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CRPC Secs. 161,162

Shyamal Ghosh v. State of Bengal.(2013 (1) SCJ 61)

A.K. PATTANAIK AND SWATANTER KUMAR , JJ.

If a significant omission is made in a statement of a witness u/s 161 Cr.P.C. the same may
amount to contradiction.

In terms of the explanation to Sec 162 Cr.P.C. which deals with an omission to state of a
fact or circumstance in the statement referred to in sub- section (1),such omission 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 there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this explanation reveals that if a significant omission is made a statement of a witness u/s 161 Cr.P.C. , the same may amount to contradiction and the question whether it is amounts is a question of fact in each case.
The basic element which is unambiguously clear from the explanation to section 162
Cr.P.C. is use of the expression ‘may’. To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra , then the legislature would have used the expression ‘shall’ in place of the word ‘may’ .The word ‘may’ introduces an element of discretion which has to be exercised by the court of competent jurisdiction in accordance with law. Furthermore, whether such omission , variation or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of given case. The concept of contradiction in evidence under criminal jurisprudence , thus , cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is contradiction or material contradiction which renders the entire evidence of the witness untrustworthily and affects the case of the prosecution materially.