Expert’s Opinion on Handwriting as Evidence
Who will qualify as an expert?
The definition of an expert may be referred from the provisions of Sec.45 of the Indian Evidence Act which states that an ‘Expert’ means a person who has special knowledge, skill or experience in any of the following
1) foreign law,
4) handwriting or
5) finger impression
Earlier, the Courts required expert evidence in some limited fields i.e. medical doctors, engineers, architects, stockbrokers etc. With the rapid development in
science and technology, and the growth of several new fields of human endeavour, the need of expert opinion has now become very common and much required by the Courts to reach upon a fair conclusion regarding a matter in dispute or with respect to investigation of an offence.
Today the role of experts has been widened and the Courts take their assistance in various aspects viz. ballistic experts, forensic experts, scientists who decide the
legitimacy by DNA tests, chemical examiners, psychiatrists and radiologists who are playing a vital role in investigation of crimes and their evidence is relevant and
admissible in the court of law.
Experts may be appointed by the court under provisions of the Civil Procedure Code, 1908 (Order XXVI, Rule 10A) with respect to a civil suit and also under provisions of the Criminal Procedure Code, 1973 (S 139, S 140, S 164A, S 293) with respect to a criminal inquiry. Experts may also be appointed by the parties to the case to support their arguments. It must be noted that an expert need not only be a person who hold advanced degrees in his subject. Hon’ble Supreme Court in the case Ramesh Chandra Agarwal v/s Regency Hospital Ltd held that, an expert is a person who devotes his time and study to a special branch of learning. However, he might have acquired such knowledge by practice, observation or careful study. A witness will be considered as an expert if he is skilled in any particular trade, art, or profession and possessed of peculiar knowledge concerning the same.
Role of Expert opinion and Duties of an Expert –
The duty of an expert is to depose before the court and not to decide. The real function of the expert is to put before the Court all the materials with the necessary
scientific criteria, so that the Court, although not an expert, may form its own independent judgment by applying these criteria to the evidence.
The court will normally look at an expert evidence with a great sense of acceptability, but it is equally true that the courts are not absolutely guided by the
report of the experts, especially if such reports are perfunctory and unsustainable.
The purpose of expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one – Tomosa Bruno vs State of UP2.
The science of handwriting is not an exact science and the Supreme Court has held that great care and caution should be exercised by the court in determining the genuineness of handwriting (Vandavasi Karthikeya vs S Kamalamma3). Opinion of the expert will be relevant but not conclusive. In a later case Supreme Court held that evidence of a handwriting expert need not invariably be corroborated. It is for the court to decide whether to accept such uncorroborated evidence or not. The court must approach with great caution. (Murari lal v State of MP)4
The handwriting expert is not an accomplice and there is no justification for condemning his evidence. If the court is convinced from the report of an expert that the questioned writing was of the accused, there is no difficulty in relying upon the expert’s opinion without any corroboration. The Court can also form opinion with help of experts by comparing two signatures having negligible difference.
Section 47 – Opinion as to hand-writing, when relevant. –– When the Court has to form an opinion as to the person by whom any document was written or signed,
the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or
signed by that person, is a relevant fact.
When a person is said to be acquainted?
A person is said to be acquainted with the handwriting of another person – When he has seen that person write When he has secured (received) documents written by that person (in answer to documents written by himself or under his authority and addressed to that person.)
When he has in the ordinary course of business received documents written by that person or such documents are habitually received by him (to whom the letter is habitually submitted.
Basically, the person can recognize the handwriting in the document which is in question, the person acquainted with the handwriting can also recognize the
handwriting when the document in the ordinary course is submitted to him. It is not necessary that an expert in handwriting has to recognise. Any person who is not even am expert can do the job provided that, he/she is acquainted with the concerned handwriting.
Shankerappa vs. Sushilabai on 28 July, 19836 – In relation to the Acquaintance of the handwriting
Facts of the case –
- Plaintiff Sushilabai, instituted the suit claiming separate maintenance from Shankarappa alias Shivashankar, the defendant alleging that she is the
legally wedded wife of the defendant, their marriage having been performed on 11-5-1961.
- The defence was one of total denial of the relationship itself. Hence was not ready to pay the maintenance to the wife.
- Important factor in the case apart from the priest and ceremony evidence of the marriage, there was an alleged admission of the- relationship in letter
- dated 18-6-1969. That letter is addressed to Sidramappa who is plaintiff’s elder brother, Plaintiff’s says that this letter was written by the defendant from Poona who was then in service.
Statement in Court – by the plaintiff –
“I have studied up to VI Standard Kannada. I can read and write Kannada. I can identify the Kannada handwriting of my husband. I am now shown a letter. It
contains the handwriting of my husband. Sidramappa is my elder brother. My brother Sidramappa had received a letter from my husband.”
Court Observed –
Court said that – Wife can be regarded as a person who is acquainted with the handwriting of husband, according to S.47 of Indian Evidence Act 1872.
Hence, the presence of the person while the letter was written is not important.
Hence, the presence of the person while the letter was written is not important.
Fakhruddin vs. State of MP, 1967 SC7 –
Relevant when presence of person was there while the handwriting was being written Supreme Court held that handwriting may be proved by the evidence of a witness in whose presence the writing was done, and this would be direct evidence, and if it is available, then any other kind of evidence is rendered unnecessary.
Section 47A –
Relevancy of Opinion as to electronic signature – When the court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying authority which has issued the Electronic Signature Certificate, is relevant.
The Indian Evidence Act, 1872 earlier had enacted keeping in view only the physical World, but later it was suitably amended to include the concept of electronic evidence. The IT Act, 2000 provides for amendment in the Indian Evidence Act, 1872, these amendments contained in the Schedule II of the Act.
The digital signature certificate is to ensure that the digital signature is original and proper. The digital signature is created electronically and it is widely used in
modern times. A certifying authority means a person who has been granted a license under the Information Technology Act, 2002 in order to issue a digital
signature certificate. The authority is given powers under Section 24 of the Information Technology Act, 2002.
Illustration – The question arises whether an electronic signature is of A. The certifying authority which has issued the electronic signature opines that A is not
the person who has applied or approached for getting an electronic signature.
Thus A is not the owner of the electronic signature in question. It belongs to someone else.
Difference between S.45 and S.47 –
Generally both the sections created confusion but there is a thin line of difference
between S. 45 and S.47, which is mentioned below –
- In terms of Relevancy of the opinion – According to S.45 only Expert’s Opinion is relevant but in S.47 any person’s opinion is relevant.
- Acquaintance with the person whose handwriting is in question – This basic question’s answer is that in accordance with S. 45- it is not necessary or required to have acquaintance with the person whose handwriting is in question. And in S.47 –Acquaintance has to be there with the person whose handwriting is in question.
- In terms of S.45, Presence of the person during the time the document was made is not required but under the scope of S.47 Presence of that person at times may be required at times it is not required.
Opinions of the category of persons under section 45 & 47 is totally different from an ordinary witness and hence treated under law on a different footing. Persons
who are experts have not witnessed the facts but instead apply their knowledge and skill to form an opinion on the particular case. It is the duty of the court to call
upon such third persons to explain the reason for their opinion and then to form an independent opinion as to whether or not such opinion is satisfactory.
1. Law of Evidence – Ratanlal Dhirajlal
2. Indian Evidence Act 1872, Bare Act