Supreme Court: Material omissions amounting to contradiction and material improvement in the evidence of prosecution witness, the court should disbelieve prosecution evidence

14. Material Contradictions:

While appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide: State Represented by Inspector of Police v. Saravanan and Anr.   MANU/SC/8113/2008 : AIR 2009 SC 152).

15. 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   MANU/SC/0446/1998 : (2009) 11 SCC 106).

16. The discrepancies in the evidence of eye-witnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that prosecution proved its case beyond reasonable doubt. (Vide: Mahendra Pratap Singh v. State of Uttar Pradesh   MANU/SC/0279/2009 : (2009) 11 SCC 334).

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 891 of 2004

Decided On: 11.11.2010

Sunil Kumar Sambhudayal Gupta and Ors. Vs. State of Maharashtra

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: B.S. Chauhan, J.

Citation: 2011 All M R (Cri.) 288 (SC),2010 INSC 770, MANU/SC/0947/2010.

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How to record contradiction and omission in criminal case?

Marking of contradictions-A healthy practice of marking the contradictions/Omissions properly does not appear to exist in several States. Ideally the relevant portions of case diary statement used for contradicting a witness must be extracted fully in the deposition. If the same is cumbersome at least the opening and closing words of the contradiction in the case diary statement must be referred to in the deposition and marked separately as a Prosecution/Defence exhibit.

IN THE SUPREME COURT OF INDIA

Suo Motu Writ (Crl.) No. 1 of 2017

Decided On: 30.03.2017

 In Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Hon'ble Judges/Coram:

S.A. Bobde and L. Nageswara Rao, JJ.

Citation: 2017 ALLMR(CRI)1747 SC

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When omission will amount to repeal?

 Fibre Board’s case is a recent judgment which, as has
correctly been argued by Shri Radhakrishnan, learned senior
counsel on behalf of the revenue, clarifies the law in holding
that an omission would amount to a repeal. The converse view

of the law has led to an omitted provision being treated as if it
never existed, as Section 6 of the General Clauses Act would
not then apply to allow the previous operation of the provision
so omitted or anything duly done or suffered thereunder. Nor
may a legal proceeding in respect of any right or liability be
instituted, continued or enforced in respect of rights and
liabilities acquired or incurred under the enactment so omitted.
In the vast majority of cases, this would cause great public
mischief, and the decision of Fibre Board’s case is therefore
clearly delivered by this Court for the public good, being, at the
very least a reasonably possible view. Also, no aspect of the
question at hand has remained unnoticed. For this reason also
we decline to accept Shri Aggarwal’s persuasive plea to
reconsider the judgment in Fibre Board’s case. This being
the case, it is clear that on point one the present appeal would
have to be dismissed as being concluded by the decision in the
Fibre Board’s case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4280 OF 2007
M/S. SHREE BHAGWATI STEEL
ROLLING MILLS …APPELLANT
VERSUS
COMMISSIONER OF CENTRAL EXCISE
& ANR. …RESPONDENTS
WITH
CIVIL APPEAL NO.4281 OF 2007
Dated;November 24, 2015.
Citation;(2016) 3 SCC 643

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How irregularity or omission in criminal trial can be corrected?

We are not inclined to accept the statement made by Mr. Daga, that for non-examination of the appellant-accused, the whole trial is vitiated and therefore the judgment and order of conviction and sentence should be quashed and set aside. Every error or omission not in compliance withSection 313, Criminal Procedure Code does not necessarily vitiate the trial. Errors of this type fall within the category of curable irregularities. We do not find that in the facts and circumstances of the case, the appellant-accused would be prejudiced if the matter is remanded to the trial Court, as submitted by Mr. Mirza, the learned A.P.P.

Every irregularity or omission in trial does not vitiate the trial and irregularity can be corrected by remanding the matter back for examination of accused in accordance with law. 

Bombay High Court

Chamarsha @ Tiru S/O Lodhi Koreti vs State Of Maharashtra on 8 October, 2001

Equivalent citations: 2002 (1) MhLj 159

Bench: J Patel, S Shah

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Leading Supreme Court judgment on proving contradiction and omission in evidence

A statement made to the police but not reduced to writing, could not be used for any purpose, not even for contradiction. It was incorrect to say that all omissions in regard to important features of the incident which were expected to be included in the statement made before the police, should be treated as contradictions. An omission in the police statement could amount to a statement and be used as a contradiction only when (i) it was necessarily implied from the recital or recitals found in the statement, (ii) it was negative aspect of a positive recited in the statement or (iii) when the statement before the police and that before the Court could not stand together. It was for the the trial judge to decide in each case, after comparing the part or parts of the statement recorded by the police with that made in the witness-box, whether the recital intended to be used for contradiction was one of the nature indicated above.

