Alisha Ali @ Pooja Shrivastava vs State Of C.G
2022 Latest Caselaw 6174 Chatt

                                                                            Cr.A.No.977/2012

                                          Page 1 of 16

                                                                                              AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.977 of 2012

 {Arising out of judgment dated 5-9-2012 in Sessions Trial No.1/2012
                   of the Sessions Judge, Rajnandgaon}

Alisha Ali @ Pooja Shrivastava, W/o Anwar Ali @ Pyare, Age 26 years,
R/o Nandai Chowk, Basantpur, P.S. Basantpur, District Rajnandgaon
(C.G.)
                                                        ---- Appellant

                                             Versus

State of Chhattisgarh, Through Police Station Basantpur, Rajnandgaon,
District Rajnandgaon (C.G.)
                                                       ---- Respondent

----------------------------------------------------------------------------------------------------
For Appellant:                  Mr. Saurabh Dangi, Advocate.
For Respondent/State: Mr. Afroz Khan, Panel Lawyer.
----------------------------------------------------------------------------------------------------

                        Hon'ble Shri Sanjay K. Agrawal and
                       Hon'ble Shri Deepak Kumar Tiwari, JJ.

Judgment On Board (11/10/2022)

Sanjay K. Agrawal, J.

1. By this appeal under Section 374(2) of the CrPC, the appellant

herein calls in question legality, validity and correctness of the

impugned judgment dated 5-9-2012, by which she has been

convicted under Section 302 of the IPC and sentenced to undergo

imprisonment for life and pay a fine of ₹ 3,000/-, in default of

payment of fine to further undergo rigorous imprisonment for one

year.

Cr.A.No.977/2012

2. Case of the prosecution, in brief, is that on 5-11-2011, the

appellant caused the death of Farhan @ Sittu, aged 2½ years, by

drowning in Rani Sagar Pond, Rajnandgaon and thereby committed

the offence punishable under Section 302 of the IPC. Deceased

Farhan @ Sittu was the nephew of the appellant's husband. The

appellant had entered into inter-caste marriage with Anwar Ali and

immediately after marriage, they were residing separately in a

rented house. It is the further case of the prosecution that on 5-

11-2011 at 5 p.m., Anwar Ali (PW-10) - husband of the

appellant brought his nephew Farhan @ Sittu to his rented house

where he was living with the appellant and handed-over Farhan @

Sittu to the appellant. It is also the case of the prosecution that

immediately thereafter Anwar Ali (PW-10) left the house for some

important work. As the relationship between the children of Firoz

Ahmad (PW-1) - father of the deceased child and Anwar Ali (PW-

10) was quite cordial, deceased Farhan @ Sittu used to come to

the house of Anwar Ali (PW-10) out of love and affection, but it

was not liked by the appellant herein. On the date of incident,

birthday of the son of appellant's landlord Vidya Gaikwad was

there and on that account, Anwar Ali (PW-10) had given money

to the appellant to bring gift for landlord's son as well as for Farhan

@ Sittu and on the same day i.e. on 5-11-2011, Firoz Ahmad

(PW-1) - father of the deceased child and brother of Anwar Ali

(PW-10) informed that Farhan @ Sittu is missing from his house Cr.A.No.977/2012

and he is not traceable in the house. Firoz Ahmad (PW-1)

