Certain curious features regarding the opinion of the expert have been referred to by Mr. Manohar and they may be briefly stated. It is axiomatic in the identification of handwriting that natural writings form a much better basis for observation and conclusion then specimens obtained from a writer. In the present case, during investigation previous writings of the present accused were obtained. They are Exhs. 53 to 55 made by the accused, two in January 1967 and one in March 1967. As discussed above, while studying the two crucial writings, namely the signature on the reverse of Exh. 36 and the signature on Exh. 37, what the expert does is to compare the disputed writings with the specimens obtained from the accused in prison. There is no reference whatever to the expert having compared the previous admitted writings Exhs, 52 to 55 with the disputed ones. Mr. Manohar has contended that it is not a case just of an omission to examine the previous writings and compare them. He states that it could very well be that the expert with his extensive experience of examining documents as well as deposing in Court would have examined a natural writing and noted his conclusion. Yet, it must be because he found nothing any common between the previous admitted writings, and the disputed writings, that the expert said nothing on the point. The contention is justified.
Equivalent Citation: 1973MhLJ855
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Appeal No. 259 of 1968
Decided On: 10.01.1973
Jiwan Prakash Vs. State of Maharashtra
Hon'ble Judges/Coram:
D.B. Padhye and G.G. Bhojraj, JJ.
D.B. Padhye and G.G. Bhojraj, JJ.
1. The accused Jiwanprakash son of Pandurang Mokashe, aged 25 years, a clerk in the State Bank of India, Wardha, stood charged before the Sessions Judge, Wardha with offences punishable under sections 380, 381, 467, 468, 465 read with sections 471 and 420 of the Indian Penal Code. The charges against him were that on or about 27-2-1967 at Wardha, while employed as a clerk at the State Bank of India, he committed theft of a bank Draft No. J-942980. Between 27-2-1967 to 3-3-1967 he committed forgery in respect of this draft and the concerned documents such as an advice and a list of originating credits concerning the said draft, and this with an intent to cheat the State Bank of India, Karol Branch. Further, between 27-2-1967 to 3-3-1967, he committed forgery in respect of the above said documents intending that they shall be used for purposes of cheating. He had also on 3-3-1967, at Katol, dishonestly used as genuine the abovesaid draft and the concerned documents knowing them to be forged. Finally, he had cheated the Katol Branch of the State Bank of India by dishonestly inducing it to deliver an amount of Rs. 5450 against the above said documents on 3-3-1967,
2. The Sessions Judge, Wardha, convicted the accused, the present appellant under sections 331, 467, 468, 465 read with sections 471 and 420 of the Indian Penal Code. Under section 467 of the Indian Penal Code, the sentence was of rigorous imprisonment for a period of four years and a fine of Rs. 6000 and in default, rigorous imprisonment for one year. Out of the fine realised, Rs. 5450 were directed to be paid to the State Bank of India, at Katol, Under each of the sections 381 and 420, Indian Penal Code, the accused was sentenced to rigorous imprisonment for one year. No separate sentences under sections 468 and 465 read with section 471, Indian Penal Code have been passed. The substantive sentences have been directed to run concurrently.
3. The accused appeals against the convictions and sentences.
4. The version of the prosecution is as follows. The accused was working as a Clerk in the Wardha Branch of the State Bank of India. He was transferred to Wardha from Fonda in 1966 about 4 to 5 months prior to the time at which the alleged offences were committed. In the said Office at Wardha, he was sitting on the right side of Clerk, Meshram (P. W. 3) in the present case). Between the two, there was only a drawer; thus the two were sitting at a short distance from each other. Meshram used to get forms of drafts from the Accountant Kamble who is P. W. 2 in the present case. On receipt of the forms it was for Meshram to issue the said forms.
5. On 25-2-1967, Meshram received from Kamble drafts forms in two installments, the first of forms Nos. J942954 to J942970; the second installment being Nos. J942971 to J942980. As stated at the outset, the form with which we were concerned in the present case is No. J-942980. In the evening, Meshram returned to Kamble forms Nos. J-942970 to J-942980. The next day 26-2-1967 was Sunday. On Monday 27-2-1967, Meshram received from Kamble in the 6rst installment forms Nos.J-942970 to J-942980. Thus, this installment included the form with which we were concerned in the present case. Subsequently, at about 11-30 a. m. he took the second installment. At this time also, according to Meshram, the form in question was with him.
6. After taking the second installment at about 12 noon, Meshram went for taking tea and was absent for 5 to 7 minutes. The accused continued to be in his seat. At about 12-30 p. m., Meshram found that the form No. J-942980 in question was missing. After enquiries from the accused and others and a fruitless search, Meshram informed the Accountant Kamble P. W. 2. Kamble and the other employees also made a search but the form could not be found. An intimation was accordingly sent to the Head Office about the loss of such a blank form of the draft. A request was also made that instructions should be sent to all the branches of the Bank not to cash the draft in case it was presented.
7. According to the prosecution, the accused applied for and obtained casual leave for 2nd and 3rd March, 1967. He extended this leave by 1 day, namely the 4th March. The version is that on 3rd March, the accused went to the Katol Branch of the State Bank of India with the draft in question i. e. J-942980, This is at Exh. 36 in the present case. It is for an amount of Rs. 5450 drawn in favour of 'Shri M. R. Joshi'. The date on the same is 25-2-1967. It is drawn on the Katol Branch of the State Bank of India. The accused approached witness Karmarkar (P. W. 14), a Clerk at the Katol Branch at about 10-30 a. m. He asked Karmarkar for the encashment of the draft. Karmarkar instructed the accused to produce a current account holder of the Bank for identification or to bring an endorsement and signature of such an account holder. The accused represented to Karmarkar that he had got his own signature attested through the Agent at Wardha. As witness Kadam (P. W. 9) who was the Clerk dealing with drafts had not yet come to the Bank, the accused was asked to wait.
8. Witness Kadam came within a few minutes thereafter. The accused told him his name as M. R. Joshi. Kadam asked him to bring an account-holder for identification. The accused stated that he knew none at Katol. However, on the advice issued by the Wardha Branch in respect of this draft, there was his own attested signature. Kadam, however, found that no such advice had been received. The accused stated that the advice had already been sent by the Wardha Branch. However, Kadam declined to make payment and asked the accused to find someone for identifying him. The accused who went out returned after about an hour and so, was told that the advice had not yet been received. The accused went away and returned after half an hour, saying that a cover from the Wardha Branch was being brought by the postman.
9. A few minutes thereafter, witness Thakare (P. W. 15) the messenger of the Branch got an express delivery cover from a postman who came to the Bank, This was between 1.30 and 1.45 p. m. Thakare gave it to the Agent, witness Saraf (P. W. 4). He passed an order for payment for the draft to Kadam. According to Saraf, as by this time the advice had been received he made the endorsement ex-advice at the left hand bottom corner of the draft. The receipt of the advice was, however, not entered in the Branch books on that day. The advice is at Exh. 37. The reason for non-entry in the registers is that it was received late. The signature on the advice and that on the reverse of the draft were tallied; as they tallied, identification was not insisted upon; a rubber stamp 'checked with the list' was also made on the advice and this was initialled by Saraf. Exh. 30 in the present case is the list of originating credits concerning the draft in question issued by the Wardha Branch. On this list also Saraf made the endorsement "received on 3-3-1967 at about 2 p. m." and initialled the same.
10. On 29-3-1967 a circular was received from the Head Office regarding the missing draft No. J-942980. On this day, Saraf detected that the said draft was paid from the Katol Branch. He, therefore, informed the Wardha Branch by trunk call. Mr. Sule, the Agent of the Wardha Branch, came to Katol and scrutinised the three documents in question, namely, Exh. 30 the originating credits, Exh. 36 the draft and Exh. 37 the advice. These were forwarded to the Head Office at Bombay.
11. The Agent of the Wardha Branch of the State Bank of India made a report Exh. 31 dated 30-3-1967 to witness Yadav (P. W. 17), the Station Officer, Wardha. He registered offences under sections 463, 471, 420 and 390, Indian Penal Code. A first information report was also recorded. He proceeded to Katol and recorded statements of witnesses. On 2-4-1967 the present accused who was at Nagpur was brought to Wardha for interrogation. On a search of the room of the accused at Wardha made on 3-4-1967 Article 5, a journal, Article 6 letterpad and paper and other articles which are not material, were seized. The seizure memo is at Exh 92. The same day on being taken to Nagpur, the accused at about 7-30 p. m. produced Article 2, 17 currency notes of Rs. 100 each, Article 3, a pass-book of the Bank of Maharashtra and a transistor, Article 1. Here, it may be noted that the accused has admitted a deposit of Rs. 1509 in the said Bank on 9-3-1967 the day when the account was opened. On 3-4-1967 the arrest of the accused was effected at 2 p. m.
