contradictions and omissions

“Recording of Contradictions, Omissions,

Section 145 and 157 of the Indian

Evidence Act and Section 161 and 162 of

the Code of Criminal Procedure”

Contradictions and Omissions in

Criminal Trial

INTRODUCTION

There are several modes of impeaching the

credit of witnesses and proving of contradictions is one

of them. Modes of impeaching credit of witness are laid

down u/s.155 of Indian Evidence Act, 1872.

Who can impeach credit of

witness?

l As per Section 155(3) of Indian

Evidence Act, 1872 credit of a witness may be

impeached by

lthe adverse party (accused) or

lwith the consent of the court by the party who

calls him (Prosecution),

l by proof of former statements

inconsistent with any part of his evidence

which is liable to be contradicted.

Object and Effect of proved contradiction

If contradictions are proved then it is

the duty of the court to discard testimony of

such witness. His evidence may be considered

as untrustworthy.

Meaning of Contradiction

Oxford Dictionary :

'To contradict' means 'To affirm the contrary'

Pointing out the inconsistency or omission on

the material point in previous statement

(statement before police) of a witness is called

contradiction.

Types of Contradictions

1) Direct Contradiction and

2) Contradiction by way of omission.

(All omissions are not contradictions but the

omissions on material point are only considered as

contradictions. Explanation of S.162 of Cr.P.C.)

Meaning of Omission

If witness has deposed in the examination-in-

chief a certain thing or fact which he has

omitted to state before the police in his

statement, said fact is called omission i.e. a

thing which witness states for the first time

before the Court.

Illustration:

Deposition: He saw accused B inflicting blow

on person of C.

Statement before Police: He saw accused A

had inflicted blow on person of C.

Witness omitted to state before police that, he

saw accused B inflicting the blow.

Why Omissions and Contradictions

are required to be proved?

Statement recorded under S.161 of Cr.P.C.

cannot be used as evidence.

As per S.162 of Cr.P.C. such statement or part

of such statement may be used by accused or

by prosecution, with the permission of Court,

only to contradict such witness in the manner

provided u/s.145 of the Evidence Act.

S.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.

Tahsildar Singh Vs. State of U.P.

AIR 1959 SC 1012.

Law regarding contradictions and the

procedure for the proof thereof has been

discussed and guided by the six judges of the

Hon'ble Supreme Court in this leading case.

How to record and prove a

Contradiction?

Firstly, the contradiction is to be brought

on record in the manner laid down in S.162 of the

Cr.P.C. and S.145 of Evidence Act.

Secondly, contradiction is to be proved

except when witness has admitted the

contradiction, by cross examining I.O. who

recorded the statement under S.161 of the Cr.P.C.

If this is not done, the contradictions

brought on record have no effect at all.

The manner of proving a

contradiction is best brought out by

an illustration.

Illustration

STATEMENT OF THE WITNESS RECORDED U/S.161 OF Cr.P.C.

Shri Soma Goma Sawant, Age 45 years, Occ. Business,

R/o. Girgaon, Mumbai states that, yesterday on 01/12/2008 I returned

from Pune by S.T.Bus. My younger brother told me that Accused

Suresh and Baban who are residing in the same vicinity abused him.

This morning at about 8-00 A.M., I along with brother

Bunty, were proceeding towards the house of Suresh and Baban to

ask them, why they abused on 01/12/2008.

When we were proceeding towards their house, Accused

Suresh and Baban were coming from the opposite direction on the

road. At that time, I asked both Accused, as to why they abused

Bunty? AT THAT TIME, MY BROTHER BUNTY, INFLICTED SLAP

ON THE FACE OF ACCUSED SURESH (DIRECT

CONTRADICTION). Thereafter, accused Suresh inflicted stick blow

on person of Bunty. Bunty sustained injury on his right hand.

Thereafter, both Accused went away. I took my brother to the Police

Station. He lodged FIR.

Sd/-

Investigating Officer

DEPOSITION OF THE WITNESS BEFORE THE

MAGISTRATE/COURT.

Shri Soma Goma Sawant, Age 45 years, Occ. Business, R/o. Mumbai.

Examination-in-chief by Public Prosecutor

I am residing along with my wife, two minor children and

one younger brother namely Bunty. On 01/12/2008 I returned from Pune

by Car (Omission). My younger brother told me that Accused Suresh

and Baban who are residing in the same vicinity abused him.

On 02/12/2008 at about 8-00 A.M., I along with brother

Bunty, were proceeding towards the house of Suresh and Baban to ask

them, why they abused on 01/12/2008.

When we were proceeding towards their house, Accused

Suresh and Baban were coming from the opposite direction on the road.

At that time, I asked both Accused as to why they abused Bunty?

THEREAFTER, ACCUSED BABAN, INFLICTED STICK BLOW ON

PERSON OF BUNTY. (OMISSION). Bunty sustained injury on his LEFT

(OMISSION) hand. Thereafter, both Accused went away.

I took my brother to the Police Station. Bunty lodged FIR.

He was referred to the Govt. Hospital.

In the above example, there are three

omissions and one direct contradiction.

