Proving contradictions and omissions in cross-examination is soul of criminal trial, but many are not aware about correct procedure of doing it. This presentation is made available for information of law students, lawyers, etc. purely for academic purpose.

1. “Recording of Contradictions, Omissions,
Section 145 and 157 of the Indian
Evidence Act and Section 161 and 162 of
the Code of Criminal Procedure”

2. Contradictions and Omissions in
Criminal Trial
INTRODUCTION
There are several modes of impeaching the
credit of witnesses and proving of contradictions is one
of them. Modes of impeaching credit of witness are laid
down u/s.155 of Indian Evidence Act, 1872.

3. Who can impeach credit of
witness?
l As per Section 155(3) of Indian
Evidence Act, 1872 credit of a witness may be
impeached by
lthe adverse party (accused) or
lwith the consent of the court by the party who
calls him (Prosecution),
l by proof of former statements
inconsistent with any part of his evidence
which is liable to be contradicted.

4. Object and Effect of proved contradiction
If contradictions are proved then it is
the duty of the court to discard testimony of
such witness. His evidence may be considered
as untrustworthy.

5. Meaning of Contradiction
Oxford Dictionary :
'To contradict' means 'To affirm the contrary'
Pointing out the inconsistency or omission on
the material point in previous statement
(statement before police) of a witness is called
contradiction.

6. Types of Contradictions
1) Direct Contradiction and
2) Contradiction by way of omission.
(All omissions are not contradictions but the
omissions on material point are only considered as
contradictions. Explanation of S.162 of Cr.P.C.)

7. Meaning of Omission
If witness has deposed in the examination-in-
chief a certain thing or fact which he has
omitted to state before the police in his
statement, said fact is called omission i.e. a
thing which witness states for the first time
before the Court.

8. Illustration:
Deposition: He saw accused B inflicting blow
on person of C.
Statement before Police: He saw accused A
had inflicted blow on person of C.
Witness omitted to state before police that, he
saw accused B inflicting the blow.

9. Why Omissions and Contradictions
are required to be proved?
Statement recorded under S.161 of Cr.P.C.
cannot be used as evidence.
As per S.162 of Cr.P.C. such statement or part
of such statement may be used by accused or
by prosecution, with the permission of Court,
only to contradict such witness in the manner
provided u/s.145 of the Evidence Act.

10. S.145: Cross–examination as to
previous Statements in writing:
A witness may be cross-examined as
to previous statements made by him in writing
or reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but,
if it is intended to contradict 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.

11. Tahsildar Singh Vs. State of U.P.
AIR 1959 SC 1012.
Law regarding contradictions and the
procedure for the proof thereof has been
discussed and guided by the six judges of the
Hon'ble Supreme Court in this leading case.

12. How to record and prove a
Contradiction?
Firstly, the contradiction is to be brought
on record in the manner laid down in S.162 of the
Cr.P.C. and S.145 of Evidence Act.
Secondly, contradiction is to be proved
except when witness has admitted the
contradiction, by cross examining I.O. who
recorded the statement under S.161 of the Cr.P.C.
If this is not done, the contradictions
brought on record have no effect at all.

13. The manner of proving a
contradiction is best brought out by
an illustration.
Illustration

14. Shri Soma Goma Sawant, Age 45 years, Occ. Business,
R/o. Girgaon, Mumbai states that, yesterday on 01/12/2008 I returned
from Pune by S.T.Bus. My younger brother told me that Accused
Suresh and Baban who are residing in the same vicinity abused him.
This morning at about 8-00 A.M., I along with brother
Bunty, were proceeding towards the house of Suresh and Baban to
ask them, why they abused on 01/12/2008.
When we were proceeding towards their house, Accused
Suresh and Baban were coming from the opposite direction on the
road. At that time, I asked both Accused, as to why they abused
Bunty? AT THAT TIME, MY BROTHER BUNTY, INFLICTED SLAP
ON THE FACE OF ACCUSED SURESH (DIRECT
CONTRADICTION). Thereafter, accused Suresh inflicted stick blow
on person of Bunty. Bunty sustained injury on his right hand.
Thereafter, both Accused went away. I took my brother to the Police
Station. He lodged FIR.
Sd/-

