IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Prasenjit Biswas

C.R.A. 144 of 1988

Bishnupada Choudhury & Ors.

-Versus-

The State of West Bengal

For the Appellants : Mr. Kallol Kumar Basu,

Mr. Anindya Sunder Das,

Md. Jannat UL Firduas,

Mr. Rajsekhar Hota,

Mr. Suman Haldar.

For the State : Mr. Abishek Sinha,

Mr. Tirupati Mukherjee.

Hearing concluded on : 18.12.2025

Judgment On : 13.02.2026

Prasenjit Biswas, J:-

1. This appeal is directed against the impugned judgment and order

of conviction dated March 30, 1988 passed by the learned

Additional Sessions Judge, Midnapore in connection with Sessions

Trial Case No. 13

th

April, 1987.

2. By passing the impugned judgment, these appellants were found

guilty for commission of offence punishable under Sections 147,

304 Part-I/149 of the Indian Penal code and they were sentenced

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C.R.A. 144 of 1988

to suffer rigorous imprisonment for five years along with payment

of fine of Rs. 1000/- and in default of payment of fine to undergo

further rigorous imprisonment for one year.

3. Being aggrieved by and dissatisfied with the said impugned

judgment and order of conviction, these present appellants have

preferred this instant appeal.

4. The prosecution’s case, in a nutshell, is as follows:

“The present case originated on the basis of a

complaint lodged by the de facto complainant, who is

the wife of the alleged victim. In her complaint dated

11.06.1985, she stated, interalia, that her husband,

the victim, had been summoned to a meeting held at

the Sripur Gangcha Club Ghar. Another individual, one

Ganesh Santra, was also called to the said meeting

through the accused persons, namely Khandu Bagdi

and Madhu Choudhury. According to the written

complaint, during the course of the meeting, the

victim, Madhusudan Garai, along with Ganesh Santra,

was allegedly found guilty of involvement in an illicit

affair concerning a woman. The complaint further

states that upon hearing the alarm raised by the

victim, the de-facto complainant immediately rushed

to the scene and discovered that her husband was

being mercilessly beaten by villagers. As a

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C.R.A. 144 of 1988

consequence of the assault, the victim became nearly

unconscious. The complainant alleged that the assault

was perpetrated by the accused persons named in the

First Information Report (FIR). Subsequently, the

injured victim was taken to the hospital with the

assistance of local residents. The written complaint,

prepared by one Sudhangshu Bera on behalf of the

de-facto complainant, was lodged with the police on

the morning following the incident. Pursuant to the

complaint, the concerned police station registered a

case against the appellants under Sections 147, 149,

341, and 325 of the Indian Penal Code, thereby

initiating criminal proceedings. After the completion of

investigation, the prosecuting agency submitted a

charge-sheet against the accused persons. In the

charge-sheet, the accused were formally charged

under Sections 147, 149, 323, and 304-PartI of the

Indian Penal Code, setting the criminal law in motion

and framing the foundation for the trial.”

5. In the present case, the prosecution, in order to substantiate its

case, examined as many as thirteen (13) witnesses and also

tendered several documents which were duly marked as exhibits

on its behalf. Through these oral and documentary evidences, the

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C.R.A. 144 of 1988

prosecution sought to establish the charges levelled against the

accused persons.

6. On the other hand, it is evident from the record that the defence

did not adduce any evidence, either oral or documentary, in

support of its case. No witness was examined on behalf of the

defence, nor was any document produced to rebut or discredit the

prosecution’s evidence. Thus, the defence case rests solely on

cross-examination of the prosecution witnesses and the

suggestions put forth during trial.

7. Mr. Kallol Kumar Basu, learned Advocate appearing on behalf of

the appellants, has strenuously contended that the impugned

judgment of conviction is vitiated by serious infirmities, inasmuch

as it rests upon evidence suffering from material contradictions,

omissions, and improvements, thereby rendering the prosecution

case unreliable and legally unsustainable.

