Hazaribagh v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1342 of 2024 Kaushal Kishore Verma, aged about 55 years, S/o Late Gauri Shankar Verma, R/o Mauraya Colony, Lane No.3, Hirabag, Canary Hill Road, P.S. –Sadar, P.O. & District -Hazaribagh. .... Petitioner Versus The State of Jharkhand. …. Opp. Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioner For the O.P. - State
Legal Reasoning
: Mr. Awnish Shankar, Advocate : Mr. Shailendra Kr. Tiwari, Spl. P.P. ….. By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 09.02.2024, copy of which has been kept at annexure-10 and order dated 06.04.2024 which has been wrongly typed as 06.04.2023, the copy of which has been kept at annexure-13, passed by the learned Additional Sessions Judge-III, Giridih in Criminal Appeal No. 5 of 2022 which has been filed against the Judgment of conviction dated 02.02.2022 in connection with G.R. Case No. 1733 of 2020 arising out of Giridih (M) P.S. Case No. 206 of 2020. 3. At the outset, the learned counsel for the petitioner submits that the petitioner abandons his prayer to quash the order dated 09.02.2024 and confines his prayer to quash the order dated 06.04.2024 which 1 Cr.M.P. No.1342 of 2024 has been wrongly typed as 06.04.2023, copy of which has been kept at annexure-13. Accordingly the prayer to quash the order dated 09.02.2024, is rejected as not pressed. 4. The brief fact of the case is that the petitioner has been convicted for the offences punishable under Section 406/420 of the Indian Penal Code by the Judgment passed by the learned Sub Divisional Judicial Magistrate, Giridih in G.R. Case No. 1733 of 2020 arising out of Giridih (M) P.S. Case No. 206 of 2020. The petitioner preferred Criminal Appeal No. 5 of 2022 against his conviction and sentence dated 02.02.2022 in the said G.R. Case No. 1733 of 2020. During the pendency of the appeal, the petitioner filed an application dated 04.09.2023 under Section 391 of the Code of Criminal Procedure with a prayer to produce the original letter dated 30.12.2019, the photocopy of which was already on the record and proving the document by recalling P.W.4 –Chandra Shekhar Kumar Mahato. The same was rejected. The petitioner filed Criminal Revision No. 1364 of 2023 and a Coordinate Bench of this Court observed that as the author of the document himself is alive, there is no scope for adducing secondary evidence but allowed to take the original letter dated 30.12.2019 on record. The petitioner thereafter filed another petition in the said Criminal Appeal No. 05 of 2022 with a prayer to examine the author of the document who is the co-accused in the case as a witness but in view of the bar under Section 315 Cr.P.C., the learned trial court was of the opinion that the court cannot summon a co-convict as a witness on the prayer of the other co-convict, hence rejected the prayer. The petitioner thereafter filed a petition dated 16.03.2024 with the prayer to allow the appellant to lead secondary 2 Cr.M.P. No.1342 of 2024 evidence in the form of Utkarsh in whose favour the offer letter in dispute was issued or in alternative mark the original offer letter of Utkarsh dated 30.12.2019 by comparing the signature appearing in the same with the admitted/proved documents available in the record. The learned trial court considered that since in the Criminal Revision No. 1364 of 2023, vide order dated 11.01.2024, the Coordinate Bench of this Court has observed that; since the author of the document is alive so the document cannot be proved through secondary evidence and rejected the prayer to call Utkarsh as a witness, in whose favour the offer letter has been issued. So far as the prayer to mark the document as exhibit on the basis of the signature being compared with the Ext.1 and Ext.4, it was observed by the learned Additional Sessions Judge-III, Giridih that there is no provision of law to mark any document exhibit after comparing the same with other exhibited documents, hence the prayer of the appellant is not maintainable, in the eye of law and rejected the said prayer as well. 5. It is submitted by the learned counsel for the petitioner drawing attention of this Court to para-24 of the Judgment of Hon’ble Supreme Court of India, in the case of The State (Delhi Administration) Vs. Pali Ram, reported in (1979) 2 SCC 158 which reads as under:- 24. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person: “(1) By an admission of the person who wrote it. (2) By the evidence of some witness who saw it written.” These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are: “(i) By the evidence of a handwriting expert. (Section 45) 3 Cr.M.P. No.1342 of 2024 (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47) (iii) opinion formed by the court on comparison made by itself. (Section 73)” All these three cognate modes of proof involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the court with the sample writing or exemplar obtained by it from the person concerned. That one of the mode of proving the handwriting of a person is by evidence of handwriting expert. Hence, it is submitted that the learned trial court has committed an illegality by observing that there is no provision of law to mark exhibit of any document after comparing the same with other exhibited documents. Therefore, it is submitted that the same be quashed and set aside. 6. The learned Spl. P.P. however vehemently opposes the prayer and submits that there is no illegality in the order passed by the learned Additional Sessions Judge –III, Giridih. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that, Indian Evidence Act, 1872 does not contain the procedure for marking any document as exhibit during recording of evidence. The same has been provided for in the Rules framed for the Civil and Criminal Courts, which provides that every document admitted into evidence must be marked with exhibit number. In the list of exhibits, the form of which has been provided for in the Criminal Court Rules, there is a column where it has to be mentioned whether the 4 Cr.M.P. No.1342 of 2024 document is marked Exhibit with objection or without objection. So, there is no legal definition of “exhibit” in any statute. The practice of exhibiting and marking documents has evolved out of customary practice and thus without any legal backing. Most of the documents except the documents with which the opposite party confronts to the witness, during cross-examination, are already in the judicial file. At the stage of evidence, they are formally produced and given an identity by providing a nomenclature. This is called marking of exhibits. The marking of document as an exhibit is only for the purpose of identification of the document. The Courts mark documents exhibits when it decides to admit that particular document in evidence. Only those documents that are relevant to the facts and issue are exhibited subject to the kind of objection raised regarding their marking. Admitting in evidence means that court will consider the exhibited documents in evidence but admitting in evidence does not makes the documents proved. What weightage court will attach to it depend upon whether it stands proved in accordance with the provisions of the Evidence Act and then its probative value, that is the ability to prove the fact in issue. 8. The Hon’ble Supreme Court of India in the case of Sait Tarajee Khimchand & Ors. Vs. Yelamarti Satyam @ Satteyya & Ors., reported in AIR 1971 SC 1865 has held that mere marking of a document as exhibit does not dispense with the formal proof of the document. So, marking of a document as exhibit does not amount to proof of that document. 9. That being the position of law, in this case, the learned Additional Sessions Judge-III, Giridih, it appears, has used the words “to mark 5 Cr.M.P. No.1342 of 2024 exhibit any document” as a proof of it. Hence, in the considered opinion of this Court, in view of the settled principle of law, in the case of The State (Delhi Administration) Vs. Pali Ram (supra), certainly as law recognizes one of the modes of proof of a handwriting of a person by evidence of handwriting expert. So, the court concerned for forming an opinion, whether the signature of the co-convict –Manoj Kumar appears on Exhibit1 & 4 is the signature of Manoj Kumar on the letter dated 30.12.2019 which has been admitted in record by the orders of the Coordinate Bench, can order for examination of the documents by the handwriting experts. 10. Under such circumstances, this Court is of the considered view that the rejection of the prayer of the petitioner, for getting the document, that is the original letter of Utkarsh dated 30.12.2019 marked as an exhibit by comparing the same with the admitted/proved documents merely on the ground that there is no provision of law to mark exhibit any document after comparing the same with the other exhibited documents is fallacious. 11. Therefore, the rejection of the alternative prayer made in the petition dated 16.03.2024, by the petitioner to mark the original letter of Utkarsh dated 30.12.2019 as an exhibit by comparing the same with the admitted/proved documents available in the record is set aside and the learned Additional Sessions Judge –III, Giridih is directed to pass a fresh order in respect of the said prayer. 12.
Decision
This criminal miscellaneous petition is disposed of accordingly. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th May, 2024 AFR/Sonu-Gunjan/- 6 Cr.M.P. No.1342 of 2024