Omissions:

1) I returned from Pune by Car.

2) Accused Baban, inflicted stick blow on person of Bunty.

3) Bunty sustained injury on his LEFT hand.

Direct Contradiction:

At that time, my brother Bunty, inflicted slap on the face of

accused Suresh.

How contradiction is to be proved?

Q.1)Did it happen that you did not see Baban inflicting stick blow on person

of Bunty ?

Ans. No I did see.

Q.2)Is it true that the police recorded your statement on 02/12/2008 ?

Ans. Yes.

Q.3) You did not tell the police that you saw Accused Baban inflicting stick

blow on the person of Bunty?

Ans. Yes, I did not tell the police.

(If witness admits that he did not tell said fact, omission/improvement

is proved and can be directly used as proved contradiction.) OR

Ans. I did tell. (If he did not admit then next question is-)

Q.4) It has seen from your statement before the police that you did not tell

the police that you saw Accused Baban inflicting stick blow on the person of

Bunty.

(While asking this question, attention of the witness should be drawn

to the omission by requesting the court to verify this fact from police

statement and to note in writing that the attention of the witness is drawn to

the omission).

Ans. I did tell the police.

Q.5) Can you explain that why said statement is not to be found in your

statement before the police ?

(An opportunity to explain must be given to the witness).

Ans. I can't explain.

Q.6) I suggest that your statement in the court that you saw Accused

Baban inflicting stick blow on person of Bunty is false.

(This suggestion is must to deny the evidence of the witness before

the Court).

Ans. The suggestion is false

(Sometimes the advocate is tempted to ask that you told police that

accused Suresh inflicted stick blow and now before the court you are

saying name of accused Baban. When this witness has not stated anything

regarding role of Accused Suresh, do not touch it otherwise it will prove the

presence of Accused Suresh at the place of incident.)

At this stage contradiction is merely brought on record.

TO INVESTIGATING OFFICER.

Q1) Witness Soma Goma Sawant did not tell in his statement recorded by

you that he saw accused Baban inflicting stick blow on person of Bunty ?

Ans. No, he did not say so.

Now, contradiction is proved.

How direct contradiction is to be proved?

Q.1)Did it happen that your brother Bunty inflicted slap on the face of

Accused Suresh ?

Ans. I did not see my brother Bunty inflicted slap on person of Accused

Suresh.

Q.2)Is it true that police recorded your statement during investigation on

02/12/2008 ?

Ans. Yes.

Q.3)Did it happen that you told police that you saw your brother Bunty

inflicting slap on person of accused Suresh ?

Ans. I did not tell police accordingly.

Q.4)(The attention of the witness should be drawn by underlining said

statement and simultaneously it is to be requested to the court to note

that attention of witness is drawn to the underlined portion marked 'A')

It is seen from your statement before the police that you have

stated portion marked “A” before the police while recording your

statement ?

Ans. I did not tell the police.

Q.5)Can you explain why said statement (portion marked “A”)

appears in your statement before the police?

(An opportunity to explain must be given to the witness.)

Ans. I can't explain.


Q.1) Whether witness Soma Goma Savant stated in his statement

recorded by you the portion marked 'A' ?

Ans. Yes, he has stated portion marked “A” THAT HIS BROTHER

BUNTY INFLICTED SLAP ON PERSON OF ACCUSED SURESH.

Now, direct contradiction is proved in the light of given

questionnaire.

Effect in given example

Effect of proved contradiction is that

evidence of witness that Accused Baban had

inflicted stick blow on person of Bunty is not

trustworthy and if there is no other evidence,

Bunty may well claim acquittal.

Further, as witness has not deposed

that Accused Suresh had inflicted stick blow on

person of Bunty, Suresh is also entitled to the

same benefit.

Is it necessary to prove

contradictions in FIR ? Yes.

Merely reading the contents of proved

FIR by court for the purpose of finding out

omission and contradiction is not enough.

Because to prove omission and contradiction, the

attention of witness must be drawn to the

contents of FIR.

Secondly, if the informant for the first

time deposed before the court a thing which was

absent in FIR then an opportunity to explain must

be given to him that why this particular fact is

absent in FIR.

Prosecution : Hostile witness

If prosecution witness is

resiling in examination-in-chief from his

previous statement, prosecution can, with

permission of the Court, use such statement

to contradict said witness in the manner

provided by S.145 of the Evidence Act, 1872.

Q.1)Did it happen that you saw accused assaulting the victim ?

Ans. I never saw Accused assaulting the victim. (Seek permission of

court to cross-examine the witness by declaring him hostile pointing

out to the court portion marked “A” in his statement before police.

Court may pass the order accordingly.)(In the present example it is

prosecution's case that witness saw Accused assaulting the victim

and statement of said witness is recorded by police accordingly. But

this witness never deposed in his examination in chief that he saw

Accused assaulting the victim).

Q.2)Is it correct that, your statement was recorded by the police on

such and such date ?

Ans. Yes, my statement was recorded by police. (Draw the attention

of witness to his statement before the police and mark that

statement portion as “A” and request the court to note that the

attention of witness is drawn towards portion marked “A” in his

statement before police).

