Lawwatch

Contradiction & Omission in Cross Examination

Introduction

Contradictions between two statements of a witness play a crucial role
in deciding the fate of a criminal case or trial. Contradictions can be
categorised into two: direct contradictions and contradictions by
omissions. Making some sort of alterations or improvements in the prior
and later statements by a witness can also be termed as contradiction
and omission. Quite naturally, an interested witness may make some
improvements in his testimony of the incident under trial. In order to
avoid this, the Indian Evidence Act, 1872 lays down some procedures for
proving contradictions and omissions in a trial.

The contradictions or omissions can be proved in two stages. In the
first stage, the contradiction is brought on record as provided for in
the Indian Evidence Act. In the second stage the contradiction is then
proved by cross examining the Police Officer who has recorded the
statements under Section 162 of the Criminal Procedure Code, 1973
(CrPC). If the latter is not done, the contradictions or omissions
brought on record cannot be treated as proved before the court.

What proving a fact means

Proving a fact in a court or trial precisely refers to the act of
producing evidence – both oral and documentary – before it by the
party to prove the fact in a manner the court believes it to exist. The
party trying to prove anything must confine his production of evidence
relating to the relevant and admissible fact alone.

Any witness who can testify any admissible fact relevant to the dispute
can be brought before the court as a witness to produce oral testimony.
Based on the merit or quality of such testimony the court may tend to
believe it as true version of the disputed fact. The merit or quality of
the witness testimony is a crucial factor that lends credence to the
evidence brought before a court.

Neither wholly reliable nor totally unreliable evidence

The court can easily accept or reject wholly reliable or wholly
unreliable oral testimony. But an oral testimony which is partially
reliable and partially unreliable needs to be cautiously examined by the
court to sift the truth out of it and discard the chaff.

Such sort of testimony needs to be considered as evidence only after
putting the testimony to the test of contradictions, omission and
corroboration. The testing is done in order to check the veracity of the
testimony so as to treat its successful portion as evidence and to leave
the other part aside.

Three phases of an oral examination

Any witness called for taking oral testimony will be put to examination
in chief
, cross examination and re-examination. The latter two are
optional.

The examination in chief must be confined to relevant facts but the
cross examination need not be confined to what is stated in the
examination in chief alone. However the re-examination must be
confined to what is stated in the cross examination alone usually.

What is meant by contradiction?

Contradiction essentially means the same witness makes two contradicting
statements in two different stages in a proceeding. When a witness
contradicts in his statements, the previous statement remains
inconsistent with his oral testimony in the court. The contradictions
usually arise between the evidence given on oath at the trial and the
statements recorded by the Police during investigation under Section 161
of CrPC.

The Section 145 of the Indian Evidence Act lays down the provision for
handling contradiction. The section lays down that a witness may be
cross examined as to his previous statement made in writing or reduced
to writing, in order to contradict his testimony before the court with
his previous statement relevant to the matter in dispute, before it is
duly proved. Such cross examination would help the court to know whether
the witness is telling the truth or not. This section applies only when
both the statements on the same fact show some inconsistency.

In a judicial proceeding the previous statement of a witness can be used
only for two purposes: one is to contradict the witness (for consequent
impeachment of the credit of him) and the other is for corroboration of
a fact in issue by the prosecution.

A clear contradiction on a substantive fact can demolish the case made
out in the examination-in-chief. The contradiction proved from the
Police Statements is not substantive evidence though it would largely
help in the impeachment of the credit of the witness. The Police
Statement can be used only for proving contradiction but not for
corroboration.

Contradiction disproves a fact and discredits a witness

The purpose of proving contradictions are twofold: one is to make a
substantive piece of evidence that a witness testified as unworthy of
consideration and the other is to discredit the witness as being
unreliable. If a contradiction is brought in reliably, the court will
hold the substantive evidence of the witness in the court relating to it
as unreliable. The previous statement to the police during investigation
serves the purpose of throwing doubt on the veracity of the witness.

When contradiction is brought in for impeaching the credit of the
witness it pulls down his reliability in the court and makes his
substantive testimony in the court unreliable.

