Proving of contradiction or omission are basically part of cross examination, and by doing so the parties try to shake or abolish the credibility of the witnesses. As we all know that when a incident took place police are required to conduct an investigation in that process they come across many witnesses who knew some facts about the incident. Those witnesses are examined by the police officer under section 161(2) of the Code of Criminal Procedure (“the Code”), and their statements are reduced in writing under section 161(3) of the Code and are also part of the challan/charge-sheet that has been submitted by the police in the court under section 173 of the code. Section 162 of the Code provides that the stated facts and statements need not to be signed by the Accused and further it imposes bar on the use of those statements for any purpose other than stated in the proviso of the section itself. This provision is given in order to prevent the accused from over jealous witnesses and also from notorious police.

It is important to note down here that the statements made under section 161(3) are not substantive piece of evidence and can only be use to contradict the witness, any other use is strictly prohibited.

Now coming to the point that how contradiction can be proved in the court of law. Section 145 of the Indian Evidence Act provides for the procedure which should be followed in the cross examination for proving contradiction on record.

The procedure is as follows:

1. After the witness made his deposition in examination-in-chief, the defence will do cross examination and will point out his inconsistent statements made before the police (previous statements) and that made in the witness box (present statement).
2. But it is important that the part which is inconsistent should be point out and read before the witness or if that statement is lengthy that the opening and the ending words from the challan/case diary should be referred.
3. If the witness affirms that he made the previous statement also then the contradiction is brought on record and proved and the credibility of the witness is impeached.
4. If he after reading or listening to the previous statement denies, then only the contradiction is brought on-record and yet not proved.
5. Now the investigating officer should call upon and his attention is also drawn upon that part of statement. If he says this statement is made by the witness then the contradiction is proved. And his credibility is been impeached and the judgment will made keeping in mind this evidence also.

A crucial point should be kept in mind here that suo moto use these statements for impeaching the credibility of the witness it can only be done according to the section 145 of the Evidence Act.

From the above it is clear that how contradiction is brought on record and proved. And also the party on whose behalf the witness is speaking that party can also cross examine his own witness as per Section 145 of the Evidence Act and these circumstances arise in cases when witness turns hostile.

Now, in case of omission the procedure is quite different. As we are aware that in omissions there is no direct previous statement, so first of all a contradiction is brought on record by asking a question which is permissible under the Section 162 of the Code. But the objective of those questions should only be to carve out the omission amounts to contradiction in order to impeach the credibility of the witness, any other questions like question which intend to get a new story line are not permissible. In simple words the statement which are made to the police by the witness are put upon the witness in order to establish a contradiction between that statement and what he is stating in the court.

So the procedure to prove omission is first by asking a question the omission is turned into contradiction and brought on record. Then the Police officer or the officer who recorded the statement under section 161(3) of the Code is called upon and asked that whether the statements mention in the challan is stated by this witness, if the officer affirms, then the credibility of that witness will be impeached.

Thus the crucial point while proving the omissions is the question which are put upon in order to convert omissions into contradictions. And only regular hard work and practice would make a counsel competent enough to put on those question efficiently and brings out omissions which amount to contradiction.

Proving of contradiction and omission can change the course of Judgment if done properly. So we can say that contradiction and omission are an essential part of criminal proceedings because if they get proved then the credibility of the witness is impeached which is helpful in rendering judgment.

In order to conclude I would like to say that “If cross examination is an art, then the omission make that art even more artistic.”

Aishwarya Says:

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