The “Last Seen Theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “Last Seen Theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled that it is not prudent to base the conviction solely on “last seen theory”. “Last Seen Theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
In State of Rajasthan v. Kashi Ram, (2006)12 SCC 254, it was held as under:
“It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical 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 an 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. Nizam and Another v. State of Rajasthan, (2016) 1 SCC 550.