Testimony and Affidavit.

Differences between Testimony and affidavit

Author: Ms. Kritika Goyal, Amity Law School, Delhi.

Affidavit

Affidavit is a term commonly used when dealing with the procedural aspect of any judicial or legislative matter.  An affidavit is a willingly made declaration as the existence of certain things and the person stating them, puts them in writings signs it and vouch for it, this meaning becomes more clear, as the term ‘Affidavit’ comes from the Latin word which translates to’ to pledge one’s faith.

Affidavit requires that it is made in writing and signed and witnessed by the Notary Authority so that it creates a certain value, it should be noted that it is signed without any cross-examination by the affiant. In a way an affidavit can be seen as written testimony, affirming the contents mentioned in the written affidavit.

The law relating to affidavits is governed by section 139, Order XIX if the code of civil procedure and Order XI of the Supreme Court rules.

The following three essentials are necessary to include while drafting an Affidavit:-

1.  A Written Oath – Here the person who is the affiant, swears that anything stated in the document or whatsoever they wish to declare is true to best of their knowledge.

2. Signature- this is a crucial component in any written statement as it shows the willful consent of the party.

3. Certification- the notary public or any other qualified official is eligible to confirm the statements, which are mentioned in the affidavit and have been witnessed in the person himself.

Affidavit as Evidence

Under section 3 of Indian Evidence Act, Affidavit is considered to be evidence. However, it was held in a case(1) that an affidavit shall be deemed to be an affidavit only if the court orders under sufficient reasons and thus an affidavit cannot ordinarily be qualified to be used as a piece of evidence in the court of law.

In another case (2), court has issued certain directions to the courts so as to carefully look after all the affidavits or petitions and also reject them if they do not conform with the requirements of order XIX of Code of Civil Procedure and order XI of Supreme Court Rules. Supreme court has focused on the importance of the testimony of affidavit in various judicial pronouncements.
A three constitution Bench in several judgements has pointy marked out the significance of filing affidavits following the regulation of the provision in the Code.

Effects Of Filing A False Affidavit
A false affidavit is essentially when the details so sworn by the person in the affidavit is incorrect and inaccurate, made with an intention to deceive and mislead the court. Filing of a false affidavit causes unnecessary delay in judicial proceedings. Filing a false affidavit is a criminal offence under section 191, 193, 195 and 199 of Indian Penal Code. Apart from this, criminal contempt of court proceedings can also be initiated against the person who filed the false affidavit.

Testimony

Testimony is defined as a form of evidence that is obtained from a witness who makes a Solomon statement or declaration of any fact. Testimony may be oral or written and is usually made by or under an oath or affirmation.  It is the Solomon attestation as to the truth of the matter.

Latin origins of the word ‘testimony’ and ‘testify’ is the Latin word, ‘testis’, referring to the notion of disinterested third party witness and his account of things to which he can solemnly vouch.

Admissibility of testimony depends on the fact that the person making it swears on it or makes it under Solomon oath. Testimony is divided based upon the mode of delivering it, it can be a written testimony or an oral testimony. Testimony can take many forms, based on the person who is making it and at what stage or condition.
Except when a witness is attesting as an expert witness, testimony in the form of thoughts or extrapolations is generally narrowed to those opinions or inferences that are normally based on the observations of the witness and are beneficial to a clear understanding of the witness’ testimony.

Differences

Evidential Value of testimonies in law depends upon the form and factor of the testimony and different provision exists for different types, and the evidentry value and admissibility of the same also varies.

Differences between an affidavit and testimony are many, because of the fact that these two deal with the different form of affirmations. The major differences between affidavit and testimony are:

1. An affidavit needs to be signed by the despondent on a stamp paper whereas testimonies can be written or oral and does not require stamp duty.
2. Affidavits have to be notarized by a notary officer, the testimony does not require a notary.
3. Affidavit also requires the presence of witnesses at the time of execution and requires them to sign it, no such requirement of witnesses while making a testimony.
4. Affidavits also requires verification as to the contents of the affidavit, whereas no such requirement is there for the testimony

Conclusion.

Affidavit and testimony are different in terms of the fundamental procedural aspect governing the two, however, the essence of affidavit and testimony is in resonance. Affidavit on one hand is a sworn statement by the person and testimony is sworn verbal statement under which the person promises to tell only the truth.

¹KhandeshSpg&Wvg Mills CO. Ltd. VsRashtriyaGirniKamgarSangh, 1960 AIR571, 1960 SCR(2) 841
²Amar Singh vs Union Of India &Ors(2011) 7 SCC 69