immediately came to the house of the appellant and enquired about

Farhan @ Sittu then the appellant had no information about Farhan

@ Sittu and they all enquired. Missing report was lodged at Police

Station Basantpur. Next day, dead body of the deceased child was

found floating in Rani Sagar pond pursuant to which morgue

intimation (Ex.P-7) was got registered by Abbas Ahmad (PW-5) -

uncle of the deceased child, to the effect that Farhan @ Sittu was

missing from 5-11-2011 since 6 p.m. and his body is found

floating in the Rani Sagar tank. Panchnama Ex.P-1 was conducted

by Satya Prakash Tiwari (PW-16) and dead body was sent for

postmortem to District Hospital, Rajnandgaon. Postmortem was

conducted by Dr. V.P. Maheshwar (PW-14) and his postmortem

report is Ex.P-9 in which cause of death was said to be asphyxia

due to drowning. Thereafter, during morgue enquiry, statements

of Sahida Begum (PW-11), Vidya Gaikwad (PW-12) & Premlal

Sharma (PW-13) were recorded on 24-11-2011 & 25-11-2011

in which all the three witnesses have stated that they have seen the

accused and the deceased going together by Scooty towards

market. Thereafter, on 23-11-2011, Firoz Ahmad (PW-1) lodged

written report vide Ex.P-3 suspecting foul play on the part of the

appellant pursuant to which first information report (FIR) Ex.P-3A

was registered for offence punishable under Section 304 of the IPC

and thereafter, statements of Sahida Begum (PW-11), Vidya Cr.A.No.977/2012

Gaikwad (PW-12) & Premlal Sharma (PW-13) were recorded

under Section 161 of the CrPC on 24-11-2011 & 25-11-2011

in which they have stated that the appellant had taken the deceased

on her Scooty towards Rani Sagar dam and left him alone pursuant

to which firstly offence under Section 304 of the IPC was

registered and the case was committed to the Court of Sessions for

hearing and disposal in accordance with law. Statements of the

witnesses were recorded under Section 161 of the CrPC..

3. After completion of investigation, charge-sheet was filed against the

appellant for offence under Section 302 of the IPC before the

jurisdictional criminal court which was committed to the Court of

Sessions for hearing and disposal in accordance with law.

4. The trial Court has framed charge under Section 302 of the IPC

against the appellant and proceeded on trial. The accused /

appellant abjured guilt and entered into trial. The prosecution in

order to bring home the offence examined as many as 16 witnesses

and exhibited 15 documents Exhibits P-1 to P-15. Nine

documents Exhibits D-1 to D-9 have been examined on behalf of

the defence. Statement of the appellant was recorded under

Section 313 of the CrPC in which she abjured guilt and pleaded

innocence.

5. The trial Court after completion of trial and after appreciating oral

and documentary evidence on record, convicted the appellant Cr.A.No.977/2012

under Section 302 of the IPC and sentenced her to undergo

imprisonment for life as noticed in the opening paragraph of this

judgment against which this appeal under Section 374(2) of the

CrPC has been preferred by her.

6. Mr. Saurabh Dangi, learned counsel appearing for the appellant,

would submit that the appellant has only been convicted on the

basis of the evidence of last seen together of the appellant and the

deceased on 5-11-2011 as held by the trial Court in paragraph 22

of the judgment which is not sustainable and bad in law, as in the

inquest report Ex.P-7, name of the appellant has not been

mentioned and the statements of Sahida Begum (PW-11), Vidya

Gaikwad (PW-12) & Premlal Sharma (PW-13) under Section 161

of the CrPC were recorded after delay of 19 days. The date when

the appellant and the deceased were last seen together is 5-11-

2011 at 5 p.m. and the dead body of deceased Farhan @ Sittu

was found on the next day at 7.20 a.m., as such, the time gap

between last seen together of the appellant & the deceased and

recovery of the dead body is so much that it cannot be said that

only the appellant is the author of the crime; particularly in absence

of any corroboration, conviction of the appellant only on the basis

of the evidence of alleged last seen together of the appellant with

the deceased alive cannot be sustained and is liable to be set aside.

Mr. Dangi, learned counsel, would further submit that the Cr.A.No.977/2012

prosecution has failed to establish the nature of death to be

homicidal, as it was only proved that death was by drowning and it

was not proved to be homicidal in nature.

7. Mr. Afroz Khan, learned State counsel, would support the

impugned judgment and submit that the theory of last seen

together has totally been established and it completes the chain of

circumstances required to be there in case of circumstantial

evidence, therefore, the trial Court has rightly convicted the

appellant under Section 302 of the IPC, as such, the appeal

deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

9. The first question is, whether the death of the deceased was

homicidal in nature. The trial Court has not recorded any finding

that death of the deceased is homicidal in nature, it has only

recorded finding that death of the deceased, who was aged about

2½ years, was on account of drowning in water i.e. Rani Sagar

Dam.

