Conviction for murder; Handwriting Expert’s opinion pertaining to ransom letter cannot from the basis for conviction, moreso, when specificmen handwritings were obtained by investigating officer and not in court.
2. This appeal by the accused/appellant challenging his conviction under Sections, 302, 364 and 201 of IPC, raises a pertinent question as to whether the conviction for kidnapping, murder and concealment of evidence, can be sustained only on the basis of positive report of the Handwriting Expert.
3. The accused was tried for the subject offences on the allegation that at about 10 AM on 15.02.2003, he accompanied the deceased’s mother from village Sahaspur to village Ghatia and reached there in nearly 3 hours. He came back within next 3 hours and reached village Sahaspur at about 4:00 p.m. He along with PW-12 Taimanlal and deceased Shubham, aged 8 years, were watching TV shows in the house of the deceased. It is said, from this place, the appellant kidnapped the deceased on a bicycle. In the morning of 22.02.2003, Mansaram (father of PW- 3 Ajaykumar) was informed by the villagers that a dead body is floating in the well belonging to Madan Sahu at a distance of about 1 km from his house on Sahaspur-Rajpur road. Mansaram went towards the well and identified the dead body through the clothes worn by the deceased.
4. The Postmortem was conducted by PW-13 Dr. S.K. Jangde, who submitted his report – Ex-P-9 opining that the mode of death is asphyxia due to airway obstruction due to inhalation of water caused by drowning. He also found ligature marks and reddish colour skin lesion, antemortem in nature. Ligature marks were also found around umbilicus, more prominent on front side of abdomen caused by double rounded, thin steel wire. On further query, the doctor answered vide Ex-P-20 that the death may be more than 7 days old because putrefaction is slow when the dead body is drowned in the water. In the course of further investigation, PW-22 Mohan Netam handed over one unstamped letter to the police, which, in turn, was given to him by PW-2 Smt. Geetanjali (mother of the deceased). This envelope and letter inside it were marked as Ex-P36 & 37. Another envelope and letter were recovered from Chandrabhan Thakur (not examined) vide Ex-P/24. These two envelopes and letters were sent for opinion of the Handwriting Expert, on which, the Handwriting Expert -PC Trivedi (PW-16) submitted his report vide Ex-P-85 and P-86 affirming that the envelopes and letters were written by the appellant. The investigating officer also recovered one dot pen belonging to the deceased vide Ex-P-8 pursuant to the memorandum statement of the appellant vide Ex-P-7.
5. The charge-sheet was filed against the present appellant and one Kamlesh, who has been acquitted by the trial Court. The case of the prosecution rested on (I) circumstantial evidence in the nature of evidence of last seen together, (ii) recovery of pen at the instance of the appellant and (iii) the opinion of the Handwriting Expert proving that the ransom letters were written by the appellant. The trial Court has convicted the appellant on the basis of findings against him on the above three circumstances.
6. Shri N.S. Dhurandhar, learned counsel for the appellant, has seriously questioned the evidence of last seen together and recovery of pen. Having done so, he would submit that the opinion of the Handwriting Expert alone, being a weak type of evidence, should not be based for conviction without necessary corroboration.
7. On the other hand, Shri Ramakant Mishra, learned Dy. AG would refer to the law laid down by the Supreme Court in the matter of Murarlilal Vs. State of M.P., 1 to argue that if the opinion of the Handwriting expert is of unimpeachable character, the same can form basis of conviction. He would also submit that the opinion of the Handwriting Expert is duly corroborated by the evidence of last seen together and recovery of pen. He would further submit that when examined under Section 313 Cr.P.C., the appellant did not offer any explanation to question No.39 regarding adverse opinion of the Handwriting Expert against him, therefore, it completes the missing link, if any, in the chain of circumstantial evidence. Therefore, the conviction of the appellant need not be disturbed.
8. Having heard learned counsel at length and upon scrutiny of the entire material available in the record, we would proceed to examine the circumstances against the appellant one by one:-
Evidence of last seen together :
9. PW-3 Ajaykumar and PW-8 Birendrakumar were the witnesses of last seen together. PW-3 Ajaykumar is the maternal uncle of the deceased. The appellant and the deceased were allegedly watching TV in his house. According to this witness, appellant Baldau returned from village Ghatia in the same evening on 15.02.2003. In the evening, he went to village Rajpur for purchasing liquor for the guests who had assembled in the house of one Balmukund. When he went to Rajpur, appellant Baldau and deceased Shubham were present in his house along with PW-12 Temanlal and all three were watching TV. He did not come back to his house but straightway went to the house of Balmukund where he was informed by one Sakharam at about 7.30 PM on the same day that deceased Shubham is missing. He rushed back to his house but neither Shubham nor appellant Baldau were available in the house. They searched Shubham, but could not trace him, however, strangely he did not enquire from appellant Baldau as to the whereabouts of Shubham. He would further say that on the date of incident appellant Baldau had borrowed his bicycle but later on kept it back in his house. It is thus apparent from his evidence that when he started for village Rajpur, the deceased was watching TV along with Baldau and PW-12 Temanlal and that, on return, he went straight to the house of Balmukund and not to his house, therefore, when he last saw the deceased in the company of appellant Baldau, PW -12 Temanlal was also there. Thus, he is not a witness of last seen together, where the deceased and appellant Baldau were alone accompanying each other and no third person was available.
10. PW-8 Birendrakumar is another witness of last seen together. He is aged about 12 years, but was administered oath. In his examination-in-chief, he would state that appellant Baldau had come to the village borewell on a bicycle, but he is not certain as to whether deceased Shubham was accompanying the appellant. The prosecution was allowed to ask leading questions from this witness, on which, he resiled from his case diary statement that he had seen the appellant riding bicycle with the deceased on the date of the incident.
11. According to PW-3 Ajaykumar, PW-12 Temanlal was also watching TV with the appellant and the deceased, therefore, statement of PW-12 Temanlal is also relevant on the question of last seen together. According to this witness, he was watching TV in the house of Mansaram along with PW-3 Ajaykumar. Thereafter, appellant Baldau also reached the house and a little later PW-4 Balmukund Singh also came there and called PW-3 Ajaykumar for some work. After some time, appellant Baldau left the house of PW-3 Ajaykumar, but he failed to recollect as to whether the deceased was there at that time or not. In crossexamination also, he would state that since he was watching TV, he did not concentrate as to who e lse were coming in and going out of the house. He would also say that appellant Baldau had come to the house of PW-3 Ajaykumar between 6 to 7 pm.
12. On a cumulative reading and appreciation of evidence of above three witnesses, we have not found any such reliable evidence which can be used as evidence of last seen together. When the appellant was last seen with the deceased in the house of PW-3 Ajaykumar, PW-12 Temanlal was also present there. Thus, there is absolutely no evidence of the appellant being last seen together with the deceased.
Recovery of dot pen at the instance of appellant :
13. Ex.P/7 is the memorandum statement of appellant Baldau recorded in the presence of PW-3 Ajaykumar and PW-4 Balamukund Singh on 03.03.2003. Pursuant to this memorandum statement, one grey coloured dot pen bearing mark “WESTEND (R) 3TC” with blue coloured refill was recovered vide Ex-P-8. PW-3 Ajaykumar would state in para 14 & 15 of his statement that the ‘pen’ shown to him in the Court was not recovered on the disclosure statement of appellant Baldau. He would explain that word “osVu” was written over the clip and word “osLVu” was written over the cap of the seized pen. Similar is the statement of PW-4 Balmukund Singh in para 2 of his examination-in-chief. In addition, PW-2 Geetanjali (mother of the deceased) would initially state in para 4 of her examination that the deceased used to carry double refilled dot pen, but she later on improves that she had identified the pen recovered from the appellant vide identification memo Ex-P-6.
14. Having scrutinised the statements of these witnesses, we are not satisfied that the prosecution has been able to prove that the dot pen produced before the Court was the same dot pen, which was recovered from the spot. From the statement of PW- 2 Smt. Geetanjali, it also becomes doubtful as to whether the deceased was carrying the same dot pen.
Opinion of Handwriting Expert :
15. We are now left with the evidence of PW-16 P.C. Trivedi, the Handwriting Expert, whose opinion in the form of report Ex.P/85 &86 has been strongly relied by the prosecution to connect the appellant with the crime of kidnapping seeking ransom and commission of murder. Ex.P/37 to P/40 are the two envelopes and letters allegedly written by the appellant to PW- 2 Smt. Geetanjali and PW-7 Ku. Dineshwari. PW-2 Smt. Geetanjali has not stated anything in her deposition about receipt of the letter. The envelope Ex.P/37 containing letter Ex.P/38 have not been proved by this witness. As a matter of fact, this letter has been recovered from PW-22 Mohan Netam, Kotwar of the Village. This witness would depose that the Police had recovered non-stamped envelope and letter, which was handed over to him by PW-2 Smt. Geetanjali. However, Smt. Geetanjali has not made any statement about handing over the letter to PW-22 Mohan Netam.
