2024 INSC 376

Criminal Appeal No. 1637 of 2021 Page 1 of 23

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1637 OF 2021

ALAUDDIN & ORS. …APPELLANT(S)

VERSUS

THE STATE OF ASSAM & ANR. .…RESPONDENT(S)

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL ASPECT

1. The appellants are accused nos. 3, 1, 6 and 7

respectively. The appellants have been convicted for the

offences punishable under Section 302, read with Section

149 of the Indian Penal Code (for short, ‘IPC’). The

allegation against the appellants is of committing culpable

homicide amounting to the murder of one Sahabuddin

Choudhury. The incident is of 3

rd February 2013. There

were eight accused who were tried for the offence. Out of

the eight accused, the Trial Court convicted five. One died

during the pendency of the trial. An appeal against

conviction was preferred before the High Court. By the

impugned judgment, the High Court confirmed the

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appellants' conviction. However, the High Court set aside

the conviction of accused no. 5. The case of the

prosecution is that accused no. 1 (Md. Abdul Kadir) picked

up the victim of the offence from his residence at 4 pm on

the date of the incident and took him to Bhojkhowa

Chapori Bazar. The accused killed the victim behind L.P.

School by assaulting him with a sharp weapon.

SUBMISSIONS

2. Learned senior counsel appearing for the appellants

has taken us through the notes of evidence of the material

prosecution witnesses. He pointed out that in paragraph

42 of its judgment, the Trial Court held that the claim of

PW-1 (Md. Akhtar Hussain Choudhury) that he was an

eyewitness was fallacious. He pointed out that even

evidence of PW-3 (Md. Afazuddin Chaudhury) needs to be

discarded, as his evidence is full of omissions and

contradictions. Moreover, he cannot be termed an

eyewitness. As far as evidence of PW-4 (Md. Saidur Ali) is

concerned, he again submitted that the evidence is not

worthy of acceptance, as it is wholly unreliable. He pointed

out that evidence of PW-6 (Mustt Hasen Banu, wife of the

deceased) shows that there was a prior enmity between her

husband and the accused. He pointed out that PW -6

admitted that her husband had lodged a police complaint

against the accused on the allegation that the accused had

dispossessed him from his land. He submitted that

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evidence of last seen together in the form of testimony of

PW-7 (Md. Sultan Ali) cannot be relied upon. He submitted

that the same is true with evidence of PW-9 (Md. Abdul

Haque). He pointed out that evidence of PW-10 (Md. Anisul

Haque) does not help the prosecution at all. He also invited

our attention to the evidence of PW-11 (Sri Bidyut Bikash

Baruah, Investigating Officer). He submitted that while

recording the cross-examination of the prosecution

witnesses, the contradictions had not been properly

recorded in accordance with the law.

3. Learned senior counsel appearing for the State

submitted that the evidence of prosecution witnesses

shows that the deceased was last seen together with the

accused. He submitted that coupled with the evidence of

last seen together, the motive for the commission of offence

had been established. Even otherwise, there is convincing

evidence against the appellants. He, therefore, submitted

that no fault can be found with the view taken by the High

Court.

CONSIDERATION OF SUBMISSIONS

4. There is one aspect that was not brought to the notice

of this Court, which goes to the root of the matter. As can

be seen from paragraph 108 of the judgment of the Trial

Court, the appellants have been convicted for the offence

punishable under Section 302 with the aid of Section 149

of IPC. We may note here that ultimately, the High Court

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held that only four accused were guilty. Under Section 149

of IPC, every member of an unlawful assembly is guilty of

the offences committed in the prosecution of the common

object of the unlawful assembly. Therefore, to apply

Section 149 of IPC, there has to be an unlawful assembly.

Section 141 of IPC defines unlawful assembly as an

assembly of five or more persons. The High Court has not

held that apart from the present appellants whose

conviction was confirmed, others formed part of the

unlawful assembly. Hence, there was no unlawful

assembly within the meaning of Section 141 of IPC.

Therefore, the appellants could not have been convicted for

the offence punishable under Section 302 of IPC with the

aid of Section 149. The High Court has not modified the

charge from Section 302, read with Section 149 of IPC, to

Section 302, read with Section 34 of IPC.