15. DEPOSITION OF THE WITNESS BEFORE THE
MAGISTRATE/COURT.
Shri Soma Goma Sawant, Age 45 years, Occ. Business, R/o. Mumbai.
Examination-in-chief by Public Prosecutor
I am residing along with my wife, two minor children and
one younger brother namely Bunty. On 01/12/2008 I returned from Pune
by Car (Omission). My younger brother told me that Accused Suresh
and Baban who are residing in the same vicinity abused him.
On 02/12/2008 at about 8-00 A.M., I along with brother
Bunty, were proceeding towards the house of Suresh and Baban to ask
them, why they abused on 01/12/2008.
When we were proceeding towards their house, Accused
Suresh and Baban were coming from the opposite direction on the road.
At that time, I asked both Accused as to why they abused Bunty?
THEREAFTER, ACCUSED BABAN, INFLICTED STICK BLOW ON
PERSON OF BUNTY. (OMISSION). Bunty sustained injury on his LEFT
(OMISSION) hand. Thereafter, both Accused went away.
I took my brother to the Police Station. Bunty lodged FIR.
He was referred to the Govt. Hospital.

16. In the above example, there are three
omissions and one direct contradiction.
Omissions:
1) I returned from Pune by Car.
2) Accused Baban, inflicted stick blow on person of Bunty.
3) Bunty sustained injury on his LEFT hand.
Direct Contradiction:
At that time, my brother Bunty, inflicted slap on the face of
accused Suresh.

17. How contradiction is to be proved?
Q.1)Did it happen that you did not see Baban inflicting stick blow on person
of Bunty ?
Ans. No I did see.
Q.2)Is it true that the police recorded your statement on 02/12/2008 ?
Ans. Yes.
Q.3) You did not tell the police that you saw Accused Baban inflicting stick
blow on the person of Bunty?
Ans. Yes, I did not tell the police.
(If witness admits that he did not tell said fact, omission/improvement
is proved and can be directly used as proved contradiction.) OR
Ans. I did tell. (If he did not admit then next question is-)
Q.4) It has seen from your statement before the police that you did not tell
the police that you saw Accused Baban inflicting stick blow on the person of
Bunty.
(While asking this question, attention of the witness should be drawn
to the omission by requesting the court to verify this fact from police
statement and to note in writing that the attention of the witness is drawn to
the omission).
Ans. I did tell the police.

18. Q.5) Can you explain that why said statement is not to be found in your
statement before the police ?
(An opportunity to explain must be given to the witness).
Ans. I can't explain.
Q.6) I suggest that your statement in the court that you saw Accused
Baban inflicting stick blow on person of Bunty is false.
(This suggestion is must to deny the evidence of the witness before
the Court).
Ans. The suggestion is false
(Sometimes the advocate is tempted to ask that you told police that
accused Suresh inflicted stick blow and now before the court you are
saying name of accused Baban. When this witness has not stated anything
regarding role of Accused Suresh, do not touch it otherwise it will prove the
presence of Accused Suresh at the place of incident.)
At this stage contradiction is merely brought on record.
TO INVESTIGATING OFFICER.
Q1) Witness Soma Goma Sawant did not tell in his statement recorded by
you that he saw accused Baban inflicting stick blow on person of Bunty ?
Ans. No, he did not say so.
Now, contradiction is proved.