16. If we come to the other envelope and letter Ex.P/38 & P/40 respectively received by PW-7 Ku. Dineshwari, it has come in her evidence that she received the unstamped letter after 2-4 days of recovery of the dead boy, which means she had received the letter on or about 24th or 26th of February 2003. Both the envelopes carry seals of Sahaspur and Dhamdha Post Offices, but the date is not mentioned in either of the envelopes. PW-22 Mohan Netam has also stated that he had handed over the letter to Police after 2-3 days of recovery of dead body. Thus, it becomes clear that both the letters were received by Smt. Geetanjali and Ku. Dineshwari on or about 25th of 26th of February 2003, much after the alleged kidnapping on 15.02.2003. If this is read along with medical opinion of Dr. Jangde (PW-13), initially, he opines that the death has occurred within 24-72 hours from 22.02.2003 i.e. the date of postmortem, but later on, he answers the query to say that the death may have occurred about 7 days back. The prosecution has, thus, initially tried to build up a case that the death had occurred on 15.02.2003 itself.
17. The above discussion is only about the manner in which the alleged ransom letters came in the hands of the Investigating Agency. It may not assist to test the veracity of the opinion of the Handwriting Expert, but in a case where the accused is tried for commission of murder, we have to be abundantly cautioned to base the conviction on the opinion of the Handwriting Expert, therefore, to examine as to whether or not such expert opinion can form basis of conviction, it was necessary for us to examine the evidence, as to the manner in which, the recovery of letters containing the handwritings were made, because, in a case of murder, such opinion has to be free from all doubts whatsoever. We also want to add here that the envelopes and letters Ex.P/37 to P/40 have been compared with the admitted handwriting of the appellant which was got written from him when he was confined in police station. We have tallied the handwritings over the alleged letters and the sample handwriting obtained from the accused when he was confined in police station as also his admitted handwritings available in diary recovered from him, which have been marked as Ex.P/81 to P/84.
18. When one set of admitted handwriting allegedly written by the appellant while inside the police station tallies with the handwritings in the envelopes and ransom letters, the other handwritings available in the diary recovered from him does not appear to be tallying. We have ourselves perused the letters to ascertain whether they are prima facie tallying in view of the observations by the Supreme Court in Fakhruddin Vs. The State of Madhya Pradesh , in the following words :-
“One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analaysis of the characteristics in the admitted or proved writings and the findings of the same characteristics in large measure in the disputed writing In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert’s opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.”
19. PW-4 Balmukund Singh has stated in para 6 of his statement that the sample handwriting of the appellant was obtained in his presence in the police station for about half an hour and the same was recovered in the police station itself, whereas, document Ex.P/11 carries the name of the place of seizure as Sahaspur , Gram Panchayat building.
20. While replying to question No.47 put to him in his examination under Section 313 of the Cr.P.C., the appellant denied that the admitted handwritings i.e. Ex-P/41 to Ex-P/62 were recovered from him vide Ex-P/11. Thus, the appellant has not admitted the handwriting contained in Ex-P/37 to Ex-P/40 or Ex-P/41 to Ex- P/62. While replying to question No.66, the appellant has also denied that he has written the contents of the documents Ex- P/41 to Ex-P/44 carrying his admitted handwritings, which tally with the handwriting available in the ransom letters Ex-P/36 to
21. We cannot lose sight of the fact that one set of admitted handwriting of the appellant was obtained in the police station during investigation and not in Court. When specimen handwriting was obtained outside the Court, the Andhra Pradesh High Court in the matter of M. Durga Prasad, Spl. Assistant, Syndicate Bank and etc. Vs The State of A.P. and etc., observed thus in para 90:
“90. …………………Apart from that, as seen from the evidence on record the specimen signatures which were sent to the expert for examination were not obtained in open Court and they were obtained during the course of investigation by the C.B.I. Such an opinion based on the specimen signatures which are not taken in open Court, cannot be relied upon by the Court as it is not a valid opinion. Therefore, conviction cannot be based solely placing reliance on such opinion. …………….
22. In view of the above, we hold that the specimen handwriting not obtained from the appellant in open Court and the appellant having denied the same in his accused statement, the samples were not drawn properly, therefore, expert opinion based on such admitted handwriting of the appellant cannot be relied upon.
23. The issue as to when conviction under Section 302 of the IPC can rest solely on the opinion of the Handwriting Expert has been considered by the Supreme Court in ‘n’ number of judgements.
24. In Ram Chandra and another Vs. State of Uttar Pradesh 3, it is observed that ‘it may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction’.
25. In Ishwari Prasad Misra vs. Mohammad Isa, it was observed that ‘evidence given by expert can never be conclusive because after all it is opinion evidence’.
26. In Shashi Kumar Banerjee and others Vs. Subodh Kumar Banerjee (since deceased after him, his legal representatives and others).5, the Supreme Court held that “we do not consider in the circumstances of this case that the evidence of the expert is conclusive and can falsify the evidence of the attesting witnesses and also the circumstances which go to show that this will must have been signed in 1943 as it purports to be. Besides it is necessary to observe that expert’s evidence as to handwriting is opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case the probabilities are against the expert’s opinion and the direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it”.
