KESHAV DUTT versus STATE OF HARYANA

KESHAV DUTT v.

STATE OF HARYANA (Criminal Appeal No. 1560 of 2010)

AUGUST 19, 2010 [ALTAMAS KABIR AND DR. MUKUNDAKAM SHARMA, JJ.]

Prevention of Corruption Act, 1988: s.13(1 )(d) -Conviction based on report of handwriting expert - Bribe amount recovered from the co-accused - Appellant not present on the spot nor did he receive the money - Held: It was only the report of handwriting expert which connected the appellant with the offence on account of the paper which was said to be in his handwriting - The handwriting on the paper was not formally proved by the prosecution - The expert was not examined - In the absence of examination of expert, his report cannot be relied on - The complicity of appellant was thus not established beyond doubt - Appellant entitled to benefit of doubt - His conviction set aside.

Evidence: Report of handwriting expert - Admissibility of - Held: Report of handwriting expert cannot be admitted in evidence without examination of the expert - Prevention of Corruption Act, 1988.

The prosecution case was that the appellant-accused alongwith the co-accused employed as meter readers under the Electricity Board went to the house of the complainant for checking the electricity meter. After such checking, they informed the complainant that the load in the meter was excess of the permissible load which was liable to fine. The meter reading was noted on paper Ex.PR by the appellant. They informed the complainant

[2010] 10 S.C.R.

that if he paid bribe money, the matter would be hushed up. After about week, both the accused again went to the complainant's house and demanded the bribe money and ultimately sum of Rs.2000 was fixed. The complaint was made and trap was laid. The co-accused as well as one 'M' went to the complainant's house. The raiding party recovered money from 'M'. All the three accused were charged under Section 7 read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The appellant and the co-accused were convicted under Section 13(1 )(d) and sentenced to undergo rigorous imprisonment for period of three years. However, 'M' was acquitted of all the charges. The appellant and the co-accused filed the appeals challenging the conviction and the sentence. State also filed appeal against the order of acquittal of 'M'. The High Court affirmed the judgment of conviction~ It, however, reduced the sentence of imprisonment from three ·years to one year. The High Court also dismissed the appeal preferred by the State.

In the instant appeal, it was contended for the appellant that without examining the handwriting expert, reliance could not be placed on his report; and that since the appellant was acquitted under Section 7 of the Prevention of Corruption Act, 1988, his conviction under Section 13(1)(d) of the Act was not maintainable.

Allowing the appeal, the Court

HELD: The appellant had neither received the bribe money nor was he present at the spot when the same was received by the co-accused, who handed over the same to 'M', but the involvement of the appellant did not require his presence at the time of the raid as he was connected with the offence in view of Ex.PR which was the paper on which the meter reading was jotted down

allegedly by the appellant. Ex~PR was proved by the handwriting expert to be in the handwriting of the appellant. In that context, the question whether the opinion of the handwriting expert could have been relied upon without examining him was relevant. The report of the fingerprint expert who was not examined, indicated that specimen writing was given by the appellant and on comparison of the same with the writings in Ex.PR, the fingerprint expert came to the conclusion that they were written by the same person. The trial court skirted the issue by holding that the defence could have examined an expert to rebut the report. The High Court recorded that the report having gone unrebutted could be relied upon without any demur. The views of the trial court as well of the High Court in that regard cannot be accepted. When the trial court chos~ to rely on the report of the handwriting expert, 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 accused had admitted the report of the handwriting expert. Both the trial court and the High Court erred in denying the appellant such opportunity and shifting the onus on him to disprove Ex.PR which was not formally proved by the prosecution. It was only the report of the handwriting expert, Ex.PY, which connected the appellant with the offence on account of Ex.PR which was 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 different footing and since his complicity was not established beyond doubt 011 the basis of Ex.PR and Ex.PY, he must be given the benefit of doubt. The impugned order is liable to be set aside on this ground

alone. The judgment of conviction and sentence of the appellant under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is set aside. [Paras 11, 12, 13, 15] [158-E-H; 159-A-E; D-E-G]

CIRMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1560 of 2010.

From the Judgment & Order dated 08.09.2009 of the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 427-SB of 2005.

Nitin Sangra, Gaurav Agrawal for the Appellant.

Rajeev Gaur 'Naseem', Nazid K. Hye, Kamal Mohan Gupta for the Respondent. of the Court was delivered by

The Judgment of the Court was delivered by

ALTAMAS KABIR, J. 1. Leave granted.·

2. Two short points fall for consideration in this Appeal.

One is whether the opinion of handwriting expert can be admitted in evidence without examination of the handwriting expert and the other is whether 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 period of three years and to pay fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for 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 Police, Vigilance, Ambala, stating that he was running 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 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 fine of at least Rs.14,000-15,000/-. The accused persons then informed him that he would have to pay 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 sum of Rs.2,00Q/- between 4.00-5.00 p.m. on the next · date, failing which the case 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 trap. Ultimately, the accused Kewal Kumar ,as well as Mahesh Kumar came to the complainant's house and went inside and on 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 solution of Sodium Carbonate, the colour of which turned pink. The accused were put under arrest and after police investigation, charge sheet was filed against them in Court for their trial.

[2010] 10 S.C.R.

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-S8 of 2005 filed by 8 [Keshav Dutt, the Appellant herein, and Criminal Appeal ]No.438-S8 of 2005 filed by Kewal Kumar. The third Appeal No.1328-S8 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.

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 charge . under Section 120-8 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 120-8/34 IPC had been brought against the accused persons.

9. The other question raised was whether without

examining the handwriting expert his report could 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 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 .O_~ppellant on the basis of the above could not be sustained.

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 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 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 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 specimen writing had been given by the Appellant and on 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 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 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 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 report under the hand · of 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.

xxx xxx

(2) xxx (3) xxx

xxx

(4) This section applies to the following Government scientific experts, namely,

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

(f) xxx

xxx x:xx"

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 hand\.yriting. 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 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 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 P.revention 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.

Appeal allowed.