19. How direct contradiction is to be proved?
Q.1)Did it happen that your brother Bunty inflicted slap on the face of
Accused Suresh ?
Ans. I did not see my brother Bunty inflicted slap on person of Accused
Suresh.
Q.2)Is it true that police recorded your statement during investigation on
02/12/2008 ?
Ans. Yes.
Q.3)Did it happen that you told police that you saw your brother Bunty
inflicting slap on person of accused Suresh ?
Ans. I did not tell police accordingly.
Q.4)(The attention of the witness should be drawn by underlining said
statement and simultaneously it is to be requested to the court to note
that attention of witness is drawn to the underlined portion marked 'A')
It is seen from your statement before the police that you have
stated portion marked “A” before the police while recording your
statement ?
Ans. I did not tell the police.

20. Q.5)Can you explain why said statement (portion marked “A”)
appears in your statement before the police?
(An opportunity to explain must be given to the witness.)
Ans. I can't explain.
TO INVESTIGATING OFFICER.
Q.1) Whether witness Soma Goma Savant stated in his statement
recorded by you the portion marked 'A' ?
Ans. Yes, he has stated portion marked “A” THAT HIS BROTHER
BUNTY INFLICTED SLAP ON PERSON OF ACCUSED SURESH.
Now, direct contradiction is proved in the light of given
questionnaire.

21. Effect in given example
Effect of proved contradiction is that
evidence of witness that Accused Baban had
inflicted stick blow on person of Bunty is not
trustworthy and if there is no other evidence,
Bunty may well claim acquittal.
Further, as witness has not deposed
that Accused Suresh had inflicted stick blow on
person of Bunty, Suresh is also entitled to the
same benefit.

22. Is it necessary to prove
contradictions in FIR ? Yes.
Merely reading the contents of proved
FIR by court for the purpose of finding out
omission and contradiction is not enough.
Because to prove omission and contradiction, the
attention of witness must be drawn to the
contents of FIR.
Secondly, if the informant for the first
time deposed before the court a thing which was
absent in FIR then an opportunity to explain must
be given to him that why this particular fact is
absent in FIR.

23. Prosecution : Hostile witness
If prosecution witness is
resiling in examination-in-chief from his
previous statement, prosecution can, with
permission of the Court, use such statement
to contradict said witness in the manner
provided by S.145 of the Evidence Act, 1872.

24. Q.1)Did it happen that you saw accused assaulting the victim ?
Ans. I never saw Accused assaulting the victim. (Seek permission of
court to cross-examine the witness by declaring him hostile pointing
out to the court portion marked “A” in his statement before police.
Court may pass the order accordingly.)(In the present example it is
prosecution's case that witness saw Accused assaulting the victim
and statement of said witness is recorded by police accordingly. But
this witness never deposed in his examination in chief that he saw
Accused assaulting the victim).
Q.2)Is it correct that, your statement was recorded by the police on
such and such date ?
Ans. Yes, my statement was recorded by police. (Draw the attention
of witness to his statement before the police and mark that
statement portion as “A” and request the court to note that the
attention of witness is drawn towards portion marked “A” in his
statement before police).
Q.3)In your statement before the police, at portion marked “A”, it
appears that YOU SAW ACCUSED ASSAULTING THE VICTIM ?
Ans. I have not stated accordingly.

25. Q.4)Can you afford any explanation why portion marked “A” appears
in your statement before police (such an opportunity to explain must
be given to the witness).
Ans. I can't explain
Q.5)You have stated before police portion marked “A” that YOU
SAW ACCUSED ASSAULTED THE VICTIM ?
Ans. It is false.
Q.6)You are deposing falsely that you never saw Accused assaulting
victim ?
Ans. It is false.
TO INVESTIGATING OFFICER.
Q.1)Whether this particular witness stated portion marked “A” before
you while recording his statement that he saw Accused assaulting
the victim ?
Ans. Yes, he has stated portion marked “A” before me while
recording his statement that he saw Accused assaulting the victim.

26. Whether portion Marked 'A' is to
be exhibited?
As per para 29 of Chapter VI of
Criminal Manual, it is necessary to give exhibit to
such portion marked “A”. Further, whenever
exhibits are given or portion marks are marked as
'A','B','C','D','E...and so on serially, then it is very
convenient to point out the omissions and
contradictions and to refer those contradictions in
the judgment.

