Madhya Pradesh High Court
Uday Alias Udal Garg vs The State Of Madhya Pradesh on 10 April, 2019
1 CRR-1795-2019
The High Court Of Madhya Pradesh
CRR-1795-2019
(UDAY ALIAS UDAL GARG Vs THE STATE OF MADHYA PRADESH)
1
Jabalpur, Dated : 10-04-2019
Shri Sankalp Kochar, learned counsel for the petitioner.
Shri S.B. Agnihotri, learned G.A. for the respondent/State.
Shri S.K. Patel, learned counsel for the objector. This revision petition under Section 397/401 of Cr.P.C. has been preferred by the petitioner being aggrieved by order dated 13.03.2019, in Session trial No. 55/2018, passed by 1st Additional Sessions Judge Panna, whereby the learned 1st ASJ has rejected an application under Section 45 of Evidence Act filed by the petitioner.
According to case, petitioner has preferred an application under Section 45 of Evidence Act to appoint a handwriting expert for verification of signature made by deceased Ram Kishore, as the case of prosecution. It is mentioned in his application that police has produced its case that ASI Man Singh posted at Police Station Devendra Nagar has written Dehati Nalishi on the basis of information received from complainant Ram Kishor (since deceased) and same was signed by him but according to petitioner, sign which is reflected in "Dehati Nalishi" is false and made by another person. It is further contended that a crime has been registered in Crime No. 48/18 for the offences punishable under Sections 341, 323, 506 and 294 of IPC against the petitioner and other co-accused persons. During investigation, police has seized some article from the deceased Ram Kishor and on seizure memo they had taken the signature of him. Police has also issued a notice under Section 41 of Cr.P.C. to the deceased and in the second copy of the same deceased had made his signature. According to petitioner, he had collected the aforesaid documents and verify the same through handwriting expert, in which he found that the signature found in "Dehati Nalishi" is different from the other aforesaid documents. Thus, it appears that police had made forged 2 CRR-1795-2019 signature with the collusion of complainant party. Therefore, it is necessary to examine the same through handwriting expert.
The learned public prosecutor has opposed the same before the trial Court.
After considering the submissions made by both the party and under the guidelines of several pronouncements of the Hon'ble Apex Court, the learned trial Judge has rejected the same. Hence, this petition is preferred for.
Learned counsel for the petitioner submits that the said application is deserves to be allowed for a fair and complete adjudication of the controversy. The case is based upon the incident narrated by the deceased himself and in such circumstances it is necessary to resolve such controversy of false signature by examining the same through handwriting expert. The "Dehati Nalishi" has been created as an after thought and police had made false signature of deceased Ram Kishore. The learned trial Court has failed to exercise its jurisdiction vested in it in terms of Sections 45, 47 and 73 of Indian Evidence Act. With the aforesaid submissions, he prays for allowing this petition.
On the other hand, learned counsel for the respondent State as well as counsel for the objector submit before this Court that under Section 73 of Indian Evidence Act, Court is empowered to resolve the dispute of such nature itself. Apart from that accused has right to raise this ground on the stage of defence. At this stage, an application filed by the petitioner can not be entertained. With the aforesaid submissions, they pray before this Court for dismissal of this petition.
Heard both the party and perused the case.
Before entering in the controversy of the case, it would be necessary to read first the relevant provisions of Indian Evidence Act, 1872. Section 45 of the Act, 1872 provides that Court can seek expert opinion on the point of foreign law or of science of arts or as to identify of handwriting or finger impression, whereas Section 47 provides about the opinion regarding 3 CRR-1795-2019 handwriting, when it is relevant to the case. Further, Section 73 of the Act, 1872 has given the power to the Court to compare the signature, writing or seal with others admitted or prove documents.
In the present case the dispute of signature is regarding "Dehati Nalishi"
wrote by ASI, under the instruction of deceased Ram Kishore, which is the important peace of evidence. The learned counsel for the petitioner submits that he has verified the signature through a handwriting expert and he found that the same was different. The learned trial Judge has rejected the application for appointing handwriting expert on the ground that the deceased Ram Kishore was died during treatment and he has given his statement to police, which has written as "Dehati Nalishi" and now same shall be treated as dying declaration and under the law there is no necessity of signature in the dying declaration.
The learned counsels for the State as well as objector submits before this Court that Court has power under Section 73 of Evidence Act,1872 to resolve the dispute regarding signature by compare the same through proved document. In the case of State (Delhi Administration) Vs. Pali Ram reported in AIR 1979 SC 14 the Hon'ble Apex Court in para 29 has held as under:-
"29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes t o compare the disputed writing with the admitted writing, even without the a i d of t h e evidence o f any handwriting expert, the Judge should, as a matter of prudence a n d caution, hesitate to base h i s finding with regard to the identity of a handwriting which forms the sheet-anchor o f the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two
4 CRR-1795-2019 agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
In another case reported in AIR 1997 SC 3255 (Ajit Sabant Majagavi Vs. State of Karnataka) the Hon'ble Apex Court has also held as under:-
" 3 8 . As a matter of extreme caution and judicial sobriety, the C o u r t s h o u l d not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act."
Therefore, it appears from the above said discussions, the learned trial Court is empowered to verify the dispute regarding signature but same can be invoked with the proper caution and the trial Court should not normally take responsibility itself for comparing the disputed signature and can not be acted as an expert. Under the Evidence Act there is provision to appoint a handwriting expert to resolve this controversy and the Court can reach to conclusion with the help of the same by examining the other evidence of the case.
Apart from that accused has a right of "fair trial" and denial of a fair trial is as much injustice to the accused. In this regard the Hon'ble Apex Court has settled the principle by pronouncing several judgments. In the case of Rattiram Vs. State of M.P. reported in (2012) 4 SCC 516, the hon'ble Apex Court has held as under:-
"42. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is
5 CRR-1795-2019 ingrained in the concept of due process of law. While emphasising the principle of `fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-
compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred.
43. The seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice.
44. In this regard, it is profitable to refer to the decision in Gurbachan Singh v. State of Punjab wherein a three-Judge Bench has opined thus:-
"7.........This court in `Willie (William) Slaney v. The state of Madhya Pradesh elaborately discussed the question of the applicability of Section 537 and came to the conclusion that in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
In the case in hand, it is undisputed fact that the "Dehati Nalishi"
produced before the Court is the strong peace of evidence against the petitioner/accused, if same is disputed by the defence then Court should be taken the steps for resolving the same and also to reach just decision of the case. If petitioner does not get the chance to defend himself then certainly it would be said that he has deprived from right of "fair trial". In this case, petitioner has disputed the signature of the deceased as same was different with the other documents, therefore, the provision for appointing of handwriting expert should be invoked in the present case. If ground taken by the petitioner is found correct then certainly he has a right to examine the 6 CRR-1795-2019 witnesses by asking the question in this regard.
Accordingly, this Court is of the view, the order passed by the learned trial Court is not sustainable and deserves to be set aside. This revision petition is allowed and order dated 13.03.2019, passed by the trial Court is hereby set aside. Trial Court is directed to verify the disputed signature by the handwriting expert in accordance with law.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE L.R. Digitally signed by LALIT SINGH RANA Date: 2019.04.23 22:19:58 -07'00'