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TOPIC – A
“CONTRADICTIONS AND OMISSIONS”

INTRODUCTION :-

Omissions and Contradictions relate to previous

statement made by a witness. Omission means missing to state
something from the earlier statement. Contradiction means
stating something different from the earlier statement. Causes,
and more particularly, effects of such 'something missing
(omissions)' and 'something different (contradictions)' have to be
dealt with by every judicial officer while waighing testimonies of
witnesses.

2] There is no specific yardstick to decide the veracity of

the versions of witnesses. Rather, there cannot be any, perhaps
than the one, however subjective it may, that it should inspire
confidence in the mind of a judge. Omissions and contradictions
come in the way of inspiring confidence about evidence.
Provisions and precedents have taken care of these issues. Section
145 of the Indian Evidence Act, 1872 (the Evidence Act) and
Section 162 of the Code of Criminal Procedure, 1973 (the Cr.P.C.)
are the most relevant provisions in this regard.

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3] Since in Indian Evidence Act the terms contradiction

and omission are not defined but reference finds in section 155 as
to impeach the credit of witness by adverse party. Section 155(3)
provides as “by proof of former statements inconsistent with any
part of his evidence which is liable to be contradicted. Section 145
of the Indian Evidence Act provides the manner in which the
witness can be cross examined as to previous statement in
writing”. As per dictionary meaning the term “Contradiction”
means “the act of saying something that is opposite or very
different in meaning to something else.” Whereas the term
omission as dictionary meaning as “something that has been left
out or excluded.”

4] The contradiction means stating two versions by same

persons at two different points of time. In the Criminal cases or
trials the statement of witnesses are recorded by the Investigating
officer. However, U/sec. 157 the former statement of witness may
be proved to corroborate the later testimony as of the same fact. As
such, only in statement made by a witness as substantive piece of
evidence before the court can be corroborated with the former
statement made by him but the question arises when it contradicts
the earlier version. Then by conjointly reading section 155(3) its
credit get impeached.

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Meaning – Contradiction and Omission :-

5] If witness deposes in the court that certain fact existed
but he has not stated accordingly in his statement before police, it
is a case of conflict between the deposition in the court and
statement before police. Therefore statement before police can be
used to contradict his deposition before court.
Meaning of Omission :-
i) Omitting or being omitted.
ii) Thing omitted.

If witness has deposed in Chief examination the certain

thing which he has omitted to state before police in his statement,
it is called omission. The court will not take cognizance of
omissions which are not relating to material point.
Meaning of contradiction :-
As per the Oxford dictionary, term ‘contradict’ (verb) means;
i) Denies (a statement).

ii) Deny a statement made by (a person).

iii) be in opposition to or in conflict with. [contradiction

noun].

6] If a witness deposes in the court that a certain fact

existed, but he has not stated accordingly in his statement before
the police, it is a case of conflict between the deposition in court

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and statement before the police. Therefore statement before the

police can be used to contradict his deposition before the court.
'Statement' in it's Dictionary meaning is the act of stating or
reciting. And 'contradict' according to Oxford Dictionary means to
affirm to the contrary. If the statement before the police officer,
and the statement in the evidence before the Court are so
inconsistent or irreconcilable with each other, that both of them
cannot co-exist, then it may be said that one contradicts the other.
Further explanation to Section 162 of Code of Criminal Procedure,
says that 'An omission to state a fact or circumstance, in the
statement may amount to contradiction if the same appears to be
significant and otherwise relevant having regard to the context, in
which such omission occurs'. Whether any omission amounts to
contradiction in the particular context shall be a question of fact.

