The value which is attached to expert testimony has been the subject of several decisions both of this Court and the other High Courts, but before referring to them I think it would be proper to mention What Sarkar in his Law of Evidence (ninth edition) has said about it. He observes as follows at page 445 of the above book:
Expert opinion must always be received with great caution, but perhaps none so with more caution than the opinions of handwriting experts. These gentlemen stand in an impregnable fortress of their own and invariably give emphatic opinions. They try to create an impression by talking glibly of pen-pressure, pen-scope, pen-pause, pen presentation, pen-lift, hand movement irregular movement angle of pen, retouchings, joinings, change of pivot, under- stroke, cross bar and numerous other things not easily intelligible to laymen.
Almost all of them have a favourite theory of their own which they tend to apply with a firm conviction. They are a type of remunerated witnesses and like others of that class have an unconscious bias in favour of the party calling them. Moreover, their opinion are previously ascertained and they are brought only when they are favourable to the party calling. The fact that they know beforehand why they have been called and what the party calling wishes to be proved, detracts to a great extent from the weight to be given to their opinion. Some handwriting experts do not even hesitate to claim infallibility.
In Srikant v. King Emperor 2 All L.J. 444 (A) it was held by a Division Bench of this Court that it was very unsafe to base a conviction upon the opinion of an expert in handwriting as a general rule, unless there was further evidence on the record that besides the accused none else could have written the forged document.
Allahabad High Court
Kameshwar Nath vs The State on 13 December, 1956
Bench: Asthana
Citation: (1957) 27 AWR 842
Citation: (1957) 27 AWR 842
1. The appellant Kameshwar Nath, who was employed as an Assistant Grains Clerk in the office of the Regional Food Controller, Gorakhpur, has been convicted under sections 466 and 471 I. P. C. and has been sentenced to 4 1/2 years' rigorous imprisonment on each count by the learned Assistant Sessions Judge of Gorakhpur. The sentences under the two sections have been made concurrent.
2. The charge against the appellant under Section 466 I. P. C. ran as follows:
That you on or about the 17th January, 1951 and subsequently at Gorakhpur forged documents Exhibits 26, 42 and 38 on 17th February, and 3rd March, respectively, in your capacity as a public servant and thereby committed an offence punishable under Section 466 I. P. C.
3. The other charge under Section 471, I. P. O. against him was as follows:
That you on or about the same time and place fraudulently used permits mentioned in the aforesaid charge as genuine knowing them to be forged documents and thereby committed an offence punishable under Section 471 I. P. C.
4. Besides the above two charges two other charges under sections 120B and 420 I. P. C. were framed against the appellant and another accused Nagendra Nath, but I do not think it necessary to refer to those charges as the appellant has been acquitted of them. Nagendra Nath, who was also employed as a clerk in the same office, was also charged under sections 466 and 471 I. P. C. along with the appellant but he has been acquitted of both these charges.
5. The prosecution story may be briefly stated as follows. The appellant and Nagendra Nath, who were employed in the same office and were living together in one house, obtained leave for 17th January, 1951 and went to Adarsh Press, Ltd, Deoria, to get the permit forms for transport of foodgrains printed there. They met Sri Bhiki Prasad the officer in charge of the Press. It is said that he was known to the appellant whereas Nagendra Nath was not known to him. The appellant described Nagendra Nath as Rama Shanker, Nazir in the Regional Food Controller's office, and as the person in charge for keeping permit forms the appellant gave a printed permit form bearing the seal of the Regional Food Controller's office to Sri Bhiki Prasad and asked him to print 10 booklets of 100 permits each and paid him Rs. 2/- in advance and the balance of Rs, 6/12- was to be paid on the delivery of the booklets.