Q.3)In your statement before the police, at portion marked “A”, it

appears that YOU SAW ACCUSED ASSAULTING THE VICTIM ?

Ans. I have not stated accordingly.

Q.4)Can you afford any explanation why portion marked “A” appears

in your statement before police (such an opportunity to explain must

be given to the witness).

Ans. I can't explain

Q.5)You have stated before police portion marked “A” that YOU

SAW ACCUSED ASSAULTED THE VICTIM ?

Ans. It is false.

Q.6)You are deposing falsely that you never saw Accused assaulting

victim ?

Ans. It is false.


Q.1)Whether this particular witness stated portion marked “A” before

you while recording his statement that he saw Accused assaulting

the victim ?

Ans. Yes, he has stated portion marked “A” before me while

recording his statement that he saw Accused assaulting the victim.

Whether portion Marked 'A' is to

be exhibited?

As per para 29 of Chapter VI of

Criminal Manual, it is necessary to give exhibit to

such portion marked “A”. Further, whenever

exhibits are given or portion marks are marked as

'A','B','C','D','E...and so on serially, then it is very

convenient to point out the omissions and

contradictions and to refer those contradictions in

the judgment.

Chapter VI of Criminal ManualPara 29. (1) When a statement recorded under Section 161 of the

code of Criminal Procedure,1973 is used in the manner indicated

in Section 162 of the Code, the passage which has been

specifically put to the witnesses in order to contradict him should

first be marked for identification and exhibited after it is proved.

(2) The method of proving such a statement is to question the

Police Officer, who had recorded the statement whether the

passage marked is a true extract from the statement recorded by

him.

(3) When a statement recorded under section 161 of the Code is

used to contradict a witness, the specific statement put to the

witness should be set out accurately in the record of the deposition

of the witness.

(4) Omissions in the statement recorded under Section 161 should,

if denied by the witness, be proved by questioning the Police

Officer whether the witness had made the statement which he says

he had.

Section 157 of the Evidence Act

Former statements of witness may be proved

to corroborate later testimony as to same fact-

In order to corroborate the testimony

of a witness, any former statement made by

such witness relating to the same fact at or

about the time when the fact took place, or

before any authority legally component to

investigate the fact, may be proved.

First information report (FIR)

FIR is not substantive evidence in

the case, but it may be used either under S.145

of the Evidence Act to contradict the testimony

given by the informant in Court or under the

S.157 of the Act to corroborate the testimony

of the informant.

Where the informant is not examined

as a witness at the trial, FIR cannot be used for

any purpose.

Important Case laws

Effect of signing of statement in contravention

of Section 162 of Cr.P.C.

It does not make it inadmissible.

It merely puts the court on caution and may

necessitate in-depth scrutiny of the evidence. But the

evidence on this account cannot be rejected outright.

(State of U.P. Vs. M.K. Anthony, MANU/SC/0123/1984)

Reading over of the police statement to

the witness before he enters the box.

It does not amount to contravention of the

prohibition contained in S. 162(1).

But the fact of reading over of the statement

may affect the probative value of the evidence

of the witness.

(Nathu Manchhu Vs. The State of Gujarat,

MANU/GJ/0061/1978 Full Bench)

Proper course to be adopted when

statement of witness is not recorded

during investigation.

It is necessary for the investigating

agency to have recorded his statement even at the

stage of trial by seeking permission of the court for

the same.

It is only after his statement would be

recorded, the court would be in a position to form an

opinion as to whether the evidence of such witness

would be necessary, desirable or even essential for a

just decision of the case. Without knowing what the

witness is likely to say, no proper opinion could have

been formed by the court.(Kishore Vs. State of Maharashtra 2012 All MR (Cri.) 2886)

If witness is not confronted with

his previous statement-

Court cannot subsequently use the statement

even for drawing the adverse inference against

the witness.

(Dadu Laxmi Reddy Vs. State of A.P., AIR 1999

SC 3255)

FIR is not an encyclopedia. All facts and

circumstances in minute detail need not be

given in the FIR. Hence, omission to give

motive of crime in FIR is not an omission.

(C.Mangesh and others Vs. State of

Karnataka, AIR 2010 SC 2768)

Omission to give motive of crime

in FIR is not an omission.

Minor contradictions

Witnesses are not expected to give

parrot like statements and contradictions of

minor nature are bound to occur in every

criminal case. Normal discrepancies do not

corrode credibility of witnesses. It is the

duty of the trial Court appreciating evidence

to sift grain from the chaff.

(Dilip Mahadeorao Ingale Vs. State of Maharashtra,

2009 ALL MR (Cri) 3356)

Minor discrepancies in police

statement not fatal

Minor discrepancies in oral

evidence not touching core of case cannot

be ground for rejection of evidence in

entirety.

Entire evidence as a whole is

required to be considered.

(State of U.P.Vs. Krishna Master, AIR 2010 SC 3071)

Thank

YouMahesh T. Patankar

C.J.JD.&J.M.F.C., Jaysingpur.