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2016 DIGILAW 264 (ALL)

PARMANAND v. STATE OF U. P.

2016-01-20

SUNEET KUMAR

body2016
JUDGMENT Hon’ble Suneet Kumar, J.—The applicant has approached this Court assailing order dated 3 November 2015 passed by the Revisional Court/Additional Sessions Judge, Court No. 1, Ghazipur in Criminal Revision No. 374 of 2008 arising from an order dated 26 November 2008 passed by the Judicial Magistrate/Civil Judge (Junior Division) rejecting the application to take expert opinion on the signatures appended by the wife of the applicant on the compromise submitted in an earlier proceedings under Section 125 Cr. P.C. 2. The record would reveal that the second respondent Ramki Devi filed an application under Section 125 Cr. P.C. for maintenance. The applicant appeared and contested by stating that earlier proceedings was initiated under Section 125 Cr. P.C. being Misc. Case No. 12 of 1985 which according to the applicant was compromised between the parties, as such, the case was dismissed for non-prosecution. After a lapse of 32 years, the present application has been filed, wherein, an objection was raised that the wife of the applicant, that is, Ramki Devi has already died, therefore, the present applicant/respondent No. 2 who claims to be Ramki Devi is not his wife, therefore, an application was moved for taking an expert opinion of a hand writing expert on the signature/thumb impression appended on the compromise alleged to have been filed in the earlier proceedings and comparing it with the thumb impression of the present applicant/respondent No. 2. 3. The Court below rejected the application for the reason that it is not being disputed by the applicant that Ramki Devi is his wife though would state that the present lady respondent No. 2 is not his wife, secondly, the subsequent application under 125 Cr.P.C. is maintainable as is being filed under different circumstances, the earlier application was dismissed for non-prosecution and not on merit. 4. The submission of the learned counsel for the applicant is that the identity of the respondent No. 2 must be determined before the Court proceeds to decide the application, therefore, an application to take opinion of hand writing expert was filed. The family register would show that Ramki died. 5. The submission in my opinion is misconceived. It is not being disputed before this Court that Ramki Devi is the wife of the applicant, further, the earlier application under Section 125 Cr.P.C. was filed by Ramki Devi, which was dismissed for non-prosecution. The family register would show that Ramki died. 5. The submission in my opinion is misconceived. It is not being disputed before this Court that Ramki Devi is the wife of the applicant, further, the earlier application under Section 125 Cr.P.C. was filed by Ramki Devi, which was dismissed for non-prosecution. It is sought to be urged by the applicant that in the earlier proceedings a compromise deed was filed which bears the thumb impression of Ramki Devi, who subsequently died. The present applicant/respondent No. 2 is an impostor. The Court below noted that the applicant filed the certified copy of the compromise but has not field the order of the earlier proceedings. Whether the respondent No. 2 is the wife of the applicant or not is a question of fact which would be determined during the course of the proceedings. The onus is upon the applicant to prove that respondent No. 2 is not his wife. The comparison of thumb impression on a compromise deed would not determine the issue conclusively as to whether the respondent No. 2 is the wife of the applicant. There is a presumption of marriage between the parties, the marriage being a social institution can be proved by leading oral evidence of the members of the family and friends as to whether the respondent No. 2 is the lady to which the applicant got married, mere thumb impression on documents would not be sufficient to determine the identity of the respondent No. 2. Since the applicant is questioning her identity, the onus is upon the applicant to prima facie, establish that the respondent No. 2 is not the wife of the applicant. 6. Much emphasis has been placed on having an expert opinion. Expert opinion is only an opinion and has been considered to be of a very weak nature. 7. In Gulzar Ali v. Sate of Himachal Pradesh, 1998 (2) SCC 192 , the Supreme Court observed that the observation of the High Court that there is a natural tendency on the part of an expert witness to support the view of the party who called him, could not be downgraded. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them. 8. Many so-called experts have been shown to be remunerated witnesses making themselves available on hire to pledge their oath in favour of the party paying them. 8. This Court in Tika Ram v. Daulat Ram, 2013(8) ADJ 617 , regarding the evidentiary value of expert evidence held as follows : “9. Evidence of an expert is only an opinion. Expert evidence is only a piece of evidence and external evidence. It has to be considered alongwith other pieces of evidence. Which would be the main evidence and which is the corroborative one depends unmjon the facts of each case. An expert’s opinion is admissible to furnish the Court a scientific opinion which is likely to be outside the experience and knowledge of a Judge. This kind of testimony, however, has been considered to be of very weak nature and expert is usually required to speak, not to facts, but to opinions. It is quite often surprising to see with what facility, and to what extent, their views would be made to correspond with the wishes and interests of the parties who call them. They do not, indeed, willfully misrepresent what they think, but their judgment becomes so warped by regarding the subject in one point of view, that, when conscientiously deposed, they are incapable of expressing a candid opinion.” 9. In my opinion, the Courts were justified in rejecting the application as the identity of a lady cannot be determined by her thumb impression, the onus is upon the applicant to lead cogent evidence to establish that the respondent No. 2 is not his wife. 10. In these circumstances, this Court under Article 227 of the Constitution declines to interfere with the matter at this stage. 11. The petition being devoid of merit is, accordingly, dismissed. 12. No cost.