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2015 DIGILAW 720 (JHR)

Dukhit Ram v. State of Jharkhand

2015-06-26

R.R.PRASAD

body2015
ORDER : This application is directed against the order dated 03.03.2015 passed by the Special Judge II, C.B.I, (AHD Cases), Ranchi in R.C. No.48A of 1996 whereby and whereunder the prayer made by the petitioner Dr. Dukhit Ram, to hold witness Uday Shankar Pathak P.W.585 not competent to prove certain documents such as suppliers bills which is in the handwriting of the petitioner, was rejected. 2. The background of the case is that when the C.B.I in order to prove the charges against the accused person facing trial, examining the witness namely, Uday Shankar Pathak P.W.585 for proving certain documents particularly CNC bills, an objection was raised on behalf of some of the accused over his competency to prove those documents for the reason that he was not acquainted with the writing of the accused persons. That objection was rejected by the court holding therein that this objection can be raised at the later stage or even at the stage of appeal or revision over the admissibility of the document which would be marked with objection. That order was challenged in Cr.M.P.No.2620 of 2013 in which plea was taken that that decision of the court in view of the decision rendered in a case of R.VE. Venkatachala Gounder vs. Arulmigu Vishesaraswami & V.P. Temple And Another [ (2003) 8 SCC 752 ] was quite wrong wherein it has been held that where objection was relating to admissibility of the documents, that objection can be looked into at a later point of time but where objection is raised with respect to competency of the person to prove a document that should be raised at the very threshold so that if the court finds that the person is not competent to prove the document, he may give an opportunity to the person to examine the other witness, who would be competent to prove that document. 3. In this regard further plea which was taken is that earlier when same issue had been agitated before the court, the court did pass an order on 2.7.2013 to the effect that admissibility of each of the documents will be considered at the time of examination-in-chief of the said witness. Keeping in view the aforesaid aspect of the matter, the order dated 23.8.2013 was set aside as that never appears to have been passed in accordance with law. Keeping in view the aforesaid aspect of the matter, the order dated 23.8.2013 was set aside as that never appears to have been passed in accordance with law. Accordingly, it was ordered that the matter relating to admissibility of the documents be considered in the light of the order passed on 2.7.2013. In other words, competency of the witness to prove certain document be decided at the time when the prosecution would be seeking to prove certain documents. 4. In the light of that order when P.W.585 intended to prove certain documents including the documents which were in the handwriting of the petitioner Dr.Dukhit Ram, objection was taken that the witness is not competent to prove the document as the witness was not acquainted with the writing of the petitioner. 5. The stand which was taken by the prosecution is that P.W.585 was posted as Head clerk in the office of District Animal Husbandry and on account of that he may have an opportunity to see the correspondences made by the petitioner Dr. Dukhit Ram with the Headquarter and thereby he is quite competent to prove the documents over which writing of the petitioner Dr. Dukhit Ram is there. At the same time, plea was also taken on behalf of the petitioner Dr. Dukhit Ram that P.W.585 in his examination-in-chief has named only eight persons with whom he had worked and thereby P.W.585 would be competent only to prove the documents over which writing of those eight persons are there. The court did reject the prayer of the petitioner Dr. Dukhit Ram on the premise which is being given hereunder: “The District Animal Husbandry Office being administrative head office of whole District and therefore, there was every likelihood that those persons of Animal Husbandry Department who were posted at sub-divisional offices in field duty might have certain correspondence time to time with the Headquarter and it is possible that in the ordinary course of duty the witness Uday Shankar Pathak (P.W.585) being head clerk might have got acquaintance with the writing and signature of persons posted in the field or at Sub-Divisional office.” On such premise the order which was passed reads as under: “I am of the considered view that witness Uday Shankar Pathak (P.W.585) is competent to prove writing and signatures of even those accused persons including Dr. Dukhit Ram, who were posted at Sub-Divisional Animal Husbandry Office of Animal Husbandry Department or were posted in the field duty because the witness being posted at District Headquarter office was having frequent opportunity and occasion to come across the correspondences done by accused with the district Head Office and therefore, objection of defence that witness P.W.585 is not competent to prove bills containing suppliers bills having endorsement/sign of Dr. Dukhit Ram cannot be sustained and the same is rejected.” 6. Being aggrieved with that order this application has been filed. 