1 2026:CGHC:16804-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1274 of 2022 Shahin Subaida W/o Jamshed Ansari, Aged About 27 Years R/o Village Katinda (Nadi Par), Police Station Lakhanpur, District Surguja Chhattisgarh. ... Appellant versus State of Chhattisgarh Through Police Station Lakhanpur, District Surguja Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Ashok Kumar Swarnakar, Advocate For Respondent/State : Mr. Priyank Rathi, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 13 .04 .202 6 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 07.07.2022 passed by the First Additional Sessions Judge, Surguja (Amkikapur), District – Surguja (C.G.) in Sessions Trial No.35/2021, whereby the learned trial Court has convicted the appellant for offence punishable under Section 302 of the IPC (Three Times) and sentenced her to undergo ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 imprisonment for life & fine of Rs.1,000/-, in default of payment of fine additional R.I. for 03 months. 2. The prosecution case, in brief, is that the complainant, Jamshed Ansari, appeared at Police Station Lakhanpur on 08.04.2020 and lodged a report stating that his marriage was solemnized in the year 2013, as per social customs, with Shaheen Subaida, a resident of Village Bhuswa, Police Station Majhiaon, District Garhwa, Jharkhand. Out of the said wedlock, they had three children, namely Khushi alias Nagma Nisha aged about 6 years, Ashiq Ansari aged about 4 years, and Asif Ansari aged about 2 years. It was further stated that due to domestic issues, frequent quarrels and disputes used to take place between him and his wife. On 07.04.2020, his wife questioned him as to why he did not operate the bore (water pump) on time, which led to a dispute, during which the complainant slapped his wife 2–3 times. On the following day, i.e., 08.04.2020, between 8:00 to 9:00 AM, another quarrel took place between them over domestic matters. Being upset over the said dispute, at about 2:00 PM, the accused, Shaheen Subaida, allegedly took all three children along with her to a muddy water body near Manja Tungi Nala and, with the intention to kill them, pushed all three children into the water, resulting in their death. Upon completion of the entire investigation, an offence under Section 302 IPC was found to be made out against the accused and accordingly registered. After completing all necessary investigation, the charge-sheet was filed 3 before the Court of Judicial Magistrate First Class, Ambikapur on 07.07.2020, from where the case was committed vide order dated 22.01.2021 and thereafter received by the competent Court on 03.02.2021 for proper adjudication. 3. Thereafter, on 22.02.2021, charges were framed against the accused, Shaheen Subaida, under Section 302 of the Indian Penal Code (three counts). The accused denied the charges and claimed to be tried, and her plea was recorded in her own words. 4. In order to prove its case, the prosecution examined a total of 10 witnesses before the trial Court, namely Jamshed Ansari (PW-1), Lobhan Singh (PW-2), Ashish Bhagat (PW-3), Patwari Nitin Kumar Tiwari (PW-4), Mehtab Ansari (PW-5), Qurban Ansari (PW- 6), Vakil Ansari (PW-7), Tara Bai (PW-8), Dalsai (PW-9), and Inspector Manoj Prajapati (PW-10). 5. In her statement recorded under Section 313 of the Code of Criminal Procedure, the accused stated that she is innocent and has been falsely implicated in the present case. She further stated that she does not wish to adduce any evidence in her defence. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 07.07.2022, convicted the appellant for offence under Sections 302 of the IPC (three counts) and sentenced her as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the accused/appellant. 4 7. Mr. Ashok Kumar Swarnakar, learned counsel for the appellant submitted that the prosecution case rests entirely on circumstantial evidence and suffers from serious infirmities, rendering the conviction unsustainable in law. He further submitted that the most significant piece of evidence against the appellant is the "last seen together" theory, as stated by PW-9 Dalsai, who testified that he saw the accused with the three deceased children near the well on the day of the incident. However, this testimony is insufficient to establish the appellant’s involvement in the children's deaths. PW-9 clearly stated that he neither saw the appellant throw the children into the well nor did he hear any accounts from villagers regarding the same. His statement merely corroborates the fact that he saw the children with the appellant near the well, which is not conclusive proof of any criminal intent. The appellant’s question to him about the depth of the well, which the prosecution claims indicates her premeditated intentions, is far from conclusive. It is equally plausible that she was simply asking out of curiosity, and the prosecution has failed to link this innocuous question with the act of murder beyond speculation. He also submitted that the testimony of PW-2 Lobhan Singh and PW-3 Ashish Bhagat, who are witnesses to the appellant’s condition after the incident, is also far from incriminating. Both witnesses were declared hostile by the prosecution, and despite their initial statements indicating distress and the appellant’s statements about the children falling 5 into the well, these witnesses have retracted their earlier versions. PW-2 Lobhan Singh admitted that the appellant, while in a distressed state, did mention that the children had fallen into the well, but this statement, made in a moment of panic, cannot be construed as a confession. Similarly, PW-3 Ashish Bhagat testified that he found the appellant sitting in a wet condition holding a child who was not breathing, and while she was unconscious, she muttered about the children having drowned. These statements, while tragic, do not conclusively demonstrate that the appellant intentionally