SHANKARDEEP SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) The Revisionist/Accused has filed the criminal revision u/ S 397/401 of the Criminal Procedure Code. On 28.5.2010 against the order dated 22/05/2010 passed by the Court of VIth Addl. Sessions Judge, Bhind (Shri S.C. Rai) in Sessions Trial No. 109/06 rejecting an application u/s 45 of the Evidence Act filed by the accused for calling handwriting expert for getting the signature of the deceased on Dehati Nalsi Ex.P-11 examined/compared with the signature put by the deceased on the registered sale deed Ex. D-4.

(2.) In brief, facts giving rise to the revision petition are that, the Sessions Trial No. 109/06 u/Ss. 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.P-11 examined/compared with the signature put by the deceased on the Registered sale deed Ex.D-4 on the ground that after the death of Bharat Sharma the Dehati Nalsi report Ex.P-11 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.D-4 executed by the deceased. The aforesaid application was rejected by order dated 25/05/2010 on the ground that the execution of the Dehati Nalsi report Ex.P-11 has been proved by Rajveer PW-11 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 25/05/2010 to this effect that there is a variation of signature of the deceased on Dehati Nalsi Ex.P-11 and the registered sale deed Ex.D-4 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 Rajbeer Singh PW.11 by whom the Dehati Nalsi report Ex.P-11 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.P-11 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.P-11 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.