ALAUDDIN & ORS. versus THE STATE OF ASSAM & ANR.

Citation: [2024] 6 S.C.R. 20 · Decided: 03-05-2024 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

* Author
[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]
[2024] 6 S.C.R. 
21
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

Excerpt shown. Read the full judgment & AI analysis in Lexace.