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2004 DIGILAW 225 (HP)

Onkar Singh v. State Of Himachal Pradesh

2004-09-16

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. This petition is directed against the judgment of conviction recorded by the learned judicial Magistrate 1st Class, Dharamshala, Asstt. Kangra, dated 25 7.2001 and affirmed by the learned Sessions Judge, kangra at Dharamshala by his impugned judgment dated 1 4.2003. 2. It appears, petitioner who was employed as Head Master and posted at e relevant time in Government High School, Sihuan, was tried for offences Punishable under Sections 420, 467 and 218 of the Indian Penal Code. Prosecution case: 3. Accused, the petitioner issued two certificates, one to Kumari Sonika and tier to Kumari Sarika, both daughters of Baldev Singh, showing that they had issued class nine and were studying in the class ten, in the Government High Jiool, Sihun at the time of issuance of School Leaving Certificates. These certificates dated 15.7.1997 were issued by the accused even though they never studied in Government High School, Sihuan. On the basis of these School leaving certificates, both the girls obtained admission in the Government High School, Salol his admission was granted by Onkar Singh (PW-4), the then Headmaster of the Government High School, Salol. Two days later, one Vijay Kumar took admission in to school at Salol on the basis of School Leaving Certificate, issued by the Head aster of Sihun School Onkar Singh (PW-4) the Head Master of Salol School found natures on the certificates to be different, compared to signatures on the School saving Certificates of Sonika and Sarika. Onkar Singh (PW-4) met the accused to clarification about the different signatures on these two sets of School Leaving Certificates. Accused was categorical that he had not issued the School Leaving certificates in the name of Sonika and Sarika. Onkar Singh (PW-4) cancelled the Emission (s) of these two girls in his school and the matter rested there. 4. On 17.1.1998 Head Constable Narnarayan Singh (PW-12), then posted in e Department of Enforcement, got a secret information about the issuance of these two School Leaving Certificates, based on this information he recorded FIR (Ex.PW-12/B). The case was investigated and the accused was prosecuted for the offences noticed above. 5. 4. On 17.1.1998 Head Constable Narnarayan Singh (PW-12), then posted in e Department of Enforcement, got a secret information about the issuance of these two School Leaving Certificates, based on this information he recorded FIR (Ex.PW-12/B). The case was investigated and the accused was prosecuted for the offences noticed above. 5. Learned trial Magistrate, on the appreciation of the evidence on record, concluded that the accused issued, two school Leaving Certificates in question, Ex.PIO and Ex.P12, to Kumari Sonika and Kumari Sarika to enable them to got admission in class ten in some other school and proceeded to convict the accused under Sections 467 and 218 of the Indian Penal Code. Accused was, however, acquitted for offence punishable under Section 420 of the Indian Penal Code. 6. Dissatisfied, the accused carried an appeal before the learned Sessions Judge, Kangra at Dharamshala, which was dismissed, as noticed above. The conviction and sentence imposed upon the accused was maintained by the learned Sessions Judge, Kangra at Dharamshala. 7.1. Have heard Mr. K.C. Rana, learned Senior Advocate for the accused-petitioner and Mr. Negi, learned Assistant Advocate General for the State-respondent. was taken through the records of the case. 8. The only question which arises for consideration in this petition is: "Whether a document can be said to have been proved to be written or signed by an accused solely on the basis of the opinion of Handwriting expert? 9. The answer indeed is No. 10. In the present case, admittedly, there is no evidence except opinion of Mr. M C Joshi (PW-8) Handwriting expert that two questioned School Leaving Certificates Ex P-10 and Ex. P-12 were issued and signed by the accused. This opinion of the handwriting expert, it may be noticed, is not corroborated by any other evidence, oral or documentary, Mr. Joshi (PW-8) Handwriting Expert examined disputed signatures on the School Leaving Certificates with the standard signatures and writings of the accused. It is his evidence that after careful examination of the disputed signatures with the standard signatures and writings, he gave his opinion Ex PW-8/63. The opinion given by Mr. Joshi (PW-8) is: "The Documents of this case have been carefully and thoroughly examined. 2. The writings and signatures in the red enclosed portions stamped and marked Q1 and Q4; S1 to S49 and A1 have been written by one and the same person. 3. The opinion given by Mr. Joshi (PW-8) is: "The Documents of this case have been carefully and thoroughly examined. 2. The writings and signatures in the red enclosed portions stamped and marked Q1 and Q4; S1 to S49 and A1 have been written by one and the same person. 3. The stamp impressions in the red enclosed portions marked Q1 and Q4 tally with the sample stamp impressions in the red enclosed portions similarly marked S50 to S51." 11. It is no longer res-integra that opinion of an expert is a weak type of evidence and can only be relied upon if corroborated by other evidence more so in case of opinion of an handwriting expert. The Apex Court in Magn Bihari Lal v. The State of Punjab AIR 1977 SC 1091 held that it is always unsafe to base a conviction solely on expert opinion without substantial corroboration. Their Lordship proceeded to observe that opinion evidence in its very nature is weak and infirm and cannot of itself form the basis for conviction. Observations of their Lordships in para 7 of the judgment are apposite. "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 presidential 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, AIR 1957 SC 381 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." 12. A Constitution Bench of the Supreme Court in Shashi Kumar v. Subodh Kumar, 1964 AIR 529, observed that expert evidence as to the 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 look for corroborative evidence. 