Contradiction and Omission

PREFACE

In criminal justice delivery system trial is genus of which contradiction and omission is species. To prove guilt of accused prosecution has to prove all ingredients of offence beyond all reasonable doubt. Evidence of prosecution is fundamentally emerges from investigation. Our criminal justice delivery system there are mainly four organs, those are,

A) Investigation by police or inquiry by court.

B) Prosecution evidence.

C) Defence evidence.

D) Judgment.

All these fields are inter-depended. And as we accepted longstanding legal maxim ‘Audi Alterum Partem – hear the other side’, at all stages other party gets opportunity to check evidence. To book culprit behind bar whole evidence adduced in the course of prosecution must be enough and well-established moreover it also proved on the touchstone of firmness and truthfulness of witnesses.

We have adopted three stage of oral evidence in our evidence taking procedure these are 

1) Examination in chief, 

2)Cross Examination

3) Re Examination if required. 

To inquire trustworthiness and truthfulness of witness contradiction and omission are very important. It helps defence and also to prosecution when particular witness turn over from his previous statement given during investigation or inquiry and not support prosecution case.

MEANING

What is term ‘contradiction’ and ‘Omission’?

As per oxford dictionary term ‘contradict’ (verb) means

‘1. denies (a statement).

2. deny a statement made by (a person).

3. be in opposition to or in conflict with. [contradiction noun].

Term ‘Omission’ emerges from verb ‘omit’ means:

1) Leave out; not insert or include

2) leave undone.

3) (foll. by verbal noun or to + infin.) fail or neglect. [Latin omitto omiss-]

Omission -

1) omitting or being omitted.

2) Thing omitted.

So, if we took plain meaning if word ‘contradiction’ and ‘omission’ as per dictionary meaning with reference to our concern of prosecution evidence contradiction means ‘Person who tern over from his previous statement and submits differentlywhich effects his truthfulness and trustworthiness of testimony. While ‘omission’ means person skip something which he has previously affirm.

CONCERN LAW

Evidence Act- Sec-145, 154,

Code of Criminal Procedure Sec161,162,

A provision regarding cross examination of the witness as to previous statements in writing has been embodied in ch-10 ofIndian Evidence Act Sec-145.

During investigation concern witness is examined by police u/s 161 of Cr.P.Code. Use of Statement which is recorded u/s 161 is governed by sec. 162 of Cr.P.C.

What is amount to contradiction?

Word ‘contradiction’ found its roots in ‘Bible’ the holy religious book of Christianity.  Means that two antitheticalpropositions cannot both be true at the same time and in the same sense. In classical logic, a contradiction consists of a logical incompatibility between two or more propositions. It occurs when the propositions, taken together, yield two conclusions which form the logical, usually opposite in versions of each other. Illustrating a general tendency in applied logic, Aristotle's law of non-contradiction states that "One cannot say of something that it is and that it is not in the same respect and at the same time."

But, here with reference to law of evidence we have to understand word ‘contradiction’ and ‘omission’. To simply comprehend contradiction we should consider Cr.P.C 161,162 and sec.145,154 of Evidence Act altogether.

During investigation police records statements of witness which are either called 161 statements or case-diary statements. Purpose of recording statements is to gather evidence against accused. While police submits chagesheet u/s 173 CrP.Ccertified copy of all statements also supplied as well its copy to accused. And on the basis of this statements court frame charge and took cognizance against accused. While witness whose statement has been earlier recorded is examined in thecourt defence can questioned his truthfulness as it is provided u/s 145 of evidence act. Letter portion of this section describehow to contradict witness.

A witness may be cross-examined as to previous statement made by him in writing or reduced in to writing, and relevant tomatters in question, without such writing being shown to him, or being proved; but, if it is intended to contradicting 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.

How to record contradiction during trial?

The portion of the statement recorded under section 161 which is supposed to be used for contradicting the witness should first of all be brought to his notice and he should be questioned about it. Let us take example of trial where an accused person is being prosecuted for causing grievous hurt to one A with an axe. During prosecution evidence witness stated that accused assaulted him with axe in such a way that the metallic head of the axe come in to contact with his armcausing fracture, and if in course of the investigation he has stated in his statement u/s161 that accused has beaten by the stick portion of the axe.

