Contradiction and omission
In criminal justice
system, contradiction and omission is very important among
the lawyers than the other tool what they used. To prove the guiltiness of
accuse prosecution has to prove all ingredients required for the offence beyond
all reasonable doubt. Evidence of prosecution is fundamentally emerges
from investigation. Our criminal justice delivery system defend on mainly
four organs, those are,
A)
Investigation by police or inquiry by court.
B) leading Prosecution
evidence.
C) leading Defense evidence.
D) Judgment
after the proper analysis
All these fields
are inter-depended. And as we accepted longstanding legal
maxim ‘Audi Alterum Partem – hear the other side’, at all
stages other party gets opportunity to check evidence given by
the either side . To block culprit
behind bar whole evidence adduced in the course of prosecution must
be enough and well-established moreover it also proved on the
touchstone of firmness and truthfulness of witnesses.
We have adopted
three stage of oral evidence in our evidence taking
procedure these are
1)
Examination in chief,
2) Cross
Examination
3) Re Examination
if required.
To inquire
trustworthiness and truthfulness of witness contradiction and
omission are very important. It helps defense and also
to prosecution when particular witness turn over from his
previous statement been given during investigation or inquiry and not
support prosecution case.
MEANING
What is term ‘contradiction’ and
‘Omission’?
As
per oxford dictionary term ‘contradict’ (verb) means
‘1. denies (a statement).
2. deny a
statement made by (a person).
3. be in
opposition to or in conflict with. [contradiction noun].
Term ‘Omission’ emerges
from verb ‘omit’ means:
1)
Leave out; not insert or include
2) leave undone.
3)
(foll. by verbal noun or to + infin.) fail or neglect.
[Latin omitto omiss-]
Omission -
1) omitting
or being omitted.
2)
Thing omitted.
So, if we
took plain meaning if word ‘contradiction’ and ‘omission’ as
per dictionary meaning with reference to our concern of prosecution
evidence contradiction means ‘Person who turn over from his previous
statement and submits differently which effects his truthfulness and
trustworthiness of testimony. While
‘omission’ means person skip something very important previously
when he giving statement.(about omission very well explanation and law have
been discussed by the court in the case of keerthi bandara vs ag 2000 2 slr
245)
Relevant law
Evidence
Act- Sec-145(i)(ii) these section explain how prove the contradiction.section 155(c),
explain ways of impeaching the witnesses . Code of Criminal Procedure Sec110(i,ii,iii,iv)
also important in this regard because
statement recorded under his section can be used
A provision
regarding cross examination of the witness as to previous statements
in writing has been embodied in Ceylon Evidence ordinance Sec-145(i)(ii).
During
investigation concern witness is examined by police,section 110 of
Cr.P.Code. Use of Statement which is recorded under the section 110 is governed
by sec. 110(3) of Cr.P.C.
What is amount to contradiction?
Word
‘contradiction’ found its roots in ‘Bible’ the holy religious book of
Christianity. Means that two antithetical propositions cannot
both be true at the same time and in the same
sense. In classical logic, a contradiction consists of a
logical incompatibility between two or more propositions. It
occurs when the propositions, taken together, yield
two conclusions which form the logical, usually opposite in
versions of each other. Illustrating a general tendency in applied
logic, Aristotle's law of non-contradiction states
that "One cannot say of something that it is and that it is
not in the same respect and at the same time."
But, here with
reference to law of evidence we have to understand word
‘contradiction’ and ‘omission’. To simply comprehend contradiction we
should consider Cr.P.C 161,110(3) and sec.145,155(c) of Evidence ordinance
altogether.
During investigation, police
officers will records the statements of witness which are record
under the power of section 110 Ccp. Purpose of recording statements
is to gather evidence against accused. While police
submits charge sheet u/s 136 of CPC. certified copy of all
statements also supplied as well its copy to accused. And on the
basis of this statements court frame charge and took cognizance
against accused. While witness whose statement has been earlier recorded
is examined in the court ,defense attorney can questioned his
truthfulness as it is provided u/s 145 of evidence act. Letter
portion of this section describe how to contradict witness.