8. At the outset, learned counsel submits that the prosecution case

substantially hinges upon the testimonies of PW1 (wife of the

victim), PW3 (brother of the victim), and PW4 (sister-in-law of the

deceased). All these witnesses have claimed themselves to be

eyewitnesses to the alleged incident of assault said to have

occurred at about 12 midnight. They have deposed that the victim,

Madhu Garai, sustained considerable bleeding injuries as a result of

the assault. However, it is submitted that their conduct, as

reflected in their own depositions, is wholly inconsistent with

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C.R.A. 144 of 1988

normal human behavior. Despite allegedly witnessing a brutal

assault and noticing profuse bleeding from the victim, none of

these witnesses took any immediate steps to secure medical

assistance, shift the victim to a hospital, or call for a doctor.

Instead, they left the victim at the place of occurrence and waited

until the next morning. Such inaction, in the face of a life-

threatening situation, is highly unnatural and improbable, thereby

creating a serious dent in the credibility of these witnesses and the

prosecution story as a whole.

9. Learned counsel further points out glaring inconsistencies in the

version of PW1 regarding the lodging of the First Information

Report. During cross-examination, PW1 initially stated that she

approached PW12, described as an active member of a political

party, and that, acting on his advice, she lodged a complaint at the

police station. She further stated that PW12 obtained her left

thumb impression (L.T.I.) on the FIR. However, she subsequently

altered her version by stating that she first narrated the incident to

PW1 and then went to the Public Health Centre where she

remained until her husband’s death. In yet another version during

cross-examination, she stated that she left the police station at

about 10 A.M., thereafter PW12 arrived, drafted another FIR, and

again obtained her L.T.I. These shifting stands, according to

learned counsel, create a cloud of doubt over the very genesis and

authenticity of the FIR and raise legitimate suspicion as to whether

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C.R.A. 144 of 1988

the complaint was lodged in the manner alleged by the

prosecution.

10. It is further highlighted that PW1, in her deposition, stated that

upon reaching the police station she found her husband lying in a

club room and that PW12, the Officer-in-Charge, arranged to send

him to the hospital. This version stands in direct contradiction to

the written complaint wherein PW1 stated that local people had

taken her husband to the hospital. Such contradictions on a vital

aspect of the prosecution case, namely the immediate aftermath of

the incident and the steps taken to save the victim, materially

affect the credibility of the witness.

11. Learned counsel also underscores contradictions between the

testimonies of PW1 and PW2. While PW1 asserted that her husband

was mercilessly assaulted by the accused persons named in the

FIR, PW2 stated that PW1 did not disclose the names of the

assailants. This discrepancy strikes at the root of the prosecution

case concerning the identification and naming of the accused.

Additionally, PW3, the brother of the victim, deposed that he saw

only Bistu Choudhury (appellant no.1) assaulting the victim and

that upon reaching the spot he found merely two to four persons

present. This version is at variance with the account given by PW1

before the Trial Court regarding the number of assailants and the

manner of assault, thereby further eroding the consistency of the

prosecution narrative.

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C.R.A. 144 of 1988

12. It is also contended that PW4 stated that many villagers were

present at the place of occurrence and had witnessed the incident.

Despite this assertion, the prosecution failed to examine any

independent local witness to corroborate the alleged involvement

and active role of the appellants. The non-examination of such

natural and independent witnesses, who were readily available,

gives rise to an adverse inference against the prosecution.

13. Moreover, while PW1 stated in the FIR that local people took her

husband to the hospital, she later deposed that PW13 arranged for

sending the victim to the hospital. This aspect was not clarified or

supported by PW8, the attending medical officer. The absence of

medical corroboration on these material particulars further

weakens the prosecution case.

14. Learned counsel thus submits that the prosecution case is founded

primarily on the testimonies of PW1, PW3, and PW4, all of whom

are closely related to the victim and are therefore interested

witnesses. While the evidence of related witnesses is not to be

discarded solely on the ground of relationship, it is well settled that

such evidence must inspire confidence and ordinarily requires

careful scrutiny and, where possible, independent corroboration. In

the present case, not only is there a lack of independent

corroboration, but the testimonies themselves is riddled with

inconsistencies, omissions, and improvements. No specific and

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C.R.A. 144 of 1988

consistent role has been attributed to each of the appellants, and

the evidence regarding their participation is vague and discrepant.