To contradict witness exact passage occurring in his statement under sec 161 should be read out and put to the witness whether the witness admits having made such a statement before I.O, the exact statement which was read out to the witnessshould be incorporated verbatim in deposition within inverted commas. If the witness admits having made that statement there is no need to further proof of contradiction. If on the other hand the witness denies having made such a statement, thereupon it should be mention in the deposition itself in brackets. By this process the contradiction is merely brought on record but yet to be proved. Thereafter when I.O who has recorded the statement is examined in the court the passage marked for the purpose of contradiction should be read out to him and he should be asked if the witness had stated as mentioned in that exhibit. It is only when investigating officer answer in affirmative that the exhibit can be deemed to have been properly proved.

What is amount to omission?

As like contradiction some times the witnesses might not have mentioned an important circumstance in the course of hisevidence recorded the court. Such material omissions also fall within the category of contradictions and they too have to be proved.

For example in the case above mentioned, if the A had stated before the court that he was beaten by the accused with not only on the arm but also on the leg and if he did not mentioned these further injury to I.O in the statements/s 161, it is a material omission which is amounts to contradiction. Procedure to prove the material omission is same as the procedure to prove contradiction.

When PROSECUTOR can contradict his own witness?

How?

U/s 154 of evidence Act it is laid down that, court may permit at its own discretion any person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. When any witness not support the party who calls him, person who calls him should be given chance to put him suggestive question and also to contradict him as it isprovided in Sec 145.

A witness is generally expected to be in favour of the party by whom he is called. In certain cases the witness turns hostile and gives evidence against the person who called him. In such cases the evidence of a witness, who has been cross examined by his own party is not to be rejected as untrustworthy or incredible. The court can rely upon that testimony whichinspirers the confidence and credit.

It has been held by apex court in the matter of Sat Paul vs. Delhi Administration,1976-SCC-1-727 that ‘cross examination of his own witness by party evidence cannot be discarded altogether’

Therefore, when any witness whose statement has been previously recorded u/s 161 by police or any other previous statement relevant in the matter and subsequently if he turn over in his testimony before court prosecution may permit by courtto put all question which could be asked in cross-examination.

Essentials to attract procedure u/s 145 of contradiction or omission.

A) Previous statement u/s161 cr.p.c or any other statement made by him in writing or reduced in to writing.

B) That previous statement must be relevant to matter in question.

C) Contradiction or omission should me material. And for the intention to contradict him.

D) Contradiction or omission must be proved.

How to judge contradictions and omissions? How far they are material?

The duty of court is to discover the truth and to find out whether the accused is guilty or not. Facts comes before the court by way of oral testimony of witness and other documents. As human being is not free from certain error moreover with different perception power of senses and different intellect i.e. analytical reasoning, mental status etc. Therefore it is not possible to lay down strict rule or straight jacket formula in appreciation of all contradictions and omissions. So every contradiction or omission must therefore be judged by reference to various factors.

Sometime due to this very nature of human intellect and perception of senses contradictions and omission occurs. Real and truthful eyewitness may sometime make genuine mistake in statement before police and court. At that time it must beremembered that contradictions and discrepancies are natural and inevitable in the testimony of even truthful witnesses. So then “when the evidence is discrepant or exaggerated allowance has to be made for the idiosyncrasies of the class from which the witnesses are drawn, their powers of observation, strength of memory and facility of description with a discount for possible bias or prejudice” (Taylor on trial or cases, page-86)

CONCLUSION

Contradiction and omission are very important part of actual cross examination during criminal trial. Proved contradictions and omissions if it is relevant and material, it definitely affects veracity and trustworthiness of witness. To take contradiction and omission on record defence counsel or Public Prosecutor as may be the case, ought to carefully study statement of concern witness and investigation should also brought material facts of statement to the notice of Public Prosecutor. It is also duty of court to record properly all contradiction as per method guided by Hon. Apex court strictly adhered with the provision ofsec.145 and sec.161,162 Cr.P.C.

Dharmendrasinh G. Rana

Assistant Public Prosecutor

LEGAL DEPARTMENT

GOVERNMENT OF GUJARAT

JUDICIAL MAGESTRATE COURT

Surat Dist-Surat