STATE OF MAHARASHTRA ETC. ETC v. SUKHDEO SINGH ETC .. ETC & Anr.

attempting to take the life of his wife. Accused No. S was convicted under A section 302 and section 307 read with section 34, IPC. Accused Nos. 1 and S were sentenced to death subject to confirmation of sentence by this Court. They were also sentenced to rigorous imprisonmebt for 10 years for the oft'ence under section 307. The substantive sentence were ordered to run concurrently. Accused 1 and 5 were acquitted of all other charges levelled against them. Accused Nos. 2,3 and 4 were acquitted of all the charges levelled against them • B Accused 1 and S did not file. any appeal against their convictions by the Designated Court. In the Death Reference No.1 of 1989 and in the Criminal Appeal No. c ~- 17 of 1990, the State questioned before this Court the correctness of the grounds on which the trial Court acquitted the accused Nos. 2 to 4 of all the charges levelled against them and the acquittal of accused 1 and S of the other charges levelled against them besides sections 302, 307/34, IPC. ~ The State also submitted that the statement of the accused recorded under section 313 of the Code of Criminal Procedure, 1973 was sufficient to prove their involvement in the commission of the crime and such statement also corroborated the prosecution case. D The accused contended that if there was no evidence or circumstance E appearing in the prosecution evidence implicating the accused with the commission of the crime with which they were charged, there was nothing for the accused to explain and their examination under section 313 of the Code was wholly unnecessary and improper and should be totally dis- carded and their admissions, if any, wholly ignored; that since the convic- F tion and sentence were pronounced on the same day, the capital sentence awarded to the accused should not be confirmed. Dis~issing the Criminal Appeal and disposing of the Death Refer- ence, this Court, while confirming the conviction order and sentence passed by the Designated Court. G _.__ HELD : 1.01 No weight can be attached t~ such identification more so when no satisfactory explanation is forthcoming for the investigation otracer's failure to promptly hold a test identification parade. [501E]

1.02. The direct evidence, if at all, regarding the identity of the persons H - 484 SUPREME COURT REPORTS (1992) 3 S.C.R. A who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance ~hereon without proper corroboration. The direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person con cerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused per sons had since changed their appearances. [506C-E] B

1.03 Test identification parade, if held promptly and after taking the necessary precautions to ensure its credibility, would lend the required assurance which the court ordinarily seeks to ad on it. In the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse D of time and that too of persons who had changed their appearance. [506F] c Kanan & Ors. v. State of Kera/a, (1979] 3 SCC 319, relied on. E F

1.04. Before a Court can act on the opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence. (5088]

1.05 Evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is convel'8ant and familiar with the handwriting of such person or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and (iii) by the court comparing the disputed document with the admitted one. [509F] G

1.06 Since the science of identification of handwriting by comparison is not an . infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility H of'the handwriting expert. It is indeed true that by nature and habit, over ,..., . ~ - ~ -- ),.. "' '"( ' -ti- _...._ STATE v. SUKHDEO SINGH 485 a period of time, each individual develops certain traits which give a A distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or , unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. [509H-510A] B D

1.07 When one comes across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts c have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as con- elusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. There is no absolute rule of law or even or prudence which has ripened into a rule of law that in no case can the court base its findings solely on the E opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion. Before a court can place reliance on the opinion of an expert, it must be F shown that he has not betrayed any bias an~ the reasons on which he has based his opinion are convincing and satisfactory. It is for this reason that the courts are wary to act, solely on the evidence of a handwriting expert; that, however, does not mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer the court will not act on the expert's evidence. In the end it all depends on the G character of the evidence of the expert and the facts and circumstances of each case. [510B-GJ

1.08 A handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act H 486 SUPREME COURT REPORTS (1992) 3 S.C.R. B A and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness or the reasons on which it is founded. But the court cannot afford to overlook the fact that the Science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration bot that is not to say that it is a rule of prudence or general application regardless of the circumstances of the case and the quality of expert evidence. No hard and c fast rule can be laid down in this behalf but the Court has to decide in each case on its· own merits what weight it should attach to the opinion of the expert. [513A·CJ