10.In order to convict an accused under Section 302 of the IPC, the

first and foremost aspect to be proved by the prosecution is the

homicidal death and if the evidence on record produced by the

prosecution falls short of the proof of homicidal death, the accused Cr.A.No.977/2012

cannot be convicted under Section 302 of the IPC. {See Madho

Singh v. State of Rajasthan1 and Chandrapal v. State of

Chhattisgarh2 (paragraph 19).}

11.The trial Court in paragraph 22 of its judgment recorded following

findings with regard to incriminating circumstances found against

the appellant to base conviction: -

22- vfHk;kstu }kjk izLrqr lk{; ls vfHk;qDrk ds fo:) fuEu ifjfLFkfr;ka lansg ls ijs izekf.kr gksrh gS%& 1- vfHk;qDrk dk ifr vuoj vyh ¼v-lk-10½ e`rd flV~Vw dks vius ?kj yk;k Fkk rFkk ?kj esa vfHk;qDrk ds ikl NksM+k FkkA 2- vfHk;qDrk ?kVuk fnukad dks 'kke dks djhc lk<+s ikap cts viuh LdwVh ij flV~Vw dks pkSikVh jkuhlkxj dh rjQ ysdj x;h Fkh rFkk vfHk;qDrk dks jkuhlkxj ds vkl&ikl flV~Vw ds lkFk ns[kk x;k FkkA 3- ?kj okil ykSVrs le; vfHk;qDrk ds lkFk flV~Vw ugha Fkk rFkk og vdsys ?kj ykSVh FkhA 4- blds vxys fnu lqcg e`rd flV~Vw dk 'ko jkuh lkxj esa rSjrs gq, feyk FkkA

12.A careful perusal of the aforesaid findings recorded by the trial

Court would show that the trial Court has proceeded to convict the

appellant on the basis that the appellant and deceased Farhan @

Sittu were last seen together on 5-11-2011 at 5 p.m. by Sahida

Begum (PW-11), Vidya Gaikwad (PW-12) & Premlal Sharma

(PW-13) and thereafter, the appellant left the deceased alone and

on the next day 6-11-2011, dead body of the deceased was found

and on that basis, conviction has been recorded. 1 (2010) 15 SCC 588 2 2022 SCC OnLine SC 705 Cr.A.No.977/2012

13.It has been found established by the trial Court and it has not been

disputed by learned counsel for the appellant that on 5-11-2011,

husband of the appellant Anwar Ali (PW-10) brought Farhan @

Sittu to his house and left Farhan @ Sittu with the appellant and

thereafter, Sittu and the appellant, both, were last seen together

going towards Rani Sagar Choupati on 5-11-2011 by Sahida

Begum (PW-11), Vidya Gaikwad (PW-12) & Premlal Sharma

(PW-13) and thereafter, the appellant had left Sittu alone and his

dead body was found on the next day at 7.20 a.m. (6-11-2011)