12. On 6-4-1967 the mother of the accused produced an amount of Rs. 2200 at the Police Station. It is Article 4. The seizure-memo is Exh. 97. On 4-4-1957 an identification parade was held at Wardha. Witnesses from the Katol Branch identified the accused as the person who had presented the draft in person and obtained cash against the same. On 15-4-67 he took charge of the concerned documents Exhs. 30, 36 and 37 from the Agent of the State Bank of India, Wardha. On 28-4-1967 specimens of the handwriting of the accused were obtained in jail. Some previous handwritings of the accused were also obtained from the Bank Office. Specimen signatures of Kamble and witness Bendarkar (P. W. 13), the Head Clerk of the Wardha Branch were also obtained. These were sent to witness Kotval (P. W. 5), the State Examiner of Documents. On examination, his opinion was that four red encircled writings on the originating credits Exh. 30, the signature M. R. Joshi on the reverse of the draft Exh. 36 and the signature M. R. Joshi on the advice Exh. 37 were written by the accused from whom the specimens in question had been obtained from prison. Thus, according to the prosecution, the accused committed the various offences stated at the outset.
13. The accused in his defence before the Court of Sessions admitted that he was working as a Clerk at the Wardha Branch having been transferred from Fonda in the year 1966. He admitted that he was working as a Clerk during the material period. He admitted that his seat was just by the side of witness Meshram who was dealing with the drafts and that draft-forms used to be kept in the drawer of Meshram, He, however, knows nothing about any draft received by Meshram or about the draft in question being found missing. When questioned about it on 27-2-1967, he stated that he did not know anything about it. He admitted that he had obtained leave on 2nd and 3rd March, 1967 and had obtained an extension for 4th March. He denied that on 3-3-1967 he went to Katol or tp the Katol Branch. He denied as false the version of his approaching the Bank Authorities in question and asking them for encashment, representing to them that an advice had already been despatched from Wardha and subsequently obtaining cash against the draft on the receipt of the advice brought to the Bank by the postman. He had not presented the draft and had not obtained any amount.
14. He admitted that in the search of a room, the journal (article 5) was found. He, however, denied that the signatures thereon as V. S. Kamble were at all made by him. There were other persons sharing his room. The writings could very well have been made by such persons. He admits that an amount of Rs. 1700 was produced by him. However, this was because the police directed him to produce whatever money he had. The accused was in service for some years. He was an unmarried person. He used to get Rs. 300 per month. Out of this, he used to send Rs. 200 to his father who was at Nagpur. The amount had been collected for the marriage of the sister of the accused. It was thus that the accused brought the amount of Rs. 1700 from his father and gave it to the police. He admits that he deposited Rs. 1500 on 9-3-1967 after opening an account. As regards the amount produced by the mother, he said that the amount had been sent by the uncle of the accused from Baramati by telegraphic moneyorder to the father of the accused. It was thus that the amount was produced before the police by the mother.
15. The accused admits that the specimens taken from him in prison were written by him. This he did so, as dictated by the P. S. I. He also admitted his three previous writings Exhs. 53 to 55 which were obtained from the Office and sent to the expert. He denies that the three disputed writings, referred to above which according to the expert are written by him, were at all written by himself.
16. As regards the identification at the parade, his version is that while he was brought in hand-cuffs, the three identifying witnesses had already seen him as they were sitting on the culvert. It was, therefore, that the witnesses pointed him out at the parade. Finally, the accused states that the Katol Branch employees, in order to avoid the responsibility for lapses resulting in an unauthorised withdrawal of money, are falsely naming the accused who has been suspected only because he had recently come to Wardha on transfer.
17. The Sessions Judge, after considering the evidence and the material on record held the offences above stated proved. The conviction and sentences as stated above were passed. The accused preferred an appeal to this Court. The said appeal No. 259 of 1968 was summarily dismissed on 13-1-1969. The appellant by Special leave from the said order approached the Supreme Court. The Supreme Court in Appeal No. 162 of 1969 by judgment dated 9-3-1972 set aside the order of summary dismissal and remanded the appeal to this Court for fresh disposal in accordance with law.