Provisions relating to contractions and omissions :-

7] According to Section 155 of The Indian Evidence Act, it
has been enacted to “impeaching credit of a witness: The credit of
a witness may be impeached in the following ways by the adverse
party, or with the consent of the Court, by the party who calls him-
1. By the evidence of persons who testify that they, from
their knowledge of the witness, believe him to be unworthy
of credit;
2. By proof that the witness has been bribed, or has accepted
the offer of a bribe, or has received any other corrupt

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inducement to give his evidence;

3. By proof of former statements inconsistent with any part
of his evidence which is liable to be contradicted;
4. When a man is prosecuted for rape or an attempt to
ravish, it may be shown that the prosecutrix was of
generally immoral character;
Explanation- “A witness declaring another witness to be
unworthy of credit may not, upon his examination in-chief,
give reason for his belief, but he may be asked his reasons in
cross-examination, and the answers which he gives can not be
contradicted, though, if they are false, he may afterwards be
charged with giving false evidence”.

8] A witness's previous statement is admissible in order to

corroborate his evidence in the following conditions -
1. If the previous statement is relevant to the evidence given
in the Court. In other words, the previous statement should
be relevant to the same fact which are there in the enquiry.
2. It should be given then -
a) When the fact had happened; or
b) Before some officer who is competent of
investigating that fact.

9] Thus, in order to corroborate the evidence of that

witness, his previous statement can be proved. As per Section 154

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and 155, the previous statement of the witness can be used to

impeach his credit or reputation.

10] According to Section 157 of The Indian Evidence Act,

“Former statement 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 or about the time when the fact
took place or before any authority legally competent to investigate
the fact, may be proved.”

11] A provision regarding cross examination of a witness

as to previous statements in writing has been embodied in Section
145 of the Indian Evidence Act. Section 154 of the Indian
Evidence Act says that the Court may, in its discretion, permit the
person who calls a witness to put any question to him which might
be put in cross-examination by the adverse party. Sub-section (2)
makes it clear that, the person may rely on any part of the
evidence of such witness.

12] The Police are empowered to examine and record

statement of witnesses during investigation under Section 161 of
Code of the Criminal Procedure. The use of Statements is
governed by sec. 162 of Code of the Criminal Procedure.

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How to record contradiction during trial ?

13] Para 29 of Chapter VI of the Criminal Manual describes

the manner of Proof and statements, under Section 161, of the
Code of Criminal Procedure,1973, as under;

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 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

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had made the statement which he says he had.

14] To contradict witness exact passage occurring in his

statement under sec 161 should be read out and put to the witness
whether the witness admits having made such a statement before
I.O. The exact statement which was read out to the witness should
be incorporated verbatim in deposition within inverted commas. If
the witness admits having made that statement there is no need to
further proof of contradiction. If on the other hand the witness
denies having made such a statement, thereupon it should
be mentioned in the deposition itself in brackets. By this process
the contradiction is merely brought on record, but it is yet to be
proved. Thereafter, when I.O who has recorded the statement is
examined in the court, the passage marked for the purpose of
contradiction should be read out to him and he should be asked if
the witness had stated as mentioned in that exhibit. It is only when
investigating officer answer in affirmative that the exhibit can be
deemed to have been properly proved.

15] Ordinarily, accused persons are entitled to challenge

the testimony of witnesses with reference to the statements said to
have been made by them before the Investigating Officer.
Statements made by prosecution witnesses before the
Investigating Officer being earliest statements made by them with

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reference to the facts of the occurrence, are valuable material for

testing veracity of witnesses examined in Court, with particular
reference to those statements, which happened to be at variance
with their earlier statements. But the statements made during
police investigation are not substantive evidence. Explanation to
Sub-section (2) of sec. 162 of the code of Cr.P.C is added to
resolve the conflict and recognize the validity of the majority
decision of the Hon'ble Supreme Court in Tahsildar Singh V/s
State of U.P. AIR 1959 1012..

