“Last Heard” Is Not “Last Seen”: Recalibrating Circumstantial Proof in Homicide Appeals

1) Introduction

In NARESH KUMAR SAHU v. STATE OF CHHATTISGARH (2026 CGHC 27654-DB, decided on 06-07-2026), the Chhattisgarh High Court (Division Bench) set aside a conviction for murder under Section 302 IPC and the aggravating offence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecution case was entirely circumstantial. The deceased (Kamal Dhruv) was found unconscious near a byara area and later declared dead. The trial court convicted the appellant primarily on (i) a telephonic conversation narrated by the deceased’s wife (PW-2) suggesting the deceased was with the appellant and others, and (ii) alleged “gestures” by the dying/unconscious deceased purportedly indicating the assailants.

The High Court affirmed that the death was homicidal (throttling) but held that the prosecution failed to prove beyond reasonable doubt that the appellant was the perpetrator. The key legal issue crystallised into a rule of evidentiary discipline: “last heard” cannot be treated as “last seen together”, and ambiguous non-verbal indications cannot be converted into exclusive attribution of guilt.

2) Summary of the Judgment

  • Homicidal death proved: Based on PW-21 (post-mortem Ex.P/12), death was due to asphyxia from throttling.
  • Authorship not proved: No eyewitness; circumstantial chain incomplete.
  • Core evidentiary correction: Telephonic information that the deceased was “with” the appellant and others is “last heard,” not “last seen together.”
  • Gestures inconclusive: PW-2’s account indicated the deceased gestured toward four persons; trial court’s inference singling out the appellant was speculative.
  • Material omissions and inconsistencies: FIR was against unknown persons; omissions in police statements on pivotal points eroded reliability.
  • Result: Conviction set aside; appellant acquitted by benefit of doubt; release directed (subject to Section 437-A Cr.P.C. / Section 481 BNSS bond).

3) Analysis

A. Precedents Cited

The High Court’s approach is anchored in the Supreme Court’s framework for circumstantial evidence and the limited probative force of the “last seen” doctrine.

(i) Sharad Birdhichand Sarda v. State of Maharashtra

The Court explicitly relied on Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 for the “five golden principles” governing circumstantial evidence:

  1. Each circumstance must be fully established;
  2. Proved facts must be consistent only with guilt;
  3. Circumstances must be conclusive;
  4. They must exclude every other hypothesis;
  5. The chain must be complete, pointing only to the accused.

This precedent operated as the Court’s controlling test: even with homicidal death proved, the chain failed because the “last seen” foundation was not proved at all, gestures were ambiguous, and corroborative links were missing.

(ii) Arjun Marik v. State of Bihar

Citing Arjun Marik v. State of Bihar, reported in 1994 Supp (2) SCC 372, the judgment reinforced that “last seen together” is a weak kind of circumstance unless backed by additional incriminating evidence and a tight time proximity excluding third-party intervention. The High Court went further: the case did not even reach that threshold because there was no “seen” evidence—only a telephonic assertion.

(iii) Kanhaiya Lal v. State Of Rajasthan .

The Court referred to Kanhaiya Lal v. State Of Rajasthan ., reported in (2014) 4 SCC 715, where the Supreme Court cautioned against conviction solely on “last seen” unless the chain is complete and other links (motive, recovery, conduct, scientific evidence, etc.) support guilt. Here, the Court found not only absence of corroborative links but also internal prosecution frailties (FIR against unknown persons; material omissions).

(iv) Anand Jakappa Pujari @ Gaddadar v. State of Karnataka

The High Court also cited Anand Jakappa Pujari @ Gaddadar v. State of Karnataka, reported in 2026 INSC 417 to reiterate the modern reaffirmation of the same principle: “last seen” alone is insufficient unless joined by other circumstances forming a complete chain. The High Court’s distinguishing move was decisive—since the record showed “last heard,” the prosecution fell short at the very entry point of the doctrine.

B. Legal Reasoning

(i) Acceptance of homicidal death, rejection of authorship inference

The Court cleanly separated two questions: (a) what happened (homicide by throttling), and (b) who did it. PW-21’s medical opinion (including the observation that the deceased would not have been capable of drinking water after sustaining such neck injuries) made homicide a safe finding. But the Court emphasised: homicidal death is not synonymous with proof of guilt of the named accused.