The appellant instructed Sri Bhiki Prasad to deliver the booklets to his brother-in-law Narainji on payment of the balance. Narainji took delivery of the printed permit books from the Adarsh Press, Ltd., Deoria, and handed them over to Nagendra Nath accused. In the second week of February, 1951 one Lallan Prasad gave two applications to the appellant, one in his own name and the other in the name of one Ram Bajan to obtain permits for transport of food grains. The appellant asked him to see him at his house where the permits would be delivered to him and when he went to his house for the permits the appellant demanded from him Rs. 55/- as bribe for those permits but Lallan Prasad had only Rs. 35/- with him and paid this amount to him and obtained the permits.
6. Another application for permit for three bags of rice was made on the 17th February, 1951 by Lallu Prasad. He too presented the application to the appellant whom he knew from before. The same evening the appellant gave him the permit and demanded subscription for a school building. Lallu Prasad gave him Rs. 15/- and thereupon the permit Ex. 42 was delivered to him.
7. The third application for permit was made by Ram Narain Upadhya on the 3rd March, 1951. This application too was handed over to the appellant for four permits, one of which was for Salik Ram Misra. The appellant handed over five permits to Ram Narain Upadhya, one of which was for Salik Ram Misra and the others were in the name of other persons. The appellant demanded a sum of Rs. 50/- for his services from Ram Narain Upadhya but the latter paid him only Rs. 30/- and was given a receipt for Rs. 2/- only. These permits purported to be signed by one Sri V. C. Gupta, Assistant Regional Food Controller, Gorakhpur.
They wore suspected to be forged and were therefore, sent along with the specimen handwriting of Kameshwar Nath, Nagendra Nath and Sri V, C. Gupta to the Fingerprint Bureau, Allahabad, for examination. They were examined by Sri S. R. Gupta, Deputy Superintendent of Police, and the Handwriting expert of the said Bureau. He was of the opinion that the signatures of Sri V. O. Gupta on them were not his and that the body writing on Exs. 26,38 and 42 were in the handwriting of Sri Kameshwar Nath accused.
8. The circumstances which gave rise to the suspicion and under which these permits were sent to the Handwriting Expert for examination are as follows. On the 20th or 21st February, 1951 one Sat Gur Sarsn a clerk in the North Eastern Hallway Office, Gorakhpur, was returning to his house from the office when at about 7.30 P. M. he found 4 Railway Receipts (Exs. 1 to 4) living on the road near Vijai Talkies. He picked them up and the next morning he took them to the office of the Regional Food Controller but as he did not find any Officer there he did not leave the Railway Receipts with any clerk in that office. The same evening he met Sri D, B. Lullah, Stenographer of the Regional Food Controller's office at Sindhi Hotel and gave him the four Railway Receipts.
They were handed over to the Regional Food Controller by Sri Lullah and he passed them on to the Deputy Regional Food Controller, Sri S. Hamid. The Railway Receipts contained an endorsement "Please deliver" purporting to be signed by Sri V. C. Gupta, Assistant Regional Food Controller. Enquiry was made from Sri V. C. Gupta about the endorsement and the signatures and he replied that the endorsement and the signature were not in his handwriting. It was further found on enquiry that the numbers of permits noted in the Railway Receipts Exs. 1 to 4 were not issued from the office of the Regional Food Controller.
Thereupon Sri V. C. Gupta was sent by Sri 9, Hamid to Bhatpar Rani, to which place the consignments of these Railway Receipts were booked, and some other stations, in connection with the inquiry. As a result of the inquiry Sri Hamid sent a first information report in writing (Exs. P-6) to the Superintendent of Police, Deoria, and there-upon this case was started.
9. The appellant Kameshwar Nath was arrested on 23rd September, 1951 and was taken to the Police Station Khampar and from there to the Sadar lock-up in pardah. His identification proceedings were conducted on the 26th September, 1951 in Deoria lock-up by Sri Murli Shyam Manohar Magistrate : Ist class, and he was correctly identified by Nand Prasad. The other accused Nagendra Nath was arrested on the 15th September, 1951. His identification proceedings were conducted on 27th September, 1951 by Sri S. B. Saran, Magistrate 1st class, and he too was identified by Nand Prasad.
