Omissions and Contradictions: Assessing their Effect on the Evidence

In Indian law, witness statements and their evidentiary use are governed by Sections 161¹ and 162² of the Code of Criminal Procedure, 1973, and their modern counterparts, Sections 180³ and 181⁴ of the Nagarik Suraksha Sanhita, 2023 (BNSS), along with Rule 58-B⁵ of the Criminal Rules of Practice and Circular Orders, 1990⁶. Despite BNSS’s introduction, the procedural framework remains unchanged. For convenience, I will refer to the sections under Criminal Procedure Code, 1973 (CrPC)⁷ throughout this article.

Section 162 CrPC deals with the use and limitations of witness statements made to the police during an investigation. From its origins in the Criminal Procedure Code of 1872⁸, through amendments in 1882, 1898, 1923, 1945 and 1955, to its present form in the CrPC, 1973, the objective of Section 162 has remained consistent i.e. to prevent witness statements made during investigations from being used as substantive evidence at trial.

Judicial perspective of omissions and contradictions

In legal parlance, a contradiction occurs when a witness’s testimony in court differs from his statement made under Section 161 CrPC during the police examination. An omission refers to instances where a witness introduces new facts in court that were not mentioned in his Section 161 CrPC statement. Adverting to the question of when an omission amounts to a contradiction, the Explanation to Section 162 CrPC⁹ clarifies that omissions in police statements can only be treated as contradictions if they are significant and relevant in the context of the case.

A discussion on these concepts would be incomplete without referencing the landmark judgment of Tahsildar Singh v. State of U.P.¹⁰, which laid the foundational clarifications that have shaped all subsequent rulings since 1959. The terms “omission” and “contradiction” are thoroughly explained in this judgment.

According to Justice Hidayatullah, a “contradiction” encompasses inconsistencies, variances, or opposition between statements. On the other hand, as per Justice K. Subba Rao, a “statement” means the act of stating or reciting, and “to contradict” means to assert the opposite, and thus, a statement cannot include something that was never stated. At first glance, this suggests that contradictions can arise only from statements, not omissions. However, His Lordship further held that the term “statement” not only encompasses what is expressly said but also includes implied words necessary for a full understanding or interpretation.

When an omission rises to the level of contradiction

Notably, to determine when a statement includes omissions by implication, Justice K. Subba Rao in Tahsildar Singh case¹¹, outlined three key principles. These principles played a key role in fully and properly interpreting such omissions as the 1898 Code lacked the Explanation now present in the 1973 Code. They are as follows:

1. The concept of a recital by necessary implication

A statement cannot include that which is not stated. But very often, to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement.

Illustration

Police examination: I saw A stabbing B at a particular point in time.

Court testimony: I saw A and C stabbing B at the same point in time.

In the statement before the police, the Court can imply the word “only” after “A” i.e. the witness saw A only stabbing B.

2. The concept of the negative or the positive aspect of the same recital

Sometimes, a positive statement may have a negative aspect and a negative one a positive aspect.

Illustration

Police examination: A dark man stabbed B.

Court testimony: 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.

3. Principle of inherent repugnancy

There are occasions when the same person makes two statements at different times, and both cannot co-exist. There is an inherent repugnancy between the two; therefore, if one is true, the other must be false.

Illustration

Police examination: A, after stabbing B, ran away by a northern lane.

Court testimony: Immediately after the stabbing, A 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.

So, while these may not be omissions in the strict sense, the statement must be deemed to contain these omissions by implication. However, it is important to note that not every omission qualifies as a contradiction for the purpose of discrediting the witness.

The question is whether the omission is on a vital aspect which the witness was normally bound or expected to disclose even without a question along with the other answers and whether the new version given in box on a vital aspect militates against what he already said and operates as an embellishment. That is a question of fact to be decided in each case.¹²

Further, in this regard, a view has been propagated that the three principles of necessary implication established in Tahsildar Singh case¹³, particularly in key paragraphs (18, 23 and 26), are no longer applicable because the said principles reflected the legal framework of the 1898 Code, which lacked the Explanation now present in the 1973 Code. While this argument may seem plausible, it is crucial to note that the Explanation in the 1973 Code still allow courts the discretion to decide, on a case-by-case basis, whether an omission amounts to a contradiction. Thus, in my opinion, the three principles laid out by Justice K. Subba Rao in Tahsildar Singh case¹⁴ still hold practical value in aiding the courts to identify and evaluate the materiality and relevance of an omission within the context of a case.