caused the deaths of her children. Additionally, the appellant’s behavior after the incident, as described by both these witnesses, is consistent with someone in shock, rather than a person trying to cover up a deliberate act. 8. Mr. Swarnakar further argued that the testimony of PW-5 Mahtab Ansari, who is the brother-in-law of the appellant, is also crucial to the defense. He specifically stated that he did not believe the appellant intentionally threw the children into the well. His testimony points to the fact that the family had been living happily and that there was no apparent motive for such an extreme act. Although he was declared hostile and admitted certain portions of his police statement, his overall testimony supports the defense theory that the deaths of the children could have been an unfortunate accident, and not a premeditated murder. He contended that the prosecution has failed to establish a clear chain of circumstantial evidence linking the appellant to the crime. 6 The “last seen together” theory, which is often relied upon in cases with no direct eyewitnesses, is not conclusive on its own. The appellant’s alleged premeditation and intention to drown her children, as inferred from her question about the depth of the well, is speculative and unsupported by any solid evidence. Moreover, the hostile witnesses and the retracted statements further undermine the prosecution’s case. It is submitted that the conviction of the appellant is not based on a sound foundation of evidence. The benefit of doubt must be extended to the appellant, as the prosecution has failed to prove its case beyond a reasonable doubt. Therefore, it is prayed that the conviction be set aside, and the appellant be acquitted of all charges. 9. On the other hand, Mr. Priyank Rathi, learned Government Advocate, appearing for the State/respondent opposed the aforesaid submissions and would submit that the conviction recorded by the learned trial Court is fully justified and based on a complete chain of circumstantial evidence which unerringly points towards the guilt of the accused. The prosecution has clearly established that the accused was last seen in the company of all three deceased children near the water body shortly before their deaths, as deposed by PW-9. The time gap between the accused being seen with the children and the occurrence is so minimal that the possibility of any third-party intervention is completely ruled out. In such circumstances, the burden shifted upon the accused to explain how the children, who were in her exclusive custody, 7 met with such an unnatural death. However, the accused has failed to offer any plausible explanation in her statement under Section 313 CrPC, thereby inviting an adverse inference. Further, her presence at the scene in a wet condition and her statements before witnesses regarding the children falling into the water form important incriminating circumstances. Even though certain witnesses turned hostile, their testimonies cannot be discarded in toto, and the material portions supporting the prosecution case, particularly regarding the presence and condition of the accused, remain intact and lend corroboration. It is further submitted that the prosecution has also successfully established motive, as there were frequent domestic quarrels between the accused and her husband, including incidents immediately preceding the occurrence, which indicate a disturbed mental state. The defence theory of accidental drowning is wholly improbable, as it is inconceivable that three minor children of different ages would simultaneously fall into a water body without any external intervention. The circumstances on record, including last seen evidence, conduct of the accused, motive, and failure to explain, form a complete and unbroken chain consistent only with the hypothesis of guilt. He further submitted that the learned trial Court has meticulously appreciated both oral and documentary evidence and has rightly arrived at the finding of guilt without any perversity or illegality. Therefore, the present appeal being devoid of merit deserves to be dismissed, and the conviction and 8 sentence under Section 302 IPC (three counts) ought to be affirmed. 10. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 11. As per the prosecution case, the appellant, following domestic disputes with her husband, allegedly took her three minor children to a water body on 08.04.2020 and pushed them into it, resulting in their death. The case of the prosecution is based entirely on circumstantial evidence, primarily the “last seen together” theory and the alleged conduct of the appellant. 12. At this juncture, the following points arise for consideration in this appeal: 1. Whether the prosecution has successfully established a complete chain of circumstances pointing unerringly towards the guilt of the appellant? 2. Whether the conviction based on the “last seen together” theory and other circumstantial evidence is sustainable in law? 3. Whether the appellant is entitled to the benefit of doubt? 13. The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra 1 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :- 1 (1984) 4 SCC 116 9 “(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) 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.” 14. In the matter of Arjun Marik v. State of Bihar2, it has been held by their Lordships of the Supreme Court have held 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 to though a number of witnesses have 2 1994 Supp (2) SCC 372 10 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.” 15. Likewise in the matter of State of Goa v. Sanjay Thakran 3 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 persons 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 3 (2007) 3 SCC 755 11 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 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. ” 12 16. Similarly in the matter of Kanhaiya Lal v. State of Rajasthan 4 , 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 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 Rajasthan5. 