Omission means missing to state something from the earlier statement.

Contradiction means stating something different from the earlier statement.

Credibility of testimony of witness

The testimony of the witness shall create and inspire confidence in the mind of the sitting
judge. Omissions and contradictions come in the way of inspiring confidence about credibility
of the witness and the evidence. The terms contradiction and omission are not defined
anywhere in the Indian Evidence Act, 1872 (the Evidence Act) or the Code of Criminal
Procedure, 1973 (Cr.P.C) but a diminutive reference is perceived under Section 155 of the
Evidence Act.

Recording of Contradiction and Omission

Steps for how and when shall the counsel record the Contradiction during the evidence.

a. When the Witness is called for his testimony, the advocate for defense may ask the
witness any question in order to dig up the contradictions in the statement of the witness
recorded before the investigating officer and of what he is deposing in the court. If any such
part of his statement u/s 161 of Cr.P.C is found contradictory the said part of his statement
shall be brought to the notice of witness himself and he shall be further questioned to the
truthfulness of the same. If the witness admits the said contradiction, then it is proved; if he
denies to the said contradiction then the presiding judge shall mark the said part of the
statement for identification, commonly called as "Portion mark or passage mark".

b. In order to prove the contradiction, the advocate shall put questions to the investigating
officer who recorded the statement of the witness U/s 161, as to whether the Portion marked
is true extract and was it recorded by him. If there is some additional information or any
contradictory statement by the witness which is different from what has been stated in his
statement u/s 161 of Cr.P.C then a question to that effect as why is such an information
was not recorded by the investigating officer may be put to him in order to prove the
contradiction. Likewise, the contradiction of the statement can be proved.
What statements can be called former statements in writing:
Sec.145 of IEA does not only include the statements under sec.161 CrPC, and hence the
party can make use of any other former statements that the witness has previously made and
was reduced into writing in order to contradict the witness and what all can be called as
former statements of the witness is settled by Hon’ble Apex court through various case laws:

State (NCT of Delhi) Vs Mukesh – (Nirbhaya Trial Case)

2014 (15) SCC 661
While the Nirbhaya case was on trial, the counsel for the accused wanted to confront and
pose questions on a TV interview given by the PW1, contending that the same can be
treated as former statement. This contention was rejected by trial court and in the revision
the Hon’ble High court of Delhi set aside the order of trial court and allowed the petition
holding that the TV interview given by PW1 is a former statement. This was challenged by
the state and when the matter reached the Hon’ble Supreme court a three judge bench
setaside the order of high court and while restoring the order of the trial court observed that
the word Previous statements used in Sec.145 IEA does not include the statements made
after filing of the chargesheet and opined that the statements made by the witness before
police during the investigation are alone qualified to be used as former statements for the
purpose of contradiction. From this judgment the scope and ambit of what can be called a
former statement was narrowed.

Jasdeep Kaur Chadha Vs State (NCT of Delhi) & Ors

2017 LawSuit (SC) 1538
The prosecution wanted to confront a previous statement to the witness, which the witness
made after filing of the chargesheet. The trial court, relying on the the judgment in Nirbhaya
Trial Case, supra did not allow the public prosecutor to confront the same. The matter was
carried to Hon’ble High Court of Delhi, which confirmed the order of trial court.

The matter was then carried to the Hon’ble Supreme court where Two judges of Hon’ble
Apex court taking note of the decision of four judges bench in Tara Singh Vs. The State –
AIR 1951 SC 441 and of three judges bench in Mohanlal Gangaram Gehani Vs. State of
Maharashtra - 1982 1 SCC 700 both of which were pronounced prior to the judgment in
Nirbhaya Trial Case above on the same aspect held that, Section 145 of the Indian Evidence
Act, has not put any limitation that the previous statement must be during investigation and
further opined that if the statement is in writing and is relevant to the matter in question the
same can be used as former statement. Further it also observed that the Court in State (NCT
of Delhi) Vs. Mukesh has not taken note of the view taken by larger bench in Tara Singh
and hence held that the judgment in State (NCT of Delhi) Vs. Mukesh as per incuriam.
It has been now, made clear by the Hon’ble Apex court, that the statements irrespective of
them being made during the investigation or after, can be considered as former statements.
The said former statements can be confronted if the same are reduced into writing or
recorded through electronic media and further, the statements need not be the only ones made
to the police.

On the point of appreciation of evidence the Hon’ble Supreme Court has observed in Ganesh
K. Gulve etc. v/s. State of Maharashtra ( decided on 21.08.2002 in appeal ( Cri) 501 of
1999 and others by Division Bench of JJ – Y. K. Sabharwal & H. K. Sema) as under:- " In
order to appreciate the evidence, the Court is required to bear in mind the set up and
environment in which the crime is committed. the level of understanding of the witnesses.
The over jealousness of some of near relations to ensure that everyone even remotely
connected with the crime be also convicted. Everyone's different way of narration of same
facts. These are only illustrative instances. Bearing in mind these broad principles,the
evidence is required to be appreciated to find out what part out of the evidence represents
the true and correct state of affairs. It is for the courts to separate the grain from the chaff.

Evidential value of contradictions and omissions:

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.
FIR is a former statement:

Dharma Ram Bhagare Vs St of MH

AIR 1976 SC 476
Three Judges of Hon’ble Supreme Court held that the FIR is a former statement and can be
used for corroborating or contradicting its maker but cannot be used as substantive piece of
evidence, because it is made to the police and also, the ingredients of oath and cross
examination are absent.

Police Diary as former statement: (5) U/Sec.172 CrPC, the accused cannot, as a right, use
the contents of the police diary as former statements for the purpose of contradiction or
corroboration:
There are three clauses under section 172 of CrPC which states the need to maintain and the
mode how to use the case diary.
(i) The first clause directs the investigating officer to enter the day to day entry of the status
of the investigation including the persons interrogated and places visited along with date and
time.
(ii) Any criminal court can call for the case diary maintained by invesigating officer, for
which the case is under trial and the contents of the case diary can be used to aid an
inquiry or trial but the said contents cannot be used as evidence.
(iii) The accused does not have the right to call for the case diary or entitled to refer the
contents, even if the same is referred by the court under 172 (2) CrPC.
(iv) But the third clause provides for two exceptions as to when the accused can use the
contents of case diary: firstly, if the court uses the contents of case diary to contradict the
Investigating officer and secondly, when the Investigating officer himself refers to the case
diary for the purpose of refreshing his memory. In both these circumstances, the provisions
of Sec.161 CrPC and Sec.145 IEA can be invoked by the accused.
In Mahabir Singh Vs State of Haryana
AIR 2001 SC 2503
The two judge bench of Hon’ble Apex court, while explaining the power of court U/Sec.172
(3) CrPC, and how and when the said power can be invoked, opined that the court is
forbidden from using as evidence, the entries of case diary which it refers. But, when the
court uses the entries for contradicting the police officer, the same has to be made available
to the accused to use the same as former statements. Further the court should not, in
exercise of the same power, aid the accused in explaining the contradiction which the defense
has raised.

Police diary of former or counter case can be used as former statement in the
case under trial:

State of Kerala Vs Babu

AIR 1999 SC 2161
In this case the accused initially moved an application before the trial court seeking to
summon a case diary of a previous counter case which contained the 161 CrPC statement of
a witness who deposed in the present case. The trial court allowed the petition. The state
carried the issue to Hon’ble High court, wherein, the Hon’ble High court of Kerala upheld
the order of the trial court.
The matter was then carried to Hon’ble Supreme court, and the Hon’ble court answering the
issue observed that, Sec.172 CrPC has not taken away the right of the accused to use the
statements of a counter case as previous statements for impeaching the credit of the witness,
and the case diary of a different case can be summoned and used as former statement by
the accused by taking recourse to Sec.91 of CrPC. Which now makes it clear that the Case
diary of a different case can also be used as former statements.

Statements witheld or not supplied to accused, remedy available to accused:

As a general rule the accused must be supplied with the statements recorded u/sec.161(3)
CrPC. Withelding the same would vitiate the canons of fair trial and accused will not be in
a position to use the statements for any purpose. But the police/ Investigating officer under
section 173 (6) may request the court to not furnish a particular statement or part of a
particular statement to the accused by duly mentioning the reasons why such request is being
made. The court then has the power not to supply those statements to the accused while
complying with Section 207 CrPC. The statements which the police can seek to withold are
mentioned under Sec.173 (5) (b) of CrPC. The two judgments of Hon’ble Delhi high court
that can be gainfully referred to on this aspect are; (i) Dharambir Vs CBI – 2008
LawSuit(Del) 66 (ii) Ujjal Dasgupta Vs State – 2008 LawSuit(Del) 1010.

Subair T P @ Subu & Ors Vs UOI Rep by NIA

2019 LawSuit(Ker) 953
The division bench of Hon’ble Kerala High Court, speaking on the right of police in seeking
to exclude a statement or part of statement to be given to accused and the power and
obligation of the court in not supplying such statement to the accused, held that Sec.173(6)
CrPC gives a power to the investigating officer to exclude the part ofstatement from the
copies to be supplied to the accused. Further it was opined that the court is under obligation
to withold those statements as nowhere in sec.173 CrPC the courts power to reject the
request of the investigating officer is mentioned, which makes the right U/Sec.173(6) a
valuable right of the police officer. It was also observed in the same case that the accused
at the stage of trial may suffer prejudice on account of exclusion of such statements and the
court to ensure a fair trial can order supplying of such excluded statements at the appropriate
time of trial. However, that will not confer a right on the accused to claim such statements
before hand.

What are Omissions and What Omissions are Contradictions: An omission means to
exclude or leave out something. When a particular fact is not stated before the police by the
witness and he states the same for the first time in the court at the time of trial, it is an
omission.

What omissions are contradictions and whether such omissions can be raised by
the adverse party in cross examination:
Tahsildar Singh Vs St of UP (Tahsildar Singh’s Case) AIR 1959 SC 1012
The six judges Bench of Hon’ble Supreme Court in this case on the point held that;
“Relevant and material omissions amount to vital contradictions, which can be established by
cross-examination and confronting the witness with his previous statement. The meaning given
to the words “contradict” and “contradiction” must at least include the case of an omission
in a previous statement which by implication amounts to contradiction and therefore such an
omission is a matter which is covered by the first proviso to S.162 and questions in cross
examination can be put with respect to it in order to contradict the witness...”
Hence, all omissions on the face of it cannot be treated as contradictions and an omission to
become a contradiction, the fact has to be on the material point affecting the outcome of the
criminal trial. Further these omissions can be used by the adverse
party to elicit any contradiction from the previous statement. Another question that arises is
if in a statement, reduced into writing, the specific words or lines are not recorded, then
whether the counsel can confront the statement for the purpose of recording a contradiction
or put questions on the same in cross examination: This point was answered in Tahsildar
Singh’s Case wherein it was held that: “though a particular statement is not expressly
recorded, a statement that can be deemed to be part of that expressly recorded can be used
for contradiction, not because it is an omission strictly so-called but because it is deemed to
form part of the recorded statement;”
What can be deduced from the foregoing observation of the Hon’ble Supreme court is that
there are three kinds of contradictions that an adverse party can elicit from the witness:
(i) Which a witness states differently before the police and before the court,
(ii) Which a witness has omitted to state before the police and states the same before the
court,
(iii) The witness though not specifically states a fact but the same can be deduced from the
statements made before the police.
Furhter, it is made clear that a statement not only includes what is expressly stated by the
person to the police, but also takes in its fold what can necessarily be implied therefrom.
Even in the absence of a specific recital, some words or meaning crawls into the statement
that the maker has not stated verbatim and the questions can be put on such material aspects
and contradictions can be elicited.
Mode of proving contradictions from former statements made to police:
The two limbs of Sec 145 IEA makes it clear that the former statements can be used in two
ways: first, to generally contradict the witness without the contradiction being proved. This is
done only to impeach the credit of the witness and the former statement need not be
confronted to the witness. Second, if the intention is to prove those writings to make them
as substantial evidence, then the specific parts of which the accused intends to prove, has to
be confronted to the witness, but drawing the attention of the witness itself does not make
that part substantial evidence.

Now, the important aspect of how the contradictions elicited from the former statements made
to police and in the statement made before the court is to be brought on record and when
such contradiction is complete and proved, is clearly explained by the Three Judges Bench of
Hon’ble Supreme Court in :

V.K.Mishra & Anr vs State of Uttarakhand & Anr (2015) 9 SCC 588
“18. 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 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 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 Indian Evidence Act that is, by drawing attention to the
parts intended for contradiction.”

Rammi alias Rameswar Vs State of MP – 1999 LawSuit (SC) 1021

It was held that: When an eye witness is examined at length it is possible for the witness to
make some discrepancies, but only when such discrepancies are so incompatible with the
credibility, the court can disregard the evidence of such witness, but not for mere variations
falling in the narration in the incident of his own statements or from the statements of two
different witness. Further, merely because there is incoinsistency in the evidence of the
witness from his former statements does not impeach the credit of the witness in entirety.

Bhoginbhai Hirjibhai Vs State of Gujarat

AIR 1983 SC 753
It was held that 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.

C. Muniappan Vs. State of Tamilnadu

AIR 2010 SC 3718,
It was observed that, 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.

Ugar Ahir Vs State of Bihar

AIR 1965 SC 277
The Hon’ble Supreme court categorically held that the maxim “Falsus in Uno, Falsus in
Omnibus” is not made applicable in India and observed that, hardly one comes across a
witness whose evidence does not contain a grain of untruth or at any rate exaggerations,
embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the
evidence carefully and separate the grain from the chaff.
From the above observations of Hon’ble supreme court, it is clear that mere inconsistencies
in the evidence of the witness with that of their former statements does not completely
discredit the evidence of the witness and would effect only that part of the contradiction.
Unless the court is otherwise completely satisfied that the witness is completely un-reliable.

State of U.P. v. Harban Sahai, 1998

Supreme Court of India
Bench: M.M. Punchhhi, K.T. Thomas, S. Rajendra Babu
The court held that:
“The third reasoning of the High Court the blood-stained earth collected by the Investing
officer from the place of occurrence war not forwarded to the Chemical Examiner to test the
origin of blood such reasoning is too tenuous and even if such contention was advanced by
the defence the High court need not have taken any serious head to it. Omission to send the
collected from the place of occurrence for chemical examination has not vitiated the
investigation to any extent. We disapprove the aforesaid reasoning of the High Court.”

Gorle S. Naidu v. State of A.P., 2003

Supreme Court of India
Bench: Doraiswamy Raju, Arijit Pasayat.
In this case, the facts related to the murder of two individuals. In the FIR, the prosecution
witness just mentioned that the assailants were followers of one of the appellants, but they
did not name anyone. However, later in court, they stated the name of the assailants. The
Court held that such omission was a vital omission. To find the names, dog squads were
taken to different houses to find these assailants which the witness already knew. Thus, it
was a vital omission that will be treated as a contradiction since it is significant and relevant
in the context of the incident.
Shashidhar Purandhar Hegde v. State of Karnataka, 2004
Supreme Court of India
Bench: Arijit Pasayat, C.K. Thakker
In this case, the appellant was accused of kidnapping a minor and demanding ransom from
his relatives. The statements of the prosecution witnesses were disregarded by the Magistrate
holding them to be contradictions since there were some minor discrepancies in the
statements of certain witnesses. These discrepancies were immaterial and did not affect the
credibility of the witnesses. The High Court held the ruling of the Magistrate to be incorrect
and the same was reaffirmed by the Hon’ble Supreme Court. It held that minor discrepancies
cannot be construed as contradictions if it does not affect the credibility of the evidence
provided by a witness. In the present case, the omission was considered trivial in nature and
therefore the appeal was rejected. The Court reiterated its previous ruling that what omission
constitutes contradiction is a question of fact and it is the duty of the courts to measure its
severity.

The Court held as under:

“In the instant case it is to be noted that the discrepancies which were highlighted by
learned counsel for the appellants are merely trivial in nature. Minor discrepancies cannot be
termed as contradictions unless it affects the credibility of the evidence tendered by a
witness.

The word 'contradiction' is of a wide connotation which takes within its ambit all material
omissions and under the circumstances of a case a court can decide whether there is one
such omission as to amount to contradiction. Also in State of Maharashtra v. Bharat
Chaganlal Raghani and Ors. (2001 (9) SCC 1), Raj Kishore Jha v. State of Bihar (JT (2003)
Supp (2) 354)]. The Explanation to Section 162 of the Code of Criminal Procedure, 1973 (in
short the 'Code') is relevant. 'Contradiction' means the setting of one statement against
another and not the setting up of a statement against nothing at all. As noted in Tahsildar
Singh v. State of U.P. (AIR 1959 SC 1012) all omissions are not contradictions. As the
Explanation to Section 162 of the Code shows, an omission to state a fact or circumstance
in the statement referred to in sub-section (1) may amount to contradiction if the same
appears to be significant or otherwise relevant having regard to the context in which the
omission occurs. The provision itself makes it clear that whether any omission amounts to
contradiction in the particular context is a question of fact.”
Baldev Singh v. State of Punjab
Supreme Court of India
Bench: A.K. Patnaik, Gyan Sudha Misra
The Court held that:
“21. We may now consider the submission of Mr. Sharan that there were improvements in
the deposition of PW-3 over his statements recorded during the investigation under Section
161 CrPC. The Explanation under Section 162 CrPC provides that an omission to state a fact
or circumstance in the statement recorded by a police officer underSection 161 CrPC may
amount to contradiction if the same appears to be significant and otherwise relevant having
regard to the context in which such omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of fact. Thus, unless the omission
in the statement recorded under Section 161 CrPC of a witness is significant and relevant
having regard to the context in which the omission occurs, it will not amount to a
contradiction to the evidence of the witness recorded in court. The evidence of PW-3 is that
on 29.10.1991, the appellant Baldev Singh accompanied by the appellant Balwinder Singh
accompanied by twenty to twenty five persons came in three to four vehicles to his house
and Sadhu Singh (his father), Hardev Singh (his son), Gurdip Singh (his brother), Amanjit
Singh (his son), Sharanjit Singh (son of his brother, Sajjan Singh), Davinder Singh and
Sukhdev Singh (sons of his brother Khazan Singh) in all seven persons were made to sit in
the Gypsy and the appellants took these seven persons with them. There is no omission with
regard to these facts about the picking up of seven members of his family from his house
on 29.10.1991 and the names of these seven members of his family in the statement of PW-
3 recorded under Section 161 CrPC. The omissions in the statement of PW-3 recorded under
S Section 161 CrPC are with regard to the nature, number and colour of the vehicles and
the number of men who had come as well as what happened after the aforesaid incident on
29.10.1991. In our view, the trial court and the High Court had rightly considered these
omissions as not material omissions amounting to contradictions covered by the Explanation
under Section 162 CrPC. In our view, therefore, the High Court rightly maintained the
conviction of the appellants under Secytion 364 and 452 IPC.”
Dhirendra Singh Vs State of Jharkhand, 2021 Supreme Court of India
AIR 2021 SC 1169
Bench : Hon'Ble Dr. Chandrachud, M.R. Shah
The court held,
“6. At this stage, it is required to be noted that the appellant ran away and he absconded
for approximately 15 years. His trial was separated. He surrendered/was arrested after the
conclusion of the trial of another accused and after another accused was convicted. Learned
counsel appearing on behalf of the appellant is not in a position to seriously dispute the
finding recorded by both the Courts below with respect to the presence of the appellant-
accused at the time of incident. The use of firearm by the appellant-accused has also been
established and proved. Merely because the weapon is not seized cannot be a ground to
acquit the accused when his presence and his active participation and using firearm byhim
has been established and proved. We are of the opinion that both, the learned Trial Court
and the High Court, have rightly convicted the appellant-accused for the offences punishable
under Section 302 read with Section 34 IPC. No interference of this Court is called for.”

