Debasish Ganguly vs Biswanath Dey @ Manisha Dasgupta & Ors

Subhasis Dasgupta, J

Affidavit of service filed in Court be kept on record.

The impugned order No. 50 dated 5.5.18 passed by the learned Additional Sessions Judge Fast Track Court-2, Barasat, North 24-Paraganas in S.T Case No. 8(4) of 2014 rejecting the application of the revisionist under Section 73 of the Evidence Act, 1872 is the subject of assail in this revisional application under Section 401/482 of the Code of Crimonal Procedure.

The deceased being uncle of the revisionist suffered death committing suicide sometimes in September 2012. The deceased left behind a suicidal note which was collected by the investigating agency in course of investigation. The revisionist made an application dated 15.9.17 under Section 73 of the Evidence Act for comparison and report by hand writing expert upon furnishing two documents, one being deed of sale dated 29.4.03 and the other being a deed of gift dated 21.6.79 bearing signature of the deceased to unveil the truth behind the death of the deceased.

Learned advocate for the revisionist submitted that comparison of admitted signature, found on two deeds, if permitted to be done by hand writing expert with respect to the hand writing, found on the suicidal note, in application of Section 73 of the Evidence Act, the same would unveil and/or unearth the truth behind the prosecution.

Learned advocate representing the State submitted with all frankness that the comparison of the signature, found on two documents, as produced by the revisionist, might reveal the truth behind the prosecution, and it was in that perspective hand writing expert may be asked to compare the admitted signatures, found on the two deeds of the deceased, with that of the hand writing, found in the suicidal note.

Admittedly police receiving the complaint undertook investigation and submitted a chargesheet under Section 306/120B of the IPC. Six witnesses in the meantime have already been examined, and three witnesses are still left unexamined.

It is in this background the revisionist made an application dated 15..09.17 before the Trial Court under Section 73 of the Evidence Act for the proposed comparison of signatures by hand writing expert. The petition was taken out evidently by de facto complainant.

Indubitably the suicidal note left behind by the deceased along with admitted signatures found in two receipts were sent to examiner of Questioned documents for comparison, report and to ascertain whether the disputed signatures were the signature of deceased or not. The examiner of the Questioned document already adduced evidence in this case as PW-4, and in course of his evidence, he categorically stated that for want of adequate contemporaneous writing and signature from the writer of the standard signatures, it was not possible for him to express any opinion in the present case. Thus hand writing expert, examined as PW-4, could not furnish his expert's opinion in the given context of this case for non-supply of adequate contemporaneous writing and signature, being the admitted/standard signatures of deceased for the purpose of effective comparison with the hand writing of the deceased, found in the suicidal note. Admittedly the deceased victim suffered his death sometimes in September, 2012. The signature of decased found on two documents has been sought to be compared with that of the suicidal note of the deceased. The admitted signature of deceased, now sought to be compared, relates to year 2003 and 1979.

There is nothing in the order impuged to establish that the receipts bearing signature of the deceased, already sent to the examiner of Questioned documents for comparison of signature were the admitted/standard signature of the deceased. When the PW-4, i.e. the expert failed to give his valuable opinion for his expartise on the subject, on the ground of inadequacy of contemporaneous writings and signatures from the writer of the standard signature, the docuemnts produced before the Trial Judge, like the deed of sale dated 29.4.03 and the deed of gift dated 21.6.79 bearing admittted signature of the deceased, if sent to expert, for comparison with reference to the suicidal note and report, that would not cause any prejudice to accused persons, because the Court is expected to unearth the truth behind the prosecution. In the given context of this case, the valuable opinion of the expert could not be had for the inadequcy of the documents, supplied by the investigating officer, but if an attempt is undertaken supplying the documents mentioned hereinabove to the expert for the proposed purpose, it cannot be reasonably concluded, that earlier the same exercise was undertaken, and thus the way already exercised, cannot be made to open. The findings thus reached by the learned Trial Judge, while rejecting the petition under Section 73 of the Evidence Act, thus cannot be taken to be a pefect appreciation of the facts and circumstances invovled in this case, and as such the same cannot go unaltered.

The revisional application succeeds.

The impugned order No. 50 dated 5.5.18 passed by the learned Additional Sessions Judge Fast Track Court-2, Barasat, North 24-Paraganas in S.T Case No. 8(4) of 2014 rejecting the application under Section 73 of the Indian Evidence Act,1872 is set aside.

The learned Trial Judge is directed to take steps for sending the two documents, mentioned hereinabove bearing the admitted signature of the deceased to hand writing expert in accordance with law for comparison with respect to the suicidal note already left behind by the deceased, and report upon depositing the necessary expenses by the revisionist, after ascertaining the cost estimate from the office of the Questioned documents within a fortnight from the date of communication of this order.

The further tiral of this case shal be kept suspended till the receipt of report of hand writing expert.

With these directions, and observtions, the revisional application thus stands disposed of.

Urgent certified copy of this order if applied for, be made available to the parties upon compliance with requisite formalities.