72-Hour Gap Not Proximate: Calcutta High Court Quashes Murder Conviction, Holds 'Last Seen' Theory Inapplicable When Time Gap Is Wide

"The time gap of over 72 hours between the time when the victim was last seen in the company of the appellants and the recovery of the dead body can, at no stretch of imagination, be termed as 'proximate' to apply the theory of last seen together." Calcutta High Court, in a significant ruling on circumstantial evidence, has held that an unexplained time gap of over 72 hours between the deceased being last seen alive with the accused and the eventual recovery of the body cannot be termed "proximate" to invoke the 'last seen together' doctrine or shift the evidentiary burden onto the accused under Section 106 of the Indian Evidence Act, 1872.

A division bench comprising Justice Debangsu Basak and Justice Md. Shabbar Rashidi acquitted four convicts who had been awarded life imprisonment for murder, emphasizing that circumstantial evidence must establish an unbroken chain of guilt ruling out every hypothesis of innocence.

Dispute Arose From Missing Person Report And Subsequent Body Recovery

The case stemmed from the disappearance of one Javed Ali on January 27, 2011, who was allegedly called by the appellants to play carrom inside Khan Marriage Hall in Bhadreswar. While a general missing diary was lodged by the victim's father on January 29 without naming any suspects, a formal First Information Report alleging murder was lodged by the victim's brother on January 30, following which the beheaded body was recovered from a septic tank inside the marriage hall. By a judgment dated June 27, 2019, the Sessions Court convicted the appellants under Sections 302, 201, and 34 of the Indian Penal Code, 1860, sentencing them to rigorous life imprisonment, against which they preferred appeals before the High Court.

The primary question before the court was whether the prosecution successfully established a complete chain of circumstantial evidence to sustain a murder conviction based on the 'last seen together' theory. The court was also called upon to determine whether a 72-hour time gap shifts the burden of proof to the accused under Section 106 of the Indian Evidence Act, and whether recoveries made under Section 27 were legally sustainable without establishing use in the crime.

Glaring Omission In Initial Missing Diary Weakens Prosecution Case

The bench scrutinized the foundational narrative of the prosecution, noting a serious unexplained discrepancy between the initial missing diary and the subsequent written complaint lodged with the police.

Absence Of Accused Names In Initial Complaint Casts Serious Doubt

The court highlighted that although prosecution witnesses claimed the deceased was called out from his home by the appellants in their direct presence, the father of the deceased made no such mention when lodging the missing diary two days later. The bench observed that the missing diary did not contain any allegation that the victim was called by the appellants or that they were seen together, nor did it disclose any suspicion against them.

"Such an omission leaves the case of prosecution highly doubtful," the bench observed, noting that no plausible explanation was offered for introducing this narrative for the first time three days later in the formal FIR.

Last Seen Theory Cannot Stand When Time Gap Is Broad

Evaluating the doctrine of 'last seen together', the High Court underscored that time proximity is an indispensable prerequisite for drawing an adverse inference of guilt against an accused person in a circumstantial evidence case.

Medical Evidence Placed Time Of Death Long After Last Seen Encounter

The autopsy surgeon had testified that the death occurred approximately 24 to 36 hours prior to the post-mortem conducted on January 31, 2011, indicating that the death took place shortly before the recovery of the body on January 30, whereas the victim was allegedly last seen with the appellants on the afternoon of January 27. The bench noted that the prosecution failed to establish that the victim and the appellants remained together during this extensive intervening period.

"Criminal jurisprudence and the plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly," the court held, reiterating the Supreme Court's ruling in Satpal v. State of Haryana.

Section 106 Evidence Act Inapplicable In Absence Of Temporal Proximity

The bench rejected the State’s contention that the appellants were bound under Section 106 of the Evidence Act to explain when they parted company with the deceased, analyzing the precedents in Perumal Raja v. State, Ram Gopal v. State of Madhya Pradesh, and State of West Bengal v. Laxmi Kanta Karmakar.

Burden Of Proof Cannot Be Shifted Onto Accused When Proximity Is Missing

The court explained that Section 106 does not relieve the prosecution of its foundational duty to establish a prima facie case of proximate connection. The judges ruled that the 72-hour interval between the alleged last seen encounter and the recovery of the corpse precluded the court from demanding a special explanation from the accused.

"In any case, the time gap between the victim going missing and recovery of dead body cannot be termed as proximate to oblige the appellants with an explanation under the provisions of Section 106 of the Indian Evidence Act, 1872," the bench firmly held.

"Section 27 of the Evidence Act does not lay down the principle that discovery of a fact is to be equated to the object produced or found... Only that part of the information which is clear, immediate and a proximate cause of discovery is admissible."

Section 27 Recoveries Invalid Due To Procedural And Evidentiary Lapses

Addressing the alleged recovery of offending weapons—including a bhojali, hansua, and nepala—purportedly discovered pursuant to statements made by the appellants, the bench held that the statutory requirements of Section 27 of the Evidence Act were not satisfied.

Failure To Prove Statements And Connect Weapons To Crime Vitiates Seizure

The High Court found that the investigating officer failed to prove at trial the relevant portions of the statements recorded under Section 161 of the Code of Criminal Procedure, 1973 which allegedly led to the discoveries. Furthermore, the weapons were never shown or confronted to the autopsy surgeon during examination, and forensic analysis failed to determine the origin or blood group of stains found on the seized articles.

"The prosecution also failed to establish at the trial, that the alleged offending weapons, said to be recovered on the basis of statement of appellants were actually used in committing murder of the victim. The serological expert witnesses failed to find the origin of blood found on such weapon," the court recorded.

Possibility Of False Implication Due To Local Political Feuds

The bench also took notice of admissions made by a key prosecution witness regarding political rivalry with the family of the accused, alongside the police officer's testimony regarding prevailing turmoil in the locality. The court observed that the possibility of the appellants being falsely implicated owing to local political friction could not be ruled out, entitling the appellants to the benefit of doubt.

Setting aside the trial court's judgment of conviction and order of sentence, the High Court acquitted all appellants of charges under Sections 302, 201, and 34 IPC, directing their immediate release upon execution of statutory bail bonds under Section 437A CrPC (corresponding to Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

Date of Decision: August 21, 2026