Decided on August 19,1999

STATE Respondents


- (1.) THIS revision is directed against the order dated 13.2.1998 passed by learned 2nd Additional Sessions Judge, Jammu. By this order, application under Section 73 of the Evidence Act filed by petitioner for taking writing in words and signatures of the Prosecutrix Smt. Veena Devi alias Devya Gill and for sending such writings and signatures for comparison alongwith the letters produced during the course of her cross -examination in the course of trial of the case has been rejected.
(2.) IT is necessary to refer to few facts, which are material for determination of this revision petition. Petitioner is facing trial before the trial court in a case under Sections 376, 363 and 109 RPC. This case was registered on the basis of a report lodged with Police Station, Akhnoor. Further case of the petitioner is that this case has been falsely got registered at the instance of the father of the witness Smt. Veena Devi hereinafter referred to as the Prosecutrix. Petitioner is facing trial in this case alongwith one Danny Massih.
(3.) AFTER the examination -in -chief of the prosecutrix had been recorded, she was being cross -examined by the defence. Record of the trial court indicates that a number of letters which the petitioner alleges to be in the hand of the prosecutrix were confronted to her. She denies either having written or signed those. At this stage an application under Section 73 of the Evidence Act was filed on behalf of the petitioner for taking her writings and signatures and then to send the letters as well as the admitted writings/ signatures taken before the Court for comparison and call for report of the hand writing expert for comparison and opinion. By means of impugned order as the prayer has been declined by rejecting the application, hence this revision. During the course of hearing of this revision petition Mr. Saini learned counsel appearing for the petitioner submitted that his whole case is that the prosecutrix accompanied his client of her free -will and volition, they were happily married. These letters are infact in the hand of prosecutrix, though she denied during the course of her cross -examination. Thus, by rejecting the application by means of impugned order, trial Court has committed grave illegality as well as impropriety, as such, the impugned order was liable to be reversed and thereby allowing the application of the petitioner. This plea has been seriously contested by Mr. P.C. Sharma learned Government Advocate as according to him Section 73 of the Evidence Act is not at all attracted to the facts and circumstances of the case. He submitted that the petitioner may lead such evidence when he is called upon to lead defence evidence and there was no stage for filing application, therefore, he prayed for upholding the impugned order.;

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