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Madhya Pradesh High Court · body

2011 DIGILAW 938 (MP)

Haseena Bi v. State of M. P.

2011-08-16

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The unsuccessful defendant has filed this second appeal against the judgment and decree passed by learned trial Court decreeing the suit of plaintiff-respondent and the appeal which was filed by her has been dismissed by the impugned judgment and decree. 2. In brief the suit of plaintiff-State of Madhya Pradesh is that defendant Smt. Haseena Bi has obtained an ex parte decree by playing fraud. According to the plaintiff, in between the night of 2nd and 3rd December, 1984 the gas disaster in Bhopal took place in which it is said that husband of defendant Razak Mohammad aged 58 years s/o Babu Khan and his three sons Ramjan Khan, Sharif and Karim succumbed to the poisonous gas which they inhaled and breathed their last. State-Government took a decision to pay Rs. 10,000/- to Haseena Bi who is the widow of Razak Mohammad. According to the plaintiff, an application for obtaining gratuitous compensation amount was submitted by defendant in' respect to her three sons only and it was submitted in the application that her husband is missing and she never disclosed that her husband had died. For the first time on 17.6.1985 she submitted an application stating therein that her husband Razak Mohammad had also died as a victim of the gas disaster. On inquiry it was found by the State of Madhya Pradesh that her husband had not died on account of inhaling the gas and therefore, declined to pay the gratuitous amount of Rs.10,000/- to her. Resultantly, a Civil Suit No. 18-A/1988 was filed by the defendant of this suit in the Court of Second Civil Judge, Class-I, Bhopal in which the ex parte decree was passed against the present plaintiff. Hence, the present suit has been filed to set aside the ex parte decree. 3. The defendant-appellant by filing written statement refuted the plaint averments and stated therein that indeed her husband Late Razak Mohammad had died as a victim of gas disaster only and thus it has been prayed that the suit be dismissed. 4. The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit of plaintiff-State and set aside the ex parte decree which was passed on 19.1.1989 in Civil Suit No. 18-A/1988 in favour of defendant. 5. The first appeal which was filed by the defendant has been dismissed by the impugned and decree. 6. The learned trial Court framed necessary issues and after recording the evidence of the parties decreed the suit of plaintiff-State and set aside the ex parte decree which was passed on 19.1.1989 in Civil Suit No. 18-A/1988 in favour of defendant. 5. The first appeal which was filed by the defendant has been dismissed by the impugned and decree. 6. In this manner this second appeal has been filed by the defendant assailing the judgment and decree passed by learned two Courts below. . 7. This Court on 10.1.2011 admitted this second appeal on the following substantial question of law : . "Whether in the absence of the examination of the Director Medico Legal Institute who had submitted his report-Exhibit P-l0, the said report can be held to be proved and on that basis the Courts below erred in decreeing the suit filed by the respondent?" 8. The contention of Shri K.S. Jha, learned counsel for the appellant is that in the document dated 4.8.1989 (Ex. P-l0) which is a letter sent by Professor Heeresh Chandra, Director, Office of the Director of Medico-Legal Institute and same is addressed to Collector, Gas Rahat, Bhopal in reference to the letter of the Collector No. 3573/Gas Rahat/4/89 dated 4.8.1989, it is mentioned that the postmortem was performed on the dead body of an unknown male on 5.12.1984 vide postmortem No. 600 and in the said letter it has been mentioned that the deceased was male aged about 60 years and was "Hindu". Learned counsel submits that admittedly the doctor who performed the postmortem as well as Professor Heeresh Chandra who wrote this letter (Ex. P-10) to Collector. Gas Rahat. Bhopal have not been examined and if that would be the position. merely putting exhibit mark on this letter would not mean that the same has been admitted in evidence and is a proved document. In support of his contention. he has placed heavy reliance on this Single Bench decision of this Court M.P Bombay Transport Corporation (M/s.) and others v. New India Assurance Company' and another, 1998 (1) JLJ 53 in which reliance on the apex Court decision Sait Tarajee Khimchand v. Yelamarti Satyam. AIR 1971 SC 1865 has been made. Learned counsel has placed reliance on some more judgment of other High Court they are State v. Bhola Pal alias Salil Pal. 1995 CriLJ 3717. TN. AIR 1971 SC 1865 has been made. Learned counsel has placed reliance on some more judgment of other High Court they are State v. Bhola Pal alias Salil Pal. 1995 CriLJ 3717. TN. Govindarajulu v. Lakshmi Ammal by her agent P.V. Narasimhan. AIR 196] Madras 158 and Madholal Singh v. Asian Assurance Co. Ltd. and others. AIR 1954 Bombay 305. According to learned counsel, since the document Ex. P-10 is not proved. therefore. by placing reliance on it the learned two Courts below erred in substantial error of law in holding that document Ex. P-10 containing the factum of death of unknown male was not the husband of the deceased and therefore, the judgment and decree passed by learned two Courts below be set aside. 9. On the other hand. Shri Akhilesh Singh. learned Panel Lawyer argued in support of the impugned judgment and submitted that since in the report Ex. P/10 it has been specifically mentioned that it pertains to some Hindu male. therefore. the defendant who is a Muhammadan lady and whose husband Razak Mohammad was also a Muhammadan, therefore. he cannot be said to be a person about whom report Ex. P-10 was given. 10. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law : 11. The pivotal question for decision in this appeal is the material document Ex. P-10. if this Court holds that this document is not in respect of defendant's husband Mohammad Razak. the judgment and decree passed by learned two Courts below cannot be set aside, but. if this Court comes to the conclusion that the said document is in respect of defendant's husband or it is not proved, the suit of plaintiff-State Government is to be dismissed. 12. The document (Ex. P-10) has been proved by Dr. D.K. Satpati (PW2). This witness has categorically admitted that he did not perform the postmortem examination of the deceased in respect of whom the document Ex. P-10 has been filed. Further he has stated that one Dr. Paliwal who happened to be his student conducted the postmortem of the said person. He has also admitted that Ex. P-10 is not signed by Dr. Paliwal. P-10 has been filed. Further he has stated that one Dr. Paliwal who happened to be his student conducted the postmortem of the said person. He has also admitted that Ex. P-10 is not signed by Dr. Paliwal. In very specific words this witness is deposing in cross-examination that the dead body of a person on whom the identification marks were noticed and were written in the pos(mortem can be identified by the same doctor only who put those marks. In para-2 of his cross-examination this witness has put his ignorance that whether dead body was ever shown to defendant Haseena Bi or not. In the same para he has admitted that in Ex. P-10 at the place A to A earlier something was written which cannot be read now because whitener has been applied on those words, therefore, what was written beneath the whitener, this witness cannot say. 13. The purpose of referring certain part of the deposition of the above said witness is nothing but to Put in highlight that this witness has simply identified the signature of the signatory of Ex. P-10 and nothing more. In these facts and circumstances, I am of the view that mere putting exhibit mark on the document Ex. P-10 would not mean that the document has been proved in accordance to section 47 and 67 of the Indian Evidence Act. 1872. Section 47 deals with the opinion as to handwriting, when relevant and under this provision a person who is acquainted with the handwriting of another person must be produced to prove the handwriting of the person by whom it is suppossed to be written or signed. Thereafter, section 67 of the said Act provides for proof of signature and handwriting of person alleged to have signed or written document which was produced. Under this provision. if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that persons's hand writing must be proved to be in his hand writing. In the present case, there is nothing on record that Dr. Hareesh Chandra who signed Ex. P-10 had died, therefore, his examination was quite necessary to decide the controversy whether the dead body was of Haseen Bi's husband or not. 14. In the present case, there is nothing on record that Dr. Hareesh Chandra who signed Ex. P-10 had died, therefore, his examination was quite necessary to decide the controversy whether the dead body was of Haseen Bi's husband or not. 14. According to me, since it is borne out from the testimony of Dr. Satpati (PW-2) that he is not acquainted whether the signatory of Exhibit P-10 made any inquiry from the defendant Haseena Bi in respect of whether the dead body of the person was of her husband or not, I am of the view that the document is not proved from the statement of this witness. According to me, if Dr. Heeresh Chandra would have been examined, opportunity would have been availed by the defendant to cross-examine him and therefore, in absence of the examination of Dr. Heeresh Chandra who had written the document Ex. P-l0, mere putting exhibit mark on the said document would not be sufficient to prove this document and therefore, the evidence of the best witness has been suppressed by the plaintiff. The Single Bench decision of this Court M.P Bombay Transport Corporation (supra) is squarely applicable in the present case which is based on the division of Supreme Court sai Tarajee Khimchand (supra). I have also gone through this decision of Supreme Court and I find that as per the dictum laid down by Apex Court, mere marking of document as exhibit does not dispense with its proof In this regard para 14 and 16 of the said decision are quite material. Similarly, the decision of Bombay High Court Madholal Sindhu (supra) para-7 is also quite relevant. The decision of Calcutta High Court Bhola Pal (supra) and Madras High Court T.N. Govindarajulu (supra) respectively are also applicable in the present case. 15. In the present case, the doctor who conducted the postmortem has also not been examined by the plaintiff nor the postmortem report has been placed on record. Indeed, the document Ex. P-10 is a secondary evidence because it is based on the primary evidence which is postmortem report. It is well settled in law that if the primary evidence is available, secondary evidence is not admissible and therefore, for this reason also no reliance can be placed upon Ex. P-10. 16. Indeed, the document Ex. P-10 is a secondary evidence because it is based on the primary evidence which is postmortem report. It is well settled in law that if the primary evidence is available, secondary evidence is not admissible and therefore, for this reason also no reliance can be placed upon Ex. P-10. 16. The substantial question of law is, thus, answered that in absence of the' examination of the Director, Medico-Legal Institute who has submitted his report Ex. P-10, the same is not proved in terms of sections 47 and 67 of the Evidence Act and the Courts below erred in substantial error of law in decreeing the suit of plaintiff-State Government. 17. Resultantly this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts below is hereby set aside and suit of plaintiff is hereby dismissed with cost. counsel fee of Rs.1,000/- if pre-certified. K.S. Jha for appellant; Akhilesh Singh, Panel Lawyer for respondent/State.