10. Both the accused denied that they had committed any offence. They also denied that they had gone to Adarsh Press, Ltd., Deoria for getting the permit forms printed. The appellant Kameshwar Nath denied that he had forged the permits Exs. 26,38 and 42 or that he had given them to Lallan Prasad, Lallu Prasad, and Ram Prasad Upadhya or realised any money from any one of them for the issue of the permits.
11. The evidence against the appellant in respect of forgery consists of the statements of Sri V. C. Gupta and the Handwriting Expert Sri S. R. Gupta, Deputy Superintendent of police. Besides the evidence of these two witnesses there is also the evidence of Sri Bhikhi Prasad P. W 23, Sri Nand Prasad P. W. 24 and Sri Narainji P. W. 13. Sri S. R. Gupta stated in his evidence that he had compared the writings on the permits Exs. 26, 38, and 42 with the specimen handwriting of the appellant and found that they were identical and that the aforesaid permits were in the handwriting of the appellant. P. W. 23 Sri Bhikhi Prasad and P. W. 24 Sri Nand Prasad. of the Adarsh Press Ltd., Deoria, stated in their evidence that the appellant and Nagendra Nath had come to the Press on the 17th January, 1951 and had asked them to print the permit forms, a sample of which had been given to them. P. W. 23 Sri Bhikhi Prasad further stated that the appellant asked him to print ten booklets of hundred forms each and to enter the order in the name : of Rama Shanker, Nazir of the Regional Food Controller's office; that Rs. 8/12/- was settled as the printing charges out of which Rs. 2/- was paid in advance.
He further stated that he was asked to deliver the printed booklets to Narainji who would pay the balance of Rs. 6712/-, and that in accordance with the directions given by the appellant he handed over the booklets to Narainji who paid him the balance of the printing charges. The evidence In respect of the charge under Section 471, I. P. C., is of P. W. 14 Ram Narain Upadhya, P. W. 15 Lallu Prasad and P. W. 22 Lallan Prasad.
They deposed that the appellant Kameshwar Nath had given them the permits and demanded money from them for his services and they paid him the money though not the full amount demanded by him. Besides these witnesses Sri V. C. Gupta, Sri S. Hamid, Sri Satgur Saran and many other witnesses were examined but their evidence is not of much help in establishing the charges under sections 467 and 471 I. P. C. and it is, therefore, not necessary to mention their evidence here. The accused in their defence did not produce any evidence.
12. The learned Sessions Judge on a consideration of the entire evidence was satisfied that there was sufficient evidence that the appellant had forged the permit Ex. 42 and had thereby committed the offence under Section 466, I. P. C. He also found that the appellant had given the permit Ex. 42 to P. W. 15 Lallu Prasad as a genuine permit knowing it to be forged and, as such, he had committed the offence under Section 471 I. P. C. He, therefore, convicted him on both these charges.
13. It has been contended before me on behalf . of the appellant that there was no satisfactory evidence on the record that he had gone to Adarsh press, Ltd., on the 17th January, 1951 find had placed the order for printing ten booklets of hundred permits each as stated by P. Ws. Bhikhi Prasad and Nand Prasad Singh. It was argued that if this evidence was discarded the only evidence that remained against the appellant in support of his conviction under Section 466 I. P. C. was the evidence of Sri S. R. Gupta, Deputy Superintendent of Police who examined the permits Exs. 1 to 4 and the specimen handwriting of the appellant and who deposed about their identity as Handwriting Expert, Before discussing the evidence of P. W. 23; Bhikhl Prasad and P. W. 24= Nand Prasad Singh, it would be better to consider the evidence of Sri S. R. Gupta, Handwriting Expert, which is the main evidence on the charge under Section 466 I. P. C. against the appellant, Sri S. R. Gupta in his statement said that after a comparison of the writing on the permits with the specimen writing which had been sent to Mm he was of the opinion that the permits Exs. 26, 38 and 42 were in the handwriting of the appellant.
