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2006 DIGILAW 583 (RAJ)

Ram Dev v. State of Rajasthan

2006-02-20

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-The petitioner has challenged the Order dated 11.2005 passed by the Additional Sessions Judge (Fast Track), Sikar whereby he has rejected the application filed by the petitioner for directing the prosecutrix to give a sample of writing under Section 73 of the Indian Evidence Act (henceforth to be referred to as the Act). 2. The brief facts of the case are that allegedly the prosecutrix and the petitioner had a love affair, which was not approved by the prosecutrixs father. Therefore, he lodged a report against the petitioner for offence under Section 376 read with Section 511, IPC. During the course of the trial, the petitioner produced a number of love letters, which were written by the prosecutrix to the petitioner. When she was examined as a witness, she denied the fact that these letters were written by her. Therefore, the petitioner filed an application under Section 73 of the Act praying that the prosecutrix be directed to give a sample of her handwriting so that the same could be compared with the alleged letters. Since, the said application was dismissed by the trial Court, the petitioner had earlier filed a Criminal Misc. Petition, registered as S.B. Criminal Misc. Petition No. 269/2005. Vide Order dated 07.04.2005 the said petition was allowed and the learned trial Court was directed to take a sample of the prosecutrixs handwriting and to send the same to the FSL at Jaipur. When the trial Court took the sample of the prosecutrixs handwriting in medium speed, the petitioner requested that her handwriting be taken in slow, medium and fast speed. However, the learned trial Court turned down such a request. According to the FSL Report dated 27.05.2005, there was some similarity between the sample of the handwriting and the handwriting in the alleged love letters. But the FSL had also pointed out that a better opinion would be given in case a sample of handwriting in slow speed is also sent for further comparison. When the trial Court examined Mr. Ajay Sharma, the Handwriting Expert, he also reiterated the need for a sample of the handwriting in slow speed. Therefore, the petitioner again moved an application under Section 73 of the Act praying that the prosecutrix be directed to give a sample of handwriting in slow speed. However, vide order dated 11.2005, the said application has been rejected. Hence, this petition before us. Therefore, the petitioner again moved an application under Section 73 of the Act praying that the prosecutrix be directed to give a sample of handwriting in slow speed. However, vide order dated 11.2005, the said application has been rejected. Hence, this petition before us. 3. Mr. Anood Dhand, learned Counsel for the petitioner, has argued that the provisions of a Criminal Procedure Code as well as Evidence Act provide for a fair trial to the accused. Keeping in view the need for a fair trial Section 73 of the Act empowers the Court to direct a person to give a sample of signature or writing for the purpose of comparison. He has further argued that the learned trial Court has failed to exercise the jurisdiction vested in it under Section 73 of the Act, thereby causing a grave injustice to the petitioner. 4. On the other hand, the learned Public Prosecutor has supported the impugned order. According to the Public Prosecutor, once the sample has been sent to the FSL and the Report has been received, the power under Section 73 of the Act should not be re-invoked. 5. We have heard both the learned Counsels for the parties and perused the impugned order. 6. The fundamental duty of a Court is to do justice. Justice cannot be done unless the truth is discovered about the case. The Court should endeavour to discover the truth by all the means at its disposal. One of the means at the disposal of the Court is embodied in Section 73 of the Evidence Act. Section 73 reads as under:- “Comparison of signature, writing or seal with others admitted or proved.......In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions.” 7. Hence, the Court is empowered to direct any person present in the Court to give a sample of his/her writing so that it may be compared with the writing allegedly written by him/her. Although initially the learned trial Court had directed the prosecutrix to give a sample of her writing, but subsequently on a second application it refuse to exercise the jurisdiction under Section 73 of the Act. Both the FSL report as well as the handwriting expert had clearly indicated that the better analysis of the handwriting could be done if the handwriting is written in slow speed. 8. Considering this fact, the learned trial Court should have directed the prosecutrix to give another sample of her writing in slow speed. For, such a sample would have permitted both the FSL and the Handwriting Expert to submit a more concrete report about the authorship of the alleged love letters. Merely because the learned trial Court had directed the prosecutrix to give a sample of her handwriting on an earlier occasion, should not prevent the learned Court from directing a second sample to be given. In case a more positive report can be had by the second sample, the learned Court should have directed for a second sample of the handwriting. After all the Court should not leave any stone unturned to discover the truth. Therefore, clearly the order dated 11.2005 is unsustainable. 9. In the result, the order dated 11.2005 is quashed and set aside and the learned Additional District and Sessions Judge, (Fast Track), Sikar is directed to direct the prosecutrix to give a sample of her handwriting in slow speed and to send the same to the FSL at Jaipur for its opinion and not to proceed further in the trial till the said report is received by the Court. 10. With these observations, this petition is allowed.