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PETITIONER: RAM NARAIN

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT05/04/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2200            1973 SCR  (3) 911  1973 SCC  (2)  86  CITATOR INFO :  R          1992 SC2100  (30)

ACT: Indian  Evidence  Act, 1872,  s.45--Handwriting  Expert-Sole testimony for conviction--Courts below comparing handwriting for  themselves  and agreeing with Expert-No  illegality  in conviction-Sentence-Lapse of  time--Sentence   reduced    to period already undergone.

HEADNOTE: The appellant was convicted of an offence under s. 384 read with s.   511 Indian Penal Code.  The conviction was  solely based  on  the  conclusion that the  two  anonymous  letters demanding  ransom for the kidnapped boy had been written  by him.    The  appellant  having  categorically   denied   his authorship  of  those  letters  a  handwriting  expert   was produced  in support of the prosecution case, and  believing the  expert  testimony  the three  courts  below  agreed  in convicting  the appellant.  In this Court the sole  question for  consideration was as to the legality and  propriety  of the appellant’s conviction on the, uncorroborated  testimony of  the handwriting expert.  It was urged by  the  appellant that  it was not safe to record a finding about  a  person’s handwriting  merely on the basis of comparison  because  the opinion of the handwriting expert is not conclusive. Dismissing the appeal. HELD  :  (i) The legal position enunciated  in  Fakhruddin’s case  cannot  be said to be inconsistent with the  ratio  of anyone of the earlier decisions to which reference has  been made therein. [916A] Fakhruddin  v.  State of Madhya Pradesh,  A.I.R.  1967  S.C. 1326,  Ram Chandra v. State of U.P., A.I.R. 1957  S.C.  381, Ishwari Prasad Misra v. Mohammad Isa, A.I.R. 1963 S.C.  1728 and Shashi Kumar Banerjee, v. Subodh Kumar Banerjee,  A.I.R. 1964 S.C. 529, referred to. It  is  no  doubt true that the opinion  of  a  hand-writing expert given in evidence is no less fallible than any  other expert opinion adduced in evidence with the result that such evidence  has to be received with great caution.   But  this opinion  evidence  which  is  relevant  may  be  worthy   of acceptance  if  there  is  internal  or  external   evidence relating  to  the document in question supporting  the  view

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expressed  by  the  expert.  If  after-  comparison  of  the disputed and the admitted writings by the Court itself  when the  Presiding Officer Is familiar with the language, it  is considered  safe to accept the opinion of the  expert,  then the  conclusion so arrived at cannot be assailed on  special leave on the, mere ground that comparison of handwriting  is generally considered as hazardous and inconclusive. In the present case the Trial Magistrate, the Sessions Judge who heard the appeal and the High Court themselves compared the  writing with the help of the expert’s opinion and  came to the conclusion that the disputed handwriting tallied with the  specimen  handwriting  of the  appellant.   There  was, therefore no ground for interference by this Court with  the appellant’s conviction. [916B] (ii) Though a large number of factors fall for consideration in determining the appropriate sentence the broad object of punishment 9 1 2 of   an  accused  found  guilty  in  progressive   civilized societies is to impress on the guilty party that  commission of  crime  does  not pay and that it  is  both  against  his individual interest and also against the larger interest  of the  society  to  which  he belongs.   The  sentence  to  be appropriate should, therefore, be neither too harsh nor  too lenient.  The sentence of rigorous imprisonment for one year imposed  in the present case would not in the normal  course be  considered  to be too harsh but  considerable  time  had elapsed since the commission of crime and the appellant  had been on bail granted by this Court since January, 1970.   To send him back to jail after so many years would be  somewhat harsh. [917B] [Sentence reduced to period already undergone with fine.]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No. 6  of 1970. Appeal  by special leave from the judgment and  order  dated October  10,  1969 of the Allahabad High Court  in  Criminal Rev.  No. 2093 of 1967. J.   P. Goyal and R. K. Bhatt, for the appellant.. O.   P. Rana, for the respondent. The Judgment of the Court was delivered by DUA,  J. : This appeal by special leave is directed  against the  judgment  and order of a learned Single  Judge  of  the Allahabad  High Court dated October 6, 1969  dismissing  the appellant’s  revision  from  the order  of  a  11  Temporary Sessions Judge, Kanpur dated November 8, 1967 dismissing his appeal from his conviction by a learned Magistrate under ss. 384/511 I.P.C. and sentence of rigorous imprisonment for one year. On August 15,1964, Mannu, a boy about 5 years old, was found missing  from  the house of the  appellant’s  relation  Shri Gajendra  Natth (P.W. 19), an Excise Inspector, residing  in Mohalla  Ashok  Nagar,  Kanpur within  the  jurisdiction  of police  station  Sisamau the ,Following day.  A  report  was lodged  at the police station Sisamau about this fact and  a notice  was also published in the newspapers and  hand-bills were distributed announcing a reward of Rs. 501/- for anyone who  furnished the clue of the missing child’s  whereabouts. A post-card (Ext.  Ka-1) bearing post office seals dated 21- 8-1964  and later an inland letter (Ext.  Ka-2) bearing  the date  October  21,  1964  were  received  by  Gajendra  Nath demanding, in the first letter a ransom of Rs. 1,000/-,  and

