This article is written by Arya Mittal from Hidayatullah National Law University. The article deals with the significance of omissions in criminal trials and some landmark judgments on it.
One might have often observed a twist in movies wherein a character significantly changes his stance and helps the other party win a suit. Or in real life as well, one might have experienced that a witness significantly changes his/her statement in a court proceeding. The question is – Whether such a statement is acceptable in a court of law? The answer is a clear no. Such a statement by a witness is disregarded and such evidence is not relied on in the case. The law surrounding omission has been discussed in the further sections of the article followed by the landmark judgments in this accord.
Omissions : An overview
Significance of omission in a criminal trial
It is known that a crime is not against a particular individual but rather the whole society. Any statement as evidence by a witness can have a significant impact on the verdict of the case. In case the court relies on the evidence (which may be disregarded due to non-credibility), it might lead to the acquittal of the guilty, or an innocent might be proven guilty. This would have catastrophic effects on society and lead to chaos. Thus, it is important to check the credibility of the witness producing evidence since criminal wrongs are much more severe than civil wrongs.
Proving omissions in a criminal trial
Code of Criminal Procedure, 1973 is the procedural law on crimes in India. Explanation to Section 162(2) of CrPC deals with omission. It states that an omission to state a fact or circumstance to the police officer during the investigation which is significant and relevant in the context of the case may be treated as a contradiction. The word ‘may’ in the provision suggests that consideration of such omission as contradiction is a question of fact which shall be decided by the courts as held in the cases discussed further.
This is read with Section 155(3) of the Indian Evidence Act, 1872 which states that the credit of a witness will be impeached if his prior statement is inconsistent with a later statement which creates a contradiction.
The effect of the two provisions being read together leads us to the conclusion that if a statement was previously omitted by a witness during the investigation which he/she later states in the court and such statement has significance and relevance in the context of the case, then such statement shall be disregarded by the court since it affects the credibility of evidence and poses a doubt on its authenticity.
Landmark judgments dealing with the significance of omissions in a criminal trial
Judgments by Supreme Court
Tahsildar Singh v. State of U.P.
Tahsildar Singh is the most prominent judgment in regards to omission and contradictions. All the subsequently discussed judgments have placed reliance on this case directly or indirectly. The Court has held that the statement of a witness made during the investigation should be in writing otherwise it will have no effect. Moreover, such a statement should not be used for any other purpose than contradicting him in the witness box. It emphasized Section 162 of CrPC read with Section 145 of the Indian Evidence Act. If the statement made before a police officer and a statement made in front of the court is inconsistent then it is considered to be a contradiction. It stated three illustrative situations where an omission can be considered a contradiction.
- When a recital is necessarily implied from recitals found in the statement – When X says he saw A robbing the house during police investigation but in court says he saw both A and B robbing the house. In the former statement, it implied that only A was the robber.
- A negative aspect of a positive recital in a statement – When X says the thief was a short man in front of the police officer but in court X says that thief was a tall man which implied that the thief was not a short man.
- When a statement before police and court cannot be true simultaneously – X said to the police officer that A ran towards the left whereas in the witness box he says A ran towards the right. Both statements cannot be true together.
Thus, if any of the three conditions are satisfied, then an omission can be treated as a contradiction.
State of U.P. v. Harban Sahai
In Harban Sahai, a Special Leave Petition was filed challenging the Allahabad High Court judgment which acquitted the four individuals accused of the charge of murder. One of the reasons given by the High Court was that the sample of bloodstain collected by the investigating officer was not forwarded to the lab for testing which vitiated the investigation. The Apex Court rejected this reasoning by holding that such a trivial omission cannot be considered for vitiating the investigation. Once again, the Court made its stance clear by holding that the omission needs to be significant enough to affect the credibility which was not true in the present case.
Gorle S. Naidu v. State of A.P.
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
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.