16] Now the explanation specifically provides that, an

omission to state a fact or circumstance in the case may amount to
contradiction if certain conditions as envisaged therein are
fulfilled. A statement recorded by the police during the
investigation is not at all admissible in evidence and the proper
procedure is to confront the witnesses with the contradiction when
they are examined and then ask the Investigating Officer regarding
those contradiction. Following are well settled legal propositions:
i) A statement in writing made by witness before a police
officer in the course of investigation can be used only to
contradict his statement in the witness box and for no other
purpose.
ii) Statements not reduced into writing by the Police
officer cannot be used for contradictions.

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Iii) Though a particular statement is not recorded, a

statement that can be deemed to be part of that expressly
recorded can be used for contradictions not because it is an
omission strictly so called, but because it is deemed to form
part of the recorded statement. Such a fiction is permissible
by construction only in the following three cases:
a) when a recital is necessarily implied from the recital or
recitals found in the statement.
Illustration :– In a statement before police the witness
states that, he saw 'A' stabbing 'B' at a particular point of time, but
in the witness box he says that he saw 'A' and 'C' stabbing 'B' at the
same point of time; in the statement before the police the word
'only' can be implied .
b) a negative aspect of positive recital is found in statement.
Illustration :- In the recorded statement before the
police the witness says that, a dark man stabbed 'B. But in the
witness box he says that a fair man stabbed 'B' the earlier
statement must be deemed to contain the recital not only that the
culprit was a dark complexioned man but also that he was not of
fair complexion.
c) when the previous statement and statement before the
court can not stand together.
Illustration :- The witness says in the recorded
statement before the police that, A after stabbing B ran
away by a northern lane, but in the Court he says that

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immediately after stabbing he ran away towards the

southern lane; as he could not have run away
immediately after the stabbing i.e., at the same point of
time, towards the northern lane as well as towards the
southern lane, if one statement is true, the other must
necessarily be false.

17] Hon'ble Apex Court has narrated the procedure of

bringing on record contradictions and omissions in simple words in
recent verdict of V. K. Mishra and another Vs. State of Uttarakhand
and another (AIR 2015 S.C. 3043). Para-18 of the said citation
reads as under :-
“ Under Section 145 of the Evidence Act when it is intended
to contradict the witness by his previous statement reduced
into writing, the attention of such witness must be called to
those parts of it which are to be used for the purpose of
contradicting him, before the writing can be used. While
recording the deposition of a witness, it becomes the duty of
the trial court to ensure that the part of the police statement
with which it is intended to contradict the witness is
brought to the notice of the witness in his cross-examination.
The attention of witness is to be drawn to that part and this
must reflect in his cross-examination by reproducing it. If
the witness admits the part intended to contradict him, it
stands proved and there is no need to further proof of

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contradiction and it will be read while appreciating the

evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement
and must be mentioned in the deposition. By this process
the contradiction is merely brought on record, but it is yet to
be proved. Thereafter, when 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 will depose about
the witness having made that statement. The process again
involves referring to the police statement and culling out
that part with which the maker of the statement was
intended to be contradicted. If the witness was not
confronted with that part of the statement with which the
defence wanted to contradict him, then the court cannot suo
moto make use of statements to police not proved in
compliance with Section 145 of Evidence Act that is, by
drawing attention to the parts intended for contradiction.”
More or less, the same procedure is laid down by the Hon'ble
Bombay High Court long back in the year 1958, in the case of
Sayyad Hussain Sayyad Hussain Vs. The State, AIR 1958 Bom 225.

18] If it is intended by an accused to contradict the

evidence given by a prosecution witnesses at the trial with a

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statement made by him before the police during the investigation,

the correct thing to do is to draw the attention of the witness to
that part of the contradictory statement, which he made before the
police and question him whether he did in fact make that
statement. If the witness does not admit having made the
particular statement to the police, that admission will go into
evidence and will be recorded as part of his evidence. If the
witness does not admit having made the particular statement to
the police, such a statement before the police i.e the particular
portion of the statement recoded U/s.161 Cr.P.C should be
provisionally marked for identification and when the Investigating
Officer who had actually recorded the statement in question comes
into the witness box he should be questioned as to whether that
particular statement had been made to him during the
investigation by the particular witness, and obviously after
refreshing his memory from the police case diary the Investigating
Officer would make his answer in the affirmative. The answer of
the Investigating Officer would prove the statement which is then
exhibited in the case and will go into evidence and may,
thereafter, be relied on by the accused as a contradiction.