It may be mentioned here that the evidence of Sri S. R. Gupta with regard to the permit Ex. 26 that it is in the writing of the appellant is not corroborated by the statement of P. W. 3 Ram Bahadur Rai. Ram Bahadur Rat was the Head clerk in Regional Food Control Office, Gorakhpur and had an opportunity to see the writing of the appellant and also of Nagendra Nath who was also employed in the same office. He stated that the permit Ex. 26 was not in the handwriting of the appellant but it was in the writing of Nagendra Nath. No doubt the permit Ex. 26 is not in dispute in the present appeal and the appellant has not been found guilty for forgery in respect of it.
It is, however, important in order to decide the question as to what reliance should be placed on the statement of the Handwriting Expert Sri S. R. Gupta. In view of the inconsistency in the evidence of the Expert and P. W. 3 Ram Bahadur Rai it will not be very safe too rely on the testimony of Sri S. R. Gupta for the conviction of the appellant on the charge of forgery.
14. The value which is attached to expert testimony has been the subject of several decisions both of this Court and the other High Courts, but before referring to them I think it would be proper to mention What Sarkar in his Law of Evidence (ninth edition) has said about it. He observes as follows at page 445 of the above book:
Expert opinion must always be received with great caution, but perhaps none so with more caution than the opinions of handwriting experts. These gentlemen stand in an impregnable fortress of their own and invariably give emphatic opinions. They try to create an impression by talking glibly of pen-pressure, pen-scope, pen-pause, pen presentation, pen-lift, hand movement irregular movement angle of pen, retouchings, joinings, change of pivot, under- stroke, cross bar and numerous other things not easily intelligible to laymen.
Almost all of them have a favourite theory of their own which they tend to apply with a firm conviction. They are a type of remunerated witnesses and like others of that class have an unconscious bias in favour of the party calling them. Moreover, their opinion are previously ascertained and they are brought only when they are favourable to the party calling. The fact that they know beforehand why they have been called and what the party calling wishes to be proved, detracts to a great extent from the weight to be given to their opinion. Some handwriting experts do not even hesitate to claim infallibility.
15. In Srikant v. King Emperor 2 All L.J. 444 (A) it was held by a Division Bench of this Court that it was very unsafe to base a conviction upon the opinion of an expert in handwriting as a general rule, unless there was further evidence on the record that besides the accused none else could have written the forged document. The conviction and sentence of the appellant Sri Kant was set aside.
16. In Kalicharan Mukerji v. King Emperor 6 All LJ 184 (B), it was held that to base a conviction on the evidence of an expert in handwriting as a general rule was very unsafe; that there might be cases in which the handwriting was of such a peculiar character that the conclusion as to the identity of the writer was irresistible and that the deposition of the Government expert which was based on a consideration of the movement, execution style direction curve and pen-pressure and certain letters was not enough to prove beyond reasonable doubt that the accused was the writer of the letter and that no one case could have written it. The conviction was set aside.
17. In Ramanlal Rathi v. The State it was held that the opinion of a handwriting expert based on comparison of handwriting was of little value and it would be very unsafe to convict the accused on the basis of such evidence.
18. In Sudhindra Nath v. The King it was held by a Division Bench of the Calcutta High Court that it was a rule of law that it was extremely unsafe to base a conviction upon the opinion of handwriting experts without substantial corroboration because it was well known that a comparison of handwriting as a mode of proof was always hazardous and inconclusive unless it was corroborated toy other evidence.
19. In the case of B. Venkata Row, In re ILR 36, Mad 159 (E) it was held by a Division Bench of the Madras High Court that an accused should not ordinarily be convicted of forgery upon the uncorroborated testimony of a handwriting expert. It may be mentioned here that in this case the evidence against the appellant was of the Government Handwriting Expert Charles Hardless and it was not accepted as sufficient for the conviction of the appellant. While discussing the value of the evidence of an handwriting expert their Lordships quoted the following passage from Dr. Lawson's work on the "Law of expert and opinion evidence" which had been quoted in the case of Lalta Prasad v. Emperor by Pandit Sundar Lal, Assistant Judicial Commissioner of Oudh in 11 Cr LJ 114 (F):
The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed, however, that it is of the lowest order of evidence or of the most unsatisfactory character. We believe, that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a Court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence.
20. It will thus appear that it has been the settled view not only of this High Court but also of other High Courts that it will not be safe to base a conviction on the uncorroborated testimony of a handwriting expert. I have also pointed out above the discrepancy with regard to the permit Ex. 26 between the evidence of the handwriting expert and P. W. 3 Ram Bahadur Rai and in view of this fact also the evidence of the Handwriting Expert with regard to the permit Ex. 42 in respect of which the appellant has been convicted in this case, has to be treated with great caution.
21.-23. Coming now to the evidence of P. W. 23 Bhikhi Prasad and P. W. 24 Nand Prasad Singh, which has been relied upon by the learned Sessions Judge for the purpose of corroboration Of the statement of the Handwriting Expert, I am of opinion that it is not satisfactory and reliable.
(His Lordship discussed the evidence of P.Ws. 23, 24 and 13 and continued as under : ) In the circumstances I am of opinion that there is no satisfactory corroboration of the statement of the Handwriting Expert Sri S. B. Gupta that the permit Ex. 42 was in the handwriting of the appellant Kameshwar Nath. In absence of such evidence his conviction under Section 466 I. P. C. cannot be maintained.
24. Coming now to the charge under Section 471 I. P. C. for using the forged permit Ex. 42 as a genuine permit the only evidence in support of it is of P. W. 15 Lallu Prasad which has been relied on by the learned Sessions Judge. It appears from the evidence of this witness that the permit Ex. 42 was given to him as a genuine permit by the appellant Kameshwar Nath; that he paid him Rs. 15/- as donation for a school building on demand by the. appellant but he was given a receipt of Rs. 5/- only instead of Rs. 15/-. It further appears from his evidence that he had handed over this receipt of Rs. 5/- to the police during the investigation.
This receipt has not been produced in this case. P. W. 25 Sri Rajeshwar Singh who investigated this case stated in his evidence that Lallu Prasad showed him a receipt for Rs. 5/- but he did not take it in his possession. He further stated that Lallu Prasad did not state before him that he had paid Rs. 5/- to Kameshwar Nath, He also stated that he did not take the receipt of Rs. 5/- which had been shown to him from Lallu Prasad. Thus there is an inconsistency between the statements of Lallu Prasad and this witness with regard to the receipt for Rs. 5/-. According to Lallu Prasad he handed over the receipt to this witness whereas according to this witness the receipt was only shown to him but was not given to him.
There is no satisfactory explanation why this receipt was not produced by the prosecution. If this receipt was produced it would have shown that Lallu Prasad had paid at least Rs. 5/- to the appellant and then it would have been for the appellant to explain under what circumstances the amount was paid to him and the receipt was given by him. It appears to me that the position of Lallu Prasad is more or less of an accomplice because it appears from his statement that he had obtained the permit from the appellant who had really nothing to do with the issue of such permits on certain payment.
In view of the fact that the receipt for Rs. 5/- has not been produced in this case it is really doubtful if the appellant had given the permit to this witness on payment of some money. Besides the statement of this witness there is not other evidence that it was the appellant who handed over the permit Ex. 42 to Lallu Prasad on payment of money. The appellant, as already stated above, denied that he. gave any such permit to this witness. In the circumstances it is doubtful if the permit Ex. 42 was given by the appellant to this witness and the offence under Section 471, I. P. C. has been satisfactorily established against him.
25. The result is that this appeal is allowed and the conviction and sentence of the appellant under Sections 466 and 471, I.P.C., is set aside. As the appellant is on bail he need not surrender. His bail bonds are discharged.
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