Calcutta High Court clarifies that adverse inference under ‘last seen together’ can apply when the accused is shown to have picked up the victim from her house—even with a significant time gap till recovery—if the accused fails to explain circumstances of parting company and other incriminating evidence exists. The judgment upholds established Supreme Court precedent on the rare imposition of the death penalty, commutes death sentence to life imprisonment, and stands as binding authority for subordinate courts in West Bengal.
Summary
| Category | Data |
|---|---|
| Case Name | CRA (DB)/22/2025 of AJGAR ALI KHADIMUNSARI Vs STATE OF WEST BENGAL AND ANR |
| CNR | WBCHCA0028712025 |
| Date of Registration | 20-01-2025 |
| Decision Date | 01-09-2025 |
| Disposal Nature | DISPOSED |
| Judgment Author | HON’BLE JUSTICE MD. SHABBAR RASHIDI (concurred by HON’BLE JUSTICE DEBANGSU BASAK) |
| Court | Calcutta High Court |
| Bench | Division Bench: Justice Debangsu Basak, Justice Md. Shabbar Rashidi |
| Precedent Value | Binding on subordinate courts within jurisdiction; persuasive for other High Courts |
| Overrules / Affirms |
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| Type of Law | Criminal Law, Evidentiary Law, Sentencing (Death Penalty), POCSO Act |
| Questions of Law |
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| Ratio Decidendi |
The “last seen together” doctrine may result in adverse inference if there is reliable evidence that the accused picked up the victim from her house and the accused fails to explain when he parted company with her, regardless of delay in recovery of the body. The accused’s failure to explain injuries found on his person further strengthens the inference of guilt. Extra-judicial confessions made while in police custody to a doctor are inadmissible under Section 26 of the Evidence Act (as per Supreme Court ruling), but independent evidence of injuries and recovery under Section 27 can be pivotal. The death penalty must only be imposed in “rarest of rare” cases not admitting any alternative, with consideration for mitigating factors and possibility of reformation; in the present case, death sentence was commuted to life imprisonment due to absence of such conclusiveness. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | Section 27 & 26 Evidence Act; Supreme Court’s tests in “last seen together” doctrine; law on extra-judicial confessions in custody; “rarest of rare” standards for death penalty. |
| Facts as Summarised by the Court |
Victim, a 6-year-old child, was last seen being taken by the accused from her house. Her decomposed body was found 6 days later in an abandoned project site where accused worked. Prosecution alleged rape and murder (Sections 363, 365, 376AB, 302, 201 IPC, Section 6 POCSO Act). Evidence included witness testimony, recovery of victim’s garments, button from accused’s shirt at the scene, medical and forensic testimony. Defence alleged gaps and contradictions concerning the recovery, delay in FIR, and absence of definitive identification/DNA evidence. |
| Citations |
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Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts within the jurisdiction of the Calcutta High Court |
| Persuasive For | Other High Courts, Supreme Court |
| Follows |
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What’s New / What Lawyers Should Note
- The court clarified that adverse inference under the “last seen together” doctrine is possible even with a considerable time gap, provided the prosecution can show the accused picked up the victim and the accused fails to explain when and how he parted company.
- Reinforced that extra-judicial confessions to a doctor while accused is in police custody are inadmissible under Section 26 of the Evidence Act.
- Upheld the use of circumstantial recovery evidence (such as apparel and articles) obtained as per Section 27, even when DNA or forensic evidence is inconclusive.
- Reiterated the established “rarest of rare” standard for awarding the death penalty, emphasizing individualized sentencing and potential for reformation.
- The decision commutes death penalty to life imprisonment due to non-fulfillment of strict prerequisites, offering guidance on proportional sentencing.
Summary of Legal Reasoning
- Evidentiary Test for “Last Seen Together”: The court underscores the Supreme Court’s holding in Suresh Chandra Tiwari, recognizing that the “last seen together” doctrine requires examining the gap in time between when the victim was last observed with the accused and the discovery of the body. However, if evidence clearly shows the accused picked up the victim from her house, and the accused fails to show when they parted company, adverse inference is justified.
