeal explained the legal position that at
the trial of a person charged with murder, the fact of death is provable by circumstantial
evidence, notwithstanding that neither the body nor any trace of the body has been found.
Their Lordships of the Supreme Court of India referred to their earlier decision in Sevaka
Perumal, etc., vs State Of Tamil Nadu11, it was contended by Sri Raju Ramachandran that the
dead body of Hariramachandran was admittedly found in a highly decomposed condition.
There is no proper identification of the dead body to be of the deceased. The mother PW2
identified only with reference to the photograph taken of the dead body. In a trial for murder
it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of
death of the deceased must be established like any other fact. Corpus delicti in some cases
7
The History of the Pleas of the Crown', Vol. II, (1800 Edition), 290.
8
Halsbury's Laws of England, 2nd Edition 449.
9
Rex v. Patrick McNicholl (1960) 2 QB 396.
10
The King v. Horry 92 L. Ed. 2d 483.
11
Sevaka Perumal, etc., v. State Of Tamil Nadu 1991 SCR (2) 711.

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may not be possible to be traced or recovered. Take for instance that a murder was committed
and the dead body was thrown into flowing tidal river or steam or burnt out. It is unlikely that
the dead body may be recovered. If recovery of the dead body, therefore, is an absolute
necessity to convict an accused, in many a case the accused would manage to see that the
dead body is destroyed etc. and would afford a complete immunity to the guilty from being
punished and would escape even when the offence of murder is proved. What, therefore, is
required to base a conviction for an offence of murder is that there should be reliable and
acceptable evidence that the offence of murder, like any other factum, of death was
committed and it must be proved by direct or circumstantial evidence, although the dead
body may not be traced.12

EVIDENTIARY VALUE

It is a fundamental rule that in cases dependent on circumstantial evidence, in order to justify

an inference of guilt, the incriminating circumstance must be incompatible with the
innocence of the accused and must be incapable often explanation upon any other reasonable
hypothesis than that of guilt and the circumstantial evidence must be of such a character that
it should establish the guilt of the accused beyond any reasonable doubt and all possibilities
of the innocence of the accused should be excluded. 13 The proved circumstances should be of
a conclusive nature and definite tendency, unerringly pointing towards the guilt of the
accused. They should be such as to exclude every hypothesis but the one proposed to be
proved. The circumstances must be satisfactorily established and the proved circumstances
must bring home the offences to the accused beyond all reasonable doubt. Those essential
ingredients are:14

(i) That the circumstances from which the conclusion is drawn should be fully proved;

(ii) That the circumstances should be conclusive in nature;

(iii) That all the facts so established should be consistent only with the hypothesis of guilt and
inconsistent with innocence;

(iv)That the circumstances should, to a moral certainty, exclude the possibility of guilt of any
person other than the accused.
12
Palaniswamy Vaiyapuri vs State, AIR 1968 Bom 127 : 1968 CriLJ 453.
13
Raveendran And Anr. v. State Of Kerala, 1994 Cri. LJ 3562.
14
Wills, Principles of Circumstantial Evidence, (1912 edition), pg 333.

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"In cases where the evidence is of a circumstantial nature, the circumstances from which the
conclusion of guilt is to be drawn should in the first instance be fully established, and all the
facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved. In other words, there
must be a chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be such as to show that
within all human probability the act must have been done by the accused.15

Though we cannot lay down as an inflexible rule of law that in no case an extrajudicial
confession will afford the sole basis for conviction we are of the opinion that in the case of
homicide and such other similar grave offences it would not be safe to convict a person on
the confession alone unless corroborated by other evidence. This is a rule of prudence rather
than of law.

4. THE LAST SEEN THEORY

Circumstantial evidence may be the only evidence available to prove the offence of murder
against a defendant. Even in the absence of the body of the deceased a defendant can still be
convicted for the offence of murder. In Archie v The State,16 (1993) the appellant was
convicted for the offence of murder. The prosecution alleged that the appellant gave the
deceased a ride in his car and that since then the deceased had not been seen. The appellant
denied the charge and claimed that along the way there was an accident and the car plunged
into a river. He admitted that while the deceased died in the accident he was rescued by
fishermen. The divers who later combed the river could find neither the car nor the body of
the deceased. The Supreme Court upheld the conviction and rejected the explanation of the
appellant. Wali JSC said,

“It is now trite law that the fact of death is provable by circumstantial evidence where neither
the body of the victim or any trace of it for that   matter has been found, even if the person

15
Govinda Reddy v. State of Mysore, AIR 1960 S.C. 28.
16
Archie v The State AIR 2006 SC 336.

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suspected has made no confession of any participation in committing the offence. But before
the defendant is convicted on such evidence, it must be such that   makes the commission of
the offence certain and leaves no reasonable    doubt that it was the defendant that committed
it.”

