Author’s quote
My senior always says that read the section as it is, understand the section as it is, express the section as it is. If you still have doubts search for other options.
[For the purpose of this essay witness means prosecution witness and or P.W-1 (as example) and, ‘evidence’ means the deposition which contains both Chief and cross-examination].
Before getting in to the core of the essay, Let’s define ourself what is ‘contradiction’?
For the British, ‘contradiction’ is a word they are using frequently (as a native speakers of English). Even we are proficient in English language, we better have a look into the sources like dictionaries and meaning assessments. Apart from above available resources, it is preferable for lawyers to look up the definition of “contradiction” in the judgments.
What is contradiction then?
In a common parlance, contradiction is the term used to describe what a witness actually stated in his evidence and, when it differs or conflicts in its material particulars (facts and circumstances) with the same witness’s ‘previous statement’ (such as FIR, statement made u/s 161 Cr.P.C, statement made u/s 164 Cr.P.C, accident report e.t.c).
Contradiction explained via judgments and sections
Ok! Let us substantiate the aforesaid explanation with the following judgments:
What is ‘contradiction’ between statements in terms of section 145 Indian Evidence Act had been explained in the following judgment: –
It is obvious from a perusal of section 145 (Evidence Act) that it applies only to cases where, the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding [Mohanlal Gangaram Gehani vs. State of Maharashtra – AIR 1982 SC 839 -Bench of 3 Judges].
Now…. The following judgment shall help us to understand what is “contradiction” in judicial terms: –
‘Contradiction’ means the setting of one statement against another and not the setting up of a statement against nothing at all. As noted in Tahsildar Singh v. State of U.P. 1959 CriLJ 1231 (SC) , all omissions are not contradictions [Shashidhar Purandhar Hegde and Ors. vs. State of Karnataka– Criminal Appeal No. 748 of 1999 – 15.10.2004 – SC – AIR 2004 SC 5075]
Right? Is there any other section that speaks of ‘contradiction’ apart from section 145 Evidence Act? Yes, section 162 Cr.P.C., 1973 speaks of contradiction, which is as follows:
Section 162 Cr.P.C: Statements to police not to be signed: Use of statements in evidence:(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided 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 Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.
Explanation.–An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
Thus, it is prudent to understand, as the law speaks for itself that both the accused (defence counsel) and the prosecution (prosecutor with the permission) may, use the P.W-1’s previous statement (which was recorded under section 161 Cr.P.C) as per the terms dictated under section 162 Cr.P.C.
Now…
Who does the Public Prosecutor contradict?
We may simply say that the Public Prosecutor does contradict a ‘hostile’ witness. If so, who is he? As we all know that there is no such term as ‘hostile’ available neither under section 162 Cr.P.C nor under the Indian Evidence Act., 1872 [Sat Paul, vs. Delhi Administration – AIR 1976 SC 294]. However, what can be found in the aforesaid Acts is, the word ‘CONTRADICTS’. So, it is easy to infer that the term ‘hostile’ we are using in a day-to-day basis (colloquially) in the court campus as if P.P hostiled the witness actually refers to the term P.P ‘contradicted’ the witness, which I intend to replace the word hostile with ‘contradiction’ for the purpose of the header of this essay.
At this moment, I clarify that, I am not presenting the paper for appreciation of hostile witness.
It is appropriate to note that how to cross-examine ‘hostile’ witness in trial court by the parties has been explained in the following judgment, the relevant paragraph is extracted hereunder:
Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded u/s 161 Cr.P.C, the prosecution with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness is so far as it supports the case of the prosecution [Krishan Vs. State Of Haryana – Criminal Appeal No. 766 of 2008 – 13-12-2012 – 2013 (5) SCJ 786= (2012) 12 SCALE 381=(2013) 3 SCC 280=(2013) 3 SCC (cri) 125=(2012) 13 SCR 880].
By reading the above judgment, it is clear that not only the defence, so also, the prosecution ‘can cross-examine’ its own witness as there is no bar under the laws to contradict the witness by the party who calls him inasmuch as ‘contradiction’ is also the part of cross-examination.
Here, what the Public Prosecutor does is, ‘contradicting’ his own prosecution witness. The methodology for contradicting one’s own witness is the same as is done by the ‘defence counsel’. Assuming a prosecution witness (P.W-1) has gone against his previous statement and deposed before the Trial judge as if ‘I do not know anything about this case and I did not give any statement before anyone’. But as per the prosecution, the same witness (P.W-1) has already explained minute details of the occurrence to the Investigation Officer which was reduced into writing as per statement recorded u/s 161 Cr.P.C. Now the duty of the Public Prosecutor is to bring out any or all ‘CONTRADICTIONS’ in the deposition with the permission of the court as dictated under section 162 Cr.P.C with a conjoint reading of section 145 Evidence act.
