Circumstantial Evidence | Prosecution Must Prove Connectivity Between Accused And Crime, Mere 'Last Seen' Theory Insufficient: Calcutta High Court

  "The circumstance of 'last seen together' does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime." Calcutta High Court, in a significant ruling on September 15, 2026, acquitted two appellants in a rape and murder case, emphasizing that suspicion, no matter how strong, cannot substitute for legal proof in cases based on circumstantial evidence.

A division bench of Justice Rajasekhar Mantha and Justice Anuj Singh held that the "last seen theory" cannot form the sole basis for conviction under Section 376(2)(g) and Section 302 of the Indian Penal Code (IPC) without corroborative medical evidence linking the accused to the offense.

The victim, a 15-year-old girl suffering from epilepsy, went missing on September 30, 2012, and her body was discovered on October 2, 2012, in a betel nut garden. The appellants, who resided in the same locality, went missing around the same time and were later arrested in Delhi. The trial court had convicted them based on the testimonies of witnesses who claimed to have seen them with the victim or observed their subsequent flight, leading to a sentence of life imprisonment.

The primary question before the court was whether the circumstantial evidence presented—including the "last seen" testimonies and the appellants' departure from the village—was sufficient to establish guilt beyond a reasonable doubt. The court also examined the necessity of forensic corroboration in the absence of direct eyewitnesses and the admissibility of police-led discovery of the place of occurrence under Section 27 of the Indian Evidence Act.

The bench meticulously scrutinized the testimonies of prosecution witnesses PW-7, PW-8, and PW-9, labeling them as "tutored" and "unreliable." The court noted that PW-7’s testimony, initially alleging he saw the appellants near the scene of the crime, was completely contradicted during his own cross-examination, where he admitted he did not leave his room. The court emphasized that when a witness contradicts their own examination-in-chief during cross-examination, it constitutes a material contradiction that severely dents the prosecution's case.

Court Criticizes Unreliability of Witness Testimonies

Regarding the "last seen theory," the bench observed that the prosecution failed to establish a small time gap between the accused being seen with the victim and the time of death. With the post-mortem report placing the death approximately 45 hours after the estimated last-seen instance, the chain of circumstances remained incomplete. The court noted that in cases of circumstantial evidence, the burden is on the prosecution to produce additional corroborative evidence, such as forensic linking, which was entirely absent in this case.

Medical Evidence and Forensic Failures

The court expressed deep concern over the investigating officer's failure to send physical samples, including vaginal swabs and wearing apparel, for forensic examination. The bench observed that while medical evidence confirmed the horrific nature of the crime, it failed to provide any scientific link to the appellants. The court held that while forensic testing might be optional in cases of direct eyewitness testimony, it becomes "crucial, necessary, and essential" when the conviction is sought solely on the basis of circumstantial evidence.

The Failure of Section 27 Evidence

The court also dismissed the prosecution's reliance on Section 27 of the Indian Evidence Act, noting that the appellants merely pointing out the place of occurrence did not constitute a discovery of a "fact" as envisaged under the law. Since the place of occurrence was public and already known to the police, the appellants' purported knowledge of it was legally irrelevant. Furthermore, the court highlighted that the absence of a confession recorded under Section 164 of the CrPC, despite police claims that the accused had confessed, created a vital gap in the prosecution's narrative.

Absence of Link Between Disappearance and Crime

The bench rejected the theory that the appellants' flight to Delhi was inherently incriminating. The court observed that the prosecution failed to prove that the appellants were untraceable due to their involvement in the crime, rather than mere coincidence. The court concluded that the police's failure to explain a nine-day delay in filing the FIR, coupled with the unreliable nature of the witnesses, made the prosecution's case a result of suspicion rather than solid proof.

Consequently, the court set aside the conviction and sentence passed by the trial court. The appellants were acquitted, with the bench directing their immediate release from custody, subject to the execution of bonds under Section 437A of the CrPC.

Date of Decision: 15 September 2026