 The word " contradict " has various 'Meanings, and in the Oxford English Dictionary it is stated as " To be contrary to in effect, character, etc. ; to be directly opposed to go counter to, go against " as also " to affirm the contrary of; to declare untrue or erroneous; to deny categorically " and the word " contradiction " to mean " A state or condition of opposition in things compared ; variance; inconsistency, contrariety ". In Shorter Oxford English Dictionary, " contradict " is said to mean "To speak against; to oppose in speech ; to forbid ; to oppose; to affirm the contrary of; to declare untrue or erroneous; to deny to be contrary to go counter to and go against and " contradiction " to mean " A state of opposition in things compared; variance; inconsistency". The meaning given to the words ,contradict " and " contradiction " in these Dictionaries 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 over to contradict the witness. It is difficult to say as an inflexible rule that any other kind of omission cannot be put to a witness in order to contradict him, when the proper foundation had been laid for putting such questions. The words " to contradict him " appearing in s. 145 of the Evidence Act must carry the same meaning as the words " to contradict such witness " in s. 162 of the Code. In a civil suit, where the provisions of s. 162 of the Code of Criminal Procedure have no application, would it be correct to say that only questions concerning omissions of the kind suggested by our learned brother could be put and none other ? We cannot see why a question of the nature of cross-examination regarding an omission with respect to a 

matter which the witness omitted to make in his previous statement and which, if made, would. have been recorded, cannot be put. The facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned brother could be put to a witness in order to contradict him. It would be for the Judge to decide in each case whether in the circumstances before him the question could be put. The purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. Not only is it the right of the accused to shake the credit of a witness, but it is also the duty of the Court trying an accused to satisfy itself that the witnesses are reliable. It would be dangerous to lay down any hard and fast rule. We pause to look at the matter from another angle. We shall assume that the interpretation which the State claims should be put upon s. 162(1) is correct and compare the respective rights of the accused and the prosecution. According to this interpretation, the accused has no right of cross- examination in respect of the contradiction. This means that no question can be put about the previous statement but only the part in which there is a contradiction can be brought to the witness's notice and his explanation, if any, obtained. In other words, there is only " contradiction " and no more. But when the accused has used the statement to contradict the witness-it may be only on one point-what are the rights of the prosecution ? The prosecution can use any part of the statement in the reexamination not only to explain the I contradiction' but also to explain any matter referred to in the cross-examination of the witness. If I contradiction ' does not include the right of cross- examination, the right of the prosecution must necessarily extend to reexamination in respect of any other matter needing explanation in the cross-examination at large. Thus, the accused cannot ask a single question of the nature of cross-examination but because he sets up a I contradiction' in the narrow sense, the prosecution can range all over the previous

statement and afford the witness a chance of explaining any matter in his cross-examination by re-examining him which right includes the possibility of asking leading questions with the permission of the Court.

Thus, the accused makes a I contradiction' at his own peril. By making a single I contradiction', the accused places the entire statement in the hands of the prosecution to explain away everything with its assistance. One wonders if the legislature intended such a result, for it is too great a price for the accused to pay for too small a right. Fortunately, that is not the meaning of s. 162 of the Code of Criminal Procedure, and it is not necessary to read the word " cross-examination " in the proviso in a sense other than what it has.

The right of both the accused and the prosecution is limited to contradictions. It involves cross. examination by the accused as to that contradiction within s. 145 of the Indian Evidence Act and reexamination in relation to the matters I referred to in the cross-examination of the witness'. The prosecution cannot range at will to explain away every dis- crepancy but only such as the accused under his right has brought to light. In our opinion, reading the section in this way gives effect to every part and does not lead to the startling and, if we may say so, the absurd results which we have endeavoured to set out above.

Supreme Court of India

Tahsildar Singh And Another vs The State Of Uttar Pradesh on 5 May, 1959

Equivalent citations: 1959 AIR 1012, 1959 SCR Supl. (2) 875

Bench: Sinha, B P.

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