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 4 (2014) 4 SCC 715 5 (2010) 15 SCC 588 13 to be released from the custody forthwith unless required otherwise.” 17. Finally in the matter of Anjan Kumar Sarma v. State of Assam 6 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. 18. Reverting to the facts of the present case, Dalsai (PW-9) has deposed that he did not know the accused by name and had seen her for the first time on the day of the incident when he had gone to bath near the Hardidhodga drain. According to him, the woman was sitting near the well along with three children, who were stated by her to be her own. He has further stated that after bathing, he returned home, had dinner, and went to sleep, and only thereafter came to know that the children had fallen into the well. Importantly, this witness has categorically admitted in his cross-examination that he did not see the accused either assaulting or pushing the children into the well, nor did anyone from the village inform him that the accused had drowned the children. His knowledge about the alleged act is thus purely hearsay in nature. The portion of his statement wherein he 6 (2017) 14 SCC 359 14 allegedly admitted that the accused had thrown the children into the well was elicited only through leading questions by the prosecution after he was declared hostile, thereby significantly diminishing its evidentiary value. 19. A careful appreciation of the testimony of this witness demonstrates that, at best, it establishes that the accused was present near the well with her children at some point of time. However, mere presence or the fact of being “last seen together” cannot, in the absence of any direct evidence or a complete chain of circumstances, be treated as conclusive proof of guilt. The prosecution’s attempt to attribute premeditation to the accused on the basis of her alleged query regarding the depth of the well is wholly speculative and unjustified. Such a question, in ordinary human conduct, may arise out of curiosity and cannot be stretched to infer a murderous intent. Moreover, the witness is a stranger to the accused, belongs to a different village, and has no knowledge of any prior dispute between the accused and her husband. His testimony, therefore, does not establish any motive, intention, or overt act on the part of the accused. In these circumstances, the evidence of PW-9 falls far short of proving the prosecution case and, instead, reinforces the reasonable doubt surrounding the alleged involvement of the appellant. 20. The evidence of prosecution witnesses Lobhan Singh (PW-2), Ashish Bhagat (PW-3) and Mahtab Ansari (PW-5) does not support the prosecution case and, in fact, substantially 15 strengthens the defence of the appellant. Prosecution witness Lobhan Singh (PW-2), though declared hostile, has merely stated that upon hearing a commotion, he went to the Sarpanch’s house where he saw the accused, Shaheen Subaida, in a wet condition holding a child and crying for help, stating that the children had fallen into the well. Similarly, Ashish Bhagat (PW-3) also deposed that he saw the accused sitting in a distressed and wet condition with a child in her lap and later heard her muttering that the children had drowned. These statements, even if accepted, only indicate that the accused informed others about the incident after it occurred and was in a state of panic and distress. There is no material in their testimony to suggest that the accused had intentionally caused the children to fall into the well. Their hostile nature and denial of earlier police statements further weaken the prosecution’s version and render their testimony unreliable for establishing guilt. 21. Further, the testimony of Mahtab Ansari (PW-5), who is a close relative of both the accused and the deceased children, clearly supports the defence. He categorically stated that the accused is his sister-in-law, that the family was living happily, and that he does not believe the accused threw the children into the well. He also admitted his desire for the accused to be released and reunited with the family, which reflects the absence of any apparent motive or prior discord. Importantly, he himself participated in retrieving the bodies from the well and did not 16 attribute any culpable act to the accused. His testimony creates serious doubt regarding the prosecution’s allegation of intentional wrongdoing. Taken together, the evidence of these witnesses fails to establish any direct or circumstantial link implicating the accused in the alleged offence, thereby entitling the appellant to the benefit of doubt. 22. In Kali Ram v. State of Himachal Pradesh7 the Hon’ble Supreme Court held that if two views are possible, the one favorable to the accused must be adopted. The present case clearly admits of such doubt. 23. Upon a comprehensive evaluation of the evidence on record, this Court is of the considered opinion that the prosecution has failed to establish a complete and unbroken chain of circumstances. The evidence does not conclusively point towards the guilt of the appellant and leaves room for reasonable doubt. The conviction recorded by the learned trial Court is therefore unsustainable in law. 24. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 07.07.2022 passed by the learned trial Court under Section 302 IPC (three counts) are hereby set aside. The appellant is acquitted of all charges by extending to her the benefit of doubt. She shall be released forthwith, if not required in any other case. 7 (1973) 2 SCC 808 17 25. The appellant is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973 (Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023). 26. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra