Summary
Murder convictions aided by Section 149 could not stand where only four persons remained found guilty and no others were found to constitute the unlawful assembly. Independently, material proved omissions undermined the asserted eyewitness accounts, and the deceased’s later company with other people defeated the last-seen inference. The Court clarified proper confrontation and proof of contradictions. All four appellants were acquitted and ordered released unless required in another case.
Issues
- Whether Section 149 liability survived without a finding of an assembly of at least five.
- How prior police statements and material omissions must be proved and assessed.
- Whether the last-seen evidence excluded other possible perpetrators.
Provisions considered
- Sections 141, 149 and 302, Indian Penal Code, 1860The High Court sustained only four convictions without finding other assembly participants, so Section 149 could not support murder liability; it had not substituted Section 34. (¶¶ 4, 18)
- Sections 161 and 162, Code of Criminal Procedure, 1973Police statements have restricted evidentiary use; significant contextual omissions may amount to contradictions when duly confronted and proved. (¶¶ 5, 6, 7, 10)
- Sections 145 and 155(3), Indian Evidence Act, 1872Contradiction requires identifying the relevant prior passage to give an opportunity to explain, then proving it by admission or the recording officer. Only material discrepancies justify discrediting testimony. (¶¶ 8, 9, 10, 12, 13, 14, 16)
Held
- An unlawful assembly requires at least five persons. After acquitting another accused, the High Court upheld only four convictions and did not find additional persons forming part of the assembly. Section 149 therefore could not sustain these convictions; the High Court had not converted the charge to Section 302 read with Section 34. (¶ 4)
- Not every omission is a contradiction. It must be significant and relevant in its context. For contradiction, the witness must be specifically confronted with the relevant part of the earlier statement, properly identified in the deposition; admission proves it, while denial requires proof through the investigating officer. This procedure supplies a fair chance to explain. (¶¶ 6, 7, 8, 9, 10)
- The trial court had not properly marked the prior passages used for contradiction. On the evidence examined, major omissions proved through the investigating officer undermined claims of seeing the assault, armed flight or late-evening association. There was no reliable evidence linking the appellants to the assault. (¶¶ 10, 11, 12, 13, 14, 15, 16, 17)
- The remaining evidence showed one appellant taking the deceased to a political meeting in the afternoon, after which the deceased was among others. Last-seen evidence cannot exclude other involvement where subsequent company is established; that afternoon association did not sufficiently connect the appellant with the later murder. (¶¶ 12, 17)
- The convictions and sentences under Sections 302/149 were set aside, all appellants acquitted and the appeal allowed. Release was ordered unless custody was required for another offence. (¶¶ 18, 19)
Result
Appeal allowed; all four appellants acquitted. Release directed unless custody was required in another case.