(ii) “Last heard” ≠ “Last seen together”

The judgment’s principal doctrinal contribution is the careful evidentiary demarcation between:

  • “Last seen together”: direct evidence that the deceased was actually seen alive with the accused near the time of death, with a sufficiently narrow time gap to exclude others.
  • “Last heard”: a reported communication (here, a phone call) that the deceased claimed to be with the accused. This is not direct “seeing,” is vulnerable to timing uncertainty, and cannot automatically generate the “last seen” presumption.

Applying that distinction, the Court held that PW-2’s phone narrative did not establish proximity-in-time or continuity of company and therefore could not support an inference that the appellant was the last person with the deceased.

(iii) Gestures: ambiguity and impermissible selectivity

The Court treated PW-2’s “gesture” evidence as inherently non-exclusive: even on PW-2’s own account, the deceased gestured toward four persons (the appellant, Tulsiram, Narottam, Rajendra). The trial court’s decision to single out the appellant was termed conjectural. In circumstantial cases, where evidence permits multiple reasonable interpretations, the interpretation favouring the accused must prevail.

(iv) Omissions, FIR anomaly, and credibility erosion

The Court noted an important inconsistency: PW-2 claimed she named the suspects immediately, yet the FIR was registered against unknown persons. The prosecution offered no explanation. Additionally, omissions in police statements concerning the pivotal telephonic conversation and gesture narrative were treated as “material improvements” rather than minor discrepancies. In a case resting on circumstantial evidence, such credibility impairments are often fatal.

(v) Absence of motive as a reinforcing factor

While motive is not mandatory in every prosecution, the Court held its absence becomes significant where the other circumstances are weak and inconclusive. PW-2 herself admitted no prior dispute except wage collection—insufficient to bolster a shaky chain.

(vi) Consequence for SC/ST Act charge

Once the Court found the appellant’s participation in the homicidal act unproven, the conviction under Section 3(2)(v) of the Act of 1989 necessarily fell with the principal offence on facts. The judgment thus illustrates that aggravated penal provisions cannot survive where the foundational authorship of the crime is not proved beyond reasonable doubt.

C. Impact

  • Doctrinal discipline on “last seen”: Trial courts are cautioned against upgrading indirect telephonic location claims into “last seen together.” This is likely to influence future evaluations of mobile/telephonic narratives, especially where exact times and continuity of presence are unproven.
  • Higher threshold for gesture-based implication: Non-verbal conduct of an injured person, particularly where ambiguous or not contemporaneously recorded, cannot be used to draw exclusive culpability by selective inference.
  • Emphasis on chain completeness and investigative coherence: FIR anomalies (named suspects vs “unknown”) and material omissions may increasingly be treated as systemic breaks in the circumstantial chain rather than mere irregularities.
  • Medical proof cannot substitute linkage evidence: Even strong medical evidence of homicide cannot “fill in the gap” on identity of the assailant.

4) Complex Concepts Simplified

Circumstantial evidence
Proof based on indirect facts (circumstances) from which guilt is inferred. Courts require the circumstances to form a complete chain pointing only to guilt.
“Last seen together” doctrine
If the accused is proved to be the last person seen with the deceased alive shortly before death, and the time gap is very small, courts may infer involvement—but only with corroboration and a complete chain.
“Last heard” evidence
A statement that the deceased said (e.g., on a phone call) that he was with the accused. It is weaker than “last seen” because it lacks direct visual confirmation and often lacks precise timing continuity.
Material omission / improvement
When a witness adds in court a significant fact not found in their earlier police statement, it may be treated as an “improvement,” reducing reliability—especially if the added fact is central to guilt.
Benefit of doubt
If reasonable doubt remains after considering the evidence, the accused must be acquitted; suspicion cannot replace proof.
Section 437-A Cr.P.C. (now Section 481 BNSS)
Even after acquittal, the court can require the accused to execute a bond to ensure appearance before higher courts if an appeal/SLP is filed.

5) Conclusion

This judgment is significant for reaffirming the strict architecture of circumstantial proof while adding a practical evidentiary clarification: telephonic “last heard” cannot be judicially repackaged as “last seen together.” By rejecting speculative inference from ambiguous gestures and insisting on a complete, exclusive chain under Sharad Birdhichand Sarda v. State of Maharashtra, the High Court underscored a foundational criminal law commitment: conviction must rest on legal proof, not probability or narrative convenience. The decision will likely guide future homicide trials and appeals where “last seen” is pleaded without true proximity evidence.