CONTRADICTIONS AND OMMISSIONS

5. Before we deal with the merits, something must be

stated about how the trial court recorded the prosecution

witnesses' cross-examination in this case, especially when

they were confronted with their prior statements. The Trial

Court did not follow the correct procedure while recording

the contradictions.

6. Under Section 161 of the Code of Criminal Procedure,

1973 (for short, ‘CrPC’), the police have the power to

record statements of the witnesses during the

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investigation. Section 162 of CrPC deals with the use of

such statements in evidence. Section 162 reads thus:

“162. Statements to police not to be

signed: Use of statements in

evidence.—(1) No statement made by

any person to a police officer in the

course of an investigation under this

Chapter, shall, if reduced to writing, be

signed by the person making it; nor

shall any such statement or any record

thereof, whether in a police diary or

otherwise, or any part of such statement

or record, be used for any purpose, save

as hereinafter provided, at any inquiry

or trial in respect of any offence under

investigation at the time when such

statement was made:

Provided that when any witness is

called for the prosecution in such

inquiry or trial whose statement has

been reduced into writing as aforesaid,

any part of his statement, if duly

proved, may be used by the accused,

and with the permission of the Court,

by the prosecution, to contradict such

witness in the manner provided by

Section 145 of the Indian Evidence Act,

1872 (1 of 1872); and when any part of

such statement is so used, any part

thereof may also be used in the re-

examination of such witness, but for the

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purpose only of explaining any matter

referred to in his cross-examination.

(2) Nothing in this section shall be

deemed to apply to any statement falling

within the provisions of clause (1) of

Section 32 of the Indian Evidence Act,

1872 (1 of 1872), or to affect the

provisions of Section 27 of that Act.

Explanation.—An omission to state a

fact or circumstance in the statement

referred to in sub-section (1) may

amount to contradiction if the same

appears to be significant and otherwise

relevant having regard to the context in

which such omission occurs and

whether any omission amounts to a

contradiction in the particular context

shall be a question of fact.”

The basic principle incorporated in sub-Section (1) of

Section 162 is that any statement made by a person to a

police officer in the course of investigation, which is

reduced in writing, cannot be used for any purpose except

as provided in Section 162. The first exception

incorporated in sub-Section (2) is of the statements covered

by clause (1) of Section 32 of the Indian Evidence Act, 1872

(for short, ‘Evidence Act’). Thus, what is provided in sub-

Section (1) of Section 162 does not apply to a dying

declaration. The second exception to the general rule

provided in sub-Section (1) of Section 162 is that the

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accused can use the statement to contradict the witness in

the manner provided by Section 145 of the Evidence Act.

Even the prosecution can use the statement to contradict

a witness in the manner provided in Section 145 of the

Evidence Act with the prior permission of the Court. The

prosecution normally takes recourse to this provision when

its witness does not support the prosecution case. There is

one important condition for using the prior statement for

contradiction. The condition is that the part of th e

statement used for contradiction must be duly proved.

7. When the two statements cannot stand together, they

become contradictory statements. When a witness makes

a statement in his evidence before the Court which is

inconsistent with what he has stated in his statement

recorded by the Police, there is a contradiction. When a

prosecution witness whose statement under Section 161

(1) or Section 164 of CrPC has been recorded states factual

aspects before the Court which he has not stated in his

prior statement recorded under Section 161 (1) or Section

164 of CrPC, it is said that there is an omission. There will

be an omission if the witness has omitted to state a fact in

his statement recorded by the Police, which he states

before the Court in his evidence. The explanation to Section

162 CrPC indicates that an omission may amount to a

contradiction when it is significant and relevant. Thus,

every omission is not a contradiction. It becomes a

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contradiction provided it satisfies the test laid down in the

explanation under Section 162. Therefore, when an

omission becomes a contradiction, the procedure provided

in the proviso to sub-Section (1) of Section 162 must be

followed for contradicting witnesses in the cross -

examination.

8. As stated in the proviso to sub-Section (1) of section

162, the witness has to be contradicted in the manner

provided under Section 145 of the Evidence Act. Section

145 reads thus:

“145. Cross-examination as to

previous statements in writing .—A

witness may be cross-examined as to

previous statements made by him in

writing or reduced into writing, and

relevant to matters in question, without

such writing being shown to him, or

being proved; but, if it is intended to

contradict him by the writin g, his

attention must, before the writing can

be proved, be called to those parts of it

which are to be used for the purpose of

contradicting him.”

