ALAUDDIN & ORS. versus THE STATE OF ASSAM & ANR.
[2024] 6 S.C.R. 20, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
* 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]
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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.
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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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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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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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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.