Contradiction by Omission u/s 62 (2) CrPC

What contradiction means

The term contradiction means to offer the contrary. An omission means to exclude or leave out something.

When a person, examined by the police under Section 161 the of Code of Criminal Procedure (CrPC) CrPC, states a certain fact in a certain way and he deposes such fact before the court in a different way, it is a case of inconsistency between the deposition in court and the statement made to the police is termed as a contradictory one.

The statement made before the police, therefore, can be used to contradict the testimony of the witness in the court and to prove that he cannot be trusted because of the inconsistency in his statements.

Omission u/s 162 (2) CrPC

The omission to state a material fact is considered as contradiction by omission of material fact.

The Explanation to the Section 162(2) of the CrPC deals with omission.

The Section 162(2) states, “An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact”.

Omission to state a significant fact is a contradiction

The Section states that an omission to state a fact or circumstance to the police officer during the investigation, which is significant and relevant in the context of the case, may be treated as a contradiction. Only non-stating of the materially significant and relevant facts, but not the trivial ones, are treated as omission.

The consideration of such omission as contradiction is a question of fact and the court will have to decide it.

The previous statement is non existent unlike as in contradiction

The contradiction by omission can be proved by bringing on record the whole of the statement by focusing on the actual absence of the statement in the previous statement, before 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, as contradiction is proved.

Examples of contradiction by omission

The judgement in Tahsildar Singh case illustrates some examples where an omission can be considered a contradiction

  1. When X says he saw A robbing the house during police investigation but in court says he saw both A and B robbing the house. In the former statement, it implied that only A was the robber.
  2. A negative aspect of a positive recital in a statement – When X says the thief was a short man in front of the police officer but in court X says that the thief was a tall man which implied that the thief was not a short man.
  3. When the statements before the police and the court cannot be true simultaneously: X said to the police officer that A ran towards the left whereas in the witness box he says A ran towards the right. Both statements cannot be true together.

The Tahsildar Sigh judgement says relevant and material omissions amount to vital contradictions, which can be established by cross-examination and confronting the witness with his previous statement.

The meaning given to the words “contradict” and “contradiction” must at least include the case of an omission in a previous statement which by implication amounts to contradiction.

The judgement adds that though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement.

In short, there are three kinds of contradictions that an adverse party can elicit from the witness:

  1. Which a witness states differently before the police and before the court
  2. Which a witness has omitted to state before the police and states the same before the court
  3. The witness though not specifically states a fact but the same can be deduced from the statements made before the police.

Impeaching the credit of the witness

The Section 155 (3) of Indian Evidence Act (IEA) empowers the adverse party to impeach the credit of witness by proof of former statements with that of any part of evidence which is liable to be contradicted and Section 145 of IEA enables the accused to cross examine the witness on previous statements made by him.

The two limbs of Sec 145 IEA make it clear that the former statements can be used in two ways:

  1. to generally contradict the witness without the contradiction being proved. This is done only to impeach the credit of the witness and the former statement need not be confronted to the witness and,
  2. if the intention is to prove those writings to make them as substantial evidence, then the specific parts of which the accused intends to prove, has to be confronted to the witness, but drawing the attention of the witness itself does not make that part substantial evidence.

Method of confronting the witness u/s 145 IEA

In V.K.Mishra & Anr v State Of Uttarakhand & Anr [(2015) 9 SCC 588], the Supreme Cout explain how to conform a witness under Section 145 of the Indian Evidence Act (IEA).

  1. Firstly, the part of the statement in writing which the party wishes to contradict has to be confronted to the witness who made it and is to be recorded in the cross examination.
  2. If the witness admits to have stated that part of statement to the police, then the contradiction so brought on record in cross examination is complete and will be read while appreciating the evidence.
  3. If the witness denies to have made the statement to the police which the party wishes to contradict, the same has to be marked and has to be recorded in the evidence of the witness and,
  4. finally, when the Investigation Officer (IO)comes to depose, then the marked portion has to be confronted to the IO and record his answer and then the contradiction is complete.

Conclusion

If contradictions and omissions can be brought in, they may change the course of the case for the defence who has been accused of a charge in a false case.  The proof of contradiction is vital to destroy the credibility of the prosecution.

The properly proved contradictions and omissions play a crucial role. But the Judge decides the case by appreciating the evidence he has recorded throughout the trial.

Further reading

  1. Tahsildar Singh & Another v The State of UP (1959 AIR 1012)
  2. Kehar Singh & Ors v State (Delhi Admn.) (1988 AIR 1883)
  3. K.Mishra & Anr v State Of Uttarakhand & Anr