The Section operates in two parts. The first part provides

that a witness can be cross-examined as to his previous

statements made in writing without such writing being

shown to him. Thus, for example, a witness can be cross-

examined by asking whether his prior statement exists.

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The second part is regarding contradicting a witness. While

confronting the witness with his prior statement to prove

contradictions, the witness must be shown his prior

statement. If there is a contradiction between the

statement made by the witness before the Court and what

is recorded in the statement recorded by the police, the

witness's attention must be drawn to specific parts of his

prior statement, which are to be used to contradict him.

Section 145 provides that the relevant part can be put to

the witness without the writing being proved. However, the

previous statement used to contradict witnesses must be

proved subsequently. Only if the contradictory part of his

previous statement is proved the contradictions can be

said to be proved. The usual practice is to mark the portion

or part shown to the witness of his prior statement

produced on record. Marking is done differently in different

States. In some States, practice is to mark the beginning of

the portion shown to the witness with an alphabet and the

end by marking with the same alphabet. While recording

the cross-examination, the Trial Court must record that a

particular portion marked, for example, as AA was shown

to the witness. Which part of the prior statement is shown

to the witness for contradicting him has to be recorded in

the cross-examination. If the witness admits to having

made such a prior statement, that portion can be treated

as proved. If the witness does not admit the portion of his

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prior statement with which he is confronted, it can be

proved through the Investigating Officer by asking whether

the witness made a statement that was shown to the

witness. Therefore, if the witness is intended to be

confronted with his prior statement reduced into writing,

that particular part of the statement, even before it is

proved, must be specifically shown to the witness. After

that, the part of the prior statement used to contradict the

witness has to be proved. As indicated earlier, it can be

treated as proved if the witness admits to having made

such a statement, or it can be proved in the cross -

examination of the concerned police officer. The object of

this requirement in Section 145 of the Evidence Act of

confronting the witness by showing him the relevant part

of his prior statement is to give the witness a chance to

explain the contradiction. Therefore, this is a rule of

fairness.

9. If a former statement of the witness is inconsistent

with any part of his evidence given before the Court, it can

be used to impeach the credit of the witness in accordance

with clause (3) of Section 155 of the Evidence Act, which

reads thus:

“155. Impeaching credit of witness.—

The credit of a witness may be

impeached in the following ways by the

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adverse party, or, with the consent of

the Court, by the party who calls him—

(1) ….…………………………………...

(2) ………………………………………

(3) by proof of former statements

inconsistent with any part of his

evidence which is liable to be

contradicted.”

It must be noted here that every contradiction or omission

is not a ground to discredit the witness or to disbelieve

his/her testimony. A minor or trifle omission or

contradiction brought on record is not sufficient to

disbelieve the witness's version. Only when there is a

material contradiction or omission can the Court disbelieve

the witness's version either fully or partially. What is a

material contradiction or omission depends upon the facts

of each case. Whether an omission is a contradiction also

depends on the facts of each individual case.

10. We are tempted to quote what is held in a landmark

decision of this Court in the case of Tahsildar Singh &

Anr. v. State of U.P.

1 Paragraph 13 of the said decision

reads thus:

“13. The learned counsel's first

argument is based upon the words “in

the manner provided by Section 145 of

the Indian Evidence Act, 1872” found in

1. 1959 Supp (2) SCR 875

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Section 162 of the Code of Criminal

Procedure. Section 145 of the Evidence

Act, it is said, empowers the accused to

put all relevant questions to a witness

before his attention is called to those

parts of the writing with a view to

contradict him. In support of this

contention reliance is placed upon the

judgment of this Court in Shyam

Singh v. State of Punjab [(1952) 1 SCC

514 : (1952) SCR 812]. Bose, J.

describes the procedure to be followed

to contradict a witness under Section

145 of the Evidence Act thus at p. 819:

Resort to Section 145 would only

be necessary if the

witness denies that he made the

former statement. In that event,

it would be necessary to prove

that he did, and if the former

statement was reduced to

writing, then Section 145

requires that his attention must

be drawn to these parts which

are to be used for contradiction.

