ALAUDDIN & ORS.versusTHE STATE OF ASSAM & ANR.

                  [2024] 6 S.C.R. 20 : 2024 INSC 376

                            Alauddin & Ors.
                                   v.
                       The State of Assam & Anr.
                     (Criminal Appeal No. 1637 of 2021)
                                  03 May 2024
                [Abhay S. Oka* and Ujjal Bhuyan, JJ.]

                            Issue for Consideration
       Matter pertains to correctness of the order convicting the appellants
       for the offences punishable u/ss. 302/149 IPC when the statements
       in evidence full of omissions and contradictions and the evidence
       of last seen theory and motive not established.

                                   Headnotes
       Penal Code, 1860 – ss. 302/149 – Murder and unlawful assembly
       – Conviction of the appellants for the offences punishable u/
       ss. 302/149 for committing murder of the victim by the courts
       below – Correctness – Plea that statements in evidence of
       prosecution witness full of omissions and contradictions,
       and evidence of last seen theory and motive not established:
       Held: Trial court did not follow the correct procedure while recording
       the contradictions – Material omissions in the testimony of one
       of the prosecution witness affected the reliability of the witness –
       Material part of the testimony of the other prosecution witnesses
       was a significant omission which amounted to contradiction – No
       reliable evidence to show the involvement of the appellants in
       assaulting the deceased – Testimony of so-called eyewitnesses
       could not be relied upon – 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 – Evidence shows that after the deceased was seen in
       the company of the accused, he was in the company of others as
       well – Theory of last seen together not of any assistance to the
       prosecution since the involvement of other persons in the offence
       not ruled out – Theory of last seen together is rejected – Thus, the
       prosecution failed to bring home the charge against the appellants
       – Impugned judgments by the courts below set aside – Code of
       Criminal Procedure, 1973 – ss.161, 162 – Evidence Act, 1872 –
       s.145. [Paras 5, 12-18]
* Author
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              Alauddin & Ors. v. The State of Assam & Anr.


     Code of Criminal Procedure, 1973 – ss. 161, 162, 164 – Evidence
     Act, 1872 – s. 145 – Statements to police, use of, in evidence
     – Omission, when amounts to contradiction – Reliability of
     such statements:
     Held: When 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 u/s.161 (1) or s.164 has
     been recorded states factual aspects before the Court which
     he has not stated in his prior statement recorded u/s.161 (1) or
     s.164, there is an omission – There would 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 –
     Explanation to s. 162 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 contradiction
     provided it satisfies the test laid down in the explanation u/s.
     162 – When an omission becomes a contradiction, the procedure
     provided in the proviso to sub-Section (1) of s.162 must be
     followed for contradicting witnesses in the cross examination –
     As per proviso to sub-Section (1) of s.162, the witness has to
     be contradicted in the manner provided u/s. 145 of the Evidence
     Act – Object of this requirement 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 – This is a
     rule of fairness – Furthermore, every contradiction or omission
     is not a ground to discredit the witness or to disbelieve his/her
     testimony – Minor or trifle omission or contradiction 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 – 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. [Paras 7-9]
     Penal Code, 1860 – ss. 141, 149 – Unlawful assembly – When:
     Held: s. 141 defines unlawful assembly as an assembly of five or
     more persons – U/s. 149, every member of an unlawful assembly
     is guilty of the offences committed in the prosecution of the
     common object of the unlawful assembly – Thus, to apply s. 149,
     there has to be an unlawful assembly – On facts, five appellants
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      were convicted for the offence punishable u/s. 302 with the aid of
      s. 149 and ultimately, the High Court held that only four accused
      were guilty – High Court did not hold 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 s.141 – Appellants could not have been
      convicted for the offence punishable u/s. 302 with the aid of s.
      149. [Para 4]

                              Case Law Cited
           Tahsildar Singh & Anr. v. State of U.P. [1959] Supp. 2
           SCR 875 – relied on.

                                List of Acts
      Code of Criminal Procedure, 1973; Evidence Act, 1872; Penal
      Code, 1860.

                             List of Keywords
      Evidence; Omissions and contradictions; Last seen theory and
      motive; Material omissions; Reliability of the witness; Offence
      of murder; Statements to the police; Unlawful assembly; ss.
      161, 162, 164 of CrPC; s. 145 of the Evidence Act; ss. 141 and
      149 IPC.

                            Case Arising From
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1637
      of 2021
      From the Judgment and Order dated 13.09.2021 of the Gauhati High
      Court in CRLA No. 205 of 2019
                         Appearances for Parties
      Siddhartha Dave, Sr. Adv., Farrukh Rasheed, Ms. Jamtiben Ao, Md.
      Ekhlakh Alam, Seraj Ahmad, Ms. Reshma Bai Bhukya, Mahesh
      Kumar, Advs. for the Appellants.
      Nalin Kohli, Sr. A.A.G., Anshul Malik, Sarthak Sharma, Shuvodeep
      Roy, Pravir Choudhary, Ms. Malini Poduval, Ms. Babita Sant, Ms.
      Niharika Dwivedi, Vaibhav Tiwari, Reepak Kansal, Surender Tyagi,
      Mrs. Annwesha Deb, Mrs. Sneha Rani, Prince Arora, Pankaj Kumar
      Sharma, Advs. for the Respondents.
[2024] 6 S.C.R.                                                         23

              Alauddin & Ors. v. The State of Assam & Anr.


                Judgment / Order of the Supreme Court

                                Judgment
     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 3rd 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 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 evidence
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      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 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
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              Alauddin & Ors. v. The State of Assam & Anr.


     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 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 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
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           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 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 the 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 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.
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              Alauddin & Ors. v. The State of Assam & Anr.


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 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 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. 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
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      the portion of his 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
           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.
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                Alauddin & Ors. v. The State of Assam & Anr.


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 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 Bhagwan 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 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


1   [1959] Supp. 2 SCR 875
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      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 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?” and he answers “yes”,
      then the statement which does not contain such recital is
      put to him as contradiction. This procedure involves two
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              Alauddin & Ors. v. The State of Assam & Anr.


           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 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 3rd 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
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      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),
      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 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
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              Alauddin & Ors. v. The State of Assam & Anr.


           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 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 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)
34                                                         [2024] 6 S.C.R.

                     Digital Supreme Court Reports


      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.
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 was an influential leader
    of the Congress. Therefore, after 4.00 p.m., there were also persons
[2024] 6 S.C.R.                                                          35

              Alauddin & Ors. v. The State of Assam & Anr.


     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 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.

     Headnotes prepared by: Nidhi Jain                   Result of the case:
                                                            Appeal allowed.