What is meant by contradiction?
The term contradiction, in criminal law, refers to the same witness making two contradicting statements in two different stages in a judicial proceeding.
Such contradictions are of two kinds: direct contradictions and contradictions by omissions.
Making some sort of alterations or improvements in the prior statement and subsequent statement by a witness can also be termed as contradiction by omission.
The precise purpose of cross-examination is to test the veracity of the statement of a witness in his examination-in-chief and to shake or impeach the credit of the witness.
An example of contradiction
In a criminal case, A states in the witness box on oath that B stabbed Z, but A stated before the police officer that C stabbed Z. This is called contradiction.
When a witness makes an oral statement in the court in contradiction to his previous statement to the police recorded under Section 161 of the Code of Criminal Procedure (CrPC), the previous statement remains inconsistent with his oral testimony in the court. Such inconsistency can cast doubt on the veracity of the statement and the credit of the witness during the trial.
Inconsistent statements cannot co-exist as truth
If the statement before the police-officer and the statement in the evidence before the court are so inconsistent or irreconcilable with each other, then both cannot co-exist as true versions of the fact. Then it can be said that one statement contradicts the other.
But minor contradictions, inconsistencies, or improvements, which do not affect the core of the prosecution case, need not be the ground to reject the evidence of the witness in its entirety.
Previous statement can be used for contradiction or corroboration
In a judicial proceeding, the previous statements of a witness can be used for two purposes: one is to contradict the witness (for consequent impeachment of the credit of him or to question the veracity of his statement) and the other is to corroborate a fact in issue by the prosecution.
Section 161 statement can be used for contradiction only
The statements before the police, under Section 161 CrPC can be used only for proving contradiction but not for corroboration.
An investigating office can orally examine any person under Section 161 CrPC if such person is supposed to be acquainted with the facts and circumstances of the case, being investigated into.
The Section 162 CrPC however bars use of such statements of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses.
On the other hand, the statements made before a Magistrate under Section 164 CrPC can be used for corroboration as well.
Therefore, the statements thus recorded during the investigation by the police are not substantive pieces of evidence. They would help both in demolishing the value of the oral testimony of the prosecution witness before the court and in the impeachment of the credit of the witness.
Procedure for contradicting a witness
The Section 145 of Indian Evidence Act (IEA) lays down the procedure for contradicting a witness.
The section states that a witness may be cross examined as to his previous statement made in writing or reduced to writing, to contradict his testimony before the court (which is the subsequent statement in the court) with his previous statement, relevant to the matter in dispute, before it is duly proved.
This section applies only when both the statements made in two different stages of the proceeding on the same fact become inconsistent with each other. Such cross examination would help the court know whether the witness is telling the truth or not.
However, the witness cannot be contradicted with the statement of another person made in the proceeding or the statements in the case diary.
In other words, the Section 145 IEA has two limbs: –
- The first one is a witness may be cross examined as to his previous statement made by him without such writing being shown to him. This is for the purpose of eliciting facts or materials.
- The second one is that if the cross examination is intended to contradict him by his previous statement his attention must be drawn to those specific parts of it which are to be contradicted after the specific parts are being shown to him, before it can be proved. This is intended to vitiate the testimony or impeaching the credit of the witness under Section 155 IEA.
How contradiction is to be made?
The Supreme Court (SC) explains how a witness need to be contradicted by his previous statement, in the paragraph 18 of its judgement in V.K.Mishra & Anr v State Of Uttarakhand & Anr. The case law relies on the constitutional bench decision in Tahsildar Singh And Another v The State Of Uttar Pradesh case.
The contradiction should be between what a witness asserted in the witness-box and what he stated before the police-officer.
It should not be between what he said he had stated before the police-officer and what he stated before him.
First draw attention of witness to the previous statement
When it is intended to contradict the witness by his previous statement reduced into writing, the attention of witness is to be drawn to that specific part of the statement, which are to be used for the purpose of contradicting him. If the witness admits the part of the statement which is intended to contradict him, it stands proved under IEA. It becomes an admission under Section 21 of the IEA.
In such a case there is no need to further prove the contradiction and it will be read as evidence while appreciating it. That becomes substantive evidence.
If he denies his attention to be drawn & mention it in deposition
If he denies having made that part of the statement, his attention must be drawn to that statement by showing that part to him and it must be marked and recorded in his testimony of his cross-examination.
By this process the contradiction is merely brought on record, but it is yet to be proved by drawing the attention of the investigating officer to it.
Then draw the attention of the investigating office
Thereafter, when the 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 for refreshing his memory, will depose about the witness having made that statement or not, before the court.
The process again involves referring to the police statement and culling out that part with which the witness was intended to be contradicted.
Contradiction disproves a fact and discredits a witness
The purpose of proving contradictions is twofold: one is to make a substantive piece of evidence, which 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.
Court cannot suo motu confront the witness
If the defence does not confront the witness with that part of the statement, which he intends to contradict, in the cross examination, then the court cannot suo motu draw the attention of the investigation officer to the parts intended for contradiction and make use of the statements.
Then those statements cannot be treated as proved in compliance with Section 145 of the IEA.
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)
The contradiction in the statements of the witness is vital to destroy the credibility of the prosecution evidence produced before the court and the fate of the case itself.
Contradiction by omission
The Explanation to Section 162(2) of CrPC deals with omission. It 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”.
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. The consideration of such omission as contradiction is a question of fact which shall be decided by the court.
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
- 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.
- 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.
- 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.
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 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.
FIS can be used for corroboration
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 a witness given under Section 164 of the CrPC can be corroborated with that of another witness. 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 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 while the Judge decides the case by appreciating the evidence he has recorded throughout the trial.
Further reading
