Statement-carbon copy
Om Prakash Dhusia
(Querist) 27 December 2010
This query is : Resolved
Dear Mr.Arun Kumar Bhagat:You asked me about carbon copy evidence.Sir in our case u/s364/302/201IPC,PW stated in his testimony that,"He mentioned accused name on somebody's instance" and his testimony of that day was over.But after some months he was re-called by the court and PW changed that dialogue into that,"He saw the accused and after recognising them well, mentioned their name", to which our then defence lawyer did not cross-examined him and left the court in disgust.At the end, the judge relied on the last testimony of PW and convicted us on the available carbon copy of the last statement.
Ironically when we went to court for the copy of that statement it was informed by the court employee that the original of the last statement was found missing from the files and only a carbon copy of that statement was available and we were not supplied the copy of that last statementfor being original not available.What I am asking about is that:1)The statement of PW is written by peshkar or court clerk,signed by PW and conter-signed by the Judge, so that becomes a DOCUMENT.Does this statement comes under the perview of section 65 of Indian Evidence Act or not?
2)If not then under what act or law this statement considered as?
3)Can judge rely on this carbon copy of the original statement for conviction when original is un-available?Because as per above act, this can not be treated as document since it can not be compared with the original.
4)Since judge has already finalised the case and sentenced the accused on 30-10-2010,by relying on the carbon copy,he can not recall PW to re-record his statement,what recourse the judge has now?
5)Can the Judge with the consent of defence and prosecution lawyers build a replica of original for submission in the H'ble High Court during appeal by the accused,because then that would amount to forgery?
6)Or the judge is free to act as per his wishes because he can not be challenged for his misdeeds?
7)Where to approach for its redressal since appeal may take another ten years, though I have submitted a complain to the H'ble Chief Justice at Allhabad High Court on 19-12-2010 vide registered post.
This is a very delicate and complicated issue, so please think it over and advise me accordingly.
Ajay Bansal
(Expert) 27 December 2010
FILE A CRIMINAL WRIT IN HIGH COURT BY MAKING JUDGE AND HIS STAFF AS A PARTY.
Gulshan Tanwar
(Expert) 27 December 2010
This amounts to Secondary evidence and I am sure that it will be hectic to prove but will take some time to teach them a lesson.
Arun Kumar Bhagat
(Expert) 27 December 2010
Statement means which statement, was it recorded by magistrate u/s164 Cr.P.C ? If not then the statement recorded by the sessions judge ? If sessions judge has recorded the statement then it must be recorded in a single copy and that too by dictation. It is called Evidence of PW not statement.Now I am giving answers to your queries :
1. The deposition of witness is recorded as evidence to be relied at the time of passing judgement be it original copy or carbon copy as it bears original signature of the Judge.
2.It is considered under Criminal Rules and Orders of the State.
3.For the instant case it is not documentary evidence, it may be used as evidence for other case.
4. Nothing has to be done by the Judge.
5.The judge will send the entire record in as is where is condition.
6. The conduct of the judge is always subject to scrutiny by the Justice. He can not exercise his discretion.
You may agree or you may not agree with my opinion, but still I would say whatsoever I have expressed, it is from my experience in criminal laws only since last 15 years.
