(1) This revision petition under Section 397/401 of the Code of Criminal Procedure 1973, preferred by the petitioneraccused is directed against an order dated 10 th February 2011 passed in Sessions Case No. 114/2005 by the Seventh Addl. Sessions Judge Gwalior (M.P.) refusing thereby prayer of the petitioner/accused for getting the disputed handwritings of Ex.P/2, P/3 and P/4 compared by a Handwriting Expert with the words or figures alleged to have been made by such person.
(2) The facts, in short, are that the petitioner/accused in the present case is facing prosecution for commission of offence punishable under Section 302 of I.P.C. It is contended by the learned counsel that on receiving information about the commission of alleged offence, the ASI O.P. Yadav rushed to the spot and reduced in writing the Dehati Nalishi and Marg, marked as Ex.P/4 and Ex.P/2. On the basis of the aforesaid, an FIR was written by Ramlakhan (PW-2) at police station which is marked as Ex.P/3. It is alleged that all these reports have been written by the same person and with a view to prove this fact the accused prayed for calling services of the Handwriting Expert to bring out the truth in the prosecution case, but unfortunately, his prayer was rejected by the trial court under the impugned order. Therefore, by filing the instant revision it is prayed that the same may be allowed in the interest of justice in order to establish defence and false implication by the accused after examination by the Handwriting Expert. In support of his submission, learned counsel placed reliance on the decisions of the Apex Court in the cases of State of Delhi v. Patiram (1979 AIR SC 14), State of Maharashtra v. Sukh Dev Singh (1992 AIR SC 2100), Ajeet Sawant v. State of Karnataka (1997) 7 SCC 110).
(3) Per contra, the learned Panel Lawyer appearing for the respondent/State, opposed the prayer of the petitioner/accused and supported the impugned order passed by the trial court. He, therefore, requested to dismiss the revision petition.
(4) Heard the learned counsel for the parties and also perused the copies of the charge-sheet papers containing the statements of the witnesses recorded by the learned trial court alongwith relevant provisions of law applicable to the case in hand.
(5) In the case of Anil Sharma v. State of Jharkand (AIR 2004 SC 2294), the Apex Court held:-
“It was held that the plea appeared to be afterthought and there was no cogent reason for accepting the prayer. It is true that in a given case the accused can make an application for adducing additional evidence to substantiate his claim of innocence. Whenever any such application is filed before the Court, acceptability of the prayer in question is to be objectively considered. The High Court has elaborately dealt with this issue and concluded as to how the prayer was rightly held to be not tenable.”
(6) Further in the case of State (Delhi Administration) v. Pali Ram (AIR 1979 SC 14) the Apex court observed:-
“Section 73 is therefore to be read as a whole, in the light of Sec. 45. Thus read, it is clear that a Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert. “
(7) In the case of Ajit Savant Majagavi v. State of Karnataka (AIR 1997 SC 3255)=1997 AIR SCW 3315, the Apex Court held:-
“the Section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. (See State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 : ((1979) 2 SCC 158)). “
(8) In the case of State of Maharashtra v. Sukhdeo Singh (AIR 1992 SC 2100)=1992 AIR SCW 2486,the Apex court held:-
“It was then submitted, relying on S. 73 of the Evidence Act, that we should compare the disputed material with the specimen/ admitted material on record and reach our own conclusion. There is no doubt that the, said provision empowers the court to see for itself whether on a comparison of the two sets of writing signature, it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen, admitted writings of the accused Nos. 1 and 2. Although the section specifically, empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/ admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputedwritings with the specimen/ admitted writings.”
(9) Perused the record of the case containing the copies of the charge sheet, copy of F.I.R. and “Dehati Nalishi, purported to have been written or made by the same person together with their respective statements recorded before the trial Judge.
(10) Ram Lakhan (PW-2) states in para 2 of his statement that on 27/5/04, Constable Suresh Singh appeared before him and furnished Dehati Nalishi on the basis of which he registered the Crime No 95/2004 for offence punishable under Sections 302, 307/34 of I.P.C. read with Section 25/27 of the Arms Act against Tinku s/o Hirasingh, Rinku s/o Hira Singh (present revisionist), Jeetu @ Jitendra and Monu and consequently registered F.I.R., vide Ex.P/3. He sighed the FIR (Ex.P/3) at portion “A” to “A”. He admitted that the FIR (Ex.P/3) contains the details as were mentioned in the Dehati Nalishi. He further stated that after registration a copy of the FIR was sent to the court of Judicial Magistrate First Class and the endorsement thereof is effected in the Dak book of the police station. He further stated that immediately after receiving the information, the police force proceeded to the spot consisting of Suresh Singh constable and ASI O.P. Yadav. During his cross-examination, the witness admitted that the writings of both these documents (Ex.P/3 and Ex.P/5) are appeared to be same, but he denied that the FIR (Ex.P/3) was written by O.P. Yadav. He admitted his signature on the document (Ex.P/3) and its registration by him at the concerning police station.
(11) O.P. Yadav, Assistant Sub Inspector (PW-10) stated that on 27 th May 04, he was posted as Assistant Sub-Inspector at the police station. During patrolling, he got an information through wireless-set at 7-30 p.m. from police control room about the incident. He was ordered to immediately reach to Sahara Hospital where the injured was brought for medical treatment. When he reached the hospital, he met with complainant Virendra alias Pappu and on his oral report the witness has recorded “Dahati Nalish“ (Ex.P/4) at 8-45, which bears his signatures as well as signatures of the complainant. On the information of the complainant that the injured succumbed to death and the dead body of him was sent to JAH Gwalior for post mortem, he reduced the information in writing as per Ex.P/5 and went to JAH Gwalior. He further stated that he conducted preliminary investigation of the case and recorded statements of the witnesses. In cross examination, he states that on 27 th May 2004 after a making an entry of departure at Serial No. 869/27-5-2009 in Rojnamcha, he alongwith Constable Suresh Singh left the police station Maharajpura and went back at 23.25 hours alongwith Suresh Singh and also made an entry to that effect at Serial No. 900/27-5-2004 of his return in Rojnamcha of the Police Station Maharajpura.
(12) It is true that in a given case the accused in order to substantiate his claim of innocence can very well make an application for adducing additional evidence and whenever any such application is filed before the Court, acceptability of the prayer in question is to be objectively considered by the court.
(13) After going minutely through the statements of the witnesses named above and “Dehati Nalishi, written by O.P. Yadav,(PW-10) and the FIR (Ex.P/3), written by Ram Lakhan (PW-2), it appears that after return by O.P Yadav, who recorded the “Dehati Nalishi alongwith Suresh Singh Constable, the same was produced for registration of the FIR by them at 23.30 hours at Police Station Maharajpura, then F.I.R. was written in the presence of witness O.P.Yadav, scribe of “Dehati Nalishi” by Ram Lakhan (PW-2). Therefore, the possibility of witting Dehati Nalishi and the F.I.R. by one person cannot be ruled out.
(14) Now, the sole question for consideration of this court is that in what circumstances, the court is entitled to compare the disputed and admitted signatures and handwriting for coming to a conclusion and whether the expert's opinion should be obtained for assistance after exercising powers under Section 73 of the Indian Evidence Act.
(15) It is trite law that a comparison of the disputed with admitted writings is a piece of evidence on record and it is a method of examining the internal evidence of a document and of judging whether it finds support from other evidence which is external qua the document containing the disputed writing.
(16) On coming to the case, it appears that Dehati Nalishi, the FIR and other documents purported to have been written and made by same person are very much available before the trial court. There is no rule of law that the court is precluded from coming to its own conclusion in such cases where it is fully familiar with the language and script of the document which is the subject matter of scrutiny before it and where it has the assistance in such scrutiny of the counsel of the parties, but where the court considers that the opinion of a Handwriting Expert would be of assistance to it in coming to a decision, it may call for the evidence of an expert and in that event, exercise of powers under Section 73 of the Indian Evidence Act, 1872 can be invoked. Therefore, in order to compare the admitted handwritings with disputed one on the documents to prove whether the documents, i.e., “Dehati Nalishi“ and FIR are written by one person, i.e., O.P. Yadav (PW-10) or another person named Ram Lakhan (PW-2), the trial court is not bound to refer the matter to a handwriting expert when by itself it can note dissimilarity in the handwritings.
(17) Under the peculiar facts and circumstances of case as noticed above, it is directed that the trial court before passing final judgment shall either by itself compare the handwriting of the witnesses above mentioned and reach on a conclusion and if it considers that the opinion of Handwriting Expert is essential in coming to a conclusion, it shall call for the evidence of an Expert in that eventuality.
(18) In the result, this revision petition deserves to be and is hereby allowed in the manner aforesaid. The impugned order dated 10 th February 2011 passed by the trial court stands set aside subject to above directions.