The eyewitness the police never questioned: Calcutta HC sets aside a conviction from a 2008 assault
A witness produced at trial without any statement recorded under Section 161 CrPC deprives the defence of contradiction, the Court holds, and cannot anchor a conviction.
The prosecution’s star eyewitness was the man riding pillion when the assault is said to have happened. In cross-examination he admitted that the investigating officer had never questioned him, and that his account appeared nowhere in the police case diary. On 18 September 2026, in Anil Barui v. State of West Bengal and Anr., Justice Uday Kumar of the Calcutta High Court set aside concurrent convictions resting in part on that testimony, holding that a conviction cannot lawfully be anchored on the un-investigated evidence of a surprise witness.
Eighteen years, three courts
The incident is alleged to have occurred on 9 May 2008 at about 3 pm near Markha village. The complainant was riding his motorcycle towards Beliatore with a companion when, on the prosecution case, the petitioner intercepted them, forced him to alight and assaulted him on the head, neck and left hand with a lathi, causing him to lose consciousness. He was taken to the Beliatore Primary Health Centre and then referred onward.
No case was registered on verbal reporting. A complaint was said to have been sent by registered post to the Superintendent of Police, Bankura, on 30 May 2008, and a petition under Section 156(3) CrPC was filed before the Chief Judicial Magistrate. The FIR was finally registered on 15 August 2008 — three months after the incident — under Sections 323, 324 and 326 IPC.
The chargesheet was under Section 326. Thirteen witnesses were examined; the defence examined none, relying on cross-examination. On 30 August 2011 the Judicial Magistrate acquitted the petitioner of the major charge under Section 326 but convicted him under Section 323, with three months’ rigorous imprisonment. The Additional Sessions Judge affirmed that on 29 August 2017. The revision under Section 401 read with Section 482 CrPC followed.
A delay nobody proved away
The State defended the delay on the human facts: after the assault the family’s concern was treatment rather than paperwork, the victim having been referred onward in a semi-conscious condition. The medical officers examined as PW 8 and PW 13, with the exhibited documents, established injuries and prolonged treatment. Relying on Edakkandi Dineshan v. State of Kerala, the Public Prosecutor argued that minor omissions and defects in investigation do not entitle an accused to acquittal, and that concurrent findings on a minor hurt warranted no revisional interference.
The Court took a different view of what had to be proved. Prompt lodging of an FIR safeguards the authenticity of the prosecution’s initial version against later embellishment. Where an inordinate delay is unexplained and is compounded by admitted, long-standing land disputes between the parties, the possibility of false implication cannot be dismissed.
What weighed most was the absence of verification. The appellate court had accepted that the complaint was sent by post to the Superintendent of Police, while conceding that the investigating officer had never investigated whether any such complaint was sent — calling it a fault of the officer, and holding in the same breath that the prosecution case could not be washed out by it. The Court held that this reasoning treated a fatal lacuna as an irregularity. Where a three-month delay is unexplained by objective proof and the contemporaneous postal trail is neither exhibited nor verified by the police, the substratum of the prosecution case becomes untrustworthy.
Why Section 161 matters to the defence
The second finding is the one with the wider reach. Under Sections 161 and 162 CrPC, a statement recorded by the police during investigation gives the defence the tool of contradiction: the ability to confront a witness in the box with earlier omissions, improvements or variances. A witness produced at trial who was never examined during the investigation is a surprise production against whom that tool does not exist.
The Court drew on Ram Lakhan Singh v. State of Uttar Pradesh, where the Supreme Court scrutinised the practice of bringing forward witnesses never questioned by the police, and on Ram Bali v. State of Uttar Pradesh, which explains that the object of recording police statements is to ensure the accused knows the case and the material witnesses against him, avoiding surprise or concoction at trial. The first appellate court had treated the total absence of police examination as a minor irregularity; that, the judgment holds, was a patent illegality.
The Court also found that both courts below had erred in law by shifting the burden of proof onto the defence to establish innocence, and recorded that where doubts are substantial and the foundational pillars of the prosecution are broken, the benefit must be extended to the accused. Suspicion, however grave, cannot take the place of legal proof.
Order
The revisional application succeeded. The judgment and order of the Additional Sessions Judge, 2nd Court, Bankura dated 29 August 2017 in Criminal Appeal No. 36 of 2011, affirming the judgment of the Judicial Magistrate, 6th Court, Bankura dated 30 August 2011, were set aside. Anil Barui was acquitted of the charge under Section 323 IPC, the benefit of doubt being extended to him. The records were directed to be transmitted down to the trial and first appellate courts for compliance, and the case diary returned to counsel for the State.