Example for contradicting his own witness
Contradicting one’s own witness (here hostile witness) by the public prosecutor has been elaborated in Krishan Chander vs. State of Delhi – (2016)1 SCC (cri) 725.
When P.W-1 resiled from his statement recorded u/s 161 Cr.P.C in the evidence before the court the Public Prosecutor shall now by reading out the portions of the statement recorded u/s 161 Cr.P.C to P W-1 as if “You, on so and so date and time has gone to the occurrence place and has witnessed ‘A’ murdered ‘B’ “(This is contradiction by way of leading question, and not asking P.W-1 as if “Did you stated to the I.O what you just stated in chief-examination”). Now if P.W-1 admits the leading question, then the contradiction is being established directly through P.W-1 himself (of course this is not possible). But, if P.W-1 denied the aforesaid portion (intends to contradict) put to him by the Public Prosecutor, then the P.P has no other choice, but to put the same portion to the Investigation Officer of that case to confirm the portions which was written in P.W-1’s previous statement recorded u/s.161 Cr.P.C to establish the contradiction ‘otherwise’. What maximum Public Prosecutors are doing once the witness turned hostile is, just reading the entire P.W-1’s statement recorded u/s 161 Cr.P.C to P.W-1 and further will not confront the same with the I.O . This is not contradiction. If the same Public Prosecutor after reading the P.W-1’s previous statement to the him (better contradictory portions only), the P.P must confirms the same with the Investigation Officer when the I.O comes to the witness box. Public Prosecutor, if failed to follow this very procedure, then the contradiction is not said to have been complete or established by the Prosecutor and the entire methodology made was a waste of time.
At this moment, a doubt arises in the Trial Lawyers mind that, suppose, if the portions of the statement recorded u/s 161 Cr.P.C comes into the deposition, then the Judge is very much empowered to read that portion; does it mean the portion contradicted by the Public Prosecutor (or defence counsel) becomes ‘substantive statement’? The answer is emphatic ‘NO’. What the defence counsel or Public Prosecutor does is just bringing out the contradictions between two statements of a same Person (P.W-1), and that contradictions are ‘elicited‘ by the counsels from the witness (P.W-1) and not ‘deposed‘ by the witness on his own. Hence even though the contradiction brought out in the deposition does not vouch safe for its proof to be believed by the Trial judge while disposing the case [Kannan @ Mannanai Kannan & Others Versus State Represented by the Inspector of Police, Madurai – Crl.A.(MD) No. 3 & 22 of 2020 – 28-02-2022]. Suppose in corroboration process, if the statement of P.W-1 in the Evidence is being corroborated with his former statement (except statement recorded u/s 161 Cr.P.C) u/s 157 Evidence Act by the Public Prosecutor, it does not, automatically becomes a substantive evidence. Then what it is? It is just a portion of former statement of P.W-1 which is “elicited” by the P.P to corroborates a later testimony (substantive evidence) “deposed” by P.W-1 in court to prove that he consistently speaks the truth. Here, the previous statement of the P.W-1 will never be a ‘substantive evidence’ in any form (even the portions being brought into the record). It is the ‘statement’ of P.W-1 who accedes to that portion has credibility and not the previous statement.
Further, as a routine, after the contradiction, the Public Prosecutor may also discredit of witness but only after he brought the ‘contradiction’ on record (evidence). If the Public Prosecutor wants to impeach the prosecution witness (P.W-1) u/s 155(3) Evidence Act, then he must again obtain permission from the Trial judge under section 155 (1) Indian Evidence Act. Usually when the Public Prosecutor requests permission (with or without knowing these sections) to ‘hostile’ his own witness (in this case P.W-1), the Trial judge is actually grant permissions (with or without knowing) in all the aforesaid sections impliedly in a single series. This kind of permissions in a single series in my opinion is not wrong. But better as a precautionary method, the Trial Judges may ask for explanation (since the trial judge shall not grant permissions mechanically to P.P to contradict (hostile) his own witness) from the Public Prosecutor when he seeks permission for hostile. Especially when the Public Prosecutor prefers to impeach the P.W-1, inasmuch as not all the inconsistencies are sufficient for impeachment as held by the Hon’ble Supreme court in Rammi v. State of M.P reported in AIR 1999 SC 3544=1999 Cr.L.J 4561 (SC).