15. It is further argued that the conduct of PW1, PW3, and PW4

appears highly improbable and unnatural. PW1, being the defacto

complainant, has made material improvements over the version

set out in the FIR, which amounts to embellishment of the

prosecution story. Such improvements on vital aspects cannot be

lightly brushed aside and significantly impair the reliability of the

witness.

16. In view of the cumulative effect of these contradictions, omissions,

and improbabilities, learned counsel submits that the prosecution

has failed to prove its case beyond reasonable doubt.

Consequently, the conviction recorded by the learned Trial Court,

based on such shaky and unreliable evidence, cannot be sustained

in law. It is, therefore, prayed that the impugned judgment and

order of conviction be set aside and the appeal be allowed.

17. Mr. Abishek Sinha, learned Advocate appearing on behalf of the

State, has submitted that there is nothing on record which would

warrant interference with the impugned judgment and the order of

conviction passed by the learned Trial Court. It has been argued

that P.W.1, P.W.3, and P.W.4 were eyewitnesses to the incident in

question, and all these witnesses consistently supported the

prosecution’s version regarding the involvement of the appellants

in the alleged offence.

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C.R.A. 144 of 1988

18. According to the learned Advocate, the evidence adduced by these

witnesses clearly indicates that on the relevant date and at the

relevant time, the appellants allegedly assaulted the victim,

Madhusudan Garai, which ultimately resulted in his unnatural

death. In addition, P.W.11 and P.W.13, being the medical officer

and the autopsy surgeon respectively, provided expert testimony

concerning the injuries sustained by the victim, thereby

corroborating the occurrence of the assault and implicating the

appellants in the commission of the crime.

19. It has been contended on behalf of the State that there is nothing

on record to render the evidence of these witnesses untrustworthy.

The learned Advocate emphasized that all the appellants are

alleged to have assembled at the ‘club ghar’ of Sripur with the

common intention of committing the offence. The assault

perpetrated by them caused grievous injuries to the victim, which

ultimately led to his death. The appellants were fully aware that

their actions were likely to cause death, demonstrating a reckless

disregard for human life.

20. Furthermore, the learned Advocate submitted that there are no

contradictions between the contents of the written complaint

lodged by the de-facto complainant and the statements made by

the witnesses examined by the prosecution. On appreciation of the

evidence as a whole, the learned Trial Court rightly concluded that

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C.R.A. 144 of 1988

the appellants were actively involved in the commission of the

offence.

21. It was further argued that the appellants have failed to bring any

material evidence on record that could cast doubt on the findings

of the Trial Court or justify interference with the impugned

judgment and order of conviction. In light of the above, it is the

submission of the State that the appeal preferred by the appellants

is devoid of merit and ought to be dismissed, thereby upholding

the conviction and sentence imposed by the learned Trial Court.

22. Having given anxious consideration to the rival submissions

advanced by the learned Counsel appearing for the respective

parties, I have thoroughly perused and examined all the material

available on record.

23. PW1, Smt. Rina Rani Gorai, is the wife of the victim and the

defacto complainant in the present case. PW3, Pravash Gorai, is

the brother of the victim, and PW4, Laxmi Rani Gorai, is the wife of

PW3. Thus, all three are closely related to the deceased and are

admittedly interested witnesses. Each of them has claimed to have

witnessed the incident of assault alleged to have taken place at

about 12:00 midnight and has asserted that the victim sustained

injuries accompanied by considerable bleeding.

24. PW4, Laxmi Rani Gorai, has deposed that upon hearing a

commotion, she along with PW1 proceeded to the “club ghar” to

ascertain the cause of the shouts. On reaching there, they

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C.R.A. 144 of 1988

allegedly saw the appellants assaulting the victim. According to

her, they then returned and informed PW3, and thereafter again

went to the “club ghar,” where they found that the victim was still

being assaulted by a few persons while some of the assailants had

already left.