A witness may
be cross-examined as to previous statement made by him in
writing or reduced in to writing, and relevant to matters in
question, without such writing being shown to him, or being proved;
but, if it is intended to contradicting him by the writing, his
attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose
of contradicting him.
How to record contradiction during trial?
The portion of
the statement recorded under section 110 by investigation
officers or deposition recode red in inquest or non summery trial at magistrate
court which is supposed to
be used for contradicting the witness most of the time. first of all
attention must be brought to his
notice and he should be questioned about it. Let us
take example of trial where an accused person is being
prosecuted for causing grievous hurt to one A with an axe. During
prosecution evidence witness stated that accused assaulted him
with axe in such a way that the metallic head of
the axe come in to contact with his arm causing
fracture, and if in the course of the investigation he has stated
in his statement under the section 110 of the ccp
that accused has beaten by the stick portion of the axe.
To contradict the
witness exact passage occurring in his statement under sec 110 should be
read out and put to the witness whether the witness admits
having made such a statement before police officer, 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
that can be easily seen by the trial judge when he writing his judgment and further
this contradiction can be brought to the notice of the judge time of final submission
If on the other hand the witness denies having
made such a statement, thereupon it should be mention in
the deposition itself in brackets (the certified copy we have taken well
in advance from the relevant police station). By this process the contradiction
is merely brought on record but yet to be proved. Thereafter when police
officer 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.
What is amount to omission?
As like
contradiction some times the witnesses might not have
mentioned an important circumstance or point in the course of his evidence recorded
the court. Such material omissions also fall within the category of
contradictions and they too have to be proved.
For example in
the case above mentioned, if the A had stated before the court
that he was beaten by the accused with not only on the arm but also
on the leg and if he did not mentioned these
further injury to a police officer under the section 110,
it is a material omission which is amounts to contradiction.
Procedure to prove the material omission is same as the procedure to
prove contradiction.
When PROSECUTOR can contradict his own
witness?
How?
Under the
section 154 of evidence ordinance t it is laid down
that, court may permit at its own discretion any person who
calls a witness to put any questions to him which might be put in
cross-examination by the adverse party. When any
witness not support the party who calls him, person who
calls him should be given chance to put him suggestive
question and also to contradict him as it is provided in Sec 145.
A witness is
generally expected to be in favor of the party by whom he
is called. In certain cases the witness turns hostile and gives evidence
against the person who called him. In such cases the evidence of a
witness, who has been cross examined by his own party is not to be
rejected as untrustworthy or incredible. The court can rely upon that
testimony which inspires the confidence and credit.
Therefore, when any
witness whose statement has been previously recorded u/s 110 by
police or any other previous statement relevant in the matter and
subsequently if he turn over in his testimony before court
prosecution may permit by court to put all question which
could be asked in cross-examination.
Essentials to attract procedure u/s 145 of
contradiction or omission.
A) Previous
statement made u/s 110 of cr.p.c or
any other statement made by him in writing or reduced in
to writing.
B) That
previous statement must be relevant to matter in question.
C) Contradiction
or omission should me material. And for the intention to contradict
him.
D) Contradiction
or omission must be proved.
How to judge contradictions and omissions?
How far they are material?
The duty of
court is to discover the truth and to find out whether the accused
is guilty or not. Facts come 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. fanatical 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.
Sometime due to
this very nature of human intellect and perception of
senses contradictions and omission occurs. Real and truthful
eyewitness may sometime make genuine mistake
in statement before police and court. At that time it
must be remembered that contradictions and discrepancies are natural
and inevitable in the testimony of even truthful witnesses. So
then “when the evidence is discrepant or exaggerated allowance
has to be made for the idiosyncrasies of the class from which the
witnesses are drawn, their powers of observation, strength of memory
and facility of description with a discount for possible bias or
prejudice”
CONCLUSION
Contradiction and omission are very
important part in during criminal trial. Proved contradictions and
omissions are very valuable if it is relevant and material, and goes to the
root of the case it definitely affects veracity and trustworthiness
of witness. To take contradiction and omission on
record defense counsel or Public Prosecutor as may be the
case, ought to carefully study statement of concern witness
and investigation should also brought material facts
of statement to the notice of Public Prosecutor. It is also duty of
court to record properly all contradictions