Shri Gopal v. Subhash
In this case, the prosecution witnesses failed to allege exhortation by the accused which they later stated in the court. Such omission was held to be significant and relevant in the context of facts of the current case and thus, such omission was held to be a contradiction as per explanation to Section 162 (2) of CrPC.
State of Rajasthan v. Rajendra Singh
This case relates to the charge of murder. Here, the prosecution witness stated that he went to the spot where the incident took place when he heard the shot of the gun and even tried to snatch away the gun from the accused. However, he failed to state anything as such in the report to the police officer. Similarly, another witness also made a material improvement in his statement by stating that he tried to save the victim whereas he failed to state so in the police report. These statements were held to be vital omissions and were contradictions. Their statement could not be considered as evidence since they made material improvements to make their evidence acceptable.
Sunil Kumar Sambhudayal Gupta v. State of Maharashtra
In this case, the Supreme Court relied on its multiple previous decisions to clarify what omissions will be treated as contradictions. It held that the court should consider the magnitude of such omissions to see if they significantly affect the trial or not. So, if an omission is trivial or insignificant improvements, then the evidence should not be rejected altogether. However, if such omission creates a serious doubt about its credibility and other witnesses also make improvements in their statements to make such omission acceptable, then such evidence should be disregarded since it will substantially affect the credibility of the evidence of the witness. In such cases, the evidence is bound to be disregarded and it cannot be held that the prosecution proved its case beyond a reasonable doubt.
The court also stated that it is natural to have discrepancies in statements of a witness, no matter how truthful they are. These discrepancies can arise due to lack of observation, memory error due to lapse of time, mental state of witnesses, etc. However, material discrepancies cannot be normalized since they corrode the credibility of evidence, and hence, they should be disregarded.
Baldev Singh v. State of Punjab
Baldev Singh is comparatively a recent judgment of the Supreme Court. Here, the prosecution witness failed to mention the number and color of vehicles and the name and number of people who had come before the main incident. The Court held these facts to be immaterial as previously held by the High Court. It stated if the omission in the statement recorded under Section 161 of CrPC by the police officer is not significant and relevant in the context of the incident, then it will not be considered a contradiction to the evidence of the recorded witness.
Judgments by High Courts
State of Madhya Pradesh v. Banshilal Behari
In the present case of Madhya Pradesh High Court, one of the witnesses told nearly nine inconsistent statements which he failed to tell in front of the police officer during the investigation. Citing the Treatise of Wigmore (2002) and Section 145 of Evidence Act, the court held that when it is natural to assert a fact but the person fails to do so, then such statement is asserted to be non-existent and such a statement is considered a contradiction and therefore, such evidence is not considered reliable.
Raghunath Krishna Mujumale v. State of Maharashtra
Relying on the judgment of Tahsildar Singh, the Bombay High Court applied the test to see if any of the three conditions were fulfilled to satisfy that the omission amounted to contradiction. They were of the view that though certain omissions existed but they were trivial in nature and did not affect the credibility of the witnesses. It even emphasized verifying the materiality of the omission to see if it would constitute a contradiction. It was of the view that FIR is not a catalogue of all events and so everything could not be stated in it. However, if there is any material or significant event, then it should be revealed during the investigation.
Analyzing the legal provisions and various judicial precedents has made it clear that that omission is one of the ways to shake the credit of a witness. Not all omissions form a contradiction. Only those omissions which are significant and relevant in the context of the case are contradictions. It is a question of fact decided upon by the courts. Many cases of the Supreme Court and High Courts have tried to analyze what omissions would be considered as contradictions. To sum up, the basic inference that can be drawn from the above-mentioned judgments is that the omission in the statement should not be so significant that it creates inconsistency between the statement in front of the police officer and the court. Moreover, the test in Tahsildar Singh can be applied to see if any of the three conditions are fulfilled which will make it a contradiction. These judgments have played a crucial role in clarifying the legal proposition relating to omissions since they can have significant effects on the verdict as well as on the parties in the case.
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