19] It is for the trial judge to decide in each case, after

comparing the part or parts of the statement recorded by the
police with the one made in the witness box, to give a ruling

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having regard to the aforesaid principals whether the recital

intended to be used for contradiction satisfies the requirements of
law.

How to judge contradictions and omissions? How far they

are material?

20] The duty of court is to discover the truth and to find

out whether the accused is guilty or not. Facts comes before the
court by way of oral testimony of witness and other documents. As
human being is not free from certain error, moreover with
different perception power of senses and different intellect i.e.
analytical reasoning, mental status etc., therefore it is not possible
to lay down strict rule or straight jacket formula in appreciation of
all contradictions and omissions. So every contradiction or
omission must therefore be judged by reference to various factors.

Evidential Value Of Contradictions And Omissions:

21] Merely because there is 'inconsistency in evidence, it is
not sufficient to impair the credit of the witness. No doubt section
155 of the Evidence Act provides scope for impeaching the credit
of a witness by proof of inconsistent former statement. But a
reading of the section would indicate that all inconsistent
statements are not sufficient to impeach the credit of the witness.
A former statement though seemingly inconsistent with the

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evidence need not necessarily be sufficient to amount to

contradiction. Only such of the inconsistent statement which is
liable to be contradicted would affect the the credit of the witness.

22] In the past, great importance was being given to minor

contradictions and omissions. The accused were getting benefit of
hyper sensitivity of Judges who were giving importance to minor
contradictions and omissions. Lawyers were also attempting to
compare word for word and they were searching for every
opportunity to bring on record contradictions and omissions. All
this exercise has made cross-examination of witnesses a kind of
mockery. But in recent past Hon'ble Supreme Court has criticized
this tendency which was resulting in giving undue advantage to
the defence side and it was paralyzing the prosecution case. It was
also causing injustice to the victims of crime due to acquittal of the
accused on the strength of minor contradictions and omissions
came on record. Such sort of change can be pointed out by
quoting observations of Hon'ble Supreme court in following
cases :-

i) 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. More so, when the all important “probabilities-
factor” echoes in favour of the version narrated by the witnesses. -
Bhoginbhai Hirjibhai Vs. State of Gujarat (AIR 1983 SC 753).

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ii) In appreciation of evidence, the approach must be whether

the evidence of the witness read as a whole, appears to have a ring
of truth. Once that impression is formed, the Court should
scrutinise the evidence keeping in view the deficiencies, drawbacks
and infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general tenor of
the evidence given by him and whether the earlier evaluation of
the evidence is shaken as to render it unworthy of belief. Minor
discrepancies on trivial matters not touching the core of the case,
hyper-technical approach by taking sentences torn out of context
here or there from the evidence, attaching importance to some
technical error committed by the investigating officer not going to
the root of the matter would not ordinarily permit rejection of the
evidence as a whole. - State of U.P. Vs. M. K. Anthony (AIR 1985
SC 48).

iii) In Appabhai Vs. State of Gujrat AIR 1988 S.C. 694 [1988
Cri.L.J. 848], The Hon'ble Apex Court has observed as under:-
"The Court while appreciating the evidence must not attach
undue importance to minor discrepancies. The discrepancies which
do not shake the basic version of the prosecution case may be
discarded. The discrepancies which are due to normal errors of
perception or observation should not be given importance. The
errors due to lapse of memory may be given due allowance. The
Court by calling into aid its vast experience of men and matters in