18. The version of the prosecution has been stated in due detail above. The prosecution relies for proof of the same on the following material. As regards the presentation of the draft and obtaining of cash against the same, there are the entries in the various registers of the Katol Branch and the evidence of the employees of the said Branch, namely Clerk Karmarkar (P. W. 14), Clerk Kadam (P. W. 9), Clerk Choudhary (P. W. 11), Messenger Thakare (P. W. 15) and Agent Saraf (P. W. 4). As regards the identity of the accused as being the person who presented the draft and obtained the amount, the reliance is on the testimony of the abovesaid employees of the Katol Branch and the opinion of the Hand-writing Expert duly noted above. The prosecution further relies as circumstances in corroboration on the fact of the accused sitting just next to Meshram ; the accused obtaining leave during the material point of time ; a journal (article 5) being seized from the room of the accused ; the opening of an account and a deposit of Rs. 1500 by the accused on 9-3-1967; the production by the accused of Rs. 1700, to the production of Rs. 2200 by the mother. The material bearing on each of the above said facts and circumstances will now be duly marshalled and assessed.
19. There can be very little doubt in the present case that on 3-3-1967 the draft (Exh. 36) was presented at the Katol Branch and an amount of Rs. 5450 was obtained against the same. The transaction proper has, therefore, not been challenged. What has been vehemently challenged is the identity of the accused as being the person presenting the draft and ultimately obtaining money against the same. Obviously, this is the crucial question in the present case. The principal reliance, in this respect, of the prosecution being on the testimony of the employees of the Katol Branch, the same has to be subjected to a thorough scrutiny.
20. Mr. Manohar has assailed the credibility of these witnesses on several grounds which have to be duly considered. It may, however, be initially stated that at the very outset, he developed an argument tending to show that in view of the material on record, it would be reasonable to presume that these witnesses, the employees at the Katol Branch on 29-3-1967 come to know of an unauthorised withdrawal of money from their Bank. Thereupon, on an apprehension that the responsibility for the same would be fixed on them and that they would be penalised for the same, they have tried to cover up their lapses by all means possible including making endorsement on certain documents, and finally, the inculpation of the present accused on mere suspicion because of his proximity to witness Meshram. It is, therefore, essential to duly advert to the same contention.
21. In this connection, Mr. Manohar pointed out that on Exh. 30, the letter of credit and Exh. 37, the advice, there is a rectangular rubber stamp stating, "RECEIVED, STATE BANK OF INDIA, KATOL, 6. MAR. 1967-ACKD ". The argument developed on this basis is as follows. The two documents; the letter of credit and the advice bearing rubber stamp would clearly show that they were received at the Katol Branch on the 6th of March, 1967. If this was so, it was contended, this must demolish in its entirety the version of the employees of the Katol Branch. As stated above, the version is that the accused who was initially refused payment and asked to produce an identifying witness represented that an advice had already been dispatched; that after waiting for the same till the after-noon the advice and the letter of credit were ultimately received on 3-3-67 only at the Katol Branch. This is what has been consistently stated by Messenger, Thakare, Clerk Kadam and Agent Saraf himself. It is contended that this is a factor, the full benefit of which must be given to the accused and in no case can the same be lost sight of.
22. It would appear that the fact of such a rubber stamp was not noticed at any stage of the trial of the present case. It does not appear that either the prosecution or the defence were aware of the same, in fact, till the same was pointed out in this Court at the present stage by Mr. Manohar. We have referred to some other documents which are on record including Exh. 54 and Exh. 55 which contain a rubber stamp. It is found that the date of the documents corresponds with the date entered in the rubber stamp as the date of receipt. It is, therefore, obvious that it would be impossible to deny to the accused the benefit of this circumstance tending to bear on the credibility of the version attempted by the Katol employees.
