Explaining the rudimentary principles of proving contradictions in a criminal trial

The craft of cross examination is often tested by the ingenuity of a trial lawyer in impeaching the credibility of a witness by extracting contradictions such that his previous testimony becomes unworthy of belief. The art of cross examination has always been deemed the surest test of truth and a better security than oath[1]. The method lies in introducing and proving an otherwise inadmissible evidence, with a masterful knowledge of the underlying laws of evidence. At a macro level, the broad contours of impeaching the credit of a witness is contemplated under Section 155 of the Evidence Act, 1872 (the “Act”), where under inter alia proving contradictions play a formidable part. Superior courts in India have time and again emphasised on the imperativeness of proving contradictions in consonance with the procedure prescribed under Section 145 the Act. Whilst, in a large measure, Section 145 of the Act is worded to take within its fold the procedure for proving contradictions in both criminal and civil trials by an adverse party, outlined below is an attempt at non-exhaustively analysing the procedure for extracting and proving contradictions in a criminal trial.

The procedure contemplated under Section 145 of the Act is twofold, first, the preface of the Section as a general rule appears to support the sound principle that if a witness is under cross examination on oath, he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule[2]. A witness may be cross-examined as to previous statements made by him in writing or reduced to writing and relevant to the matter in question, without such writing being shown to him or being proved[3]. Second, the suffix of the Section contemplates that if it is intended to contradict 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. This rudimentary common law principle of criminal jurisprudence finds it origins in the 17th century[4].

Against this background, contradictions may well be apparent or guised as omissions. Colloquially, the word ‘improvements’ are often referred to signify the outcome of contradictions. It cannot be said that all omissions and improvements in the version of the witnesses makes their testimony untrustworthy due to contradictions therein. By means of a long line of judicial pronouncements, the law is settled, that minor contradictions and discrepancies in the testimony of witnesses would not have a fatal bearing in the prosecution’s case, unless the same goes into the root of the matter. In the same breath, whilst the term ‘Statement’ is typically used in its primary meaning to suggest a fact that is stated, in the context of criminal trials’ contradictions in the testimony of a witness,  in relation to the witness’s previous statement, generally denotes previous statements reduced to writing by an investigating officer before him in terms of Section 161(3) of the Code of Criminal Procedure, 1973 (the “Code”). This otherwise non-substantive, inadmissible statement may be brought on record (of the trial) to prove contradictions between the earlier statement of the witness and the evidence given on oath at the stage of trial in terms of an extraordinary procedure contemplated under Section 162 of the Code, read with Section 145 of the Act. In the case of Baldev Singh versus the State of Punjab[5], the Hon’ble Court had ratified that the statement recorded under Section 161 of the Act shall not be used for any purpose, save to contradict a witness in the manner prescribed in the proviso to Section 162 (1) of the Code.

Accordingly, the mechanism contemplated thereunder can be broken down on these broad lines. Section 162 carves an exception to the general rule qua previous statements made to an investigating officer, to the extent that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Act. Given this, it follows that the muster of compliance with Section 145 of the Act is inevitable.

An explanatory annotation of Section 145 of the Act will be interesting to note. In order to contradict the evidence adduced by the witness during trial (typically his examination in chief), with a statement made before the investigation officer during investigation, the attention of such witness ought to be drawn to that part of the contradictory statement, reduced in writing, during cross-examination. Here, as a rudimentary step, it is imperative that that the witness is shown the relevant portion of his previous statement, thereafter, as a corollary the witness ought to be questioned as to whether he did in fact make the statement. One must be mindful that the attention of the witness, when drawn to the relevant parts of his previous statement, must correspondingly also reflect in the cross examination. Hereon, two scenarios may follow, first should the witness admit having made the previous statement, the contradiction is ipso facto taken on record, and is implied to be proved. Second, should the witness deny having made the previous statement wherefrom the contradiction emerges, the relevant portion of the statement should be marked for identification and for the investigating officer’s attention. When called to the witness box, such investigating officer ought to be confronted with the relevant statement, need hardly be said that the answer of the investigating officer would prove the contradiction.

Illustratively, in a case of robbery, an eye witness to the commission of the offence, deposes in the trial that “I saw A and B at the crime scene and I saw B rob the bank at gun point” per contra, in a previous statement to the investigating officer, the said witness stated the “I saw A and B at the crime scene and I saw A rob the bank at gun point”, the foregoing constitutes an apparent contradiction and it ought to be proved in terms of Section 145 of the Act and in the manner set out hereinabove.

In the recent judgement of Abdul Kadir and ors Versus State of Assam and anr[6], the Gauhati High Court emphasised on the foregoing manner of proving contradictions as to any previous statement made by a witness. While doing so, it inter alia referred to and relied on the decision of the Supreme Court in VK Mishra and anr Versus State of Uttrakhand and anr[7].

Against this backdrop, though complying with the muster of Section 145 is imperative, what good is such compliance should the cross examiner lack the craft to extract the relevant contradiction? In the words of the legendary Francis Wellman of the New York bar, one has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence[8]. After all, it is a mental duel between the counsel and the witness.

[1] Cox

[2] Bal Gangadhar Tilak v. Srinivas Pandit, AIR 1915 PC 75

[3] Halbury’s Law of England (4th Ed., Vol 17, Para 284, Page 198)

[4] Queen Caroline’s Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820)

[5] AIR 1991 SC 31

[6] Case No. Crl.A/205/2019

[7] (2015) 9 SCC 588

[8] The art of cross examination by Francis Wellman, originally published in 1904