Judicial approach to identifying material contradictions

The concept of contradiction in criminal jurisprudence cannot be rigidly defined, as its significance varies from case to case. The Court must determine whether a contradiction is trivial or material enough to undermine the reliability of a witness’s testimony. In doing so, the Court should evaluate contradictions in the broader context of the witness’s evidence to reach a rational conclusion.

In Tahsildar Singh case¹⁵, the Supreme Court approved “disallowing specific questions during the cross-examination” regarding omissions in a witness’s Section 161 CrPC statement. The defence asked the witness the following during his cross-examination:

Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinised them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh?

Q. Did you state to the investigating officer about the presence of the gas lantern?

The Supreme Court viewed that these questions on the omissions were to be denied because they did not establish a direct contradiction between the “witness’s statement to the police” and “their testimony in court”. Instead, the questions asked the witness to confirm whether they told the police certain details, which is not permitted under cross-examination. Further, Justice K. Subba Rao applied his principles to the disallowed questions as follows:

(1) “Scrutiny of dead bodies” and the “principle of inconsistency or irreconcilability”: The witness had previously stated that the appellants shot at people and fled with Bharat Singh’s gun, but in court, the witness added that the appellants scrutinised the faces of two of the dead bodies during the incident. His Lordship concluded that this additional detail did not contradict the earlier version of events. The appellants could have shot at the people, pursued them, taken Bharat Singh’s gun, and, during their retreat, scrutinised the dead bodies. There was no inconsistency or irreconcilability between these two versions, as both could logically fit together. Therefore, this omission did not meet the principle of irreconcilability and was not considered a contradiction.

(2) “Gas lamp” and the “principle of necessary implication from the recital”: His Lordship concluded that the omission of a reference to the gas lamp in the statement could not be interpreted as implying that there was no gas lamp present at the scene. This is because the scene of the incident was not confined to a small area but spread across a larger locality, making it impossible to infer that the gas lamp was not present in any part of the scene. Additionally, the witness’s mention of a “lantern” does not exclude the possibility of a gas lamp being present, as the term “lantern” is broad enough to include a gas lantern. There was no inherent repugnancy or contradiction between the witness’s police statement and the testimony in court, even if one assumed a distinction between a regular lantern and a gas lantern. His Lordship found that both could coexist at the scene, and thus, the omission did not satisfy the principle of necessary implication or amount to a contradiction.

Further, in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat¹⁶, the witnesses initially told the police that the accused came out of the room with a bloodstained knife and admitted to murdering his wife. However, in court, they testified that he was hallucinating, behaving irrationally, and making imaginary accusations against the deceased. The Supreme Court treated these conflicting statements as contradictions, noting that the accused’s mental state at the time of the incident was absent from the police statements but was later vividly described in court, and this change in narrative suggested an attempt to support the accused’s insanity defence.

In Francis Joy¹⁷, the High Court of Kerala held that the omission in PW 4s police statement i.e. omitting to mention of witnessing a conversation about entering the examination hall, did not amount to a contradiction because it was not a vital aspect of the case, it was not something he was bound or expected to disclose, and it did not conflict with his previous statement or alter the case materially. Since this fact was not crucial for corroborating PW 1, the court found that the omission did not discredit the witness.

In State of Rajasthan v. Rajendra Singh¹⁸, the Supreme Court found contradictions in the evidence of two independent witnesses. Ramjilal (PW 8) was contradicted by his police statement, which omitted any mention of attempting to snatch the gun from the respondent, a vital detail he introduced in court. This omission was treated as a contradiction, casting doubt on his truthfulness. Similarly, Jeevan Singh (PW 9) made a material improvement in court by stating that he tried to save Harveer and was injured in the process, a fact he had not mentioned in his police statement. The court treated this as a significant discrepancy.

In Gopal v. Subhash¹⁹, the Supreme Court treated the omissions by PWs 3, 4 and 8 in their statements made to the police of the alleged exhortations made by the accused as contradictions given the material nature of this omission. Additionally, PWs 1, 5 and 10 did not mention any such exhortation, further highlighting the inconsistency in the witnesses’ evidence.

It must be borne in mind that omissions and contradictions naturally arise in criminal cases due to various factors, the most common being the time gap between investigation and trial. While minor inconsistencies do not necessarily affect a witness’s credibility, only material discrepancies have the potential to cast doubt on the reliability of their testimony. Whether an omission, contradiction, or discrepancy qualifies as a material contradiction is a factual determination dependent on the circumstances of each case. The Court must assess this based on the totality of evidence rather than in isolation.