In cases of murder, where there is no explanation for the death or disappearance of the
deceased and the defendant was the last person to be seen in company of the deceased, then
circumstantial evidence can be used to link the defendant with the death of the deceased and
prove the charge against the defendant beyond reasonable doubt. 17 There is no burden on the
defendant to prove his innocence and explain the death of the deceased but the burden
remains on the prosecution to prove that the defendant killed the deceased. It is the duty of
the prosecution to lead sufficient evidence to establish a prima facie case against the
defendant to require an explanation for the disappearance of the deceased and the absence of
a reasonable explanation can support the inference of guilt.

The Supreme Court has developed a presumption of fact known as the doctrine of last seen
which is based on circumstantial evidence. The statutory authority for this presumption can
be found in section 167 of the Evidence Act. 18 It is important to warn that the doctrine cannot
be applied where the appellant was the last person to be seen with the deceased but there is no
other circumstantial evidence. In Ismail v The State,19 Mukhtar JSC (as she then was)
explained the doctrine, 

“In a case of culpable homicide, as in this present one where the doctrine of last seen has
been applied, the law presumes that the person last seen with the deceased before his death
was responsible for his death, and the accused is expected to provide an explanation of what
happened.”

In Igabele v The State,20(2006) the appellant was convicted for murder. The case of the
prosecution was that the appellant motor driver and the deceased conductor, both went out
with their vehicle but did not return home. The vehicle was later returned by another driver
about four days later and the next day the owner of the vehicle reported the matter to the
police. The body of the deceased was discovered about one month later with vital organs
missing and the appellant was arrested about two months later. The appellant claimed that the
17
Rishi Pal vs State Of Uttarkhand, [2013] 3 S.C.R. 917.
18
Section 167 of the Indian Evidence Act, 1872.
19
Ismail v. The State [2007] WASCA 150.
20
Igabele v. The State SC 233/2004[2006].

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deceased got off the vehicle somewhere to see his brother but did not say where. Later, he
said that the deceased fell off the vehicle somewhere and died. The Supreme Court affirmed
the conviction of the appellant.

Generally speaking therefore, there is no duty on the accused to prove his innocence.
However, where circumstances arise, as in this case, some explanation may be required from
the accused person as the facts against him are strong. Where he fails to offer such
explanation as happened in this case, his failure will support an inference of guilt against
him.”

In The State v Ogbubunjo,21 (2001) the appellants were charged with murder. The deceased
was last seen in the company of the appellants and her body was found buried on their farm.
There was no eye witness to the murder and the available circumstantial evidence was not
sufficient to lead to a compelling and irresistible inference that the appellants committed the
offence. Onu JSC said, 

“In the instant case, there is no evidence of surrounding circumstances which by undesigned
coincidence is capable of proving the proposition that the respondents committed the offence
of murder with the accuracy of mathematics. Rather what we have from the prosecution is
evidence of mere suspicion against the respondents, evidence of equivocation, of
uncertainties, of hearsay and rumours, which in a criminal court cannot suffice to establish
any offence beyond reasonable doubt. It is trite law that it is not sufficient to say “if the
respondents are not the murderers, I know of no one else who is. There is some evidence
against them and none against anyone else. Therefore, they must be found guilty.” Such line
of reasoning is unsound.” 

In Adepetu v The State,22 (1998) the appellant convicted for the offence of murder. The case
of the prosecution was that the appellant was the last person to be seen alone in the company
of the deceased. Two days later the appellant reported that she was dead and her corpse was
in the mortuary. He denied responsibility for her death but was unable to account for her
whereabouts from the time he was last seen with her until the time of her death. The facts
found by the trial Judge as circumstantial evidence include the fact that; (i) the appellant and
the deceased together left the hotel where they had been drinking, to an unknown place on
foot leaving the appellant’s vehicle behind; (ii) the appellant later returned to the hotel alone
21
The State v. Ogbubunjo (2001) 1 SCNJ 86 at 106.
22
Adepetu v. The State (2015) LCN/7774(CA).

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without the deceased to pick up his vehicle; (iii) the appellant told lies about the whereabouts
of the deceased and tried to implicate other people. The Supreme Court upheld the conviction
of the appellant. Ogundare JSC said,

“The law is clear on the point; where, as in the instant case, direct evidence of eyewitness is
not available, the court may infer from the facts proved the existence of other facts that may
logically trend to prove the guilt of a defendant. In drawing an inference of guilt of a
defendant from circumstantial evidence, however, great care must be taken not to fall into
serious error. It follows therefore, that circumstantial evidence must always be narrowly
examined, as this type of evidence may be fabricated to cast suspicion on innocent persons.
Before circumstantial evidence can form the basis for conviction the circumstances must
clearly and forcibly suggest that the defendant was the person who committed the offence and
that no one else could have been the offender. …….. Generally there is no duty on the
defendant to prove his innocence. Circumstances may, however, arise where some
explanation may be required from the defendant such as where apparently damning
circumstances are established against the defendant.”