23. Mr. Mor, the Assistant Government Pleader found himself in a considerable difficulty in trying to explain the said rubber stamp. On the record, there is no material whatever to explain the said rubber stamp showing the date of receipt as the 6th. What Mr. Mor tried to say was that perhaps because these documents were received late in the day, they might have been just kept back and at a later date the rubber stamp of the receipt might have been made. Mr. Mor conceded that there was nothing on record to support such a proposition. Assuming for a moment that this was so, even the same is not an acceptable explanation. If these documents were received on the third, howsoever late, and if the Bank Clerks indulged in such a practice, as referred to by Mr. Mor, then one would expect that at least on the next day, namely 4th March 1967 which was a Saturday and on which the Bank Office was working from 10.30 a. m. to 2.30 p. m. the entry would be made. Instead what is found is that there is a rubber stamp of receipt clearly bearing the date 6-3-1967. Unfortunately, there does not appear to be any inward register maintained at the Katol Branch. At least none has been produced at the trial.
24. The possibility, in the above circumstance referred to by Mr. Manohar, of the Bank employees getting panicky on the 29th and acting in panic cannot be lost sight of. In this connection, certain admissions of witness Kadam, the person who seems to have primarily handled the draft, are worth noting. He has stated that he took the draft to Agent Saraf and asked him whether it should be posted in the register. The signature was tallied with the one found on the advice, Exh. 37. The advice thus had already been received. Even then Kadam states that he posted entries relating to this draft in two registers : (1) Drafts paid register and (2) Register of drafts paid without advice. He has explained in para No. 2 the said registers and the mode of making entries. What is difficult to understand is that if once an advice is received and thereafter payment is made, then there would be no occasion nor propriety for making an entry of such a draft in the register of drafts paid without advice.
Kadam seeks to cure this impropriety by merely saying that if the draft is first and the advice is received later, entries are to be made in both the registers. In the present case, not only was the advice received, but on the basis of the same payment was also made. When this was so, the making of an entry in the register of drafts paid without advice is something strange. Suggestions have been made to the witness that the draft had been paid off by Kadam without insisting on identification ; and for this reason, the entry was in fact made in the register of drafts paid without advice. It was also suggested that after payment had already been made and after the advice had been received at a later date, the words ''Ex advice" were scribed on the corner of the draft.
25. It is, therefore, obvious that the above said material thus detracts to a degree from the credibility of the witnesses in question. The testimony of these witnesses on the crucial question, namely that the accused was the person who presented the draft and obtained the money has to be carefully scrutinised. Saraf (P. W. 4), the Agent has said nothing about the identity of the accused, Witness Karmarkar (P. W. 14) stated that initially the accused went to him and he directed the accused to Kadam. Karmarkar, however, admits that the accused waited at his counter for a minute only. At the trial, Karmarkar stated that the accused came within 5 to 10 minutes of Karmarkar's attending office at 10.15 a. m. Before the Police he has stated that the accused came at about 12 noon. It is contended that this is not a mere discrepancy. The attempt made at the trial is to ascribe a reason why the witness would remember the coming of the accused, as he was the first to come to the Clerk within a few minutes of his coming to the office. Karmarkar himself admits that on the said day, 30 customers might have visited the Bank. His contact with the accused was only to the extent of directing him to Kadam. He is unable to give any description of the various persons who visited that day the Bank. Such is the testimony of Karmarkar.
26. Witness Choudhary (P. W. 11), the Cashier states that at the time of payment, he called out the name M. R. Joshi; the accused came to him and the payment was made. In cross-examination he has admitted that the only talk between him and the accused was about the denomination of currency notes. The preoccupation of a cashier is normally with the money in his charge. When a number of customers visit the Bank and the cashier while paying merely asks the denomination of the notes required, it would indeed be difficult to expect the cashier to note the features of one of such customers in a manner as to enable him to duly identify him after a lapse of some period.
27. In fact, the principal reliance for this purpose of the prosecution is on Clerk Kadam, (P. W. 9). According to him, initially he made enquiries with the accused regarding his work and told the accused that the advice was not received and payment could not be made without identification. After about an hour, the accused again came and enquired whether an advice had been received. As the advice was not received, the accused went out and again returned and told Kadam that the advice received from Wardha was being brought by a postman. Subsequently, Kadam states about the receipt of the advice and obtained the signature of the accused on the reverse of the draft. Thus, according to Kadam, he had opportunities on four occasions to see the accused.
28. As has already been discussed above, there is on record material raising a doubt as to the credibility of the version of the advice being subsequently received in the afternoon on the same day and payment being made on the basis of the advice. There are further criticisms to which the witness has been subjected. According to him, about 15 to 20 persons visited the Bank. He is, however, unable to tell the names or special features of any of those persons. He states that he had not noted the special features of the accused. Thus, without having noted anything particular about the accused, what according to Kadam enabled him to identify the accused was the fact of the accused coming to him on the said day on 3 or 4 occasions. Even so the nature of the identification, in fact, admitted by Kadam and the degree of assurance which Kadam himself feels, as regards the accused being definitely the person in question is open to considerable doubt and uncertainty in view of one clear admission made before the Committing Court.
29. Before the Committing Court, there is a clear averment made by this witness that it was his Andaj that the accused before the Committing Court was the person who had come to him as M. R. Joshi. The implication of the word 'Andaj' is very clear. Obviously it does not imply any degree of certainty. The word would ordinarily convey an approximation, if not a guess. In our opinion, there is a clear gulf between Andaj and a certainty, and unless the same is bridged, it would be impossible to hold that the witness did, in fact, identify the accused as the culprit.
30 But then this is not all. The background of the events prior to the accused being shown to this witness in Court is significant. During the investigation, an identification parade was held. This was on 4 4-1967. Statements of witnesses including Kadam had been recorded three days before the parade. It would be obvious that the principal witness for identifying the accused would be Kadam. It is, however, surprising to find that at the said parade Kadam was not taken to identify the culprit. Police Station Officer Yadav (P. W. 17} admits that Kadam was one of the persons called for identification parade. He had also come to Wardha for the purpose but then Kadam has not been taken to the parade. There is no due explanation for the omission to do so. Thus, after 3 3-1967 witness Kadam never saw the accused. It was for the first time on 25-7-1967, which means after a lapse of over 6 months, that the accused was shown to the witness. At that stage all that Kadam was able to tell the Court was that the identity of the accused as the culprit which was merely his approximation. This is the testimony of the principal witness, namely Kadam. The Assistant Government Pleader says that in a case of the present type, the prosecution would be obviously in a difficulty as regards due material regarding identity. This may be so. The fact, however, remains that understandable difficulties in the production of the necessary material cannot by itself take the place of the material which is requisite for a judicial finding.
31. It is thus obvious that it is not possible on the testimony of the above said witnesses to hold that the identify of the accused as the person who, in fact, presented the draft and obtained the money has been duly proved. The next reliance of the prosecution for the purpose is on the evidence of the Hand Writing Expert. In view of the difficulty of the prosecution, referred to above, and the reliance placed on the opinion of the said Expert, we adverted in detail to the opinion of the Expert and the grounds stated by him. As the Supreme Court pointed out in Fakhruddin v. State of M. P. AIR 1967 SC 1326. the Court has to satisfy itself by such means as are open that the opinion of the Handwriting Expert may be acted upon. One such means 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 and to appraise the value of the opinion. 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 lit can safely be held that the two writings are by the same person.
32. With these principles in view, a detailed scrutiny of the grounds stated by the expert was made. The opinion of the expert is that the signature on the reverse of the draft (Exh. 36) and the signature on the advice (Exh. 37) are made by the accused who is the writer of the specimens obtained from the accused, namely Exhs. 44 to 46 and Exhs. 50 to 52. In para. 8, the expert has proceeded to state the reasons for his opinion. Reasons (i) (ii) and (iii) relate to general features such as skill, slant, pen-pressure, spacing etc. In this connection, what was pointed out by Mr. Manohar is that if the disputed signature is put before the Court and if he is asked to write accordingly, then the presence of such general features in the specimen writings is natural. On the question as to what precisely was done at the time of obtaining the specimens from the accused, the material is not clear. However, the accused has in his examination stated, "sfl^THt JT^T ^ f^HETT^T tfttftcT^ cTCf fafT^". This is something distinct from an averment that there was merely a dictation. The implication is that even the mode of writing was told to the accused by the officer. This could very well imply that the disputed writing itself was before the accused at the said time. In any case, general features cannot constitute sufficient material for establishing identity. What is requisite is that peculiar individual writing habits or idiosyncresies, and the presence or absence of the same in the two sets of writings is a feature which is of decisive importance. It is also well settled that a single dissimilarity can outweigh a large number of similarities.