Recordings, omissions and contradictions during trial

Another area where trial courts often falter is in maintaining consistency when handling omissions and contradictions during the trial, particularly in the procedural aspects, such as confronting the witness with the statement, bringing the contradiction on record, and proving it through the investigating officer. This procedural lapse has been highlighted by the Supreme Court in various cases.

In Anjan Ganguly v. State of W.B.²⁰, the High Court of Calcutta illustrated the procedure for bringing “contradictions” and “material omissions in the evidence” onto the record. Apart from this, in 2021, the Supreme Court, in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies v. State of A.P.²¹, directed High Courts, State Governments, and the Union to incorporate and implement these rules within six months. So far as the State of Andhra Pradesh is concerned, the Government of A.P. issued a Gazette Notification on 17-9-2024 amending the Criminal Rules of Practice and Circular Orders, 1990, incorporating the abovementioned rule as Rule 58-B. Notably, alongside this amendment, the Government of A.P. also updated the references to Sections 161 and 164²² CrPC, in the rule to Sections 180 and 181 BNSS. The rule is extracted as below:

58-B. References to statements under Sections 180 and 183 of the Nagarik Suraksha Sanhita, 2023.—

(i) During cross-examination, the relevant portion of the statements recorded under Section 180 of the Nagarik Suraksha Sanhita, 2023 used for contradicting the respective witness shall be extracted. If it is not possible to extract the relevant part as aforesaid, the Presiding Officer, in his discretion, shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition, through distinct marking.

(ii) In such cases, where the relevant portion is not extracted, the portions only shall be distinctly marked as prosecution or defence exhibit as the case may be, so that other inadmissible portions of the evidence are not part of the record.

(iii) In cases, where the relevant portion is not extracted, the admissible portion shall be distinctly marked as prosecution or defence exhibit as the case may be.

(iv) The aforesaid rule applicable to recording of the statements under Section 180 shall mutatis mutandis apply to statements recorded under Section 183 of the Nagarik Suraksha Sanhita, 2023, whenever such portions of prior statements of living persons are used for contradiction/corroboration.

(v) Omnibus marking of the entire statement under Sections 180 and 183 of the Nagarik Suraksha Sanhita, 2023 shall not be done.²³

Simply put, if the relevant and admissible portion of the statement is fully extracted during cross-examination, there is no need for separate marking, as the extracted portion automatically becomes part of the court record. However, if full extraction is impractical, the Presiding Officer must record the opening and closing words of the relevant and admissible portion in the deposition during the witness’s testimony. This portion in the Section 161 CrPC statement should then be distinctly marked and formally exhibited (e.g. “Ext. P-1” for the prosecution or “Ext. D-1” for the defence) as per sub-rule (ii). The sub-rule (iii) is an additional safeguard that reinforces the idea that even when marking is used instead of extraction, only the admissible part of that relevant portion is distinctly marked as an exhibit, and no irrelevant or inadmissible material slips through.

Besides the procedure outlined in this rule, if a contradiction is identified, the witness must be confronted with it during cross-examination, as mandated by the second limb of Section 145 of the Evidence Act²⁴. Only through such confrontation is the exhibited statement (contradiction) legally brought onto the record. Subsequently, the investigating officer must be examined to verify that the exhibited statement was accurately recorded during the investigation, especially if the witness denies making such a statement. Once the investigation officer confirms the accuracy of the exhibited statement, the contradiction is considered proven.

Similarly, when addressing statements that were not included in a witness’s Section 161 CrPC statement (omissions), the Explanation to Section 162 CrPC makes it clear that the cross-examining counsel has the right to question the witness about whether such statements were made during the police investigation. During such questioning, if the witness admits that these facts were not mentioned (omitted) during the investigation, no further proof is required. However, if the witness testifies that the fact was stated (and thus not omitted), it becomes necessary to call the investigating officer to testify, provided the omission is significant and relevant. If the investigating officer confirms that the witness did not state the omitted fact, it is then up to the court to determine, during the appreciation of evidence, whether such an omission amounts to a contradiction.

Summing up

No case is entirely free from omissions or contradictions. Nevertheless, their presence does not necessarily result in acquittal, nor does their absence ensure conviction. In fact, the opposite may also occur, where their presence leads to conviction and their absence results in acquittal. In Indian jurisprudence, the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything) does not apply. Therefore, the appreciation of omissions and contradictions must be confined to assessing the credibility of the specific witness, with the aim of sifting truth from falsehood. Moreover, the significance of omissions or contradictions may diminish over time as memories fade and circumstances change. Therefore, each omission or contradiction must be carefully assessed within the context of the case.