Evidence
Devnandan Sharma
(Querist) 04 September 2011
This query is : Resolved
A witness deposed in the way of filing affidavit as his examination-in-chief. The afidavit contained his statements recorded in the case diary and also some other materials not his statements. In the cross-examination, the witness accepted that the affidavit was not prepared at his instructions. The same was handed over to him by the advocate of the Police and he signed it without properly reading it. However, he agreed to a portion of the affidavit which matched with his statement in the case diary.
The questions are
(i) whether the affidavit would not be regarded as his evidence because he did not instructed to prepare the same;
(ii) in spite of that the affidavit was not prepared at his iinstructions, whether the portion to which he agrees might be regarded as evidence.
prabhakar singh
(Expert) 04 September 2011
yes !the portion to which he agrees shall be regarded as evidence.
Guest
(Expert) 04 September 2011
The witness can go back from his pre-recorded statement during examination or cross-examination, if some facts contrary to his statement appear during the trial. In that case it is not necessary to take in to account his statement as an evidence in the wake of the facts coming to light during trial. Only that portion on which he agrees can be treated as his evidence.
However, if he has already made a confession before a magistrate, the same can be treated as an evidence.
jatin sharma
(Expert) 04 September 2011
hi, as per ur facts.the statement given by witness in affidavit,if it was not matched with ur cross examination and ur pleading on the behalf of ur defended client. then it could be in favor of ur client.
SANJAY GUPTA
(Expert) 05 September 2011
If witness had no knowledge regarding the contents of the affidavit it will not considered his evidence save and except any verbal deposition before the court.
Kiran Kumar
(Expert) 05 September 2011
the question involves a technical point....Whenever an affidavit is tendered in the court as a matter of evidence, it is tendered on Solemn Affirmation.
it is not the oath before the Oath Commissioner is relevant, the relevant oath is before the Magistrate....therefore, what is relevant is the content of the affidavit and not the formation of the affidavit.
if the witness is corroborating the contents of the affidavit during Cross Examination then there is nothing wrong in accepting the affidavit of the witness.
the affidavit system was introduced to save the time of the court....
otherwise also an ordinary person may not be aware of the technical aspect of affidavits, but the material and relevant aspect is his testimony, if a witness stands by the same then such an affidavit should not be rejected.
PARTHA P BORBORA
(Expert) 05 September 2011
Mr. Kiran Kumar has given a simple ,complete and proper answer.
jatin sharma
(Expert) 05 September 2011
hi, yes kiran g expressed my views with full explanation thanks kiran g.
J K Agrawal
(Expert) 05 September 2011
An Affidavit contains two parts. One deposition and other affirmation. The proper way is first the deponent should write deposition only and sign it in first part. Then he is to go to an authority competent to take oath of him. Then he is to swear and say orally on oath that the contents in the deposition part is true and correct. (and for safe guard the deponent writes the same under the deposition and again puts his signature and date. it is called verification part.)and then the oath commissioner writes that deponent taken oath before him and he signs the fact.
In practice The whole procedure is done in single stroke and such problem arises.
Before it starts cross examination the affirmation part should be done and if it is done by the magistrate actually no such problem will arise.
But let us come to present problem.
What is purpose of cross examination? only to check that the deposition is true or not.
Certainly if he denies the contents of deposition it is a good cross.
But again be aware. it is not sufficient that he says that the affidavit was not prepared or explained to him or was not under his instructions.
He should say that the statements made in it are not correct. He should further explain that what is correct and what is wrong.
Further one more thing is surprising to me.
In civil cases it may be proper that examination in chief, by way of affidavit, is proper to save time.
But in criminal trial it is must that he should depose before the accused and in his direct presence. The accused himself should hear what the witness says. In criminal trial evidence by affidavit is not allowed in Rajasthan. If it is allowed in your state it does not seem to be a proper way.
prabhakar singh
(Expert) 05 September 2011
expert J K Agrawal has very aptly clarified
all that could be thought about an affidavit
and its value.
Devnandan Sharma
(Querist) 08 September 2011
I am grateful to learned experts for their valuable comments. I seek kind permission of Ld. J K Agrawal to quote his comments,
"It is not sufficient that he says that the affidavit was not prepared or explained to him or was not under his instructions.He should say that the statements made in it are not correct. He should further explain that what is correct and what is wrong."
There arises a question. A witness is not to testify what is true or what is wrong, but his job is to testify what he has witnessed in his person capacity. If a correct statement is quoted to be stated by him which he has not deposed, can the same would be considered evidence produced by him? Suppose the affidavit contains the following statement: "I state that 2+2=4". The statement that 2+2=4 is correct, but it is not correct that he has stated so.In such cases can the statement of fact would be regarded as evidence produced by the witness?
In my humble opinion if the witness says that a statement of fact has not been deposed by him, the same cannot be regarded as evidence produced by him irespective of whether the fact is true or false. The witness is liable to only those statement of facts which he has deposed. So, if a witness accepts in cross examination that certain portion of the affidavit has not been stated by him, that portion should not be regarded as part of his examination in chief.
