India: Omission & Contradiction While Recording Evidence

Contradiction – The dictionary defines it as contradiction is the act of saying something that is opposite or very different in meaning to something else what is said earlier.1 In trials, while cross examination a contradiction happens when a witness under oath says something that is opposite or very different in the meaning or other wise to what is mentioned in the previous statement recorded.

Omission - The dictionary defines it as something that has been left out or excluded. In trials, while cross examination, an omission takes place when the witness purposely or otherwise misses out/omits any fact or statement he has made in his/her statement recorded earlier.

So, Omissions and Contradictions relate to previous statement made by a witness (most commonly u/s 161 of Code of Criminal Procedure 1973). Omission means missing to state something from the earlier statement. Contradiction means stating something different from the earlier statement. Causes, and more particularly, effects of such 'something missing (omissions)' and 'something different (contradictions)' have to be dealt with by the trial Judge while weighing and appreciating the testimonies of witnesses.

Credibility of testimony of witness

The testimony of the witness shall create and inspire confidence in the mind of the sitting judge. Omissions and contradictions come in the way of inspiring confidence about credibility of the witness and the evidence. The terms contradiction and omission are not defined anywhere in the Indian Evidence Act, 1872 (the Evidence Act) or the Code of Criminal Procedure, 1973 (Cr.P.C) but a diminutive reference is perceived under Section 155 of the Evidence Act. Section 155(3) reads as "by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted". U/sec. 157 the former statement of witness may be proved to corroborate the later testimony given in the court during the examination– in-chief and cross examination as of the same fact. As such, only in statement made by a witness as substantive piece of evidence before the court can be corroborated with the former statement made by him but the question arises when it contradicts the earlier version. Then by conjointly reading section 155(3) its credit gets impeached.

Recording of Contradiction and Omission

Steps for how and when shall the counsel record the Contradiction during the evidence.

  1. When the Witness is called for his testimony, the advocate for defense may ask the witness any question in order to dig up the contradictions in the statement of the witness recorded before the investigating officer and of what he is deposing in the court. If any such part of his statement u/s 161 of Cr.P.C is found contradictory the said part of his statement shall be brought to the notice of witness himself and he shall be further questioned to the truthfulness of the same. If the witness admits the said contradiction, then it is proved; if he denies to the said contradiction then the presiding judge shall mark the said part of the statement for identification, commonly called as "Portion mark or passage mark".
  2. In order to prove the contradiction, the advocate shall put questions to the investigating officer who recorded the statement of the witness U/s 161, as to whether the Portion marked is true extract and was it recorded by him. If there is some additional information or any contradictory statement by the witness which is different from what has been stated in his statement u/s 161 of Cr.P.C then a question to that effect as why is such an information was not recorded by the investigating officer may be put to him in order to prove the contradiction. Likewise, the contradiction of the statement can be proved.

Hon'ble Supreme Court, in V. K. Mishra and another Vs. State of Uttarakhand and another2, has laid down the procedure of bringing on record contradictions and omissions.

Para-18 of the said citation reads as under - "Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is to be drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter, when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction."

Importance of brining contradiction and omission on record and how can it effect the case

The Hon'ble Supreme Court, in case of Bhoginbhai Hirjibhai Vs. State of Gujarat3 held that:

"Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance. More so, when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses"

The Hon'ble Supreme Court in State of U.P. Vs. M. K. Anthony4, has held that:

"Appreciation of evidence, the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, the Court should scrutinize the evidence keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by him and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole"

Conclusion

From the above reading the importance to prove contradiction and omission can be symbolized. It is true that if contradictions and omissions are proved they can change the faith of the case for the defense. The proof of the same can help an innocent accused person who must have been roped in a false case by presenting false and twisted case against him. The proof of Contradiction is vital to destroy the credibility of the case of prosecution. Proved contradictions and omissions which can affect the case of prosecution plays a vital role while the Judge decides the faith of the case by appreciating the evidence he has recorded throughout the trial. Cross examination is an art and proving contradiction and omission makes the art even more artistic.

Footnotes

1. https://dictionary.cambridge.org/dictionary/english/contradiction

2. AIR 2015 S.C. 3043

3. AIR 1983 SC 753

4. AIR 1985 SC 48

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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