REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1560  OF 2010 (@ SPECIAL LEAVE PETITION(CRL.) No.2742 of 2010)

KESHAV DUTT                   … APPELLANT VS.

STATE OF HARYANA      … RESPONDENT

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.  

2.  Two short points fall for consideration in  

this  Appeal.   One  is  whether  the  opinion  of  a  

handwriting  expert  can  be  admitted  in  evidence

without examination of the handwriting expert and  

the other is whether a person who is charged of an  

offence under Section 7 read with Section 13(1)(d)  

of the Prevention of Corruption Act, 1988, and is  

subsequently acquitted of the charge under Section  

7, can still be convicted under Section 13(1)(d) of  

the aforesaid Act.  

3. The  Appellant  and  one  Kewal  Kumar  were  

convicted  by  the  Special  Judge,  Yamuna  Nagar  at  

Jagadhari, under Section 13(1)(d) of the Prevention  

of  Corruption  Act,  1988,  and  were  sentenced  to  

undergo rigorous imprisonment for a period of three  

years and to pay a fine of Rs.2,000/-, in default,  

to  undergo  rigorous  imprisonment  for  a  further  

period of six months.   The co-accused Mahesh Kumar  

was, however, acquitted of all the charges.

4. According  to  the  prosecution,  on  23rd April,  

2002, one Anil Kumar, son of Kewal Prakash Mehta,  

made  an  application  to  the  Superintendent  of  

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Police,  Vigilance,  Ambala,  stating  that  he  was  

running a dairy adjoining his house.  On 19th April,  

2002,  Kewal  Kumar  and  the  Appellant  herein,  who  

were  employed  as  Assistant  Lineman  and  Meter  

Reader, respectively, under the Electricity Board,  

Sadhaura,  came  to  his  house  for  checking  the  

electric meter.  After such checking, the said Anil  

Kumar was made to sign on a paper and was informed  

that the load in the meter was in excess of the  

permissible load  and the matter would have to be  

reported to the Board which could entail a fine of  

at  least  Rs.14,000-15,000/-.  The  accused  persons  

then informed him that he would have to pay a sum  

of Rs.7,000/- as bribe if he wanted the case to be  

hushed up.  The further case of the prosecution is  

that on 25th April, 2002, both the accused came to  

Anil Kumar’s house and, once again, demanded the  

bribe  money  and  ultimately  the  said  two  accused  

agreed to accept a sum of Rs.2,000/- between 4.00–

5.00 p.m. on the next date, failing which the case  

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against him would have to be made ready, but if  

payment was made, the matter would be hushed up.  

5. The matter was endorsed by the Superintendent  

of Police to the Vigilance Inspector before whom  

the complainant produced Rs.2,000/- for the purpose  

of laying a trap.   Ultimately, the accused Kewal  

Kumar  as  well  as  Mahesh  Kumar  came  to  the  

complainant’s house and went inside and on a signal  

being given, the members of the raiding party went  

inside the house and asked Kewal Kumar to hand over  

the  bribe  money  which  he  had  taken  from  the  

complainant. Kewal Kumar indicated that the money  

had been given to Mahesh Kumar and on demand Mahesh  

Kumar  made  over  the  same  to  the  Inspector.  The  

hands of both Kewal Kumar and Mahesh Kumar were got  

washed  separately  in  a  solution  of  Sodium  

Carbonate,  the  colour  of  which  turned  pink.  The  

accused  were  put  under  arrest  and  after  police  

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investigation,  a  charge  sheet  was  filed  against  

them in Court for their trial.    

6. All  the  three  accused  were  charged  under  

Section 7 read with Section 13(1)(d) of the above-

mentioned Act and were convicted and sentenced as  

mentioned hereinbefore.   The judgment and order of  

the  Trial  Court  was  questioned  before  the  High  

Court in Criminal Appeal No.427-SB of 2005 filed by  

Keshav  Dutt,  the  Appellant  herein,  and  Criminal  

Appeal  No.438-SB  of  2005  filed  by  Kewal  Kumar.  

The third Appeal No.1328-SB of 2009 was filed by  

the  State  of  Haryana  against  the  acquittal  of  

Mahesh  Kumar  of  the  charges  framed  against  him.  

The High Court while affirming the judgment of the  

Trial Court as far as Kewal Kumar and the Appellant  

are concerned, reduced the sentence of imprisonment  

from three years to one year.  The High Court also  

dismissed the Appeal preferred by the State.   

