In my case where I am the accussed is at defence stage.. I noticed folowing problem. Please expert suggest some defense points...
1. Originally affidavit was moved by X, he stopped comming after few months.
2. After that Y came in place of X and submitted a new affidavit.
3. Both the affidavits of X and Y have the same common heading that is "Affidavit of complainant".
4. The new affidavit as filed by 'Y" has some material improvement and filed along with his SPA.
5. This new witness marked this SPA as Ex C1 and all other earlier exihibits number changed by one, that is Ex C1 became Ex c2 and so on.. For example cheque was Ex c3 in X affidavit but it became Ex c4 in Y affidavit.
6. Affidavit of X and all the exhiibits were signed by magistrate when X submitted this.
7. When Y gave the affidavit, there was new magistrate and there is no signature of this new magistrate on any of the newly changed numbered exhibits neither on Y affidavit, nor on SPA.
8. I had to cross Y under objection as another new magistrate wrote down the objection and instructed to cross him and stated in the order that merit of Y evidence shall be decided at the time of final argument.
Now the questions are:
1. Can oath commissioner (who certified the affidavit of Y) do so, when all the exhibits were already in the record of court. (please note that X had submitted all the exhibits earlier with his affidavit, Y changed the number by one and mentioned in his affidavit, now these documents could not have been seen by Oath commissioner.).
2. Can the exhibit number changed by new witness in his affidavit ?
3. Can anyone become witness even if his name is not in the witness list ?
4. The overall procedure adopted by Y ? Is it as per law.
(no application was moved by Y, he just stated that X an employee has left the firm (proprietorship firm) and no longer interested in prosecution), Y is also the husband of proprietor.
