Section 106 Evidence Act Cannot Fill Gaps In Circumstantial Chain, Last-Seen Theory Fails Without Proximity To Time Of Death: Karnataka High Court

"Section 106 does not shift the primary burden of proof to the accused and cannot be invoked to fill fundamental gaps in the prosecution case." High Court of Karnataka, in a significant ruling, held that the last-seen circumstance cannot form the sole basis of a conviction for murder under Section 302 of the Indian Penal Code, 1860 (IPC) where the prosecution fails to establish the precise time of death and proximate temporal connection.

Setting aside the conviction and life imprisonment awarded to two men, a Division Bench comprising Justice Mohammad Nawaz and Justice B. Pramod observed that Section 106 of the Indian Evidence Act, 1872 cannot be invoked to shift the primary burden of proof or to cure fatal evidentiary deficits in a case founded wholly on circumstantial evidence.

The appellants, Harish Kotian (Accused No. 1) and Hemachandra (Accused No. 2), were convicted by the IV Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, under Sections 302 and 201 read with Section 34 of the IPC for the alleged throttling and murder of one Suresh on October 17, 2015. The deceased and the accused had attended an Agelu function together, after which the deceased allegedly went to bathe in the Nethravathi River at Bhuvinapadi Hole, where his body was subsequently discovered. While Accused Nos. 3 to 5 were acquitted by the Trial Court on grounds of insufficient evidence, Accused Nos. 1 and 2 challenged their conviction before the High Court.

The primary question before the High Court was whether the conviction and sentence of Accused Nos. 1 and 2 under Sections 302 and 201 of the IPC was sustainable in law. The Court was also called upon to determine whether the evidence of last seen together is sufficient to convict an accused in a case resting entirely upon circumstantial evidence in the absence of proof regarding the time of death.

Medical Evidence Establishes Homicide But Not Assailant

Evaluating the medical evidence on record, the Bench noted that the post-mortem report and expert medical opinion established the death to be homicidal in nature caused by throttling, which resulted in a fracture of the hyoid bone and injury to a vital blood vessel, thereby ruling out initial claims of accidental drowning. However, the Court observed that the medical testimony was completely silent on fixing the precise time of death, which created a fatal evidentiary void in assessing the involvement of the accused.

Last-Seen Theory Requires Strict Temporal Proximity

"Last-Seen Theory Is A Rule Of Inference, Not A Presumption Of Guilt"

Addressing the doctrine of last seen together, the Bench emphasized that the concept is a rule of circumstantial inference rather than a statutory presumption that the person last seen with the deceased is the perpetrator. The underlying premise requires the prosecution to prove that the deceased was in the close company of the accused shortly before death under circumstances where third-party intervention is reasonably excluded.

Citing the Supreme Court's decisions in Manoj alias Munna v. State of Chhattisgarh (2025) and Papan Sarkar @ Pranab v. State of West Bengal (2026), the Court highlighted that a substantial temporal gap between the last sighting and the occurrence of death snaps the evidentiary link. The Bench observed that star prosecution witness PW.13 merely deposed to seeing the deceased walk towards the river with the accused between 12:30 PM and 1:00 PM, but the prosecution failed to prove either continuous companionship or the time of death.

"The last-seen circumstance does not by itself necessarily lead to the inference that the accused committed the crime."

Failure To Satisfy The Five Golden Principles Of Circumstantial Evidence

"Prosecution Must Cross The Distance Between 'May Be' And 'Must Be'"

Revisiting the Panchsheel principles governing circumstantial proof, the Bench held that the prosecution failed to establish a complete and unbroken chain of circumstances pointing conclusively and exclusively to the guilt of the appellants. The Court pointed out that other independent witnesses present in the vicinity failed to corroborate the continuous movement or presence of the appellants with the deceased towards the riverbank.

The Bench stressed that the mere fact that the deceased was seen in the company of the accused in the afternoon was equally compatible with the hypothesis that they had parted company thereafter. Without ruling out the possibility of intervention by a third party during the unaccounted interval, the circumstance could not lead to an irresistible conclusion of guilt.

"The chain of circumstantial evidence cannot merely extend from the deceased having been last seen in the company of the accused to the subsequent discovery of his dead body."

Absence Of Proved Motive Weakens Circumstantial Chain

"Motive Cannot Be Inferred Merely From Unsubstantiated Allegations In Complaint"

Turning to the prosecution's claim that Accused No. 1 orchestrated the murder because the deceased knew about his alleged involvement in an arecanut theft, the Bench observed that the allegation remained confined to the initial written complaint. The Court held that the prosecution led no substantive or legally admissible evidence to establish the theft, any dispute, or any threats exchanged between the parties prior to the incident.

While acknowledging that proof of motive is not indispensable when guilt is otherwise established by complete direct or circumstantial evidence, the Court held that in a weak circumstantial case lacking temporal proximity, the complete absence of a proved motive assumes decisive importance against the prosecution.

Limits Of Section 106 Evidence Act In Criminal Trials

"Section 106 Cannot Be Used To Presume Missing Foundational Links"

The Court firmly rejected the prosecution's submission that an adverse inference must be drawn against the appellants under Section 106 of the Evidence Act for failing to explain how the deceased met his death. The Bench clarified that Section 106 does not operate to relieve the prosecution of its primary duty to establish guilt beyond reasonable doubt.

The Bench reiterated that Section 106 can only provide an additional link to an already established prima facie case, but cannot be pressed into service to supply missing foundational facts. Where the prosecution fails to establish proximate presence at the time of the fatal assault, an accused's failure to furnish an explanation cannot be substituted for substantive proof.

"The Court cannot first presume the missing link and then use the appellants' alleged failure to explain that presumed link as proof of the same."

Holding that suspicious circumstances, discrepancy in the initial accidental drowning narrative, or post-occurrence conduct cannot take the place of legal proof, the High Court concluded that the Trial Court had erroneously attached determinative weight to the last-seen theory without accounting for the fatal lack of evidence regarding the time of death and absence of connecting links.

Allowing the appeals, the High Court set aside the conviction and sentences recorded against both appellants under Sections 302 and 201 read with Section 34 of the IPC, acquitting them of all charges. The judgment decisively reinforces that Section 106 of the Evidence Act cannot bridge evidentiary gaps in circumstantial cases where temporal proximity under the last-seen doctrine remains unproved.

Date of Decision: 14 October 2026