25. Ordinarily, when a close family member is found in an injured and

bleeding condition as a result of an assault, the natural and

instinctive human response would be to render immediate

assistance, either by shifting the victim to a safer place, taking him

home, arranging conveyance to a hospital, or at the very least

summoning medical aid without delay. However, in the present

case, despite their claimed presence at the spot and their

acknowledgement that the victim was bleeding profusely, these

witnesses admittedly left the victim lying at the place of occurrence

and made no effort to secure medical help until the following

morning. Such indifferent and passive conduct is wholly

inconsistent with normal human behaviour, particularly from close

relatives. This unnatural conduct renders their claimed presence at

the time of occurrence doubtful and significantly erodes the

credibility of their assertion that they actually witnessed the

assault.

26. As per the statements of PW4, there was bleeding from the nose,

ear, and mouth of the victim. She sought to explain the inaction by

stating that since it was midnight, they could not do anything at

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C.R.A. 144 of 1988

night, and that the victim was taken to the hospital only the next

morning, where he ultimately succumbed to his injuries. PW1 and

PW3 have also deposed on similar lines, stating that the victim was

in a bleeding condition. However, while these witnesses have

categorically spoken of profuse bleeding due to the assault, the

prosecution’s own seizure of the victim’s wearing apparel

reportedly did not reveal any bloodstains. This glaring

inconsistency between the oral testimony and the physical

evidence strikes at the root of the prosecution case. If the bleeding

was indeed as profuse as alleged, it would be reasonable to expect

visible blood marks on the clothes worn by the victim. The absence

of such material evidence materially weakens the prosecution

version and creates a serious dent in its reliability.

27. The testimony of PW1 is clouded by material improvements over

her earlier version. In her deposition before the Court, she stated

that upon hearing the alarm of her injured husband, she, along

with PW4, rushed to the spot and saw the appellants assaulting

him. She also explained that owing to her advanced stage of

pregnancy she could not raise an alarm, and she returned home

and later revisited the spot with PW3. However, these significant

facts were conspicuously absent from the written complaint lodged

at the earliest point of time. The omission of such vital details from

the first version, which is ordinarily expected to contain the

essential and material facts of the occurrence, cannot be brushed

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C.R.A. 144 of 1988

aside as a minor lapse. Rather, it constitutes a material omission

amounting to improvement and contradiction, suggesting

embellishment at a later stage. Such improvements materially

impair the evidentiary value of her testimony and render it unsafe

to rely upon in the absence of independent corroboration.

28. Furthermore, PW1 has stated in her evidence that her husband was

being mercilessly assaulted by the appellants. In contrast, PW2 has

stated that PW1 did not disclose the names of the appellants. PW3,

on the other hand, has deposed that he saw only appellant no.1

giving kicks on the chest of the victim while he was lying on the

ground, and that upon reaching the spot he found merely two to

four persons present. These discrepancies regarding the identity

and number of assailants are not minor variations but go to the

core of the prosecution case concerning the participation of the

accused persons.

29. At the very outset, it is an undisputed position on record that PW1,

PW3, and PW4 are close relatives of the deceased, being

respectively the wife, brother, and sister-in-law of the victim. It is

a settled principle of criminal jurisprudence that the evidence of

related or interested witnesses cannot be discarded solely on the

ground of relationship. However, it is equally well settled that such

evidence must be subjected to greater caution and careful scrutiny.

The Court must remain alive to the possibility of exaggeration,

over-implication, or a tendency to rope in certain persons due to

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C.R.A. 144 of 1988

prior enmity or emotional involvement, particularly in cases where

independent corroboration is lacking. Therefore, the testimonies of

such witnesses must inspire confidence by being consistent,

cogent, and supported by reliable independent evidence.

30. In the present case, the evidence on record reveals that PW3

mentioned only the name of appellant no.1, and even then, he did

not attribute any clear or specific overt act to the other appellants.

