The High Court had occasion to reiterate that the procedure under Section 145 of the Indian Evidence Act, 1872 is not required to be be followed to prove omissions in statements by witnesses in Court. Rather this procedure should be followed only when contradictions between the statement given by a witness during his deposition in Court and the statement given by such witness before the police.

The Bench observed, that this position has already been clarified in the case of Tahsildar Singh and Anr. v. State of UP, wherein it was noted,

“If the statement before the police-officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other … Section 145 of the Evidence Act indicates the manner in which contradiction is brought out.”

As for the procedure to be followed in proving such contradictions, it has been laid down in the Tahsildar Singh case,

“His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.”

In this backdrop, the Division Bench of the Calcutta High Court has now emphasised that,

It does not apply to the proof of ‘omissions’ in the deposition of witnesses. This is further enunciated in Laxman and Ors. vs. The State of Maharashtra, where the Apex Court reiterated section 145 of the Evidence Act does not apply to prove all material omissions…Calcutta High Court

The Court was dealing with an appeal challenging a trial court’s conviction of the appellants for murder, and sentencing them to life imprisonment for the same. One of the arguments made before the Court in challenging the trial court verdict was that the procedure under Section 145 of the Indian Evidence Act was not followed in proving certain discrepancies in witness statements.

However, bearing in mind the position elucidated above, the High Court observed that the procedure under Section 145, Indian Evidence Act was not required to be followed since there were no contradictions to be proved. As recorded in the judgment,

“No part of the previous statements which are alleged to be in ‘contradiction’ to the depositions of the witnesses in Court have been proved. However, one must bear in mind what has been canvassed before this Court are ‘omissions’ in the evidence of witnesses when compared to their previous statements to the police officer. Procedure laid down in section 145 of the Evidence Act does not envisage the mode and manner of proof of ‘omissions’ of vital facts. “

The Court added,

“As the appellants have canvassed ‘omissions’ in the evidence of witnesses in Court when compared with their previous statements to police, procedure under section 145 of the Evidence Act does not require to be complied with. However, whether such omissions were substantial and material so as to discredit the veracity of the witnesses has to be assessed in the backdrop of the totality of proved facts and circumstances…”

The Court eventually found that the prosecution’s case as regards four of the accused/appellants stood proved beyond reasonable doubt. Therefore, their conviction was upheld. However, the Court extended the benefit of doubt to five other accused persons and ordered their release. The appeal was, thus, partly allowed.