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KEY TAKEAWAYS

A witness is someone who has personally witnessed an event. It could be a crime or an accident. 

Any witness to the occurrence is competent to testify unless the Court determines that they are unable to comprehend the questions asked to them or give reasoned responses as required by Section 118. 

In a recent decision, the Supreme Court ruled that prosecution witnesses cannot be rejected because of minor inconsistencies or omissions in their testimony.

INTRODUCTION

A witness is someone who has personally witnessed an occurrence. It could be a robbery, an accident, or anything else.Sections 118-134 of the Indian Evidence Act, 1872, provide provisions relating to the persons who could testify as a witness, how testimony could be given, what remarks could be deemed testimony, and so on.A witness who must testify in front of the Court must at the very least be able to comprehend the questions asked to him and respond to them rationally. The capacity of a witness is specifically discussed under Sections 118, 121, and 133 of the Indian Evidence Act. Any witness to an occurrence is competent to testify unless the Court determines that he is unable to comprehend the questions asked to him or give reasoned responses as required by Section 118. Persons of tender age, extreme old age, or those with a mental condition should not be expected to give rational responses. A lunatic does lose the capacity to testify unless his insanity prevents him from understanding the question and making a reasoned answer.

OMISSIONS & CONTRADICTIONS

The dictionary meaning of an ‘Omission’ is - something that has been left out or eliminated. During a trial, an omission occurs when a witness intentionally or unintentionally slips out/omits any fact or remark he had previously made in his statement. 

The term "contradiction" refers to a remark that contradicts the previous one. The trial Judge must consider the causes and, more importantly, the consequences of such ‘something missing’ (omissions) and ‘something different’ (contradictions) in weighing and appreciating witness testimony.

It is well understood that a crime is committed against the entire society rather than a single individual. A witness's statement as evidence can have a substantial impact on the case's outcome. If the court relies on the evidence (which could be dismissed owing to lack of credibility), the guilty may be acquitted, or an innocent person may be found guilty. This would have disastrous consequences for civilization and result in pandemonium. Because criminal offenses are far more serious than civil offenses, it is critical to examine the reliability of the witness who is providing evidence.

RELATED CASE LAWS

Sunil Kumar and others Vs. State of M.P. (AIR 1997 SC 940)

In this case, the Hon’ble Supreme Court, while dealing with the statement of an injured witness, that was recorded as a dying declaration by the Magistrate, observed that the statement of an injured witness, as a result of his survival, is to be treated as a statement under Section 164 of the Criminal Procedure and can be used for "corroboration or contradiction," as opposed to the statement under Section 161, which can only be used for "contradiction".

In the cases of Ashok Vishnu Davare Vs. State of Maharashtra [(2004) 9 SCC 431], Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10 SCC 216] and Sunil Kumar Sambhudaval Gupta (Dr.) and Others Vs. State of Maharashtra [(2010) 13 SCC 657] the Hon'ble Supreme Court did not believe the evidence of prosecution witnesses due to improvements in the depositions of the witnesses made over their previous statements recorded under Section 161, Cr.P.C.

In State of U.P. Vs. M.K. Anthony [AIR 1985 SC 48], the Supreme Court laid down certain guidelines in this regard, that must be followed by courts. The Court observed that a technical approach, such as taking sentences out of context here and there from the evidence and emphasizing some technical error committed by the investigating officer would not ordinarily permit rejection of the evidence as a whole. If the court before which the witness gave the evidence had the opportunity to form an opinion about the general tenor of the evidence given by the witness, then the appellate court, which would not have such benefit, will have to attach due weight to the trial court's appreciation of evidence, and it would not be proper to reject the evidence-based on minor variations or infirmities in the matter of trivial details unless there are reasons weighty and formidable. Furthermore, the court observed that even honest and truthful witnesses may differ in some details unrelated to the main incident because individuals differ in their powers of observation, retention, and reproduction. 

State of U.P. v. Harban Sahai 1994 CriLJ 23

In this case, a Special Leave Petition was filed to challenge the Allahabad High Court's decision acquitting the four individuals accused of murder. One of the reasons given by the High Court was that the bloodstain sample collected by the investigating officer was not sent to the lab for testing, thereby tainting the investigation. The Supreme Court rejected this reasoning, ruling that such a minor omission could not be used to taint the investigation. Once again, the Court unequivocally stated that the omission must be significant enough to affect the credibility of the evidence.

Shri Gopal v. Subhash [(2004) 13 SCC 174]

In this case, the prosecution witnesses failed to allege the accused's exhortation at the initial stages of the investigation, but they later stated it in the court. Such omission was deemed significant and relevant in light of the facts of that case, and thus it was deemed contradictory.

Anuj Singh @ Ramanuj Singh @ Seth Singh vs. State of Bihar [Criminal Appeal No. 150 of 2020]

In this case, the Hon’ble Supreme Court held that the prosecution witnesses could not be discredited due to minor contradictions or omissions in their testimonies.The Court was hearing criminal appeals against the decision of the Hon’ble Patna High Court.The facts of this case were that the appellant and the informant (both neighbors)had got into a fight while the informant was repairing a kaccha mud wall on the land he claimed belonged to him. When the informant refused to stop the repair work, as the Appellant had requested, the appellants allegedly returned armed with guns and fired shots that caused hurt to the informant. 

In the Supreme Court, the appellants contended that the contradictions in the prosecution witnesses' statements "...cast a serious shadow of doubt on the genuineness of the prosecution story and, thus, the appellants have been wrongly convicted..." Further, it was argued that while the conviction was under Section 27 of the Arms Act, there was no material on record indicating the recovery of any gun or any seizure memo indicating the recovery of any bullets or pellets from the scene. To deliver its judgment in this case, the Hon’ble Supreme Court relied upon the judgment in the case of Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra [Appeal (Criminal) No. 25/26 of 2000], which had stated that only material contradictions, not minor contradictions, could be used to discredit witness testimony.

Finally, the court observed that the prosecution's evidence regarding the informant's bodily injury, as well as the previous enmity between the parties due to a land dispute, is corroborated. Confirming the appellants' convictions under Section 324 of the IPC and Section 27 of the Arms Act, the court stated that "once the charge against the appellants under Section 324 IPC of voluntarily causing injuries by firearms, which is a dangerous weapon is established, they cannot escape the punishment for using arms prescribed by Section 27 of the Arms Act."

CONCLUSION

Analyzing the legal provisions and various judicial precedents reveals that an omission is one of the ways to undermine a witness's credibility. Not all omissions result in a contradiction. Contradictions are those omissions that are significant and relevant in the context of the case. Designation of an Omission as a Contradiction is a factual issue that is decided by the courts on a case-to-case basis. To summarise, the basic inference that can be drawn from the judgments of the courts is that the omission in the statement should not be so significant that it creates inconsistency between the statement given before a police officer and the court.


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