33. The crux, therefore, is as to whether the expert can demonstrate having found in his examination such features and not merely general characteristics. In an attempt to do so, the expert in ground No. (iv) referred to the connections of letter 'N' to 'R' and 'R' to 'J'. In this respect, as the defence Counsel rightly pointed out, there is clear difference in the curvature of the joining stroke, while the base of the curvature in the disputed signature is practically flat, in the specimen it is of a 'U' type. In this connection, the defence Counsel pointed out certain dissimilarities which may be noted. Between 'R' and 'J' in the disputed writing, the individual stroke of 'R' traversed to the top of the letter 'Jr. This is not so in the specimen. In Exh. 37, the advice, the letters 'R' and 'J' are connected. In the specimens Exhs. 45, 46, 51 and 52 the letters are not connected at all.
34. In ground No. (vi), the expert has stated that the lower portion of 'J' contained a characteristic eyelet. If it is so a characteristic, we would find the same uniformly in the specimen. However, in the specimens Exhs. 45, 51 and 52, there is no eyelet at all. In ground No. (viii), the expert states that the connections of the letters 'Shi' are typically similar, but then in the specimens Exhs, 45, 46, 51 and 52 there are no connections at all. The letters are distinct. The rest of the grounds are again general. The position briefly stated is that apart from general similarity, the expert is unable to make out any distinctive characteristics or any other material on the basis of which the identity could be held to be duly made out.
35. The next portion of the opinion of the expert is that on Exh. 30, the list of originating credits, there are four writings (encircled in red) and on the comparison of these with the specimens from the accused and the previous admitted writings of the accused (Exhs. 53, 54 and 55), he found that the writings were made by the same person. For this opinion also the expert has stated certain grounds which will have again to be subjected to a critical scrutiny with reference to the disputed as well as the specimen writings. The grounds are stated in para. 7; nos. (i) and (ii) are again general statements. In ground No. (iii) the expert tries to show as unconscious manner of the writer a particular feature, namely, the horizontal stroke cutting letter 'a' joining the subsequent letter 'd' An unconscious mannerism is indeed an important fact. This is so provided and it is uniformly found. On the scrutiny of the specimens, however what was found was that while this mannerism is there in Exh. 41, this is not found in the specimens Exhs. 48 and 49. In ground no, (iv), the expert refers to the crossing of the letter 't' and the slant of the letter 'o'. We have referred to the various specimens and the admitted writings. The crossing of 't' and the slant of the letter 'o' as found in the disputed writing was found only in a minority of such letter in the said documents. There were number of such letters written in an entirely different formation. Finally, in ground No. (v), the expert refers to the connection of letter V and 'i' If the formation as found in the disputed writing could be found in the specimen, then indeed it could be described as idiosyncrasy. But the position is quite different. In the specimens Exhs. 47, 48 and 49, the letters are not joined at all. In Exh. 30 the ending stroke of V traversed straight to the top of the letter 'i'. This is not to be found in any of the specimens. The only document where the two letters are joined is Exh. 47 but here the ending stroke of V does not join the top of' 'i' at all, instead the connection is made by completing the two letters and a horizontal connecting line. Thus on subjecting the testimony of the expert to a due scrutiny, it is not possible to hold that the testimony warrants the conclusion that it was the accused who made the writings on the three documents in question. It is innocuous to say that even assuming that the expert's opinion is accepted, that by itself can never be conclusive. It was laid down in Ishwari Prasad Mishra v. Mohammad Isa AIR 1963 SC 17287 and Shashikumar Banerjee AIR 1964 SC 629. that the proposition has been emphatically put that the expert's evidence as to handwriting can rarely, if at all take the place of the opinion.
36. Certain curious features regarding the opinion of the expert have been referred to by Mr. Manohar and they may be briefly stated. It is axiomatic in the identification of handwriting that natural writings form a much better basis for observation and conclusion then specimens obtained from a writer. In the present case, during investigation previous writings of the present accused were obtained. They are Exhs. 53 to 55 made by the accused, two in January 1967 and one in March 1967. As discussed above, while studying the two crucial writings, namely the signature on the reverse of Exh. 36 and the signature on Exh. 37, what the expert does is to compare the disputed writings with the specimens obtained from the accused in prison. There is no reference whatever to the expert having compared the previous admitted writings Exhs, 52 to 55 with the disputed ones. Mr. Manohar has contended that it is not a case just of an omission to examine the previous writings and compare them. He states that it could very well be that the expert with his extensive experience of examining documents as well as deposing in Court would have examined a natural writing and noted his conclusion. Yet, it must be because he found nothing any common between the previous admitted writings, and the disputed writings, that the expert said nothing on the point. The contention is justified.
