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Madhya Pradesh High Court · body

2013 DIGILAW 568 (MP)

Shankardeep Sharma v. State of M. P.

2013-04-29

M.K.Mudgal

body2013
ORDER Mudgal, J. 1. The Revisionist/Accused has filed the criminal revision under section 397/401 of the Criminal Procedure Code. On 28.5.2010 against the order dated 22.5.2010 passed by the Court of VIth Addl. Sessions Judge, Bhind (Shri S C Rai) in Sessions trial No. 109/06 rejecting an application under section 45 of the Evidence Act filed by the accused for calling handwriting expert for getting the signature of the deceased on Dehati Nalsi Ex. P11 examined/compared with the signature put by the deceased on the registered sale deed Ex. D4. 2. In brief, facts giving rise to the revision petition are that, the sessions trial No. 109/06 under sections 302, 147, 148, 149 of the IPC is pending before the Court of VIth ASJ, Bhind. At the stage of defence evidence, the accused filed an application under section 45 of the Evidence Act on 24.5.2010 for calling the handwriting expert for getting the signature of the deceased on Dehati Nalsi Ex. P11 examined/compared with the signature put by the deceased on the registered sale deed Ex. D4 on the ground that after the death of Bharat Sharma the Dehati Nalsi report Ex. P11 was prepared by the police as forged and fabricated document and the aforesaid report was not signed by the deceased Bharat Sharma. To arrive at the truth of the fact the accused filed the application under section 45 of the Evidence Act for getting the Dehati Nalsi report examined/compared with the registered sale deed Ex. D4 executed by the deceased. The aforesaid application was rejected by order dated 25.5.2010 on the ground that the execution of the Dehati Nalsi report Ex. P11 has been proved by Rajveer PW11 by whom the report was prepared on the direction of the deceased Bharat Sharma. 3. The learned counsel for the accused submits that the lower Court itself has opined in the impugned order dated 25.5.2010 to this effect there is a variation of signature of the deceased on Dehati Nalsi Ex. P11 and the registered sale deed Ex. D4 executed by the deceased. Inspite of this fact the application was rejected arbitrarily and without proper reasoning as the signature of the deceased was challenged by the accused specifically in the cross examination of witness Rajveer Singh PW11 by whom the Dehati Nalsi report Ex. P11 was prepared. P11 and the registered sale deed Ex. D4 executed by the deceased. Inspite of this fact the application was rejected arbitrarily and without proper reasoning as the signature of the deceased was challenged by the accused specifically in the cross examination of witness Rajveer Singh PW11 by whom the Dehati Nalsi report Ex. P11 was prepared. The counsel further submits that in this case Bharat Sharma is not alive he cannot appear before the Court for proving the execution of Ex. P11 and the accused has no opportunity to cross examine the deceased Bharat Sharma. The learned counsel has further stated that the Dehati Nalsi report Ex. P11 would be treated as a dying declaration against the accused, in such a situation, the comparison of the signature of the deceased is necessary to rebut the evidence produced by the prosecution in the interest of Justice. Besides, the accused has a right to adduce the evidence to prove his innocence. The lower Court without considering the proprietary of calling the handwriting expert rejected the application. 4. The learned Deputy Government Advocate supporting the impugned order, opposing the contentions of the revisionist has submitted that the impugned order is based on proper and appropriate reasonings which are neither arbitrary nor against the recorded evidence. The expert evidence is not required in this case. There is no sufficient ground to interfere in the impugned order. 5. The arguments were considered. On perusal of the impugned order dated 25.5.2010 it becomes clear that the Court itself has compared the signature on Dehati Nalsi Ex. P11 and registered sale deed Ex. D4 executed by the deceased Bharat Sharma and opined that the signature of the deceased Bharat Sharma has no similarity on both the documents. In other words there is a considerable difference between both the alleged signatures of the deceased Bharat Sharma i.e. on Ex. P11 and Ex. D4. The accused has challenged the authenticity of the Dehati Nalsi report Ex. P11 as well as the signature of the deceased and contended that the aforesaid report was prepared after the death of the deceased in a false and fabricated way. The accused has a right to rebut the evidence produced by the prosecution. In view of the fact, it cannot be said that the application under section 45 of the Evidence Act filed by the accused was baseless. The accused has a right to rebut the evidence produced by the prosecution. In view of the fact, it cannot be said that the application under section 45 of the Evidence Act filed by the accused was baseless. Though, the reasons assigned by the lower Court in the impugned order may have relevance they can be considered on merit of the case but in deciding the application, the merit of the evidence produced by the prosecution ought not to have been discussed by the lower Court in rejecting the same. Where as stated by the lower Court itself in the impugned order the signature of the deceased on Dehati Nalsi report Ex. P11 has no similarity with his admitted signature on registered sale deed Ex. D4 the comparison of the signatures by an expert is required in this case in the interest of justice. The order of the lower Court does not appear to be correct in rejecting the application of the accused. Hence, the Court deems it to fit to allow the application of the accused to permit him for getting the signature of the deceased on Dehati Nalsi Ex. P11 examined/compared by the handwriting expert. 6. Considering the above facts, allowing the revision petition, setting aside the impugned order it is ordered that the accused is permitted for calling the handwriting expert to get the signature of the deceased on Dehati Nalsi report Ex. P11 examined/compared with the admitted signature of the deceased. On perusal of the lower Court order sheets, it is evident that the accused is in custody since his arrest. To avoid the delay of the trial the accused is directed to make the handwriting expert available for examination of the document without any delay. 7. A copy of this order be sent to the trial Court for information and compliance.