- Injuries as Corroborative Evidence: The accused’s unexplained injuries recorded by the medical examiner, absent any counter-explanation, fortify circumstantial evidence against him.
- Inadmissibility of Extra-Judicial Confession in Custody: Relying on Allarakha Habib Memon, the court excludes the confession made to the doctor while in police custody.
- Reliance on Recovery Evidence: Despite inconclusive DNA/profiling, recovery of victim’s belongings and the accused’s shirt button at the site, identity proof by parents/witnesses, and other corroborative material fulfill the chain of evidence.
- Sentencing Principles: The court applies longstanding “rarest of rare” doctrine from the Supreme Court, evaluating aggravating/mitigating circumstances, location, prior conduct, psychological evaluation, and potential for reformation, ultimately concluding that death penalty is not warranted.
Arguments by the Parties
Petitioner / Appellant (Ajgar Ali Khadimunsari):
- Post-mortem report does not specify time of death; significant time gap between disappearance and recovery of body.
- Dead body recovered based on appellant’s statement, but the recovery sequence and seizure lists are doubtful.
- Delay in forwarding FIR to court (lodged July 15; sent July 20); no adequate explanation.
- Extra-judicial confession to doctor inadmissible; alleged coercion and injuries due to police abuse.
- Defective identification—written complaint lacked victim’s physical description or clothing details; no DNA confirmation.
- Forensic results inconclusive; prosecution could not link recovered articles (bidi, shirt button) to appellant.
- Place of recovery not exclusively under appellant’s control.
- Autopsy was inconclusive on sexual assault; no evidence for POCSO/sexual offence.
- Time gap makes “last seen together” inapplicable; relied on Supreme Court precedent.
Respondent / State:
- Prosecution case established by credible evidence; witnesses saw victim being taken by appellant.
- Failure of appellant to provide explanation draws adverse inference.
- Delay in forwarding FIR not fatal; investigating officer did not have chance to explain.
- Extra-judicial confession before doctor and recovery at appellant’s instance strengthen prosecution.
- Appellant not beyond reformation as per psychological and socio-economic reports; State does not insist on death penalty.
Factual Background
The case concerns the abduction and subsequent death of a 6-year-old girl. On July 15, 2019, the victim was seen being taken from her house by the accused, an acquaintance and worker at a nearby construction site. Despite immediate efforts, she was not found. Her decomposed body was recovered on July 21, 2019, from inside the construction site. Investigation led to the recovery of her apparel and other material evidence, and the accused was charged under multiple sections including 363, 365, 376AB, 302, 201 IPC, and Section 6 of the POCSO Act. The trial included testimony from multiple witnesses and forensic experts.
Statutory Analysis
- Section 27, Indian Evidence Act: Applied for admitting recovery of articles at the instance of accused.
- Section 26, Indian Evidence Act: Extra-judicial confession made to the doctor held inadmissible as per Supreme Court direction, since accused was in police custody.
- Sections 363, 365, 376AB, 302, 201 IPC and Section 6, POCSO Act: Charges framed for abduction, rape, murder, destruction of evidence, and aggravated sexual assault on minor.
- Sentencing Principles: Supreme Court’s “rarest of rare” doctrine reaffirmed for application and commutation of death penalty.
- Section 428 CrPC: Set off provision for detention period undergone.
Dissenting / Concurring Opinion Summary
- Both Justices (Debangsu Basak and Md. Shabbar Rashidi) concurred in reasoning and outcome.
- Psychological and socio-economic reports considered for sentencing; found potential for reform.
- No split verdict or alternative reasoning recorded.
Procedural Innovations
- The division bench specifically called for and considered psychological evaluation and socio-economic assessment reports before deciding on commutation of death penalty.
- Directions for immediate intimation to trial court and correctional home regarding commutation.
Alert Indicators
- Precedent Followed – Supreme Court precedents on evidentiary matters and sentencing were affirmed and applied.
Citations
- (2024) 9 SCC 546 (Allarakha Habib Memon & Ors. v. State of Gujarat)
- 2024 SCC OnLine SC 3531 (Suresh Chandra Tiwari v. State of Uttarakhand)