and thereafter, when deceased Sittu was not seen and traceable,

morgue intimation was registered at the instance of Abbas Ahmad

(PW-5) vide Ex.P-7 to Police Station Basantpur on 6-11-2011 at

7.40 a.m. to the effect that dead body of his nephew has been

seen floating in Rani Sagar Tank in which the appellant has not

been named as last seen together with the deceased and morgue

enquiry continued thereafter. Thereafter, on 23-11-2011, written

report was lodged by Firoz Ahmad (PW-1) - father of the

deceased vide Ex.P-3 that he has strong suspicion upon the

appellant based on the statements of Sahida Begum (PW-11),

Vidya Gaikwad (PW-12) & Premlal Sharma (PW-13) and FIR

Ex.P-3A was came to be registered on 23-11-2011 under Section

304 of the IPC and then, the wheels of investigation started

running. Thereafter, the statements of Sahida Begum (PW-11),

Vidya Gaikwad (PW-12) & Premlal Sharma (PW-13) under Cr.A.No.977/2012

Section 161 of the CrPC were recorded on 24-11-2011 & 25-

11-2011, respectively. Thereafter, relying upon the statements of

Sahida Begum (PW-11), Vidya Gaikwad (PW-12) & Premlal

Sharma (PW-13), incriminating circumstances have been recorded

by the trial Court in paragraph 22 of the judgment and conviction

has been recorded which has been challenged by the appellant

herein in this criminal appeal.

14.Now, the question for consideration would be, whether the trial

Court is justified in convicting the appellant only on the basis of the

theory of last seen together finding it to be duly established?

15.In the matter of Jaharlal Das v. State of Orissa 3, the Supreme

Court has noted the fact that at the stage of inquest, the important

incriminating circumstance namely, the deceased was last seen in

the company of the accused, was not noted and that is not there in

the inquest report. Thereafter, in that view of the above fact and

other evidence on record, their Lordships have held that the

deceased was last seen in the company of the accused is not

established beyond reasonable doubt.

16.Similarly, in the matter of Paramjit Singh and others v. State of

Punjab and others4, there is delay of 4½ months in recording the

statements of the two police officials under Section 161 of the

CrPC and no explanation was given by the investigating officer

3 (1991) 3 SCC 27 4 (1997) 4 SCC 156 Cr.A.No.977/2012

therein as to why the statements could not be recorded earlier.

17.In the instant case, statements of Sahida Begum (PW-11), Vidya

Gaikwad (PW-12) & Premlal Sharma (PW-13) were recorded on

24-11-2011 & 25-11-2011, whereas inquest has been conducted

on 6-11-2011 when the dead body was recovered, but

surprisingly, the statements were recorded thereafter and there is

no plausible explanation for delay in recording the statements.

Therefore, we do not feel it safe to accept the evidence of these

three witnesses that the deceased was last seen alive in the

company of the appellant.

18.In the matter of Arjun Marik v. State of Bihar5, it has been held by

their Lordships of the Supreme Court that conviction cannot be

made solely on the basis of theory of 'last seen together' and

observed in paragraph 31 as under :-

"31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount tothough a number of witnesses have been examined be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."

5 1994 Supp (2) SCC 372 Cr.A.No.977/2012

19.Likewise, in the matter of State of Goa v. Sanjay Thakran6, the

Supreme Court has held that the circumstance of last seen together

would be a relevant circumstance in a case where there was no

possibility of any other person meeting or approaching the

deceased at the place of incident or before the commission of

crime in the intervening period. It was observed in paragraph 34

as under :-

"34. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long

6 (2007) 3 SCC 755 Cr.A.No.977/2012

duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. "

20. Similarly, in the matter of Kanhaiya Lal v. State of Rajasthan7, their

Lordships of the Supreme Court have clearly held that the

circumstance of last seen together does not by itself and necessarily

lead to the inference that it was the accused who committed the

crime and there must be something more establishing connectivity

between the accused and the crime. Mere non-explanation on the

part of the appellant in our considered opinion, by itself cannot

lead to proof of guilt against the appellant. It has been held in

paragraphs 15 and 16 as under :-

"15. The theory of last seen - the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial

7 (2014) 4 SCC 715 Cr.A.No.977/2012

relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan1.

16. In view of the aforesaid circumstances, it is not possible to sustain the impugned judgment and sentence. This appeal is allowed and the conviction and sentence imposed on the appellant-accused Kanhaiya Lal are set aside and he is acquitted of the charge by giving benefit of doubt. He is directed to be released from the custody forthwith unless required otherwise."

21. In the matter of Anjan Kumar Sarma v. State of Assam8, their

Lordships of the Supreme Court have clearly held that in a case

where other links have been satisfactorily made out and

circumstances point to guilt of accused, circumstance of last seen

together and absence of explanation would provide an additional

link which completes the chain. In absence of proof of other

circumstances the only circumstance of last seen together and

absence of satisfactory explanation, cannot be made basis of

conviction.