But that position does not arise

when the witness admits the

former statement. In such a case

all that is necessary is to look to

the former statement of which no

further proof is necessary

because of the admission that it

was made.”

It is unnecessary to refer to other cases

wherein a similar procedure is

Criminal Appeal No. 1637 of 2021 Page 13 of 23

suggested for putting questions under

Section 145 of the Indian Evidence Act,

for the said decision of this Court and

similar decisions were not considering

the procedure in a case where the

statement in writing was intended to be

used for contradiction under Section

162 of the Code of Criminal Procedure.

Section 145 of the Evidence Act is in

two parts : the first part enables the

accused to cross-examine a witness

as to previous statement made by

him in writing or reduced to writing

without such writing being shown to

him; the second part deals with a

situation where the cross -

examination assumes the shape of

contradiction : in other words, both

parts deal with cross examination;

the first part with cross-examination

other than by way of contradiction,

and the second with cross -

examination by way of contradiction

only. The procedure prescribed is

that, if it is intended to contradict a

witness by the writing, his attention

must, before the writing can be

proved, be called to those parts of it

which are to be used for the purpose

of contradicting him. The proviso to

Section 162 of the Code of Criminal

Procedure only enables the accused

to make use of such statement to

contradict a witness in the manner

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provided by Section 145 of the

Evidence Act. It would be doing

violence to the language of the

proviso if the said statement be

allowed to be used for the purpose of

cross-examining a witness within the

meaning of the first part of Section

145 of the Evidence Act. Nor are we

impressed by the argument that it

would not be possible to invoke the

second part of Section 145 of the

Evidence Act without putting

relevant questions under the first

part thereof. The difficulty is more

imaginary than real. The second part

of Section 145 of the Evidence Act

clearly indicates the simple

procedure to be followed. To

illustrate : A says in the witness box

that B stabbed C; before the police he

had stated that D stabbed C. His

attention can be drawn to that part of

the statement made before the police

which contradicts his statement in

the witness box. If he admits his

previous statement, no further proof

is necessary; if he does not admit, the

practice generally followed is to

admit it subject to proof by the police

officer. On the other hand, the

procedure suggested by the learned

counsel may be illustrated thus : If the

witness is asked “did you say before the

police officer that you saw a gas light?”

Criminal Appeal No. 1637 of 2021 Page 15 of 23

and he answers “yes”, then the

statement which does not contain such

recital is put to him as contradiction.

This procedure involves two fallacies :

one is it enables the accused to elicit by

a process of cross-examination what the

witness stated before the police officer.

If a police officer did not make a record

of a witness's statement, his entire

statement could not be used for any

purpose, whereas if a police officer

recorded a few sentences, by this

process of cross-examination, the

witness's oral statement could be

brought on record. This procedure,

therefore, contravenes the express

provision of Section 162 of the Code.

The second fallacy is that by the

illustration given by the learned counsel

for the appellants there is no self-

contradiction of the primary statement

made in the witness box, for the witness

has yet not made on the stand any

assertion at all which can serve as the

basis. The contradiction, under the

section, should be between what a

witness asserted in the witness box and

what he stated before the police officer,

and not between what he said he had

stated before the police officer and what

he actually made before him. In such a

case the question could not be put at all

: only questions to contradict can be put

and the question here posed does not

Criminal Appeal No. 1637 of 2021 Page 16 of 23

contradict; it leads to an answer which

is contradicted by the police statement.

This argument of the learned counsel

based upon Section 145 of the Evidence

Act is, therefore, not of any relevance in

considering the express provisions of

Section 162 of the Code of Criminal

Procedure.”

(emphasis added)

This decision is a locus classicus, which will continue to

guide our Trial Courts. In the facts of the case, the learned

Trial Judge has not marked those parts of the witnesses'

prior statements based on which they were sought to be

contradicted in the cross-examination.