His testimony is conspicuously silent regarding the precise role or

participation of the remaining accused persons. Similarly, neither

PW1 nor PW4 assigned any distinct or individual role to any

particular appellant. In cases involving multiple accused, the

prosecution is under a duty to establish the specific role and

participation of each accused person. Vague and omnibus

allegations against a group of persons, without delineating

individual acts, are inherently weak in nature and unsafe to form

the sole basis of conviction. Criminal liability is personal, and in the

absence of clear evidence regarding individual involvement, it

would be hazardous to sustain a conviction.

31. It is further significant that no independent local witness has come

forward to corroborate the testimonies of PW1, PW3, and PW4. The

alleged occurrence is said to have taken place in a locality where

the presence and availability of independent witnesses would be

natural and expected. In such circumstances, the absence of

support from disinterested witnesses creates a serious lacuna in

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C.R.A. 144 of 1988

the prosecution case and gives rise to a legitimate doubt as to

whether the appellants were in fact identified as assailants at the

earliest opportunity. Non-examination of available independent

witnesses, without satisfactory explanation, permits an adverse

inference against the prosecution.

32. The version of PW3 also appears uncertain and internally

inconsistent. He stated that he saw only one appellant giving a kick

on the chest of his brother while the victim was lying on the

ground. He further stated that upon reaching the spot he found

two to four persons present. This statement introduces ambiguity

regarding both the identity and the number of persons involved in

the alleged assault. If, by his own admission, he witnessed only

one appellant assaulting the victim and others were merely present

among a small group of persons, the subsequent implication of

multiple appellants, without clear attribution of overt acts,

becomes doubtful and susceptible to the charge of embellishment.

33. The testimony of PW2, Bholanath Dogra, also materially affects the

prosecution story. He deposed that he learned from PW1, the

defacto complainant that her husband had been called to a meeting

at about midnight and was assaulted. Significantly, he stated that

PW1 did not disclose the names of the assailants to him. The

natural and probable conduct of a person whose husband had just

been assaulted would be to immediately disclose the names of the

assailants, if known. The omission to do so raises a serious doubt

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C.R.A. 144 of 1988

about the spontaneity and truthfulness of the prosecution version

and casts a shadow over the subsequent naming of the appellants.

34. If the depositions discussed above are considered cumulatively, it

becomes apparent that there is a marked absence of specific roles

attributed to each of the appellants. The uncertain and wavering

version of PW3, coupled with the omission on the part of PW1 to

disclose the names of the assailants at the earliest opportunity,

cumulatively renders the prosecution case doubtful. These

infirmities strike at the root of the reliability and credibility of the

prosecution evidence. In such circumstances, it would be unsafe to

base a conviction solely upon such testimony in the absence of

strong, clear, and independent corroboration. The benefit of doubt

arising from these deficiencies must necessarily enure to the

appellants.

35. The testimony of P.W.1 regarding the lodging and drafting of the

First Information Report (F.I.R.) is marked by glaring

inconsistencies and mutually destructive versions, which seriously

impair the credibility of this witness and render her evidence

unreliable on this vital aspect of the prosecution case.

36. P.W.1 stated in her evidence that P.W.12, who is admittedly a

member of a political party, wrote the complaint at the police

station. She deposed that she first went to the police station and

thereafter P.W.12 arrived, advised her to lodge the F.I.R., drafted

it himself, and she put her L.T.I. (Left Thumb Impression) on the

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C.R.A. 144 of 1988

same. This version suggests that the complaint was not a

spontaneous narration by the informant but a document prepared

by a third person with political affiliation, which by itself calls for

cautious evaluation, particularly in a criminal case where

impartiality and voluntariness in setting the criminal law in motion

are of great importance.

37. However, in the same breath, P.W.1 gave a completely different

version by stating that she first narrated the incident to the Officer-

in-Charge (O.C.) and that he recorded her statement. This version

implies that the F.I.R. originated from her direct narration to the

police officer and not from a complaint drafted by P.W.12. Both

versions cannot stand together. If the O.C. recorded her statement

upon narration, there was little occasion or necessity for P.W.12 to

draft the complaint separately. This contradiction strikes at the

root of the prosecution story regarding the very genesis of the

F.I.R. Her evidence becomes further doubtful when she stated that

she left for Chandrakona Police Station in connection with her

injured husband and stayed there till his death. This would suggest

her continuous presence there. Yet, she again stated that she left

the police station at about 10 A.M., and at that time P.W.12 came

and drafted another F.I.R. on which she put her L.T.I. This

introduces the improbable suggestion of multiple F.I.R.s or multiple

complaints being drafted at different times. The law contemplates

registration of the earliest information relating to the commission

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C.R.A. 144 of 1988

of a cognizable offence; the concept of repeated drafting of F.I.R.s

on the same occurrence is inherently suspicious and legally

untenable.

