WHEN OMISSION AMOUNTS TO CONTRADICTION – PART 1

In the realm of Criminal Law impeaching the credit of witness plays an important role. The section 155 of Indian Evidence Act gives several modes for impeaching the credibility of the witness; among them one way is by proving of contradictions. The proving of contradiction also includes proving of omission which we will understand in this very article.

Contradiction here means the irregularity or inconsistency in the statements of witness made before the police and that deposed before the court.  For instance, a witness while making his statement under section 161 of Criminal Procedural Code said to police “A killed B” and while his deposition in court he said “A didn’t kill B”. So the inconsistencies here will act as a contradiction and by bringing it on record witness’s credibility will impeached.

Now the term omission is quite complex, omission means something that has been left out earlier. In other words omission refers to a situation where a witness has deposed in the examination-in-chief certain facts or things which he has not mentioned while making his 161 statement. So omission is something which the witness states for the first time.

From the above definitions we can say that for proving contradiction there requires ‘something against something’, and that’s why prima facie one can say that omissions can never be contradicted because omissions are ‘something against nothing’. But there are certain ways to prove omission as a contradiction.

Now coming to the statutory provisions, section 162 of Code of Criminal Procedure only talks about the contradiction and there was no provision for omission. So we will discuss a very comprehensive judicial pronouncement given by the Supreme Court of India.

Way back in 1959, the Supreme Court while deciding the case of Tahsildar Singh v. State of Uttar Pradesh, held that “though the particular statement is not expressly recorded, a statement can be deemed to be a part of that expressly recorded statement can be used for the contradiction, not because it is an omission strictly so called but because it is deemed to form part of the recorded statement.”

In furtherance of above the court gave ‘3 tests’ to prove when omission amounts to contradiction. Those tests are as follows:

  1. ‘When a recital is necessarily implied from the recital or recitals found in the statement.’

For instance, a witness while giving his statement to police said “he saw Ram stabbing Shyam at a particular point of time”, but in the witness box he deposed, “he saw Ram and Lakshman stabbing Shyam at the same point of time”.

So in the statement made to police the word “only” can be implied, i.e. the witness saw Ram only stabbing Shyam.

  • ‘A negative aspect of positive recital in a statement.’

For instance, a witness while giving statement to police said “he saw a fair man stabbed Rohit”

Thus the earlier statement must be deemed to contain statement not only that a fair man stabbed Rohit but also that the culprit was not of the dark complexion.

  • ‘In case when the statement made to the police and that in the court does not stand together.’

For instance, a witness stated that “Ram after killing Shyam escaped from southern lane” but in the court he deposed that “Ram after killing Shyam escaped from northern lane.”

Now at the same point of time, one cannot ran towards the opposite directions thus one must necessarily be false.

Hence such omission can be used for contradiction alone, as the credibility of the witness goes away because the impact of those omissions adversely affected the consistency of the witness. We can see that even in the absence of any statutory provision the Supreme Court rendered a very comprehensive and wonderful judgment.

Now after this comprehensive judgment of Tahsildar Singh’s case section 162 of Code of Criminal Procedure redrafted in 1973. And an explanation was added to the section 162 of the Code, which says that the omission must be something significant and otherwise relevant and that should also in the context in which such omission is being made. In simple words all omissions could not be asked or proved.

The redrafting was done to cover up the situations in which the maker of the statement ought to have made a statement before the police he had really witnessed the incident. For example, an eye witness to an incident said nothing about the source of light while stating facts to the police about the incident that had happened at night but while deposing before the court he stated that he saw the incident in a halogen lamp of a roadside house.

If we analyse the above example, In my opinion this omission should be treated as an material omission and also as Wigmore stated “A failure to assert a fact, when it would have been natural way to assert it, amounts in effect to an assertion of the non-existence of the fact.”

Another contention to prove that the above omission is an material omission and should amount to contradiction is that a reasonable police officer while recording the statement of a incident that had happened at night should ask for the source of light in which the witness has seen the incident.

Hence the absence of such fact about the source of light deduce importance because it is significant and relevant to the context in which the omission occurred.

In order to conclude I would like to say that only those omission amounts to contradiction which have passed any of the 3 tests laid down by the Supreme Court or have fulfilled the requirement of Explanation of Sec 162 of the Code. Any other omission need not to be brought on-record because it will only bulk the judgment and delays the justice.

  • Wigmore, Evidence Vol. III (Little, Brown and Co., King’s Lynn, 3rd Edn., 1942)
  • Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012, Para 29.

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