37. It was also pointed out that the expert did, in fact, compare these previous admitted writings with the body writing on Exhs. 36 and 37 but then he could form no definite opinion in the matter. The position which thus emerges is that the testimony of the hand-writing expert and his opinion cannot form the basis of any finding regarding the identity of the accused as the culprit.
38. Reliance has also been placed on certain circumstances in corroboration. As has already been observed, corroborative circumstances can only be corroborative. They are no substitute for substantive evidence or for legal proof. Even then it would be proper to make a brief reference to the same in fairness to the accused as well as to the prosecution. The accused has admitted that he had applied for leave on the 2nd and 3rd of Mirch and extended the same on the 4th. His version is that on these days he was at Wardha. It does not appear that an attempt was made to ascertain the whereabouts of the accused during this material period of time. It is on record that there were certain room-mates of the accused. It does not appear that an attempt has been made to interrogate them. This is not to say that the circumstance stands demolished in its entirety but than the weight to be attached to it stands considerably diminished. The next circumstance is that of the production of Rs. 1700/- by the accused and, the opening of an account by him on 9-3-1957 and the deposit of Rs 1500/- . In this connection, the explanation of the accused has to be duly considered. He has stated that he has been in service for six years. He has been getting Rs. 300/- per month. Witness Sule, the Agent of the Wardha Branch (P. W. I) states that the accused is unmarried. When the accused said that money was requisite for family responsibility, that is, for his sister's marriage and. that it was for this purpose that he collected the amount, then the explanation, instead of remaining a mere possibility attains the level of probability.
39. Another circumstance is the production of money of Rs. 2200/- by the mother at Nagpur. The value of the circumstance as an incriminating circumstance is diminished if not entirely demolished, for the reason that the matter has not been pursued. The mother has not been examined. There is no material on record regarding the financial status of the family. The defence Counsel stated that the mother also is earning though, of course, there is nothing on the record. The position thus is that the bare fact of production without any material to convert the same into an incriminating circumstance cannot be accepted as pointing to the guilt of the accused.
40. Only a very brief reference is necessary to the material regarding identification parade having been held on 4-4-1967. The lower Court has rejected the material parade and has held that the same is not incriminating. The lower Court has given good reasons for the same, the principal being that prior to the accused being shown to the witnesses they had a view of the accused who was brought in handcuffs. The assistant Government Pleader did not contest the proposition that the identification parade was of no significance. Then there is the position that even as regards the identification attempted by the Katol Branch witnesses at the trial, there is the serious infirmity that during the days prior to the days of the deposition of the said witnesses, they had admittedly seen the accused sitting on a bench in the Court room or outside the same. This circumstance also must detract from the evidentiary value of the alleged identification by the witnesses at the trial, which was about one year and four months after their alleged seeing him at the Bank,
41. It is also further obvious that on 4-4-1967 they had seen the accused at the time of the identification parade. Apart from other infirmities to which the testimony of these witnesses is subject and which have been duly discussed above, the above said infirmities would necessarily have the effect of making their testimony about the identity of the accused unacceptable.
42. The position which thus emerges on a study of the material on record is briefly as follows. The direct evidence, namely testimony of the witnesses regarding the accused being the culprit is not entitled to credence. The opinion of the handwriting expert does not stand the requisite tests. The circumstances admitted in corroboration are either not made out as the incriminating circumstances or have been duly explained by the accused. It is needless to mention that as regards the offence of theft apart from the mere circumstance of the proximity of the accused and Meshram in their office, there is no material on record when once the version of the accused committing the subsequent offences is disbelieved.
43. As a result, the prosecution has failed to bring home the accused any of the offences with which he has been charged. The appeal is, therefore, allowed. The conviction of the accused under sections 381, 467, 468, 465 read with sections 471 and 420 of the Indian Penal Code is hereby set aside. The sentences passed on him under sections 467, 331 and 420 of the Indian Penal Code are all hereby set aside.
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