ANALYSIS OF EVIDENCE

11. PW-1 (a son of the deceased) claimed that accused

no. 1 - appellant no. 2 picked up his father at 4.00 p.m.

from his house on 3

rd February 2013 and took him to

Bhojkhowa Chapori Bazar. He stated that at 7.00 p.m., he

returned home and around 8.00 to 8.30 p.m., he came to

Bhojkhowa Chapori Bazar to make some purchases . He

claimed that he was riding a motorbike, and in the flash of

the headlight of the motorbike, he saw the accused no. 7 -

appellant no. 4 (Md. Nur Islam), accused no. 3 – appellant

no. 1 (Md. Alaluddin), acquitted accused no. 2 (Md.

Tahiruddin), accused no. 6 – appellant no. 3 (Md. Nurul

Islam), accused no. 1 – appellant no. 2 (Md. Abdul Kadir),

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acquitted accused no. 5 (Md. Abdul Kadir Jilani) leaving

the place on a motorbike after hacking a person. PW-1

stated that he got down from the motorcycle and found his

father lying there. Evidence of PW-1 need not detain us, as

the Trial Court has already held that his claim that he

witnessed the incident was fallacious. However, he stated

that at about 4 p.m. on the date of the incident, appellant

no. 2 picked up his father from his house. PW-2 (Md.

Asraful Islam) was declared as hostile.

12. Now, we come to the evidence of PW-3 (another son

of the deceased). He deposed that appellant no. 2 came to

their house at 4 p.m. on the date of the incident. The

witness stated that the deceased was an influential

Congress party leader. He stated that there was a meeting

of Congress at Chapori Centre, and therefore, he took the

deceased on his motorcycle. He stated that at 6.30 p.m.,

appellant no. 2 brought his father. He claims that he

followed them on his bicycle. He stated that he heard a hue

and cry from a distance of about 30 meters away from L.P

School. After going ahead, he saw appellant no. 3 running

towards the road with a sharp weapon in his hand. He

stated that he saw appellant no. 3 in the flash of the

headlight of the motorcycle. He claimed that he saw

appellant no. 2 leaving by motorcycle. Then he found the

body of his father. PW-3 was sought to be contradicted in

the cross-examination based on his prior statement

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recorded under Section 161 of CrPC. A suggestion was

given in his cross-examination that he did not tell the

police that at about 6.30 p.m., appellant no. 2 returned

with his father on a motorcycle. Moreover, a suggestion

was given that he did not tell the police that he followed

them on his bicycle. Another suggestion was given to the

witness that he did not tell the police that while coming

back from a meeting on a bicycle, he saw in the flash of

the headlight of a motorcycle that appellant no. 3 was

running away and leaving the place with a weapon. At this

stage, it is necessary to look at the cross-examination of

PW-11 (Sri Bidyut Bikash Baruah ), the Investigating

Officer. In the cross-examination, he stated thus:

“ PW3 Afazuddin Choudhury has

not stated before me that he also went

to attend the meeting. This witness has

also not stated before me that at about

6:30 p.m. accused Kadir brought his

father back from the meeting in a motor

cycle and he also followed them after 10

minutes. This witness has also not

stated before me that hue(sic) he was

returning in his bicycle he saw, in the

light of bike, that Nurul was running

with a weapon in his hand.”

Hence, the case which he made out in the examination-in-

chief that he saw appellant no. 3 running away with the

weapon in his hand in the flash of the motorcycle's

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headlight is an omission. This omission is very significant,

which amounts to contradiction. Therefore, his evidence

remains material only insofar as his statement about

appellant no. 2 taking his father on a motorbike at 4.00

p.m. The witness stated that at 4.00 p.m., his father went

to a meeting with appellant no. 2, as his father was an

influential leader of Congress. Therefore, assuming that

the deceased was last seen with appellant no. 2 at 4.00

p.m., the deceased thereafter attended a meeting of

Congress. Thus, after 4.00 p.m., the deceased was also in

the company of other persons.

13. Now, coming to evidence of PW-4, he claims that he

saw eight to ten persons, including appellant no. 2,

appellant no. 4, and the acquitted accused, assaulting the

deceased by using a dao. He stated that he and PW-9

raised a hue and cry after which the accused left. The

witness was contradicted by suggesting that he did not tell

the police that about eight to ten people were assaulting

the deceased by surrounding him. On this aspect, in the

cross-examination, the Investigating Officer stated thus:

“ PW4 Saidar Ali has stated before

me that he saw hulla near L.P. School

while he was returning from the market.

