‘Last Seen Theory & Motive’ in circumstantial evidence
The Circumstantial Evidence is the hallmark of criminal jurisprudence system in absence of eye witness during the commission of an offence. To be mentioned, by virtue of long-run principle "justice, equity and good conscience", a new concept with regards to circumstantial evidence namely "Last Seen Theory and Motive" has been developed in the evidence assessment history.
Circumstantial evidence relies on an inference to connect it to a conclusion of fact. It is evidence of circumstances which can be relied upon not as proving a fact directly but instead a point to its existence. For example; the fact that prior threats made to the victim, fingerprints found at the scene of the crime, forensic evidence supplied by an expert are all the instances of circumstantial evidence.
To go into the deepest meaning of circumstantial evidence and to know what its characteristics are, what the conditions and ingredients are to apply this principle and what the "last seen theory and motive" is, one may travel the domestic laws as well as the judgments pronounced by the apex courts.
Evidence Act, 1872 doesn't prescribe any formal definition of circumstantial fact; Sections 5 to 16, Section 32(1) provide the access and gateway as to how and when circumstantial evidence may be given in evidence. In Chapter II, Sections 5 to 16 of this Act say about "relevancy of facts" and Section 32(1) says about "When it relates to cause of death".
One may also find that apex courts have highlighted the characteristics, conditions, ingredients of circumstantial evidence and set the principle of "Last Seen Theory and Motive" in different cases.
Having a careful regard to the domestic enactments as well as judicial pronouncements mentioned, the characteristics, conditions and ingredients of circumstantial evidence may be summarized - this type of evidence is sometimes referred to as "indirect evidence"--it may have more than one explanation or lead to more than one conclusion; it is to some extent proof of facts offered as evidence from which other facts may be inferred; it can be sole evidence for conviction; testimony can be direct evidence or it can be circumstantial; circumstantial evidence allows a trier of fact to infer that a fact exists.
All facts and circumstances in regard to pre and post sequences of fact in issue do not necessarily form the conditions and ingredients of circumstantial evidence. Upon a strong travelling of judicial decisions in regard to circumstantial evidence, it is found that before a case against accused vesting on circumstantial evidence can be said to be fully established there must have a reasonable explanation, reasonable doubt and beyond a reasonable doubt.
The "Last Seen Theory and Motive" forms an important ingredient of the circumstantial evidence. This theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive, and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible and in such a case courts should look for some corroboration.
The apex court has laid down various guidelines from time to time for its application for conviction - the circumstances from which the conclusion of guilt is to be drawn should be fully established; the facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they should exclude every possible; hypothesis except the one to be proved and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In our country, the most recent and discussed case on circumstantial evidence popularly known as Shajneen murder case (daughter of Transom group chairman Latifur Rahman) recorded in 70 DLR 2018 (April 2018 issue). The honourable Appellate Division took the view that both the trial court and the High Court Division committed an error in convicting the rest four co-accused relying upon the circumstantial evidence. Because the trial court considered the "birth room incident" as circumstantial evidence as alleged by the prosecution that one of the four co-accused made conspiracy to the principal accused Shahid to hatch the rape and murder of the victim.
But the Hon'ble Appellate Division took the view that since "birth room incident" has been disclosed at the belated stage which appears not to be true, genuine and its credibility of the story has been in question, this Division relying upon sec 32(1) of Evidence Act, 1872 opined that the prosecution failed to prove that the rape and murder was the result of the so-called "birth room incident" and accordingly this Division did not accept the circumstantial evidence and acquitted all the rest four co-accused.
Rajib Kumar Deb is Judicial Magistrate, Chief Judicial Magistrate Court, Cox's Bazar