Bringing contradiction or omission in evidence

During the cross examination, the advocate for defendant can cross
examine the witness with any question relevant to the disputed fact in
order to bring out either contradictions or omissions in the statement
of the witness recorded in the court and recorded before the
investigating officer earlier.

If the witness admits his previous statement as being made, such
previous statement need not be proved by the cross examiner and he need
not show the part of the document where the statement is recorded to
him. If so, the cross examiner’s job is finished and the witness can be
left to re-examination.

If he denies having said the statement previously, then the cross
examiner should read out the relevant portion of the statement which is
alleged to be contradicting to statement made in the court and give him
opportunity to explain anything to reconcile the contradiction, if he
can. Then the cross examiner should request the presiding judge to mark
the said part of the statement for identification.

In order to prove the contradiction, the advocate shall subsequently put
questions to the investigating officer who had recorded the statement of
the witness, as to whether the portion marked is true extract and it was
recorded by him.

The statement made before a police officer cannot be used for
contradicting a defence or a court witness. The defendant alone can use
contradiction as a tool to pull down a prosecution witness.

SC lays down the procedure of proving contradiction

The Supreme Court, in V. K. Mishra and another v State of Uttarakhand
and another
(AIR 2015 S.C. 3043), has laid down the procedure of
bringing on record contradictions and omissions. The paragraph 18 of the
judgment states the proceedure as follows:-

\”18. 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.\”

Ignore insignificant contradictions and omissions

The 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, particularly when the factor of probabilities goes in favour
of the version narrated by the witnesses. (Please see Bhoginbhai
Hirjibhai
v State of Gujarat: AIR 1983 SC 753)

Consider the testimony as a whole

The Supreme Court states that in appreciation of evidence, the approach
must be whether the evidence of the witness considered in toto, appears
to have a ring of truth. Once such an impression is formed, the court
should scrutinize the evidence keeping in view the deficiencies,
drawbacks and infirmities brought out in the evidence as a whole and
evaluate them so as to find out whether it goes against the general
tenor of the evidence rendered by him and whether the earlier evaluation
of the evidence is shaken as to render it unworthy of belief.

The court adds that 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 and attaching undue
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. (Please see State of U P v M K
Anthony
: AIR 1985 SC 48)

Contradiction by omission

The contradiction by omission can be proved by bringing on record the
whole of the statement by confining its use to the actual absence of the
statement in the court.

Subsequently the police officer may be asked to refer to the statement
of the witness in the diary for refreshing his memory by asking whether
such statement was made.

Corroborative evidence

Corroboration means establishing or strengthening anything with any
other evidence or facts. The Section 157 of the Indian Evidence Act
deals with corroboration of evidence.

A former statement given by a witness before any authority competent to
investigate the case at or about the time when the fact took place,
needs to be proved in order to corroborate any later testimony (relating
to the same fact or event) given by the witness in the court. Then the
former statement is admitted as corroborative evidence when it is
consistent with the later testimony. Corroborative evidence stands on a
sound proposition that one who is consistent deserves to be believed. If
a witness gives inconsistent statements he cannot be relied for
eliciting truth.

First Information Statement (FIS) is not a substantive piece of
evidence. It can only be used to corroborate the statement of the maker
in the court. When the FIS is corroborated it will become a
corroborative piece of evidence which the court can make use of. If not
corroborated, the FIS remains as a mere statement which the court cannot
rely on as evidence.

Similarly, a statement of one witness given can be corroborated with
that of another witness under Section 164 of the CrPC. However the
statement given by the witness under Section 161 of the CrPC cannot be
used for corroboration.

Conclusion

If contradictions and omissions can be brought in, they may change the
course of the case for the defence who has been accused with a charge in
a false case.

The proof of contradiction is vital to destroy the credibility of the
prosecution. Proved contradictions and omissions play a crucial role
while the Judge decides the case by appreciating the evidence he has
recorded throughout the trial.

Cross examination is a great art in the scheme of prosecution. It is a
deft and delicate art which requires a sense of decorum, decency and
profound responsibility. Proving contradiction and omission in the
statements of the witnesses makes the art of cross examination a
delightful process.

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NB: The author, now with Thrissur Bar, can also be reached at
rajankila\@gmail.com