7. Mr. Anil Kumar Sinha, learned Sr. counsel appearing for the petitioner submits that the learned trial court only on the conjecture and surmises, without coming to the definite conclusion taking relevant facts into consideration, has held that witness P.W.585 is competent to prove the document over which writing of the petitioner is there as the witness who is an approver might have an opportunity to go through the correspondences time to time which the petitioner would have been made to the Headquarter which is never in consonance with the provision as contained in Section 47 of the Indian Evidence Act. Not only that the court has even gone to the extent to say that the witness is competent to prove the documents relating to the other accused persons, who were posted at Sub-Divisional Animal Husbandry office or were posted in the field as the witness might have occasion to come across the correspondence done by the accused persons. The said observation cannot be allowed to stand as it is based on surmises and conjecture and is not in consonance with the provision of Section 47 of the Indian Evidence Act. 8. Further it was submitted that the court should have been more cautious in deciding the issue of the competency as P.W.585 is an approver who would have been playing in the hands of the C.B.I and whatever the prosecution (C.B.I) would like to do, it would be doing through the said witness. 9. As against this, Mr. Deo, learned counsel appearing for the C.B.I submits that it is true that the court has gone to the extent as has been highlighted on behalf of the petitioner but he assures this court that the prosecutor would be fair enough to prove the documents through the witness P.W.585 absolutely in accordance with law. 10. 9. As against this, Mr. Deo, learned counsel appearing for the C.B.I submits that it is true that the court has gone to the extent as has been highlighted on behalf of the petitioner but he assures this court that the prosecutor would be fair enough to prove the documents through the witness P.W.585 absolutely in accordance with law. 10. Further it was submitted that the stand which is being taken that P.W.585 would only be competent to prove the documents relating to eight persons name of whom he has divulged in his examination-in-chief is not tenable as acquaintances of this witness who was posted as Head clerk, with the persons could not be confined only to eight persons. 11. Thus, the issue which has cropped up to be decided as to whether the impugned order deciding the issue relating to competency of an witness P.W.585 is in accordance with the provision as contained in Section 47 of the Indian Evidence Act ? Section 47 of the Indian Evidence Act reads as follows: “47.Opinion as to handwriting, when relevant-When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation-A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.” 12. From its perusal it does appear that when the court has to form an opinion as handwriting of a person, the opinion of the person acquainted with the handwriting of such person is admissible in evidence but it must be proved that witness is acquainted with the handwriting in question which proposition has also been laid down by the Hon’ble Supreme Court in a case of Rahim vs. Khurshid ( AIR 1975 SC 290 ). 13. 13. Further it be stated that under the explanation to Section 47 acquaintance with ones handwriting maybe in three ways. (I) seeing a person right (ii) knowledge by correspondence and (iii) habitual submission of the documents purporting to be written by a person in the ordinary course of business. 14. For having acquaintances by the aforesaid three means, one must have sufficient opportunity to acquire such knowledge of handwriting in question as to make it worth while receiving in the evidence. 15. The opinion expressed by the court in the manner that the District Animal Husbandry Office being administrative head office of whole District and therefore, there was every likelihood that those persons of Animal Husbandry Department who were posted at sub-divisional offices in field duty might have certain correspondence time to time with the Headquarter and it is possible that in the ordinary course of duty the witness Uday Shankar Pathak (P.W.585) being head clerk might have got acquaintance with the writing and signature of persons posted in the field or at Sub-Divisional office cannot be said to be tenable to decide the issue relating to acquaintance. 16. Likewise, operating part holding therein, that witness Uday Shankar Pathak, P.W.585 is competent to prove writings and signatures of even those accused persons including Dr. Dukhit Ram, who were posted at Sub-divisional Animal Husbandry office of Animal Husbandry Department or were posted in the field duty because the witness being posed at District Headquarter office was having frequent opportunities and occasions to come across the correspondences done by the accused with the District Head office, cannot be sustained in law and thereby the impugned order based on such surmises and conjecture is hereby set aside. 17. However, the prosecution would proceed with the examination of the witness P.W.585 and if he intends to prove the documents being in the handwriting of a particular accused person, competency of the witness if objection is raised relating to it, be decided as has been mandated by the provision as contained in Section 47 of the Indian Evidence Act. 18. Thus, this application stands disposed of. 19. Let a copy of this order be handed over to the learned counsel appearing for the C.B.I for needful.