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ashok kumar (Social Worker)     27 September 2014

Wrong procedure for taking prosecution evidence

Wrong Procedure for taking Prosecution Evidence

In a criminal case of disputed signatures & consequent trial under Section 467,468 etc, during the Examination-in-Chief of the prosecution Witness, the complainant is shown by the PP 2 sets of the specimen signatures. The first set is of himself (the complainant) and the second set is of the accused, and asked the question “Which specimen signatures are yours”?   The complainant, promptly points out that the Set No 1 is his specimen signatures and the  set no 2 is MOT his specimen signatures. Fine till here! But the problem is that the specimen signatures sheets contained the heading “THE SPECIMENT SIGNATURES OF COMPLAINANT” on the first set & “THE SPECIMENT SIGNATURES OF accused” on the second set. While the PP was putting this question to him & soliciting the answer, these heading was visible to the complainant! So the answers given by the complainant were not bonafide but were guided by the heading on the Specimen Signatures Sheet.

 

What is the legal value of such an evidence?

What remedy has the accused against this irregularity?

Can the accused put this in writing in the records of the court so that this be used in his favour during the time of argument?



Learning

 9 Replies

Hardeep (Business)     27 September 2014

After Examination in Chief there is Cross Examination by the Advocate of the adverse party and that is the time when such point should have been raised. ( S. 137, Indian Evidence Act ). Or the Opponent's Advocate should have objected even while this question was being put in the manner you indicate.  Also see, for example :

 

https://kannanpersonal.com/projects/inquiry-attendance/witness.html

 

If not done at that stage and the Evidence has been admitted the fact it pertains to will be considered " proven/ disproven" as the case maybe

 

See :  Rajendra vs Darshana Devi, 2001, held : if a party has not taken advantage of these provisions, he cannot be allowed to complain about the credibility of the witness.

 

As a first step,( I think )  the accused may immediately move an application in the Court pointing out this irregularity and asking for a re-examination. To my mind, it will be difficult since it will also have to be shown that such headings were on the Sheets and visible to the complainant.

 

Request Seniors to come in with their views.

 

DISCLAIMER : General information and advice provided is without any warranties as to suitability for any use, correctness and application to any specific case. Please always take proper legal counsel . However, if it helped anyone even a little a " thanks" via the "Thanks Contributor Button " would be appreciated and would encourage me to keep on making efforts :-) . I am also always open to corrections and further learnings from more experienced Seniors here.

 

 

 

ashok kumar (Social Worker)     28 September 2014

Hardeepji

In fact the Examination in Chief is not yet over an yet continuing as it has been deferred by the court (because midway through the Chief while the Pros Exhibits were marked , the FIR could not be found in the records of the Court so the Exam In Chief was deferred midway)

The irregularity / illegality is not over how the question was put! But what is illegal is the fact while putting the question the Specimen Signature Sheet was shown to him and this sheet contained in writing the answer to the question in the form of Heading put the Police (Specimen Signatures of the Complainant) which was put to the complainant (PW). The question was "Are these your signatures" and since the Specimen Signature Sheet contained the answer to this question in the form of the Heading, the the witness was lead to say YES in the answer. 

The above was objected to orally but the magistrate did not pay any heed. Sinc the Exam In Chief is still not completed, can  the accused put an application recording the above illegality and the accused Objection

 

 

 

Hardeep (Business)     28 September 2014

The exhibits have been wrongly marked and the accused may move an application accordingly, AFAIK.

This could help :

Sudir Engineering Company vs Nitco Roadways Ltd. on 23 March, 1995

where held :

(17) Every Court is free to regulate its own affairs within the framework of law. Chapter Xiii Rule 3 above said contemplates documents admitted in evidence being numbered in such manner as the Court may direct. I make it clear for this case and for all the cases coming up before me in future that the documents tendered and admitted in evidence shall be marked with numerical serial numbers, prefixed by Ex.P if filed by plaintiff or petitioner and prefixed by Ex.D if filed by defendant or respondent. 

ashok kumar (Social Worker)     28 September 2014

Hardeepji,

The case law cited by you pertains to Civil Procedure. Does it hold water in Criminal Proceedings? Secondly as the para 17 of the case law cited by you itself says "Every Court is free to regulate its own affair..." Similarly it also says "I make it clear for this case and for all the cases coming up before me" The word "own" & phrase "all the cases coming up before me" are  of significance here! The question (logic) that arises here is 1.Is this binding on other courts? 2.Does this procedure has a force of law or of a Judgment binding on all other courts

Hardeep (Business)     28 September 2014

In a criminal case " proof beyond reasonable doubt " is the principle so much stricter onus is on the Public Prosecutor than in a Civil case which hinges on pre ponderance of probability. Else, procedure of exhibiting documents should be the same. See the article here under :

https://www.hcmadras.tn.nic.in/jacademy/article/Admissibility%20of%20Evi%20SMA.pdf

Which gives interesting SC rulings on this.

Besides, judgements of the HC are precedents for courts subordinate. I am not sure, however, of the procedural recommendations whether they become binding on lower courts. But - and this is only conjecture - a lower court should take note of a procedure adopted by a higher one rather than reject it outright. Just my view.

T. Kalaiselvan, Advocate (Advocate)     03 October 2014

In you case since the chief examination is yet to be concluded, on the next date of hearing the accused can very well reject the evidence marked as exhibit in so far as the specimen signature matter is concerned. This is legal infirmity. This cannot be allowed. Instead the complainant may be asked to furnish his fresh specimen and compared with the existing one. In forgery cases, the rule that proof beyond reasonable doubt is essential, if court is not allowing the request of accused to reject this evidence, it may be requested to mark it with objection and then the issue can be taken up at argument.

ashok kumar (Social Worker)     04 October 2014

I would like the learned fellow members to throw light on this disucussion!

If the accused points out the irregularity by moving an application the magistrate has 3 options

(i) To reject the application outright (This will help the accused in arguments)

(ii) To accept the application and mark the exhibit under objection (This will help the accused in arguments)

(iii) To accept the application and take fresh signatures of the accused and makes comparison himself

In case the magistrates exercises this (iii) option again it leads to 2 situations (a) If the magistrate confirms the signatures as to tallying with that of the accused this will go against the accused and (b) If the magistrate says that the signatures do not tally then the accused gets advantage

Now again if the magistrate says that the signatures  do not tally then what happens of the case? Since the entire case hinges on this aspect what will happen of the trial? will the magistrate be not bound to discharge the accused at this stage as further trial would be futile

ashok kumar (Social Worker)     04 October 2014

Dear Kalaiselvanji

In case the accused moves an application to reject this exhibit or marks it with an objection, Can the magistrate go beyond and take the signatures afresh on his own??Or the magistrate is expected to confine himself to what is prayed for!!

ashok kumar (Social Worker)     14 February 2016

 

I would like the learned fellow members to throw light on this disucussion!

If the accused points out the irregularity by moving an application the magistrate has 3 options

(i) To reject the application outright (This will help the accused in arguments)

(ii) To accept the application and mark the exhibit under objection (This will help the accused in arguments)

(iii) To accept the application and take fresh signatures of the accused and makes comparison himself

In case the magistrates exercises this (iii) option again it leads to 2 situations (a) If the magistrate confirms the signatures as to tallying with that of the accused this will go against the accused and (b) If the magistrate says that the signatures do not tally then the accused gets advantage

Now again if the magistrate says that the signatures  do not tally then what happens of the case? Since the entire case hinges on this aspect what will happen of the trial? will the magistrate be not bound to discharge the accused at this stage as further trial would be futile


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