This witness has not stated before me

that he alongwith Ainul were going in

a motor cycle. This witness has not

stated before me that he saw accused

Alaluddin, Nur Islam, Nurul, Kadir

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and Jilani assaulted Sahabuddin by

means of dao. This witness has not

mentioned the name of Abdul Kadir

Jilani before me. This witness has

stated before me the name of Rustam,

Mamrus and Tahiruddin. This witness

has not stated before me that kadir

surrendered before police station.”

(emphasis added)

Thus, there are material omissions which affect the

reliability of the witness. Thus, it is very doubtful whether

PW-4 had seen the assault on the deceased.

14. PW-5 stated that at about 8.00 p.m., he saw the

deceased, appellant nos. 2, 3 and 4, conversing on the road

near Bhojkhowa Girl’s School. The deceased requested him

to carry his bag as the deceased stated that he was going

to campaign for the election. The witness was confronted

in his cross-examination with a suggestion that he had not

told the police that at 8.00 p.m., while he was going back

to his house, he saw the accused conversing with the

deceased. PW-11, the Investigating Officer, admitted that

PW-5 did not state before him that at about 8.00 p.m.,

while he was coming from Bhojkhowa, he saw the deceased

conversing with the accused. Thus, the material part of the

testimony of PW-5 is a significant omission which amounts

to contradiction.

Criminal Appeal No. 1637 of 2021 Page 21 of 23

15. PW-6 is the wife of the deceased, who is neither an

eyewitness nor a witness on the point of last seen together.

However, she stated that her deceased husband had filed

a complaint against the accused on the allegation that the

accused had dispossessed him.

16. PW-7 stated that at 8.10 p.m., on the fateful day,

while he was ready to go to his house to bring food, he

noticed appellant no. 2 was riding on the pillion of the

deceased's motorcycle. As seen from the evidence of PW-

11, even this statement is an omission. PW-8 is a medical

officer who performed postmortem on the body of the

deceased. PW-9 stated that at 8.00 p.m. on the day of the

incident, he had seen appellant no. 2 and Abdul Kadir

Jilani (acquitted accused) leaving the place where the

deceased was lying. Even this statement has been proven

to be an omission in the evidence of PW-11. PW-10 is not

an eyewitness or a witness who deposed about the last

seen together.

17. Therefore, as far as evidence of assault on the

deceased is concerned, there is no reliable evidence to

show the involvement of the appellants. The only evidence

regarding the last seen together is that at 4.00 p.m., on the

date of the incident, appellant no. 2 took the deceased on

his motorcycle. However, PW-3 has stated that appellant

no. 2 took the deceased at 4.00 p.m. to attend a meeting of

the Congress Party. He also said that his deceased father

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was an influential leader of the Congress. Therefore, after

4.00 p.m., there were also persons other than the accused

around the deceased. Even assuming that the accused

were seen with the deceased on the day he was found dead,

after he was allegedly seen with the accused, the deceased

attended a meeting of the Congress Party. The theory of

last seen together is helpful to the prosecution if the

deceased was seen in the company of the accused in the

proximity of the time at which the dead body is found. If

the evidence shows that after the deceased was seen in the

company of the accused, he was in the company of others

as well, the theory of last seen together is not of any

assistance to the prosecution. The reason is that the

involvement of other persons in the offence is not ruled out.

Hence, the fact that appellant no. 2 was found in the

company of the deceased at 4.00 p.m. is not sufficient to

link him with the commission of the offence of murder. For

the reasons we have recorded, the testimony of so-called

eyewitnesses cannot be relied upon. The theory of last seen

together deserves to be rejected. Therefore, the prosecution

has failed to bring home the charge against the appellants.

CONCLUSION

18. For the reasons recorded above, the impugned

judgments of the Trial Court and High Court to the extent

to which the appellants were convicted for the offence

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punishable under Section 302, read with Section 149 of

IPC, are hereby set aside. The appellants are acquitted of

charges against them. The appeal is accordingly allowed.

19. The appellants shall be set at liberty unless their

custody is required concerning some other offence.

……………………..J.

(Abhay S. Oka)

……………………..J.

(Ujjal Bhuyan)

New Delhi;

May 03, 2024