13. A Constitution Bench of the Supreme Court in Shashi Kumar v. Subodh Kumar, 1964 AIR 529, observed that expert evidence as to the 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 look for corroborative evidence. 13. In S. Gopal Reddy v. State of Andhra Pradesh AIR 1996 SC 2184 , the Apex Court once against emphasised that evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering ‘conclusive' proof and therefore, unsafe to rely upon the same without independent and reliable corroboration. Their Lordships quoted with approval the following observations from Magan Bihari Lal (Supra). "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 presidential 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., AIR 1957 SC 381 , that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other terms of internal and external evidence. This court again pointed out in Ishwari Prasad v. Md. Is a, AIR 1963 SC 1728 , that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 , where it is was pointed out by this Court that expert's 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., AIR 1967 SC 1326 , 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 before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial." 14. A three Judges Bench of the Supreme Court in Chandrakant Chimanlal Desai v. State of Gujarat (1992) 1 SCC 473 held that evidence of handwriting expert is not decisive unless prosecution otherwise inspires confidence. 15. Admittedly, in this case, no corroborative evidence is available. 16. In the present case, accused denied issuance of two School Leaving Certificates not only during the trial but at the first occasion when Onkar Singh (PW-4), the then Headmaster of the Government High School, Sihun visited him to verify the authentically of two offending certificates. It is the evidence of Onkar Singh (PW-4) that on 5th September, 1997 two girls namely Kumari Sonika and Sarika came with their mother for admission in class ten of the school. He admitted them in the school on the basis of School Leaving Certificates Ex. P-10 and Ex. P-12. After two days, one Vijay Kumar also came and sought admission on the basis of School Leaving Certificates issued by the Headmaster of the same school. He found that signatures on the school Leaving Certificates issued to Kumari Sonika and Sarika were different to that on the School Leaving Certificate of Vijay Kumar He immediately went to Sihun School and inquired from the accused whether School Leaving Certificates were issued by him. Accused informed Onkar Singh (PW-4) that those two offending certificates Ex.P-10 and Ex P-12 were neither issued nor signed by him. Onkar Singh cancelled the admission of two girls, obtained on the basis of these two certificates. Accused also gave in writing on those certificates itself that those certificates have not been issued by his office nor he signed them Had accused issued those offending certificates, he would not have given in writing having not issued the certificates. There is no evidence to connect the accused with these two School Leaving Certificates except the handwriting expert. Accused also gave in writing on those certificates itself that those certificates have not been issued by his office nor he signed them Had accused issued those offending certificates, he would not have given in writing having not issued the certificates. There is no evidence to connect the accused with these two School Leaving Certificates except the handwriting expert. Curiously even the Clerk and the colleagues, who were familiar with the signatures and handwritings, examined by the prosecution were not asked, whether such writings and signatures on the questioned documents bears his signatures or not. 17. Clerk of the School was examined as PW-1 to show that certain documents were taken into possession by the police from the school but he is not asked a word about the signatures or handwritings on the questioned documents i.e. School Leaving Certificates. He admittedly was familiar with the handwriting and signatures of the accused and could have testified whether or not handwriting and signatures on the questioned documents were that of the accrued or not. Similarly, Balraj Singh (PW-2), who was working as Teacher in the Government High School, Sihun at the relevant time, could have said whether or not signatures and handwriting on the questioned documents were that of the accused but he too is not asked a word about it Dharam Chand (PW-6) another colleague of the accused at the relevant time was also not asked about the signatures and handwritings on the questioned documents though he was familiar with the handwriting signatures of the accused, as a colleague. 18. Even Swaran Lata, mother of the girls (PW-10) does not say that the offending certificates were obtained from or issued by the accused. She merely staged that her dauchters studied up to class eight in the Government Middle School at Bharech and thereafter admitted in Chari School and then in a private school. She left the daughters, under the care of her sister at Salol, as her husband was ill and she wanted to join her husband. It is her evidence that her sister got both the daughters admitted in the School at Salol. According to her, she was called by the Headmaster at a later date who informed that admission (s) of her both daughters has been cancelled. 19. Sister of Swaran Lal, who got both the daughters admitted in the School at Salol, has not been examined. According to her, she was called by the Headmaster at a later date who informed that admission (s) of her both daughters has been cancelled. 19. Sister of Swaran Lal, who got both the daughters admitted in the School at Salol, has not been examined. Her evidence was very important as she was best person who could have deposed from where she got the offending School Leaving Certificates, on the basis of which the girls were admitted in the Government High School at Salol. 20. In view of the evidence discussed above, which does not support the prosecution version, the petitioner, in the absence of any corroborative evidence could not have been convicted solely on the basis of the opinion of Handwriting expert. 21. In result, petition in allowed. The conviction and sentence imposed upon the petitioner is set aside. Accused-petitioner stands acquitted. His bail bonds are discharged. Fine, if realized, shall be refunded back to the accused-petitioner.