No Independent Witness Examined Though Incident Occurred In Populated Locality: Calcutta High Court Acquits 1985 Murder Convicts After 38 Years
FIR being the earliest version of events, must be spontaneous and free from deliberation
Calcutta High Court
The Calcutta High Court has set aside a 1988 conviction of several accused in a murder case, holding that the prosecution’s failure to examine a single independent witness, despite the alleged assault occurring in a locality surrounded by houses and in presence of villagers, made it unsafe to sustain the conviction after nearly four decades. It noted significant investigative lapses, inconsistencies, and improper reliance on inadmissible material.
The Bench found shifting and mutually destructive versions given by the witness, regarding the lodging of the FIR, and held that such contradictions struck at the very foundation of the prosecution case. The FIR, being the earliest version of events, must be spontaneous and free from deliberation, and in the present case, the possibility of embellishment or external influence could not be ruled out, the Bench said.
Justice Prasenjit Biswas noting the fact that the, observed, “…the prosecution case itself suggests that a large number of villagers witnessed the alleged assault and that there were several houses surrounding the place of occurrence. In a situation like this, the natural and expected course for the prosecution would be to examine independent local witnesses who could provide unbiased accounts. Independent witnesses residing nearby would be the most natural witnesses to the occurrence. However, the prosecution has chosen not to examine any such independent witnesses without offering any satisfactory explanation. This deliberate withholding of natural witnesses gives rise to an adverse inference against the prosecution, as it creates a legitimate doubt whether those witnesses would have supported the prosecution version”.
“In cases involving multiple accused, the prosecution is under a duty to establish the specific role and participation of each accused person. Vague and omnibus allegations against a group of persons, without delineating individual acts, are inherently weak in nature and unsafe to form the sole basis of conviction. Criminal liability is personal, and in the absence of clear evidence regarding individual involvement, it would be hazardous to sustain a conviction”, the bench further observed.
The bench further emphasised that in cases involving multiple accused, the prosecution must establish specific roles. Vague and omnibus allegations are insufficient to sustain conviction, particularly where common object liability under Section 149 IPC is invoked.
Advocate Kallol Kumar Basu appeared for the appellant and Advocate Abishek Sinha appeared for the respondent.
The prosecution case originated from a complaint lodged by the wife of the deceased, alleging that her husband, was summoned to a late-night meeting at a village “club ghar” where he was assaulted by villagers over an alleged illicit affair, and later succumbed to his injuries.
The trial court had relied primarily on the testimonies of the widow (PW1), the victim’s brother (PW3) and sister-in-law (PW4), who claimed to be eyewitnesses to the midnight assault.
Now, upon examining the material relied on by the prosecution and the trial court, the Bench found the conduct of the witnesses inconsistent with normal human behaviour. Despite claiming that the victim was bleeding profusely from his nose, ear and mouth, none of them arranged medical help until the following morning.
The Court noted that such inaction, particularly by close family members witnessing a brutal assault, cast serious doubt on their presence at the scene and credibility as eyewitnesses. Further weakening the prosecution case was the absence of bloodstains on the victim’s seized clothes, despite repeated assertions of heavy bleeding.
“…inconsistent and self-contradictory statements on a crucial aspect like the lodging of the F.I.R. are not minor discrepancies but material contradictions going to the root of the prosecution case. The F.I.R. is the foundation of the prosecution story, and its authenticity, spontaneity, and timing are of paramount importance. When the maker of the F.I.R. herself gives conflicting versions about who drafted it, when it was drafted, and how it was recorded, the possibility of deliberation, tutoring, or subsequent embellishment cannot be ruled out”, the bench noted in the judgment.
Accordingly, the bench overturned the judgment of the Additional Sessions Judge, Midnapore, which had convicted the appellants under Sections 147 and 304 Part I read with Section 149 of the IPC and sentenced them to five years’ rigorous imprisonment.
Cause Title: Bishnupada Choudhury & Ors. v. The State of West Bengal [Neutral Citation: 2026:CHC-AS:260]
Appearances:
Appellant: Kallol Kumar Basu, Anindya Sunder Das, Md. Jannat UL Firduas, Rajsekhar Hota, Suman Haldar, Advocates.
Respondent: Abishek Sinha, Tirupati Mukherjee, Advocates.