S.P.D. Karuppaiya vs State

S. Nagamuthu, J.—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.

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.

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 u/s 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 u/s 33 of the Evidence Act.

In view of the above position, the prayer made in the petition cannot be granted. Hence, the petition is dismissed.