HIGH COURT OF JAMMU AND KASHMIR
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(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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