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in the second a ransom of Rs. 5,000/- for the return of  the boy.  in  December,  1964, a trainee of  the  local  I.T.I., Kanpur,   Yashpal   Singh  by  name,   after   reading   the announcement  of  the  reward, made attempts  to  trace  the whereabouts  of the missing child.  Having found a clue,  he gave the necessary information to the, father of the,  child regarding  his whereabouts.  Thereupon, on January 11,  1965 the child was recovered by Rahasbehari, the grand-father  of the child, from 913 the  house  of Ganga Bux Singh and  Chandrabushan  Singh  in village Pandeypur District Kanpur.  The investigation of the case  revealed  that  the appellant, Ram  Narain,  was  also responsible for kidnapping and wrongfully confining the said child  and  that it was he who had sent  the  two  anonymous letters  (Exts.   Ka-1 and K-2) demanding ransom.   All  the three persons were prosecuted under ss. 363, 468 and  384/51 1,  I.P.C.  The trial court convicted Ganga  Bux  Singh  and Chandrabushan  Singh  under s. 368, I.P.C.  and  Ram  Narain appellant  under  ss.  384/511, I.P.C.  On  appeals  by  the convicted persons, the learned 11 Temporary Sessions  Judge, Kanpur,  came  to the conclusion that the offence  under  s. 368, I.P.C. had not been established beyond reasonable doubt with the result that Ganga Bux Singh and Chandrabushan  were acquitted.   The appellant, Ram Narain’s conviction  for  an offence  under  ss. 384/511, I.P.C.  was,  however,  upheld. This conviction was solely based on the conclusion that  the two  anonymous  letters  had  been  written  by  him.    The appellant  having  categorically denied  his  authorship  of those letters, Shri R. A. Gregory, a hand-writing expert was produced in support of the presecution case.  Believing  his testimony  that  the appellant was the writer of  those  two letters,   all  the  three  courts  below  have  agreed   in convicting the appellant. The short question raised before us relates to the  legality and   properiety  of  the  appellant’s  conviction  on   the uncorroborated  testimony of the hand-writting expert.   The High  Court relied in support of the appellant’s  conviction on  the  decision of this Court in Fakhruddin  v.  State  of Madhya  Pradesh(1) in which after referring to four  of  its earlier decisions in, (i) Ram Chandra v. State    of U.P.(2) (ii) Ishwari Prasad Misra v. Mohammad Isa(3) (iii)    Shashi Kumar Banerjee v. Subodh Kumar Banerjee(4) (iv)    State  of Gujarat  v.  Chhotalal  Patni(5)  this  Court  rejected  the contention  that the Court dealing with the authorship of  a writing  could  not observe for itself  the  similarity  and differences  between  the admitted and  the  disputed  hand- writings  to  verify whether or not the conclusions  of  the handwriting  expert were proper.  Then, after  referring  to ss.  45, 47 and 73 of the Indian Evidence, Act,  this  Court observed :-               "Both under S. 45 and S. 47 the evidence is an               opinion,   in  the  former  by  a   scientific               comparison  and in the latter on the basis  of               familiarity     resulting    from     frequent               observations  and experience.  In either  case               the Court must satisfy itself by such means as               are  open that the opinion may be acted  upon.               One  such means open to the Court is to  apply               its own observation to the               (1)   A. 1. R. 1967 S. C. 1326.               (2)   A. 1. R. 1957 S. C. 381.               (3)   A. 1. R. 1963 S. C. 1728.               (4)   A. 1. R. 1964 S. C. 529.               (5) [1967] 1 S. C. R. 249

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             914               admitted  or  proved writings and  to  compare               them  with the disputed one, not to become  an               handwriting expert but to verify the  premises               of  the expert in the one case an to  appraise               the  value of the opinion in the  other  case.               This comparison depends on an analysis of  the               characteristics  in  the  admitted  or  proved               writings   and   the  finding  of   the   same               characteristics   in  large  measure  in   the               disputed writing.  In this way the opinion  of               the  deponent  whether  expert  or  other   is               subjected to scrutiny and although relevant to               start   with  becomes  probative.   Where   an               expert’s opinion is given, the Court must  see               for  itself  and with the  assistance  of  the               expert  come to its own conclusion whether  it               can  safely be held that the two writings  are               by  the same person.  This is not to say  that               the Court must play the role of an expert  but               to  say  that the Court may  accept  the  fact               proved  only when it has satisfied  itself  on               its own observation that it is safe to  accept               the  opinion  whether of the expert  or  other               witness.               Therefore,  to satisfy ourselves  whether  the               testimony   of  the  handwriting   expert   is               acceptable or not, we sent for the record  and               compared  the  disputed  writings  with   some               comparable  material.   There  were  two  such               writings which were claimed as standard.   One               was a register maintained at the office of the               Association in which there was a signature  in               three  places in Hindi which purported  to  be               that of Fakhruddin (Exhibit P-56).  The  other               was  a  writing which Fakhruddin made  to  the               dictation  of  the  Police  Officer  in   Jail               (Ex.P.61). These were, of course, not admitted               by Fakhruddin and the question had to be first               decided  which  of the two or ’both  could  be               said  to be approved standard  material.   Mr.               Kohli  urged  that Ex.  P-56 could not  be  so               treated  as  there  was  no  proof  that   the               signatures  were made by Fakhruddin.  In  this               submission  Mr. Kohli is right.  The  evidence               of  Tahir  Ali, P.W.14 which has  been  relied               upon  is not definite on this point.  He  does               not   say   that  the  signatures were   of               Fakhruddin  who was the accused in  the  case.               He only says that the persons whose signatures               were made in the register, signed it and  this               leaves   the  matter  at  large.   There   is,               however,  proof  that the other  writing  was,               made  ,  Fakhruddin the appellant.   The  Sub-               Inspector,  P.W.  33 took  the  precaution  of               having two witnesses P.Ws. Nos. 16 and 27.  Of               these  P.W. 16 did not identify the  appellant               as the writer but the other               915               P.W.   27  did.   Exhibit   P-61,   therefore,               furnishes the necessary comparative material." According to the appellant’s learned counsel, the High Court has  not properly understood the principle of law laid  down by  this Court in its various decisions.  Our attention  was invited  to  Chhota  Lal Patni’s case (supra)  where  it  is

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observed :--               "A Court is competent to compare the  disputed               writing  of  a person with  others  which  are               admitted or proved to be his writings.  It may               not  be safe for a Court to record  a  finding               about,   a  person’s  writing  in  a   certain               document  merely on the basis  of  comparison,               but a Court can itself compare the writings in               order   to  appreciate  properly   the   other               evidence  produced before it in  that  regard.               The  opinion of a handwriting expert  is  also               relevant in view of s. 45 of the Evidence Act,               but  that too is not conclusive.  It has  also               been   held  that  the  sole  evidence  of   a               handwriting expert is not normally  sufficient               for  recording  a definite finding  about  the               writing being of a certain person or not.   It               follows  that  it is not  essential  that               the  handwriting expert must be examined in  a               case   to  prove  or  disprove  the   disputed               writing.   It was therefore not right for  the               learned  Judge to consider it unsafe  to  rely               upon the evidence of the complainant in a case               like  this,  i.e.,  in  a  case  in  which  no               handwriting   expert  had  been  examined   in               support of his statement." It  was emphasised by the appellant’s learned  counsel  that according  to  this  decision it is not  safe  to  record  a finding  about  a person’s writing merely on  the  basis  of comparison  because the opinion of a hand-whiting expert  is not conclusive and his evidence is normally insufficient for recording  a definite finding about the writing being  of  a certain  person or not.  Indeed the  appellant’s  contention was  that in Fakhruddin’s case (supra) though reference  was made   to  this  decision,  its  ratio  was   not   properly appreciated and the decision in Fakhruddin (supra) is not in conformity  with  this earlier decision.  We are  unable  to agree with this submission.  Reference was also made by  the appellants  counsel  to  Shashi Kumar (supra)  where  it  is observed  that  the expert evidence as  to  hand-writing  is opinion evidence and it can rarely, it ever, take the  place of  substantive evidence and therefore before acting  on  it the  courts usually look for corroboration either by  direct or circumstantial evidence.  In Shashi Kumar (supra), it may be  pointed  out,  this Court found  all  the  probabilities against  the expert opinion and the direct testimony of  two witnesses  accepted by this Court also  wholly  inconsistent with that opinion. 916 In  our  view, the legal position enunciated  in  Fakhruddin (supra) cannot be said to be inconsistent with the ratio  of any one of the earlier decisions to which reference has been made therein.  How it is no doubt true that the opinion of a hand-writing  expert given in evidence is no less  fallible than  any other expert opinion adduced in evidence with  the result  that  such evidence has to be  received  with  great caution.  But this opinion evidence, which is relevant,  may be  worthy  of acceptance if there is internal  or  external evidence relating to the document in question supporting the view  expressed by the expert.  If after comparison  of  the disputed and the admitted writings by the Court itself, when the Presiding Officer is familiar with that language, it  is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on   the  niece  ground  that  comparison  hand-writing   is

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generally considered as hazardous and inclusive and that the opinion  of the hand-writing expert has to be received  with considerable  caution.  The question in each case falls  for determination  on  the appreciation of evidence  and  unless some serious infirmity or gave failure of justice is  shown, this  Court  would normally refrain  from  reappraising  the matter  on appeal by special leave. the Trial Court in  this case  agreeing with the principle of law enunciated by  this Court  compared  the relevant documents and arrived  at  the conclusion that they have all been written in one hand.  The learned  11  Temporary  Sessions  Judge  on  appeal,   after referring  to  the comparison of the disputed  and  specimen writings  by the ’trial Magistrate. himself  compared  those writings  with  the  help of the expert’s  opinion  and  his report and came to a definite conclusion "that the  disputed hand-writings tally with the specimen hand-writing".  In the High Court also the learned Single Judge, after referring to the decision in Fakhruddin (supra), observed as follows :-               "I  have  myself  made  a  comparison  of  the               specimen  writing  of the applicant  with  the               writing contained in the two letters.    I               have  not the least doubt that the writing  in               the  post-card and he writing in the  admitted               writing of the applicant are the same.   Thus,               I  have no reason to differ from  the  finding               recorded by the courts below." No  serious attempt was made on behalf of the  appellant  to find  fault  with the approach of the  three  courts  below. There is, therefore, no ground made out for interference  by this Court with the appellant’s conviction.   Unfortunately, the  record  is not before us otherwise we would  have  also tried to examine for ourselves the disputed and the specimen hand-writings.    However,   in  view  of   the   concurrent decisions’ of the three courts below, we did not consider it necessary  to adjourn the hearing of this case to  have  the documents before us for our examination. 917 The  next  question  is one of sentence which  is  always  a matter  of  some difficulty.  It generally poses  a  complex problem  which  requires a working  compromise  between  the competing   views  based  on  reformative,   deterrent   and retributive theories of punishments.  Though a large  number of  factors  fall  for  consideration  in  determining   the appropriate  sentence, the broad object of punishment of  an accused  found guilty in progressive civilized societies  is to  impress  on the guilty party that commission  of  crimes does  not  pay and that it is both  against  his  individual interest and also against the larger interest of the society to which he belongs.  The sentence to be appropriate should, therefore,  be  neither too harsh nor too lenient.   In  the case,  in hand the imposition of rigorous  imprisonment  for one  year upheld by the appellate and the revisional  courts may  not have been considered by us in the normal course  to be  too harsh calling for interference under Article 136  of the  Constitution.   The difficulty now posed  is  that  the appellant is on bail and he has served out only one  month’s sentence.   He was originally sentenced by the  trial  Court on. April 17, 1967 for the offence committed as far back  as 1964.  The proceeding against him have lasted for ’more than 8 years.  He was released on bail by this Court in  January, 1970.  To, send him back to jail now after the lapse of  so, many years for serving out the remaining period of  sentence seems  to us on the facts and circumstances of this case  to be  somewhat  harsh.   The  offence  of  attempted  exertion undoubtedly reflects to some extent anti-social depravity of

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mind  but  the  attempt did  not  succeed.   We,  therefore, consider  that on the facts and circumstances of  this  case the ends of substantial justice would be amply met it We now reduce   the  sentence  of  imprisonment  to  that   already undergone  but also impose fine of Rs. 700/- and in  default of  payment  of  fine  direct  that  he  undergoes  rigorous imprisonment  for  a  period  of  three  months.   We  order accordingly.   The appeal is thus accepted in part as  just stated. G.C.                            Appeal allowed in part. 918