Hence, the Hon’ble Supreme court insists on permission to be obtained by the Public Prosecutor from the Trial Judge when disowning the prosecution witness not only to put contradiction u/s 162 Cr.P.C r/w 145 Indian Evidence Act, impeaching the credit of the witness u/s 155(3) and then again to put questions u/s 154 Evidence Act. At this time granting leave to impeaching the witness has been left completely to the discretionary of the court [Gura Singh vs. The State of Rajasthan – (2000) 8 SCALE 147=(2001) 2 SCC 205=(2001) SCC(Cri) 323 – Criminal Appeal No. 1184 of 1998 -06-12-2000].
Public Prosecutor may put leading questions
Equally, if the Public Prosecutor prefers also to put questions to his own witness (P.W-1), then he may ask for permission from the Trial judge u/s 154 Evidence Act to invoke sections 141, 142, 143 and 146 Indian Evidence Act., 1872. Thereafter, he may very well put ‘LEADING QUESTIONS’ to his own witnesses [Sat Paul v. Delhi Administration – AIR 1976 SC 294 cited in Krishan Chander vs. State of Delhi – (2016)1 SCC (Cri) 725=(2016)3 SCC 108=AIR 2016 SC 298; Dandu Lakshmi Reddy vs. State of A.P – Crl.A. No. 1110 of 1997 – 17.8.1999 – (1999)5 SCALE 118 and G. Venkatanarayanan & Another Versus State represented by the Inspector of Police CBI, ACB, Chennai – Criminal Appeal Nos.161 and 162 of 2016 – 19.07.2017- (2017) 4 MLJ (Crl) 49].
Here, as we seen that question by party to his own witness can be very well performed by putting ‘Leading Questions’. This proposition could be very well substantiated by a harmonious reading of sections 141, 142, 143 and section 154 (apart from the above authoritative judicial pronouncements) of Indian Evidence Act itself.
Combined reading of these sections unambiguously allows the Public Prosecutor to put leading questions to his own witness when the prosecution disowns him. Harmonious reading for the purpose of this essay means, once the power of putting ‘question’ is permitted by the Public Prosecutor after getting permission from the Trial judge. Then the Public Prosecutor must trace and take his powers from the aforesaid sections of Indian Evidence Act, which speaks of questions. Therefore, normal ban of putting leading question to the witness by the Public Prosecutor is lifted after he/she is being permitted by the court to do so.
Hence what the Public Prosecutor is doing after disown his/her own witness as ‘hostile’ is actually ‘contradicting’ the witness as if the contradiction done by the defence counsel and YES, the Public Prosecutors are entitled to ‘contradict’ the witness.
Now, when an important question arises as to whether the Public Prosecutor may partly contradict his/her own witness even without declaring the prosecution witness hostile? The answer is in affirmative by placing reliance on the following judgment:
The lapse on the part of public prosecutor is also something very unfortunate. The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile [Munna Pandey vs. State of Bihar– CRIMINAL APPEAL NOS. 1271-1272 OF 2018 – SEPTEMBER 4, 2023 [3 Judges Bench].
The above judgment goes to show that the Public Prosecutor may very well contradict a prosecution witness even if he/she finds a particular portion or single contradictory statement of that prosecution witness goes against the prosecution.
At this time it is pertinent to remember always that the Public Prosecutor shall vigilant to contradict the witness (P.W-1), even the prosecution witness turns hostile or resile from a particular portion of his previous statement recorded u/s 161 Cr.P.C. In other words, Public Prosecutors shall be aware that ‘hostile’ means not only in chief but also in cross-examination [G.Murugan vs. State – Criminal Appeal No. 209 of 2012 – 19.11.2013 – Manu/TN/2491/2013=2014(1)MLJ(Crl)162 and Murugan Versus State rep by Inspector of Police, Coimbatore District–Criminal Appeal No. 708 of 2011 – 15-03-2016– 2016-2-L.W(Crl) 154 (DB)=(2016) 2 MWN(Cri) 348=(2016) 3 MLJ(Criminal) 487].
Finally, if the prosecution witness gives contradictory version in evidence against his/her previous statement it is the duty of both the Public Prosecutors and Defence Counsels (as the case may be) to confront the same with his ‘previous statements’ and to bring the contradiction in the deposition for appreciation.
Author by:
RAMPRAKASH RAJAGOPAL
ADVOCATE