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7. It is against the said order that the present  

Special Leave Petition has been filed.     

8. The  main  contention  of  Mr.  Nitin  Sangra,  

learned Advocate appearing for the Appellant, is  

whether a charge under Section 120-B IPC could be  

maintained against the Appellant in respect of an  

offence committed by his co-accused.  Elaborating  

further, learned counsel also raised the question  

as  to  whether  the  Appellant’s  conviction  under  

Section 13(1)(d) of the Prevention of Corruption  

Act, 1988, was maintainable when the accused had  

been acquitted under Section 7 of the Act and the  

Appellant neither received the bribe money nor was  

he present when such bribe amount was said to have  

been paid to the co-accused and no charge under  

Section 120-B/34 IPC had been brought against the  

accused persons.  

9. The other question raised was whether without  

examining the handwriting expert his report could  

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have been admitted into evidence and relied upon  

although  the  same  formed  the  main  basis  of  

conviction.  In this regard, the learned counsel  

placed reliance on the decision of this Court in  

State of Maharashtra Vs. Damu [2000 (6) SCC 269],  

wherein while considering the case of abducting and  

triple  infanticide,  this  Court  had  occasion  to  

consider whether reliance could be placed on the  

opinion  of  the  Assistant  State  Examiner  of  

Documents  without  examining  him  as  a  witness  in  

Court.   This  Court  held  that  from  the  opinion  

itself it could not be gathered whether his office  

would  fall  within  the  purview  of  Section  293  

Cr.P.C.   Accordingly,  the  Court  observed  that  

without  examining  him  as  an  expert  witness,  no  

reliance could be placed on his opinion.   Learned  

counsel urged that the conviction of the Appellant  

on the basis of the above could not be sustained.  

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10. The submissions made on behalf of the Appellant  

were opposed on behalf of the State of Haryana and  

it was submitted that the provisions of Sections 7  

and 13(1)(d) contemplated separate offences which  

could  stand  independently  and  were  not  entirely  

dependent  on  each  other.   Learned  counsel  urged  

that even if an accused was acquitted of the charge  

under Section 7, he could still be convicted under  

Section  13  of  the  Prevention  of  Corruption  Act,  

1988, as has been done in the instant case.  It was  

observed  by  the  High  Court  that  PW.5  had  

categorically  stated  that  he  had  not  authorized  

accused Kewal Kumar as also the Appellant to check  

the  meter  installed  at  the  residence  of  the  

complainant and that it was because of this reason  

that the Trial Court had excluded this accused from  

the offence under Section 7 of the Act.   The Trial  

Court, in fact, observed that the complaint Ex.PJ  

was  written  by  some  official  of  the  Vigilance  

Department or by someone at the instance of the  

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Inspector  and  even  the  complainant  could  not  

identify the person who had written the complaint.  

However,  as  far  as  the  offence  under  Section  

13(1)(d) is concerned, the High Court affirmed the  

findings of the Trial Court that the bribe money  

had  been  demanded  and  received  by  the  accused  

persons.  The Appeal Court also observed that the  

bribe money had been initially received by Kewal  

Kumar who had handed over the same to Mahesh Kumar,  

who was acquitted by the Trial Court.  However, the  

document  Ex.PR  which  bears  the  signature  of  the  

complainant, coupled with Ex.PY, the report of the  

Forensic  Science  Laboratory,  connected  the  

Appellant herein with the commission of the crime  

and it was held that he could not be allowed to go  

free only because he was not present or apprehended  

at the time of the raid.  Learned counsel for the  

State submitted that the submissions made on behalf  

of the Appellant did not justify interference of  

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this Court with the impugned judgment of the High  

Court.   

11. We  have  considered  the  submissions  made  on  

behalf of respective parties and have also taken  

note of the fact that the Appellant had neither  

received the bribe money nor was he present at the  

spot when the same was received by Kewal Kumar, who  

handed  over  the  same  to  Mahesh  Kumar,  but  the  

involvement of the Appellant did not require the  

presence of the Appellant at the time of the raid  

as he was connected with the offence in view of  

Ex.PR which is the paper on which the meter reading  

was jotted down allegedly by the Appellant, which  

was proved by the handwriting expert to be in the  

handwriting of the Appellant. In this context, the  

plea taken on behalf of the Appellant as to whether  

the opinion of the handwriting expert could have  

been  relied  upon  without  examining  him  becomes  

relevant.   The Trial Court has dealt with this  

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question by taking recourse to Section 73 of the  