27. Chapter VI of Criminal Manual
Para 29. (1) When a statement recorded under Section 161 of the
code of Criminal Procedure,1973 is used in the manner indicated
in Section 162 of the Code, the passage which has been
specifically put to the witnesses in order to contradict him should
first be marked for identification and exhibited after it is proved.
(2) The method of proving such a statement is to question the
Police Officer, who had recorded the statement whether the
passage marked is a true extract from the statement recorded by
him.
(3) When a statement recorded under section 161 of the Code is
used to contradict a witness, the specific statement put to the
witness should be set out accurately in the record of the deposition
of the witness.
(4) Omissions in the statement recorded under Section 161 should,
if denied by the witness, be proved by questioning the Police
Officer whether the witness had made the statement which he says
he had.

28. Section 157 of the Evidence Act
Former statements of witness may be proved
to corroborate later testimony as to same fact-
In order to corroborate the testimony
of a witness, any former statement made by
such witness relating to the same fact at or
about the time when the fact took place, or
before any authority legally component to
investigate the fact, may be proved.

29. First information report (FIR)
FIR is not substantive evidence in
the case, but it may be used either under S.145
of the Evidence Act to contradict the testimony
given by the informant in Court or under the
S.157 of the Act to corroborate the testimony
of the informant.
Where the informant is not examined
as a witness at the trial, FIR cannot be used for
any purpose.

30. Important Case laws
Effect of signing of statement in contravention
of Section 162 of Cr.P.C.
It does not make it inadmissible.
It merely puts the court on caution and may
necessitate in-depth scrutiny of the evidence. But the
evidence on this account cannot be rejected outright.
(State of U.P. Vs. M.K. Anthony, MANU/SC/0123/1984)

31. Reading over of the police statement to
the witness before he enters the box.
It does not amount to contravention of the
prohibition contained in S. 162(1).
But the fact of reading over of the statement
may affect the probative value of the evidence
of the witness.
(Nathu Manchhu Vs. The State of Gujarat,
MANU/GJ/0061/1978 Full Bench)

32. Proper course to be adopted when
statement of witness is not recorded
during investigation.
It is necessary for the investigating
agency to have recorded his statement even at the
stage of trial by seeking permission of the court for
the same.
It is only after his statement would be
recorded, the court would be in a position to form an
opinion as to whether the evidence of such witness
would be necessary, desirable or even essential for a
just decision of the case. Without knowing what the
witness is likely to say, no proper opinion could have
been formed by the court.
(Kishore Vs. State of Maharashtra 2012 All MR (Cri.) 2886)

33. If witness is not confronted with
his previous statement-
Court cannot subsequently use the statement
even for drawing the adverse inference against
the witness.
(Dadu Laxmi Reddy Vs. State of A.P., AIR 1999
SC 3255)

34. FIR is not an encyclopedia. All facts and
circumstances in minute detail need not be
given in the FIR. Hence, omission to give
motive of crime in FIR is not an omission.
(C.Mangesh and others Vs. State of
Karnataka, AIR 2010 SC 2768)
Omission to give motive of crime
in FIR is not an omission.

35. Minor contradictions
Witnesses are not expected to give
parrot like statements and contradictions of
minor nature are bound to occur in every
criminal case. Normal discrepancies do not
corrode credibility of witnesses. It is the
duty of the trial Court appreciating evidence
to sift grain from the chaff.
(Dilip Mahadeorao Ingale Vs. State of Maharashtra,
2009 ALL MR (Cri) 3356)

36. Minor discrepancies in police
statement not fatal
Minor discrepancies in oral
evidence not touching core of case cannot
be ground for rejection of evidence in
entirety.
Entire evidence as a whole is
required to be considered.
(State of U.P.Vs. Krishna Master, AIR 2010 SC 3071)

37. Thank
You
Mahesh T. Patankar
C.J.JD.&J.M.F.C., Jaysingpur.