The Supreme Court on 16th April, 2018 while setting aside the judgment delivered by Madars High Court said that last seen theory cannot be a sole basis for conviction for murder offences if it is hit by Section 26 of the Indian Evidence Act. This judgment was given by Hon’ble Justices A.K. Sikri and R.K. Agarwal in the case of Navaneethakrishnan V The State by Inspector of Police. [ CRIMINAL APPEAL NO. 1134 OF 2013].
These appeals were directed against the common judgment and order dated 23.11.2009 passed by the High Court of Judicature at Madras in Criminal Appeal Nos. 639 and 688 of 2009 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein against the order dated 18.09.2009 passed by the Fast Track Court No. II, Salem, in Sessions Case No. 21 of 2009 wherein learned Additional District & Sessions Judge convicted the appellants herein under Sections 302 read with Section 34, Section 364 and Section 379 of the Indian Penal Code, 1860 (in short ‘the IPC’) and sentenced to undergo imprisonment for life with substantive sentences under the IPC.
A First Information Report (FIR) bearing No. 41 of 2008 at PS Yercaud, District Salem dated 16.02.2008 got registered by Mahimaidoss (PW-8) stating that on 14.02.2008, John Bosco (since deceased), who was employed as the driver in his travel agency, along with one Madhan (since deceased), took a Maruti Van from him but did not return for two days.
On the very next date, i.e., on 17.02.2008, one more FIR got registered by one Asokan bearing No. 88 of 2008 stating that when he went to irrigate his fields, he found a white colour sack floating in the well. He immediately informed the same to the local police and when the sack was opened, a male body with hands tied at the back was found.
On the basis of FIR dated 16.02.2008, Crime No. 41 of 2008 was registered at Yercaud Police Station and during the pendency of investigation, FIR No. 88 of 2008 got registered and a body was found which was identified as of John Bosco.
During investigation, Sivashankar (A-1 therein) was apprehended and he confessed about committing the crime along with (A-2 and A-3) appellants herein stating that they abducted John Bosco and his friend Madhan and taken them in the Maruti Van being driven by John Bosco to one of the relatives of Accused No. 2 therein where they caused death of John Bosco and Madhan by strangulating them one by one using a rope and drowned their bodies in water streams using gunny bags. A-1 also took athe investigation officer to the place where the body of Madhan was found in a gunny bag.
Being aggrieved by the judgment and order dated 18.09.2009, the appellants-accused preferred Criminal Appeal Nos. 639 and 688 of 2009 before the High Court. The Division Bench of the High Court, vide judgment and order dated 23.11.2009, dismissed the appeals preferred by the appellants herein.
Being aggrieved by the judgment and order dated 23.11.2009, the appellants herein preferred these appeals by way of special leave before this Court.

Issues before the Supreme Court
The only point for consideration before this Court in the present facts and circumstances of the case was whether the High Court was right in dismissing the appeals preferred by the appellants-accused?
Learned counsel appearing for the appellants contended that the courts below failed to appreciate that the conviction cannot be based upon a retracted confession and it can be used only in support of other evidence. He further contended that the courts below erred in convicting the appellants where the cause of death is not known.
Per contra, learned counsel appearing on the behalf of Respondent-State submitted that the judgment and order passed by the Division Bench of the High Court upholding the decision of the Sessions Court is as per the terms and dictates of law and should not be inferred with and the evidence against the appellants-accused are sufficient enough to bring home the guilt.
The prosecution placed reliance before the Court mainly on three circumstances, firstly, the last seen theory, secondly, the recovery of material objects which belonged to both the deceased from the appellants-accused and thirdly, the identification of the dead body of Madhan from the river bed as pointed out by the first accused, however, the appellant herein has raised certain doubts regarding the same.
The pivotal evidence in the given case is the testimony of PW-11 who is believed to have lastly seen the appellants-accused with the deceased. Learned counsel appearing for the appellants-accused has contended that all the accused were unknown to PW-11 but no identification parade was conducted and the said witness has identified the said accused directly in court after a lapse of about 50 days’and hence his evidence should not be relied upon.
The Supreme Court while announcing its verdict said ” we are of the considered opinion that both the courts below have erred in relying that part of the statement which can be termed as confession which were given to the police officer while they were in custody and it will be hit by Section 26 of the Indian Evidence Act,1872 and only that part of the statement which led to the discovery of various materials would be permissible. Hence, in the absence of any other material evidence against the appellants-accused, they cannot be convicted solely on the basis of evidence of last seen together with the deceased.”
In the light of the above discussion, the judgment and order dated 23.11.2009 passed by the High Court was set aside.