Indian Evidence Act, 1872, which enables the Court  

to  compare  the  signatures,  writing  or  seal  with  

others admitted or proved.  In the instant case,  

the report of the fingerprint expert who had not  

been examined indicates that a specimen writing had  

been given by the Appellant and on a comparison of  

the  same  with  the  writings  in  Ex.PR,  the  

fingerprint expert had come to the conclusion that  

they had been written by the same person. The Trial  

Court skirted the issue by holding that the defence  

counsel  could  have  examined  in  their  defence  to  

rebut  the  findings  of  the  Assistant  Director,  

Forensic  Science  Laboratory,  Haryana.   The  High  

Court also skirted the issue by observing that the  

science  of  handwriting  being  imperfect  and  

inaccurate, it is very difficult, if not impossible  

to give the opinion that the writings were in the  

hand of one and the same persons.   The High Court  

went on to observe that the Appellant did not have  

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the  courage  to  examine  any  counter  expert  in  

rebuttal of the report.  The High Court recorded  

that  the  report  having  gone  unrebutted  could  be  

relied upon without any demur.    

12. We are afraid that we cannot concur with the  

views either of the Trial Court or of the High  

Court in the above regard.   When the Trial Court  

chose  to  rely  on  the  report  of  the  handwriting  

expert  (Ex.PR),  it  ought  to  have  examined  the  

handwriting expert in order to give an opportunity  

to the Appellant and the other accused to cross-

examine  the  said  expert.   There  is  nothing  on  

record to show that the Appellant and the other  

respondents  had  admitted  the  report  of  the  

handwriting expert.  In our view, the Trial Court  

ought to have allowed the Appellant an opportunity  

to  cross-examine  the  expert  and  both  the  Trial  

Court and the High Court erred in denying him such  

opportunity and shifting the onus on the accused to  

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disprove Ex.PR which had not been formally proved  

by the prosecution.   The decision cited on behalf  

of the Appellant regarding reliance on the opinion  

of  an  expert  who  had  not  been  examined  as  a  

witness, however, includes an Assistant Director of  

the State Forensic Science Laboratory in clause (e)  

of Sub-section (4) of Section 293 Cr.P.C. Section  

293(1)(4)(e), which is relevant for our purpose is  

extracted below :-  

293. Reports of certain Government scientific  experts. (1)  Any  document  purporting  to  be  a  report  under  the  hand  of  a  Government  scientific  expert to whom this section applies, upon any  matter  or  thing  duly  submitted  to  him  for  examination  or  analysis  and  report  in  the  course of any proceeding under this Code, may  be used as evidence in any inquiry, trial or  other proceeding under this Code. (2)   xxx xxx  XXX (3)   xxx    xxx  xxx (4)  This  section  applies  to  the  following  Government scientific experts, namely, (a)   xxx xxx  xxx

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(b)   xxx xxx  xxx

(c)   xxx xxx  xxx

(d)   xxx xxx  xxx

(e) The Director [Deputy Director or Assistant  Director  of  a  Central  Forensic  Science  Laboratory  or  a  State  forensic  Science  Laboratory];

(f)   xxx xxx  xxx”

13. In the instant case, it is only the report of  

the handwriting expert, Ex.PY, which connects the  

Appellant  with  the  offence  on  account  of  Ex.PR  

which is said to be in his handwriting.  Since the  

Appellant had neither received the money nor was he  

present at the spot from where the other accused  

were apprehended, his case has to be treated on a  

different footing and since his complicity has not  

been established beyond doubt on the basis of Ex.PR  

and Ex.PY, he must be given the benefit of doubt.  

14. Without, therefore, going into other questions  

which have been raised in this Appeal, we are of  

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the view that the same should be allowed on the  

aforesaid ground alone.  

15. The  Appeal,  accordingly,  succeeds  and  is  

allowed and the judgment of conviction and sentence  

of  the  Appellant  under  Section  13(1)(d)  of  the  

Prevention of Corruption Act, 1988, is set aside.  

In  the  event,  the  Appellant  has  since  been  

apprehended and is in custody, he shall be released  

forthwith,  if  not  wanted  in  connection  with  any  

other case.  

   …………………………………………………J.                        (ALTAMAS KABIR)

……………………………………………………J. (DR.MUKUNDAKAM SHARMA)

New Delhi, Dated: 19.08.2010.

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