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different cases must evaluate the entire material on record by

excluding the exaggerated version given by any witness. When a
doubt arises in respect of certain facts alleged by such witness, the
proper course is to ignore that fact only unless it goes into the root
of the matter so as to demolish the entire prosecution story. The
witnesses now a days go on adding embellishment to their version
perhaps for the fear of their testimony being rejected by the Court.
The Courts, however, should not disbelieve the evidence of such
witnesses altogether if they are otherwise trustworthy."

iv) The core of the evidence has to be seen and not any
borderline’s aspect. Minor variations which do not have any effect
on the credibility of the evidence, cannot be the basis to discard
intrinsic value of the evidence. - Shamsuddin Vs. State of M.P.
(2003 (12) SCC 693).

v) As observed by this Court in State of Rajasthan Vs. Smt.

Kalki (AIR 1981 SC 1390), normal discrepancies in evidence are
those which are due to normal errors of observation, normal errors
of memory due to lapse of time, due to mental disposition such as
shock and horror at the time of the occurrence and those are
always there, however honest and truthful a witness may be.
Material discrepancies are those which are not normal, and not
expected of a normal person. Courts have to label the category to
which a discrepancy may be categorized. While normal

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discrepancies do not corrode the credibility of a party’s case,

material discrepancies do so. These aspects are highlighted
recently in Sucha Singh Vs. State of Punjab (AIR 2003 SC 3617).

vi) Unless discrepancies, contradictions and inconsistencies

affect the core of the prosecution case, they cannot be basis to
reject their evidence. Normal discrepancies are bound to occur in
the depositions of witnesses due to errors of observations, errors of
memory due to mental disposition at the time of the occurrence. -
State of U.P. Vs. Nagesh (2011 Cr.L.J. 2162 (SC)).

vii) Contradictions minor in nature and not related to major

overt act attributed to each accused would not discredit their
testimony, more so when all the prosecution witnesses hail from
agricultural family and are villagers, cannot be expected to state
minute details in their earlier statements before Court. - Waman
Vs. State of Maharashtra (AIR 2011 SC 3327).

viii) Inconsistencies or contradictions in oral evidence do not rule

out when medical evidence is in consonance with the principal
part of oral/ocular evidence. - Kathi Bharat Vijaur Vs. State of
Gujarat (AIR 2012 SC 2163).

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23] Important Citations on contradiction and omission :-

i) Bharat Singh vs State of U.P., AIR 1972 SC 2478
The contention was that there were serious contradictions in
the evidence of the prosecution witnesses which had not been
considered by the High Court. Whereas one witness said that the
appellant was carrying a weapon like a hockey stick, another
witness said that the appellant was armed with a pistol. The
Supreme Court held that it is common experience that in the
confusion of the moment witnesses are prone to make errors
especially if seized by sudden fear. Besides, those who are
determined to be lawless do not always stick to their weapons.

ii) Omission in the statement of witnesses (Bhinya Ram vs State

of Rajasthan, 1979 Raj Cr.C 308 (314, 315)
The statement of the witness to the effect that the accused
used to tell him that he would kill the rich and distribute their
wealth amongst the poor and this mission he would start with the
assassination of His Highness Kishangarh. The witness failed to
make such an important statement before the police. The
explanation of the witness that he did not narrate this fact to the
police as he was not asked abut it, does not satisfactorily explain
this material omission. If the accused told him prior to the date of
the occurrence that he would commit the murder of His Highness
Kishangarh he would not have kept quiet and would not have also
remained silent before the Investigating Officer at the time of

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recording his statement.

iii) In case of – Arjun and others ..Vs.. State of Rajsthan, AIR

1994 SC 2507, The Hon'ble Apex Court has held that - A little bit
of discrepancies or improvement do not necessarily demolish the
testimony. Trivial discrepancy, as is well known, should be
ignored. Under circumstantial variety the usual character of
human testimony is substantially true.
Similarly, innocuous omission is inconsequential.