In Archibong v The State,23 (2006) the appellant was convicted for murder. The case of the
prosecution was that the deceased and the appellant went to a hotel for drinks after which
they checked into a room. About two hours later the waiter knocked on the door of the room
but there was no response. He opened the door and found that the appellant was no longer in
the room but the deceased lay naked and motionless on the floor with foam around her mouth
and nose. The Supreme Court applied the doctrine of last seen and convicted the appellant.
Ogbuagu JSC said, 

“In view of the said doctrine, it is settled that it is the duty of the accused person to give an
explanation as to how the deceased met his or her death. In the absence of any explanation by
the appellant as to how the deceased met her death, surely and certainly, the trial court was
perfectly justified in drawing the inference that the appellant killed the deceased.”

The ‘Last Seen Theory’ as propounded by the Supreme Court of India has been considered as
a weak evidence’ and so far the court has maintained the view that ‘the last seen theory’ may
raise suspicion but it is not independently sufficient to lead to a finding of guilt In the case of

23
Archibong v. The State (2014)LCN/7469(CA).

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Rishipal v. State of Uttarakhand,24 the court discussed the principles of law governing the
field. However, the court sounded few note of caution by referring to its precedent as under:

(i)The solitary circumstance of the accused and victim being last seen will not complete the
chain of circumstances for the Court to record a finding that it is consistent only with the
hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be
founded.

(ii) That it is not possible to convict Appellant solely on basis of ‘last seen’ evidence in the
absence of any other links in the chain of circumstantial evidence, the Court gave benefit of
doubt to accused persons.

5. CONCLUSION

At the end, I come to the conclusion that, last seen theory is totally depends upon the
probability. It is a last theory which is emerged for putting the burden of criminal cases in
certain circumstance.

Circumstantial evidence has its own limitations. Before acting on the evidence, the court
must first see whether the circumstances put forward are satisfactorily proved and whether
the proved circumstance are sufficient to bring home satisfactorily the guilt to the accused.
The established circumstance must not only be consistent with the guilt of, the accused, but at
the same time they must be inconsistent with his innocence. While appreciating
circumstantial evidence, the court should not view in isolation the various circumstances. It
must take an overall view of the matter, without substituting conjecture for legal inference.
The circumstantial evidence, however, should be scrutinised property and must be sufficient
to prove the prosecution case beyond reasonable doubt and the fact so proved must be
incompatible with the innocence of the accused. The circumstantial evidence must be of such
conclusive nature so as to point out sufficiently proximate to a principle fact, small factum
probandum, and in brief the circumstantial evidence must satisfy at least three tests.

24
Supra 15.

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The circumstance from which inference of guilt is sought to be drawn be cogently and firmly
established; that circumstance should be of a definite tendency pointing towards the guilt of
the accused; the circumstances taken cumulatively should from a chain so complete that there
is no escape from conclusion that within human probability the crime was committed by the
accused and none else

This theory totally depends upon presumption and time. In this theory, there is need of more
development, because it is totally based on presumption. Without any corroborative evidence,
this theory should not be treated as conclusive proof for the conviction, because it’s a
question of life of any person. It should be changeable on the purview of the judges because
it’s question of life or death.

6. BIBLIOGRAPHY

BOOKS AND JOURNALS

 Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa,
21st Edition, Nagpur
 Avtar Singh, Principles of the law of Evidence 15 th Edition. (2005) Central Law
Publications.
 M. Monir, The Law of Evidence 1st Edition (2006) Universal law publishing Co.Ltd.
 C.D. Field, Law of Evidence Vol-VI-VII, 10th Edition(1973)
 N.R. Madhava Menon: “Dowry Prohibition Act: Does the law provide solution or
itself constitute the problem.” Indian Bar Review, Vol. 14(4), 1987

WEBSITES

 https://www.legalindia.com/an-overview-of-the-judicial-decisions-on-last-seen-
together/

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  https://www.shareyouressays.com/knowledge/section-45-of-the-indian-evidence-act-
1872/120434
 https://brandonlegalgroup.com/based-on-circumstantial-evidence/
 http://www.legalserviceindia.com/article/l136-Circumstantial-Evidence.html
 https://www.casemine.com/judgement/in/5609adb3e4b0149711412044
 https://www.latestlaws.com/latest-caselaw/2002/august/2002-latest-caselaw-354-sc/

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