22. In the matter of Navaneethakrishnan v. State by Inspector of

Police9, the Supreme Court has held that though the evidence of

last seen together could point to the guilt of the accused, but this

evidence alone cannot discharge the burden of establishing the guilt

of the accused beyond reasonable doubt and requires

corroboration, and observed in paragraph 22 as under: -

"22. PW 11 was able to identify all the three accused in 8 (2017) 14 SCC 359 9 (2018) 16 SCC 161 Cr.A.No.977/2012

the court itself by recapitulating his memory as those persons who came at the time when he was washing his car along with John Bosco and further that he had last seen all of them sitting in the Omni van on that day and his testimony to that effect remains intact even during the cross-examination in the light of the fact that the said witness has no enmity whatsoever against the appellants herein and he is an independent witness. Once the testimony of PW 11 is established and inspires full confidence, it is well established that it is the accused who were last seen with the deceased specially in the circumstances when there is nothing on record to show that they parted from the accused and since then no activity of the deceased can be traced and their dead bodies were recovered later on. It is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. However, this evidence alone cannot discharge the burden of establishing the guilt of accused beyond reasonable doubt and requires corroboration."

23. In the matter of State of Goa v. Sanjay Thakran and another 10,

their Lordships of the Supreme Court found that there was

considerable time gap of approximately 8½ hours when the

deceased was last seen alive with the accused persons and their

Lordships held that there being a considerable time gap between

the persons seen together and the proximate time of crime, the

circumstance of last seen together, even if proved, cannot

clinchingly fasten the guilt on the accused.

10 (2007) 3 SCC 755 Cr.A.No.977/2012

24. In the instant case also, the appellant and the deceased were seen

alive on 5-11-2011 at 5-5.30 p.m., whereas the dead body was

recovered on 6-11-2011 at 7.20 a.m. with a gap of more than

12 hours, as such, there is considerable time gap between last seen

together and the time when the dead body of the deceased was

recovered. Therefore, it cannot be held that only the appellant is

the perpetrator of the offence and in absence of corroboration, it

cannot be held that the appellant is the author of the crime.

25. Reverting to the facts of the present case in light of the aforesaid

decisions rendered by the Supreme Court particularly, in Anjan

Kumar Sarma (supra), it is quite vivid that the prosecution has only

established that the appellant was last seen with the deceased and

no other connecting links have been satisfactorily made out and no

other incriminating circumstance which leads to the hypothesis of

guilt against the appellant has been proved. Even the prosecution

in the present case has failed to prove the death of the deceased to

be homicidal in nature. As such, in absence of poof of other

circumstances or chain of circumstances, only the theory of 'last

seen together' cannot be made the sole basis for conviction of the

appellant as it would be unsafe to rest conviction only on the

theory of 'last seen together'. Therefore, we are of the considered

opinion that the learned trial Court is absolutely unjustified in

convicting the appellant under Section 302 of the IPC only on the Cr.A.No.977/2012

basis of the theory of 'last seen together' finding it fully established

in absence of motive for offence on the part of the appellant and in

absence of other incriminating material against the appellant in light

of the principles of law laid down by their Lordships of the

Supreme Court in Arjun Marik (supra), Sanjay Thakran's case

(supra) and Kanhaiya Lal (supra).

26. We hereby set aside the conviction so recorded and the sentences

so awarded by the trial Court to the appellant vide the impugned

judgment dated 5-9-2012. The appellant is acquitted of the

charge under Section 302 of the IPC. She is on bail. She need

not surrender. However, her bail bonds shall remain in force for a

period of six months in view of the provision contained in Section

437A of the CrPC.

27. The appeal is allowed to the extent indicated herein-above.

                  Sd/-                                           Sd/-
           (Sanjay K. Agrawal)                        (Deepak Kumar Tiwari)
                 Judge                                          Judge
Soma