BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/04/2008 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.O.P.(MD) No.4259 of 2008 S.P.D.Karuppaiya ... Petitioner Vs. 1.State through The Superintendent of Police, Sivagangai District. 2.The Deputy Superintendent of Police, Karaikudi Sivagangai District. 3.The Inspector of Police, Karaikudi Town Police Station, Sivagangai District ... Respondents Prayer Criminal Original Petition filed under Section 482 of Cr.P.C to direct the learned Judicial Magistrate, Karaikudi to permit the petitioner to mark the affidavit of the prosecution witness No.2 Chinnakaruppan filed before the Honourable Principal Bench of this Honorable Court in Crl.O.P.No.5140 of 1998 as exhibit in C.C.No.445 of 1999 on the file of the learned Judicial Magistrate, Karaikudi. !For Petitioner ... Mr.R.Alagumani ^For Respondents ... Mr.L.Murugan Government Advocate(Crl.Side) :ORDER
The petitioner is the de facto complainant in C.C.No. 445 of 1999 on
the file of the learned Judicial Magistrate, Karaikudi. He has come forward with
this petition seeking for a direction to the learned Judicial Magistrate,
Karaikudi to permit him to mark the affidavit of the prosecution witness No.2
Chinnakaruppan, which was earlier filed before the Principal Bench of this Court
in Crl.O.P.No.5140 of 1998 as exhibit in C.C.No.445 of 1999.
2. The learned counsel for the petitioner would submit that in Crl.OP.No.
5140 of 1998 before the Principal Bench of this Court, Chinnakaruppan filed
supporting affidavit wherein he has stated the truth. But now, according to the
learned counsel, he is likely to betray the prosecution and he may not support
the prosecution. In those circumstances, according to the learned counsel, the
prosecution may be permitted to mark the affidavit of the said witness filed
before the Principal Bench of this Court as exhibit in C.C.No.445 of 1999 on the
file of the learned Judicial Magistrate, Karaikudi.
3. In my considered opinion, the said course cannot be adopted at all for
the simple reason that such an affidavit is only a former statement of the said
witness, which can be used for contradicting the said witness under Section 145
of the Evidence Act, at the time of examination before the lower court. At this
stage, it cannot be assumed that the witness would not tell the truth resiling
from his earlier statement. For any reason, if he so resiles from his earlier
statement showing a tendency of hostility towards the prosecution case, it is
always open for the adverse party to use the said affidavit for contradiction.
Except for the said purpose, the said affidavit cannot be used as substantive
evidence for any purpose at all. It is made clear that the former statement made
by a witness can be either used for corroboration or for contradiction under
the Evidence Act and such statement would not fall within the ambit of
substantive evidence, unless it falls under Section 33 of the Evidence Act.
4. In view of the above position, the prayer made in the petition cannot
be granted. Hence, the petition is dismissed.
bg
To
1.State through
The Superintendent of Police,
Sivagangai District.
2.The Deputy Superintendent of Police,
Karaikudi
Sivagangai District.
3.The Inspector of Police,
Karaikudi Town Police Station,
Sivagangai District
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