38. The contradictions do not end there. P.W.1 again stated that at 10

A.M. she went to the police station and P.W.12 wrote the complaint

as per her dictation. This is yet another version, inconsistent with

her earlier claims that (i) the O.C. recorded her statement, and (ii)

P.W.12 drafted the F.I.R. after advising her to lodge it. Thus, her

evidence presents shifting stands: at one stage the O.C. is the

recorder, at another P.W.12 is the draftsman, and at yet another

point there appears to be more than one complaint.

39. These inconsistent and self-contradictory statements on a crucial

aspect like the lodging of the F.I.R. are not minor discrepancies but

material contradictions going to the root of the prosecution case.

The F.I.R. is the foundation of the prosecution story, and its

authenticity, spontaneity, and timing are of paramount importance.

When the maker of the F.I.R. herself gives conflicting versions

about who drafted it, when it was drafted, and how it was

recorded, the possibility of deliberation, tutoring, or subsequent

embellishment cannot be ruled out.

40. Further, the admitted role of P.W.12, a politically affiliated person,

in drafting the complaint raises the possibility of outside influence

and detracts from the independence and purity of the earliest

version. When this factor is viewed alongside the contradictory

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C.R.A. 144 of 1988

statements of P.W.1, the reliability of the prosecution’s version

regarding the initiation of the case becomes highly doubtful.

41. In such circumstances, it would be unsafe to place reliance on the

testimony of P.W.1 on this score. Her vacillating and inconsistent

statements make her a wholly unreliable witness regarding the

lodging of the F.I.R., and this infirmity inevitably casts a serious

shadow on the credibility of the prosecution case as a whole.

Where the foundation itself appears shaky, the superstructure built

upon it cannot be said to be free from reasonable doubt.

42. The evidence relating to the manner in which the injured victim

was provided medical treatment suffers from material

inconsistencies, which strike at the reliability of the prosecution

version and raise serious doubt about the true sequence of events.

In the written complaint, P.W.1 categorically stated that some

villagers had arranged for the treatment of the victim through a

local doctor and that her husband was admitted to the hospital on

the following morning. This version clearly indicates that the initial

initiative for medical treatment came from local villagers and that

there was a delay until the next morning before hospital admission.

Such a statement suggests a particular sequence of events and

attributes the responsibility for treatment to private individuals

rather than the police.

43. However, in her deposition before the Court, P.W.1 gave a

materially different version by stating that the Officer-in-Charge

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C.R.A. 144 of 1988

(P.W.13) arranged for sending her husband to the hospital. This

shifts the entire responsibility and initiative from the villagers to

the police authority. These two versions are mutually inconsistent

and cannot be reconciled. If villagers had already arranged

treatment through a local doctor and facilitated hospital admission

the next morning, the question naturally arises as to how and

when the O.C. took charge of sending the victim to the hospital.

Conversely, if the O.C. arranged for the hospitalisation, the earlier

claim regarding villagers and a local doctor becomes doubtful.

44. These are not minor discrepancies but material contradictions

affecting a vital aspect of the case, namely the immediate

aftermath of the alleged assault and the steps taken to save the

victim. The manner and promptness of medical treatment are often

closely linked with the credibility of the prosecution story, the

seriousness of injuries, and the conduct of the witnesses.

Contradictory versions on such a crucial point weaken the

trustworthiness of the informant.

45. Significantly, P.W.8, the attending medical officer and an

independent professional witness, did not clarify either of these two

versions. There is no clear evidence from P.W.8 as to who actually

brought the victim to the hospital, at whose instance he was

admitted, or whether he had received any prior local treatment.

