Jharkhand High Court
Kaushal Kishore Verma vs The State Of Jharkhand on 10 May, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
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
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Mr. Awnish Shankar, Advocate
For the O.P. - State : Mr. Shailendra Kr. Tiwari, Spl. P.P.
.....
By the Court:-
1. Heard the parties.
2. 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
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
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)
(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
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
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. 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/-