Subed Ali Vs State of Assam,

(2020) 10 SCC 517
Three-Judge Bench : Justice Rohinton Fali Nariman, Justice Navin Sinha, Justice K.M.
Joseph
In this case the court held as under:
“8.....Minor inconsistencies and contradictions in the evidence of the eye witnesses are
considered inconsequential. Their evidence on all material aspects are consistent lending
credibility to their eye witness account. We find no infirmity in the conviction of the
appellants with the aid of Section 34”

Bhagwan Jagannath Markad Vs. State of Maharashtra, 2016

(2016) 10 SCC 537
Bench : Shri Justice V. Gopala Gowda , Shri Justice Adarsh Kumar Goel
The court in this case held that:
“19. While appreciating the evidence of a witness, the court has to assess whether read as a
whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks
and infirmities to find out whether such discrepancies shake the truthfulness. Some
discrepancies not touching the core of the case are not enough to reject the evidence as a
whole. No true witness can escape from giving some discrepant details. Only when
discrepancies are so incompatible as to affect the credibility of the version of a witness, the
court may reject the evidence”

Dharnidhar Vs. State of U.P., 2010

Supreme Court of India
2010 (6) SCJ 662
Bench: B.S. Chauhan, Swatanter Kumar
The court held that, “It is further argued that there are some variations or doubts in the
statements of the doctor and the eye witnesses. Emphasis was placed on the fact that the
trial Court, in para 6 of its judgment, disbelieved Devi Singh, PW 2, and thus the obvious
conclusion ought to have been that the prosecution has failed to bring home the guilt of the
accused. This contention, again, does not impress us. Witnesses have been examined in the
Court after a considerable lapse of time. It is neither unnatural nor unexpected that there
could be some minor variations in the statements of the prosecution witnesses”

Sucha Singh Vs. State of Punjab,

(2003) 7 SCC 643
Bench : Doraiswamy Raju, Arijit Pasayat.
The court ruled that: “Non-explanation of injuries by the prosecution will not affect
prosecution case where injuries sustained by the accused are minor and superficial or where
the evidence is so clear and cogent, so independent and disinterested, so probable, consistent
and creditworthy, that it outweighs the effect of the omission on the part of prosecution to
explain the injuries. In the case at hand, trifle and superficial injuries on accused are of little
assistance to them to throw doubt on veracity of prosecution case, particularly, when the
accused who claimed to have sustained injuries has been acquitted. The fact that name of
PW10 does not figure in the inquest report or that the DDR entry does not contain the name
of Pritam Singh does not in any way corrode the credibility of the prosecution version,
particularly when the reason as to why these were absent in the relevant documents has been
plausibly explained by the witnesses, and after consideration accepted by the trial Court and
the High Court.”