iv) In case of Cruz Pedro Pacheco Vs. State of Maharashtra,

reported in 1998 (5) Bom. C. R. 521, Hon'ble Bombay High Court
held as under :-
“ Credibility of the witness can be impeached only after
obtaining his explanation for the contradictory statement and by
pointing out that the explanation given by him is not true or
satisfactory. Then only the Court will be in a position to consider
whether and how far the credibility of that witness is affected on
that count. Therefore, in my opinion, it is absolutely necessary to
give the witness an opportunity of explaining the alleged
contradiction. It must be borne in mind that the trial has to be fair
not only to the accused but also to the witness who may be the
aggrieved party himself. ”

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v) Vikram Vs. State of Maharashtra, AIR 2007, SC 1893.

Witnesses were examined in Court after two and half years,
if there occurred some contradictions or even assuming they had
omitted to state the incident in great details, the same by itself
would not lead to conclude that accused are falsely implicated in
the case.

vi) Where the omission(s) amount to a contradiction, creating

a serious doubt about the truthfulness of a witness and other
witness also make material improvements before the court in order
to make the evidence acceptable, it cannot be safe to rely upon
such evidence. (Vide : State of Rajasthan v. Rajendra Singh,
(2009) 11 SCC 106).

vii) State Rep. by Inspector of Police v. Saravanan and anr., AIR

2009 SC 152: The contradictions/omissions must be of such nature
which materially affect the trial. Minor contradictions,
inconsistencies, embellishments or improvements which do not
affect the core of the prosecution case should not be made a
ground to reject the evidence of the witness in entirety.

viii) Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of

Maharashtra, (2010) 13 SCC 657: Omissions which amount to
contradictions in material particulars, i.e., go to the root of the
case/materially affect the trial or core of the prosecution case,

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render the testimony of the witness liable to be discredited.

ix) C. Muniappan Vs. State of Tamilnadu, AIR 2010, SC 3718.

Even if there are some contradictions and omissions and
discrepancies the entire evidence cannot be disregarded. After
exercising care and caution and sifting through evidence to
separate truth from untruth, exaggeration and improvements the
court can come to a conclusion as to whether residuary evidence is
sufficient to convict the accused. Thus undue importance should
not be attached to them which do not go to the heart of the
matter. Minor discrepancies are bound to occur in the statement
of witnesses.

x) Shamal Ghosh Vs. State of West Bengol 2012 All. S. C. R,

1921
Omission to state a fact whether it is material contradiction
or not is a question of fact. The discretion is left with the Court to
determine whether it is a contradiction or material contradiction
which renders the entire evidence of the witness untrustworthy
and affects the case of prosecution materially.

24] Conclusion :
It is duty of the court to discover truth and find out whether
accused is guilty or innocent. The facts set out by prosecution may
not be accurate or even they can be twisted. In this back ground

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the tool of contradiction and omission is very effective to shake or

shatter the credibility of prosecution evidence. Proof of
contradiction and omissions though is very useful in criminal trial,
it has to be used with circumspection and within legal frame work.
The credibility of witness does not stand impeached merely by
proving contradictions on record. It is required for defence side to
show that prosecution witness may deliberately depose change or
improve there original statement in order to cause prejudice to
accused. Similarly minor omission or discrepancy in evidence is
not enough to hold accused not guilty. Thus by striking out
balance and by evaluating evidence in proper perspective justice
can be done.
Submitted with respects.
Compiled summary paper prepared by

1. V. P. Kadam, 4. S. G. Baokar
A.C.M.M., 31st Court, Vikhroli M.M., 50th Court, Vikhroli.

2. S. S. Pallod, 5. C. R. Balwani
M.M., 34th Court, Vikhroli. M.M., 72nd Court, Vikhroli.

3. R. R. Bhagwat, 6. V. V. Patil
M.M., 49th Court, Vikhroli. M.M., 73rd Court, Vikhroli.

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