27. In Fakhruddin (supra), the Supreme Court held that “both under s. 45 and s.47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. “
28. In Murarilal (supra), heavily relied by the learned Dy. Advocate General, the Supreme Court after considering its earlier referred above judgments observed that an expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses – the quality of credibility or incredibility being one which an expert shares with all other witnesses -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The science of identification of finger prints has attained near perfection and the risk of an incorrect
opinion is practically non existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgement by the application of these criteria to the facts proved in evidence.
29. In Magan Bihari Lal vs The State of Punjab6, the Supreme Court has held that the opinion of handwriting expert cannot be sole basis of conviction. It is held thus in para 7:-
7. ………………………………………..It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings Ex. PW 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. that it is unsafe
to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Mishra v. Md. Isa that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee where it was pointed out by this Court that experts evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgements of English and American courts. Vide Gurney v. Langlands and Matter of Alfred Foster’s Will. The Supreme Court of Michigan pointed out in the last-mentioned case:
“Every one knows how very unsafe it is to rely upon any one’s opinion concerning the niceties of penmanship — Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil.”
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by its very nature, weak and infirm and cannot of itself from the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offence.”
30. Yet again in S. Gopal Reddy vs. State of Andhra Pradesh the Supreme Court has held that expert evidence is a weak type of evidence, therefore, Courts do not consider it as conclusive and, therefore, such evidence is not safe to rely upon it without seeking independent and reliable corroboration.
31. In an extremely recent case i.e. S.P.S. Rathore vs. CBI and another the Supreme Court has reiterated its view that the conviction cannot rest on the sole opinion of the handwriting expert without availability of substantive corroboration. It is held thus in paras 29 & 30:-
29. In Smt. Bhagwan Kaur v. Shri Maharaj Krishan Sharma and Others (1973) 4 SCC 46 :(AIR 1973 SC 1346), this Court held as under:
“26. …It is no doubt true that the prosecution led evidence of handwriting expert to show the similarity of handwriting between (PW1/A) and other admitted writings of the deceased, but in this respect, we are of the opinion that in view of the main essential features of the case, not much value can be attached to the expert evidence. The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of handwriting expert. In Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat, AIR 1954 SC 316, this Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.
30. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
32. To summarize the legal position as to the reliability or usefulness of opinion of handwriting expert so as to make it the sole evidence resting conviction, it appears the law is fairly well settled that an expert witness is a witness like any other witness and he does not stand on a weaker footing, however, his opinion still remains a piece of circumstantial evidence in juxtaposition to any direct or ocular evidence of a crime. Like a single circumstance cannot be relied upon to base conviction and such single circumstance of last seen together or recovery of any bloodstained article or weapon being always considered as a weak piece of evidence, an expert opinion, being an opinion only and not a substantive evidence, is also not sufficient to rest conviction unless necessary corroboration is available to complete the chain of circumstantial evidence.
33. Thus, in every case of circumstantial evidence be it in the nature of expert opinion, the Court has to fall back on the principles laid down by the Supreme Court in Sharad Birdhichand Sarda 9, wherein the following has been held at para 152:-
“152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made:
‘certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and must be’ is long and divides vague conjectures from sure conclusions.’
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
34. As discussed by us in preceding paragraphs, the prosecution case rested on three different circumstances. The first being evidence of last seen together, second in the form of recovery of pen from the appellant; and the third being the handwriting expert’s opinion. We have found the circumstances of last seen together and recovery of dot pen having not been proved in accordance with law. When the opinion of handwriting expert is considered along with the manner in which the ransom letters surfaced after 3-4 days of discovery of the dead body, which is well after about 10 days of missing of the deceased together with the manner in which the so called admitted handwriting of the appellant was obtained from him when he was still confined in the police station and further Balmukund Singh (PW-4) having stated that the said admitted handwritings were recovered in the police station but the document Ex-P/11 would show that the recovery was made from the Panchayat Bhawan and in addition, the appellant having denied the handwritings in Ex- P/41 to Ex-P/62 being his handwriting, we are in serious doubt that the expert’s opinion which is adverse to the appellant can be made the sole basis of conviction.
35. The prosecution has failed to produce any other evidence to provide necessary corroboration to the opinion of the handwriting expert, therefore, we find that the conviction of the appellant has been rendered on faulty appreciation of evidence and application of law, therefore, the impugned conviction and sentence deserve to be and is hereby set aside.
36. Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellant under Sections 302, 364 and 201 of the IPC is hereby set-aside and he is acquitted of the said charge. The appellant is on bail. Surety and personal bonds earlier furnished at the time of suspension of sentence shall remain operative for a period of six months in view of the provisions of Section 437-A of the Cr.P.C. The appellant shall appear before the higher Court as and when directed.