BHANWAR LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been preferred against the judgment dated 30th April, 1982 passed by the learned Sessions Judge, Sikar, in Criminal Appeal No. 78 of 1980, upholding the conviction and sentence passed by Shri Jaspal Singh, Chief Judicial Magistrate, Sikar dated 8. 9. 1982 in Criminal Case No. 43 of 1978 as under - U/s 420 I. P. C. 1-1/2 years R. I. and a fine of Rs. 500/- U/s 467 I. P. C. 2 years R. I. and a fine of Rs. 1000/- U/s 468 I. P. C. 1-1/2 years R. I. and a fine of Rs. 1,500/-

(2.) IN default of payment of fine on each count the accused was directed to undergo further R. I. for 3 months. All the substantive sentences were ordered to run concurrently.

(3.) SECTION 73 of the Evidence Act enables the Court to compare the signature with the admitted signatures. It is the duty of the court to compare the signatures with the help of the Text Books and other material available and should try to find out whether the signatures are of the same person or not. Mr. Agrawal has cited before me the case of State of Delhi Administration Vs. Pali Ram (1), in which it has been held as under - "a Court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Sessions, does not exceed its powers under SECTION 73 if, in the interests of justice, if directs an accused person appearing before it to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert, 1975 Cr. L. J. 1756 (Delhi) reversed. " "a sample writing taken by the Court under the second paragraph of Sec. 73, is in substance and reality, the same thing as 'admitted writing' within the purview of the first paragraph of SECTION 73, also. The first paragraph of the section provides for comparison of signature, writing, etc. purporting to have been written by a person with others admitted or proved to the satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English Law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Sec. 45) or by one familiar with the handwriting of the person concerned (Sec. 47) or by the Court. The two paragraphs of the section are not mutually exclusive. They are complementary to each other. SECTION 73, is therefore to be read as a whole in the light of S. 45". "in addition to SECTION 73, there are two other provisions resting on the same principle, namely SECTION 165, Evidence Act and SECTION 540 Cr. P C. 1898, which between them invest the Court with a wide discretion to call and examine anyone as a witness, if it is bonafide of the opinion that his examination is necessary for a just decision of the case. " "the matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand writing expert, the Judge should as a matter of prudence and caution, hesitate to base his finding with regard to identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not, advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert". "it is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court alt the materials together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or Jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence".