NDLI: Alauddin & Ors. Vs. The State of Assam & Anr.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Omissions and contradiction
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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]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 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]
Judge	Hon'ble Mr. Justice Abhay.S. Oka
Neutral Citation	2024 INSC 376
Petitioner	Alauddin & Ors.
Respondent	The State Of Assam & Anr.
SCR	[2024] 6 S.C.R. 20
Judgement Date	2024-05-03
Case Number	1637

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