The absence of such clarification from the medical officer, who

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C.R.A. 144 of 1988

would be the most reliable and neutral witness on this aspect,

leaves a material gap in the prosecution case.

46. When the informant gives conflicting accounts and the independent

medical evidence fails to resolve the inconsistency, the Court is left

with uncertainty regarding the true facts. This uncertainty assumes

importance because the prosecution is required to present a

consistent and coherent narrative. The contradictions here suggest

either lack of truthfulness or lack of certainty in the prosecution

version.

47. Therefore, the conflicting statements of P.W.1 regarding who

arranged medical treatment, coupled with the failure of P.W.8 to

clarify the factual position, create a serious dent in the prosecution

case. Such inconsistencies give rise to reasonable doubt and make

it unsafe to rely implicitly on the version projected by the

prosecution on this aspect. In criminal jurisprudence, where the

benefit of doubt must go to the accused, such infirmities

necessarily operate in favour of the defence.

48. It is a well-settled principle of criminal jurisprudence that the

credibility of a witness is tested on the touchstone of consistency,

probability, and conformity with the earliest version of events.

When a witness makes contradictory statements at different stages

of the proceeding, or introduces vital facts for the first time at a

later stage which were absent in the statement made at the

earliest opportunity, such conduct materially affects the reliability

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C.R.A. 144 of 1988

of that witness. The law attaches great importance to the earliest

version because it is presumed to be free from deliberation,

tutoring, or embellishment. Therefore, a very vital omission in the

initial statement particularly regarding material facts amounts to a

contradiction in substance and cannot be treated as a minor

discrepancy.

49. Where a witness improves upon his or her earlier version by adding

new facts that go to the root of the prosecution story, the

evidentiary value of such testimony becomes doubtful. Material

improvements or omissions shake the credibility of a witness

because they indicate either afterthought or an attempt to tailor

the evidence to suit the prosecution case. In such circumstances, it

becomes unsafe to place implicit reliance on the testimony of such

witnesses unless there is strong and independent corroboration.

50. In the present context, the prosecution case itself suggests that a

large number of villagers witnessed the alleged assault and that

there were several houses surrounding the place of occurrence. In

a situation like this, the natural and expected course for the

prosecution would be to examine independent local witnesses who

could provide unbiased accounts. Independent witnesses residing

nearby would be the most natural witnesses to the occurrence.

However, the prosecution has chosen not to examine any such

independent witnesses without offering any satisfactory

explanation. This deliberate withholding of natural witnesses gives

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C.R.A. 144 of 1988

rise to an adverse inference against the prosecution, as it creates a

legitimate doubt whether those witnesses would have supported

the prosecution version.

51. The evidence of P.W.6 Ganesh Santra further highlights the

weakness of the prosecution case. P.W.6 stated that he saw the

victim being assaulted by several persons whom he did not know.

His statement does not support the prosecution’s attempt to

specifically implicate the named appellants. Rather, it introduces

uncertainty regarding the identity of the assailants. If a witness

present at the spot could not identify the alleged assailants, the

prosecution version regarding the specific involvement of the

accused persons becomes doubtful.

52. Moreover, it is evident from the record that the learned Trial Court

placed reliance upon what P.W.6 was alleged to have stated before

the Investigating Officer, notwithstanding the fact that P.W.6 did

not admit to having made any such statement. This approach is

legally untenable and contrary to the settled principles governing

appreciation of evidence. A statement recorded under Section 161

of the Code of Criminal Procedure is not substantive evidence. Its

use is strictly circumscribed by law and is confined to the limited

purpose of contradicting a witness in the manner prescribed under

Section 145 of the Evidence Act.

53. Where a witness does not admit having made a particular

statement before the Investigating Officer, the prosecution is

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C.R.A. 144 of 1988

required to duly prove such contradiction through the Investigating

Officer by drawing his attention to the specific portion of the

previous statement. Unless this procedure is scrupulously followed,

the alleged prior statement cannot be read in evidence. In the

absence of such proof, the contents of a Section 161 statement

remain legally inconsequential and cannot be treated as

substantive material against the accused. Therefore, any reliance

placed by the Trial Court on such unproved and disputed prior

statements amounts to a clear misapplication of evidentiary rules

and vitiates the finding to that extent.

