Criminal appeal Nos. 732/2005 & 836/2005 filed against the judgment of conviction and order of sentence dated 29/7/2005 passed by Additional Sessions Judge, Baiod, District Durg (C.G.) in Sessions Trial No. - 68/2005 are being disposed of by this’common judgment. By Criminai appeai No. 732/2005 appeiiant Kaushalya Bai. and by Criminai appeal No. 836/2005 appellant Omin Bai have challenged the legality and propriety of the judgment of conviction and order of sentence dated 29/7/2005 passed by Additional Sessions Judge, Baiod, District Durg (C.G.) in Sessions Trial No. 68/2005 whereby after holding appellants guilty for the commission of offence of culpable homicide amounting to murder of 3 small kids namely Mukesh, aged about 7 years, Ku. Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years in sharing common intention convicted the appellant Kaushalya Bai under Section 302/34 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 1000/-, in default of payment of fine amount additional rigorous imprisonment for 6 months& appellant Omin Bai under Section 302 of the Indian Penal Code and sentenfced imprisonment for life and'fine of Rs. 1000/—, in default of payment of fine amount additibnal rigorous imprisonment for 6 months, Conviction is impugned on the ground that without any iota of evidence sufficient of conviction of the appellants, Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, appellant Omin Bai sister of PW3 Motiram and Bua of 3 children namely Mukesh, aged about 7 years, Ku. ' Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years (since deceased). was deserted by her husband. She was residing with PW3 / 4s iw Motiram, appeiiant Kaushaiya Bai was witchcraft and she advised 0min Bai that if she would kill 3 kids then her husband wiH tune back her to his home and wiH keep her as wife. As advised by_appellant Kaushalya Bai, Omin Bai took ail 3 kids towards well and by putting them in well she killed them. PW4 Peeluram and other persons had seen all 3 kids last time alive in the company of appellant Omin Bai at about 5:00 PM. on 13/12/2004 thereafter it was noticed at about 6:00 PM. that body of all 3 kids were floating in the wetl. Panchayat was convened, Omin Bai was interrogated, she made extrajudicial confession before Panchayat that she has killed all 3 kids. PW1 Dakwar went to the Police Station and lodged First Information Report vide Ex. P-1 & Marg intimation vide Exs. P-2, P—3 & P—4. Dehati Marg intimation was recorded vide Ex. P~5. lnvestigating Officer left for scene of occurrence and after summoning the witnesses vide Exs. P—7, P—8 & PLQ, inquest over the dead bodies of Mukesh, Ku. Neelam & Ku. Priyanka were prepared vide Exs. P—10, P41 W/ & P-12. Dead bodies of Mukesh, Ku. Neelam, & Ku, Priyanka were sent for autopsy to Community Heaith Center, Gurur vide Exs. P—25, P-26 & P-Z? where PW10 Dr. ArG. Sheikh conducted autopsy of Ku. Priyanka vide EX. P48, Mukesh vide Ex. P-19 & Ku. Neelam vide Ex. P-2O and found simple injury whereas cause of death was asphyxia .as-a result of drowning. Viscera were seized and sealed vide Exs. P-21, P—22 & P23. Spot map was prepared vide Ex. P—6. Patwari prepared spot map vide EX. P-17. 5. Statements of the witnesseswere recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code‘), After completion of the investigation charge—sheet was filed before the Judicial Magistrate First Class, Balod who in turn committed the case to the Court of Sessions, Durg from where learned Additional Sessions Judge, Balod, District Durg (C.G.) has received the case on transfer for trial. in order to prove the guilt of the appellants/accused prosecution, examined as many as 15 witnesses. Accused persons were examined under Section 313 of the Code where they denied the circumstances appearing against them and pleaded innocency and false implication in crime in question are claimed. After affording an opportunitt/ of hearing to the parties learned Additional Sessions Judge, Balod, District Durg (C.G.) has convicted and sentenced the appellants as aforementioned. Ms. Fouzla Mirza, Advocate for the appellant (in Cr. A. No. 732/2005, Mr. Ashok Verma, Advocate for the appellant (in Cr. A. No. 836/2005) & Mr. Ashish'iShukla, Govt. Advocate for the State/respondent are heard. Judgment impugned and record of Court beiow perused. Ms. Fouzia Mirza learned counsel for the appellant in CrA No 732/2005 submits that appellant Kaushalya Bar has been convrcted under Section 302/34 of the lndian Penal Code for commrssron of murder of 3 k/ds namely Mukesh aged about 7 years, Ku. Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years in sharing common intention. As per initial case of the prosecution, present appellant Kaushalya Bai was indulged in the actiVIty of Witchcraft and she has advrsed co accused Omin Bai that she wrll kill 3 kids then her husband Will take back her in his home and as a result of such advise, co~accused Omin Bai has killed 3 kids of her brother PW3 Motiram but prosecution has not collected any evidence of such advise or witchcraft to connect the appellant in crime in question therefore, conviction and sentence of the appellant Kaushalya Bai underSection 302/34 is not sustainable under the taw. ‘i /‘ ) §g I 2011 AIR scw 3i69 1 2004 CRL L.J.4868 J1991 CRI, L.J. 2191 (so) 101 Mr. Ashok Verma learned counsei for the appellant in Cr.A. No. 836/2005 submits that conviction of the appeHant Omin Bai is based on circumstantial evidence of last seen theory & extrajudiciai confession. Last seen theory '& extrajudicial confession are weak type of evidence and same are not safe to rely without further corroboration from' independent sources. in the present case, evidence of PW1 Dakwar, PW5 Damandas & PW15 Bhuwaniai clearly reveal that she has not made any extrajudicial confession voluntarily but she was under pressure therefore, such extrajudicial confession is not admissible in evidence even evidence of last seen theory is also a weak type of evidence and same is not safe to rely without further corroboration from independent sources. 11. Learned counsel for the appellant placed reliance in case of Roopsena Khatun v. State of West Bengal1 in Which Supreme Court has held that proximity of time in case of last seen theory is of vital role. Learned counsel for the appellant further placed reliance in case of 12v Dasari Siva Prasad Reddy, v. Public Prosecutor, High Court of A.P.2 in which Supreme Court has held that in absence of creditable evidence of last seen and other evidence conviction on the basis of circumstantial evidence is not sustainable under the law. 13. Learned counsel for the appellant also placed reliance in case of lnderjit Singh and another v. State of Punjab" in which Supreme Court has held that in absence of any other evidence to connect the accused with crime, evidence of last seen alone is not sufficient for conviction. Learned counsel for the appeHant also placed reliance in case of Sk. 14‘ Yusuf v. Statg of West Bengal‘ in which Supreme Court has held that extra JUdicial confession is very weak type of evidence it‘must be established to be true and made voluntarily in fit state of mind. Words Of witness to whom extra judicial confession was made must be clear, unambiguous and clearly convey that accused is perpetrator of crime. Extra judicial confession can be basis of conviction if it passes test of I credibility. Supreme Court has further held that, theory of last s‘tjfsn together comes into play when time gap between time when accused and deceased were last seen alive and when deceased was found dead V was so small that possibility of any person other than accused being author of the crime becomes impossible. On the other hand, learned Govt. Advocate for the State/respondent opposed the criminal appeals and submits that evidence of PW4 Peeluram & PW5 Damandas are sufficient for conviction of the appellant 0min Bai. ln the present case, time gap between when accused and deceased were last seen alive and when deceased was found dead is so small and it is sufficient to exclude the possibility of third person between deceased and appellant. 16. Learned counsel for the State/respondent further submits that appellant ' Omin Bai was under obligation to explain when she parted the company of deceased. In the present case, appellant Omin Bai has not only seen in the company of deceased persons just before their death but she herself has carried two kids i.e. Ku. Neelam & Ku. Priyanka in her lap and third kid Mukesh with her at about 5:00 PM. and at about 6:00 PM. all 3 kids were found dead. Time gap between last seen theory and l i r5 4 2011 AIR SCW 3748 recovery of dead bodies was so small and same is sufficient to exclude the possibility of third person between deceased and appellant. 17. In order to appreciate the argument advanced on behaif of the parties, we have examined the evidence adduced on behalf of the prosecution, 18. In the present case, death of 3 kids nameiy Mukesh, aged about 7 years, Ku. Neeiam, aged about 5 years & Ku. Priyanka, aged about 2 years as a result of drowning and asphyxia have not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW10 Dr. A.G. Sheikh and autopsy report Exs. P-18, P—19 & P-20. As regards the compiicity of appellants in crime in question, evidence ‘19. adduced on behalf of the prosecution is sufficient to prove the fact that bodies of all 3 kids namely Mukesh, aged about 7.years, Ku. Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years were found inside the well on the water. As per evidence of PW2 Preminbai, sister- in-law of appellant Omin Bai, PW3 Motiram, brother of Omin Bai & PW6 Sugandhibai, mother of 0min Bai, Omin Bai was residing with them, . deceased 3 kids namely Mukesh, aged about 7 years, Ku. Neelam, aged about 5 years -& Ku. Priyanka, aged about 2 years were sons and daughters of PW3 Motiram. PW4 Peeluram has deposed in his evidence that begween 5:006:30 PM. he has seen Omin Bai along with 3 kids, two kids were in her lap & third kid was going with her towards field. Defence has cross-examined this witness but he has specifically deposed that he has seen aforesaid 3 kids with appellant Omin Bai. As per evidence of PW5 Damandas, he was informed by PW4 Peeluram that he has seen appellant Omin Bai with 3 kids namely Mukesh, aged about 7 years, Ku. Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years thereafter Panchayat was convened. PW1 Dakwar, PW5 Damandas & PW15 Bhuwanlal have .deposed in their evidence that being asked appellant Omin Bai, s'he has made extrajudicial confession that she has killed all 3 kids by throwing them in well but they'have also admitted that firstly she did not state any confession, when they created pressure then she stated aforesaid extrajudicial confession 20. In case of Sk. Yusuf (Supra) Supreme Court has held that extrajudicial confession is a weak type of evidence and'it was voluntarily. Ih/the ‘ / present case, extrajudicial confession was not voluntarily but evidence of these witnesses reveal that on repeated interrogation, she has made such extrajudicial confession which was clear and unambiguous and sufficient to convey that she has committed aforesaid offence. Evidence of PW4 Peeluram is sufficient to prove the fact that appellant Omin Bai was carrying two small kids in herlap and third kid with her just before an hour of recovery of dead bodies. ln case of Roopsena Khatun (Supra) Supreme Court has heid that if there is no proximity the time when the deceased and accused were last seen together at the time of death/of deceased then evidence of last seen would be of no significant. While dealing with the same question in case of Sk. Yusuf (Supra) Supreme Court has held that theory of'last seen together comes into play when time gap between time when accused and deceased were last seen alive re and when deceased was found dead was so small then possibility of any person other than accused being author of the crime becomes impossible. 21. While dealing with the evidentiary value of last seen theory and requirement of explanation in case of Sahadevan alias Sagadevan v. X State represented by Inspector of Police, Chennai5 Supreme Court has held that in case of last seen the accused is under obligation to explain when he parted the company of the deceased and if accused failed to offer explanation then same shall be adverse circumstance against the accused. 22. While dealing with the conviction on the basis of last seen theory in case of State of Goa v. Sanjay Thakran and another and another connected appeals Supreme Court has held that prosecution is required ‘to proof 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. In the present case, appellant Omin Bai was not offered any explanation that when she parted the company of 3 kids namely Mukesh, aged about 7 years, Ku. Neelam, aged about 5 years 8: Ku. Priyanka, aged about 2 years (deceased persons) and as per evidence of PW4 Peeluram, she has carried two kids in her lap and third kid along with heri If evidence of PW4 Peeluram relating to last seen theory & extrajudicial confession in shake of answer to interrogation is considered together then only inference would be possible that only appellant 0min Bai has committed culpable homicide amounting to murder of 3 kids namely Mukesh, aged about 7 years, Ku, Neelam, aged about 5 years & Ku. Priyanka, aged about 2 years: Prosecution has not adduced any evidence relating to \ \\ , \Qf (2003) 1 scc 534 ’ V (2007) 3 scc 755 \ \ \ \ 10 witchcraft or advice given by appellant Kaushalya Bai to appellant Omin Bai. While convicting and sentencing the appellant Omin Bai, Court below has not committed any illegality but while convicting and sentencing the appellant Kaushalya Bai, Court below has not considered complete insufficiency of the evidence against appellant Kaushalya Bai and thereby committed an illegality, 24. For the foregoing reasons, Criminal Appeal No. 732/2005 filed on behalf of appellant Kaushalya Bai deserves to be allowed and is heretry' allowed. Conviction & sentence imposed upon appellant Kaushalya Ba‘i is hereby set—aside. She be set at liberty at once. Fine amount if paid shall be refunded to her. Conviction and sentence of appellant Omin Bai for commission of murder of 3 children namely Mukesh, aged about 7 years, Ku. Neelam,,aged about 5 years 8: Ku. Priyanka, aged about 2 years imposed by trial Court is hereby affirmed. Criminal Appeal No. 836/2005 filed on behalf of appellant Omin Bai deserves to be dismissed Tiwari i l l l l t . and is hereby dismissed. \_ 5w. ‘i fl] so. .7 IRN. "lip. SHARMA. if \ Judge i Chandrak/ar Judge i