Section 106 Evidence Act | Last Seen Theory Cannot Be Applied in Absence of Clear Custody Transfer: Calcutta High Court Acquits Woman Accused of Nephew’s Murder

“Suspicion Cannot Replace Legal Proof”, In a pivotal ruling Calcutta High Court set aside the conviction of Mana Naskar, who had been sentenced to life imprisonment for the alleged murder of her two-year-old nephew, Gobindo, in 2008. The Division Bench comprising Justice Rajasekhar Mantha and Justice Ajay Kumar Gupta delivered the verdict, holding that the “prosecution failed to prove an unbroken chain of circumstances” and relied on "hearsay, presumptions, and uncorroborated motive."

The Court categorically observed that “the last seen theory cannot apply where there is no credible proof that the child was in the exclusive custody of the accused”, and that the prosecution's burden of proof "cannot be displaced merely by suspicious circumstances."

“It Was Not the Exclusive, Peculiar Knowledge of the Accused”: Court Rejects Application of Section 106 Evidence Act

The High Court reversed the conviction under Section 302 IPC, finding that the entire case was built upon circumstantial evidence, without any direct witnesses. The alleged murder had no eye-witnesses, and the prosecution primarily relied on the “last seen theory”, hearsay statements, and purported motive stemming from family disputes.

The Court firmly held that Section 106 of the Evidence Act, which allows courts to draw adverse inferences from an accused’s silence or failure to explain incriminating circumstances, was wrongly invoked by the Trial Court:

“The prosecution has been unable to prove that PW 15 handed over the victim to the accused. Thus, no adverse inference could be drawn against the inability of the accused to explain as to what she did with the victim after taking his custody from the PW 15.” [Para 55]

Referring to the Supreme Court's judgment in Anees v. State (NCT of Delhi), 2024 SCC OnLine SC 757, the High Court underlined that:

“To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden.” [Para 54]

“Motive to Kill a Toddler Was Neither Established Nor Believable”: High Court on Speculative Gender Bias Allegation

The Trial Court had accepted the prosecution’s theory that Mana Naskar resented her brother-in-law’s family for having a male child while she had two daughters, and that she was allegedly hostile over room-sharing arrangements with her mother-in-law. The High Court found these claims wholly unsubstantiated:

“The dispute relating to stay of PW 15 in a room of the house cannot constitute motive of the accused to kill a one and a half year-old child.” [Para 58]

“There is no explanation as to why the victim was zeroed down, leaving aside the other two children of the PW 4 and PW 5.” [Para 59]

“The prosecution has not been able to bring any independent proof of the motive of the appellant that she killed the victim for not having a male child of her own.” [Para 60]

Quoting from Nandu Singh v. State of M.P., (2022) 19 SCC 301, the Court reaffirmed that: “In a case based on circumstantial evidence, motive assumes great significance… The absence of established motive breaks the chain of circumstances.”

“Evidence Was Hearsay, Investigation Incomplete, Key Witness Unexamined”: Court Flags Major Procedural Lapses

The Court noted that almost all the prosecution witnesses—PW 1, PW 2, PW 4, PW 5, PW 6, and others—relied on hearsay evidence, often repeating what the accused’s 15-year-old daughter Arati allegedly told them.

“The Evidence of the family members PW-1,2,4,5,6,7,11 and 12 is hearsay. No reliance could have been placed on them.” [Para 67]

Crucially, the key informer Sangita, the person who allegedly told Arati that her mother had killed the child, was neither examined nor even questioned by the police. The Court condemned this omission:

“This Court also notices that the most vital witness Sangita, who told Arati PW1 and Uma for the first time the victim was missing or had died, has not even been questioned by the police. Her statements have not been recorded and she has not been cited as witness by the prosecution.” [Para 68]

“Post-mortem Proved Strangulation, But No Link to Accused”: Medical Evidence Insufficient Without Corroboration

While the post-mortem report confirmed that the victim had died due to strangulation, and not drowning as initially suspected, the Court made it clear that medical evidence alone cannot prove guilt:

“The trachea does not receive injuries when one dies by drowning… The victim therefore has been clearly strangled to death.” [Para 40]

However, the Court found no reliable evidence linking the accused to the act of strangulation:

“The prosecution failed to link medical opinion with reliable evidence connecting accused – Medical opinion alone insufficient without corroboration.” [Para 40]

“Prosecution Sought to Convict by Reading Between the Lines”: Court Slams Inference-Based Conviction

The judgment goes on to say that the prosecution built its case on presumption and inference rather than proof, and the trial court wrongly convicted the accused by placing undue reliance on speculative chains of thought:

“The prosecution sought to build up its case based on reading between the lines and creating suspicion against the accused. Suspicion cannot replace the proof beyond reasonable doubt.” [Para 66]

The High Court allowed the appeal, acquitted the appellant, and directed her to be released unless required in any other case. She was further directed to furnish a bond in terms of Section 437A CrPC.

D.D. ; 09 September 2025