54. Further, the testimony of P.W.7, who was the medical practitioner

attending the victim immediately after the occurrence, does not

support the prosecution case regarding the identity of the

assailants. P.W.7 categorically stated that he was called by P.W.4

and was informed that her husband’s brother had been assaulted.

Significantly, this witness did not disclose the names or identities

of any assailants. Being an independent witness who came into the

picture immediately after the incident, his silence on the identity of

the offenders assumes importance. It weakens the prosecution’s

version that the assailants were clearly known and named from the

outset.

55. The evidence of P.W.11, the Investigating Officer, also gives rise to

serious doubts. He stated that the place of occurrence was in front

of ‘Shama Sangha Club’ and was the first witness to mention the

25

C.R.A. 144 of 1988

name of this club. None of the other prosecution witnesses referred

to the alleged place of occurrence by naming the ‘club ghar.’ This

omission on the part of other witnesses creates a discrepancy

regarding the exact situs of the incident. When the Investigating

Officer introduces a specific location for the first time, unsupported

by prior witness accounts, it casts doubt on the certainty and

consistency of the prosecution story.

56. Additionally, P.W.11 admitted that he did not seize any blood-

stained earth from the place of occurrence. In a case involving an

alleged assault resulting in injuries, the non-seizure of blood-

stained earth or other physical evidence from the scene is a serious

lapse in investigation. Such omission deprives the prosecution of

valuable corroborative evidence and raises questions about

whether the alleged place of occurrence was properly verified.

57. More importantly, P.W.11 clearly admitted that he did not examine

P.W.12 during the investigation and conceded that it was a mistake

on his part. As a result, no prior statement of P.W.12 was recorded

under Section 161 Cr.P.C. The testimony of P.W.12 before the Trial

Court thus emerged for the first time in Court without any prior

version on record. Such evidence, lacking the safeguard of prior

examination and being introduced without investigative scrutiny,

becomes inherently weak and unreliable. The defence was also

deprived of the opportunity to confront the witness with prior

statements, thereby affecting the fairness of the trial.

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C.R.A. 144 of 1988

58. Taken cumulatively, these aspects reveal significant investigative

lapses, inconsistencies, and improper reliance on inadmissible

material. The Trial Court, instead of scrutinizing these deficiencies

with caution, appears to have overlooked them and based its

conclusions on legally impermissible considerations. This results in

material irregularity and illegality in the appreciation of evidence.

59. In view of the aforesaid facts, circumstances, and the legal position

discussed above, the impugned judgment suffers from serious

infirmities. The findings recorded therein cannot be sustained in

the eye of law. Consequently, the judgment is liable to be set aside

as it fails to meet the standard of proof and legal scrutiny required

in a criminal trial.

60. Thus, the instant appeal be and the same is hereby allowed.

61. The impugned judgment and order of conviction dated March 30,

1988 passed by the learned Trial Court in connection with Sessions

Trial Case No. 13

th

April, 1987 is hereby set aside.

62. Appellants are on bail. They are to be discharged from their

respective bail bonds and be set at liberty, if they are not wanted

in connection with other case.

63. In terms of the mandate of Section 437A of the Code of Criminal

Procedure (corresponding to Section 483 of the Bharatiya Nagarik

Suraksha Sanhita, 2023), the appellant is required to execute bail

bonds with adequate sureties. Such bonds, upon execution, shall

remain valid and operative for a period of six months, so as to

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C.R.A. 144 of 1988

ensure the availability and appearance of the appellant before the

higher court as and when called upon, thereby safeguarding the

due course of justice.

64. Let a copy of this judgment along with the Trial Court record be

sent down to the Trial Court immediately for necessary compliance.

65. Urgent Photostat certified copy of this order, if applied for, be given

to the parties on payment of requisite fees.

(Prasenjit Biswas, J.)