Last seen theory and burden of poof

Last seen theory and burden of poof

In State of Rajasthan v. Kashi Ram, Cr. App. No. 745 of 2000 the Supreme Court reversed the High Court’s order of acquittal of the respondent who was sentenced to death by the trial court under S.302 IPC on charges of murder of his wife and two children. His house was found locked for several days and he was missing. On opening the house the dead bodies were found. He failed to explain the reasons for his absence. The dead were last seen with him. Explaining the last seen theory the Supreme Court observed:-

The provisions of Section 106 of the evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation, which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer and explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act.

The Supreme Court reversed the High Court judgment and sentenced the respondent to life imprisonment.

[State of Rajasthan v. Kashi Ram, Cr. App. No. 745 of 2000, decided on November 07, 2006]