Handwriting Expert Evidence: Relevant, But Merely an Opinion

Saji Koduvath, Advocate, Kottayam.

Abstrract

  • Evidence of Handwriting Expert is not a substantial piece of evidence.
  • Admissibility and reliability are different aspects.
  • It can be relied upon when supported by other evidence.
    • However, it is also important to note that there is no rule of law requiring corroboration.
    • It is also not impermissible to base a finding solely on the opinion of a handwriting expert.
  • Expert opinion is a weak type of evidence.
  • The court is not bound by the opinion of the expert; an expert deposes and does not decide.
  • The court has to satisfy ‘on its own observation’.
  • It is open to the Court to apply its own observation by comparison.
  • It may be the plain duty of the court to compare the handwriting with or without an expert, with or without other evidence.
  • Under S. 293 of the CrPC, the report of a Government-scientific-expert will be admissible, even if the expert is not examined.

Introduction

Evidence of a Handwriting Expert is not a substantial piece of evidence. It can be relied upon when supported by other items of internal and external evidence (Alamgir v. State (N.C.T. Delhi), AIR 2003 SC 282: 2003 Cr LJ 456).

Weak Evidence

The expert opinion is a weak type of evidence. In S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184, our Apex Court held as under:

  • “27….. The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering ‘conclusive’ proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration.
  • In Magan Bihari Lal Vs. State of Punjab (AIR 1977 SC 1091), while dealing with evidence of a handwriting expert, this Court opined:
  • “We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with mare caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law.
  • It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.
  • This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Vs. Subodh Kumar, AIR 1964 SC 529, where it was pointed out by this Court that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
  • This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.”

Also Read: Expert Evidence and Appreciation of Evidence

S. 293 CrPC:  Admissible Even If Expert is Not Examined

According to Section 293 of the CrPC, the report of a Government-scientific-expert will be admissible as evidence, even if the expert is not examined, if the court can summon or examine the experts. When the court summons such an expert and that expert is not able to attend personally, such expert can send his responsible working officer on his behalf who is well versed with the examination done by such expert.

Proof-value of Expert Opinion Considerations

While appreciating an expert-evidence, the Court has to consider –

  • .(i) Danger of error or deliberate falsehood (Haryana Seeds Development Corporation Ltd. v. Sadhu,  AIR 2005 SC 2023: (2005) 3 SCC 198.
  • (ii) It is only an opinion; there is a chance of error. (Mohd. Zahid v. State of Tamil Nadu, AIR 1999 SC 2416: (1999) 6 SCC 120).
  • (iii) There is a likelihood of being unconsciously prejudiced in favour of the side that calls him. (Gulzar Ali v. State of Himachal Pradesh,  (1998) 2 SCC 192.)

No rule of law – Corroboration Necessary

In Murari Lal v. State of Andhra Pradesh, AIR 1980 SC 531: (1980) 1 SCC 704O (Chinnappa Reddy, Ranjit Singh Sarkaria,JJ.) the Supreme Court laid down the following rules –

  • “We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration.
  • 4. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion.
  • The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect.
  • The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent.
  • On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher.
  • But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons.
  • It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness.
  • His opinion has to be tested by the acceptability of the reasons given by him.
  • An expert deposes and not decides. His duty ‘is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence’. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence).
  • From the earliest times, courts have received the opinionof experts. As long ago as 1553 it was said in Buckley v. Rice-Thomas(1) :
    • “If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation.”
  • 6. Expert testimony is made relevant by s. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person ‘specially skilled’ ‘in questions as to identity of handwriting’ is expressly made a relevant fact.
  • There is nothing in the Evidence Act, as for example like illustration (b) to s. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars which justifies the court in assuming that a handwriting expert’s opinion is unworthy of credit unless corroborated. 
  • The Evidence Act itself (s. 3) tells us that ‘a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’.
  • It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act.
  • Further, under s. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case.
  • It is also to be noticed that s. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
  • So, corroboration may not invariably be insisted upon before acting on the opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree.
  • There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated.
  • The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”
  • xxxx
  • “…. There is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated.
  • But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution.
  • Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered.
  • In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted.
  • There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.
  • We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
  • The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. 
  • Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written.
  • If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary.
  • There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion.
  • The duty cannot be avoided by recourse to the statement that the court is no expert. 
  • Where there are expert opinions they will aid the Court.
  • Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court’s own experience and knowledge.
  • But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529) and Fakhruddin v. State of Madhya Pradesh ( AIR 1967 SC 1326) were cases where the Court itself compared the writings.”

Murari Lal v. State of Andhra Pradesh, AIR 1980 SC 531: (1980) 1 SCC 704O, is referred to in the following decisions:

  • Yogarani VS State by the Inspector of Police, AIR 2024 SC 4641,
  • Basheera Begam v. Mohammed Ibrahim, 2020-11 SCC 174
  • Padum Kumar v. State of Uttar Pradesh, AIR 2020 SC 447; 2020-3 SCC 35,
  • M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1,
  • B.  Raghuvir Acharya v. Central Bureau of Investigation, 2014-14 SCC 693,
  • Ravichandran v. State by Dy. Supdt. of Police, Madras, AIR 2010 SC 1922; 2010 – 11 SCC 120
  • Alamgir v. State (NCT, Delhi), AIR 2003 SC 282; 2003-1 SCC 21,
  • State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100; 1992-3 SCC 700.

Science of Identification of Handwriting Not Infallible

In State of Maharashtra v. Sukhdev Singh & Another, (1992) 3 SCC 700, this Court observed as under:

  • “29. It is well settled that evidence regarding the identity of the author of any document can be tendered
  • (i) by examining the person who is conversant 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. …
  • But 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 of the hand writing expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give 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. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, 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 have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. 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. …”(Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

Court has to Satisfy ‘On Its Own Observation’

In Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200: (1973) 2 SCC 86, a child was kidnapped; the parent received post-card and an inland letter demanding money, as ransom; a handwriting expert testified the writings in the letters to be in the handwriting of the accused. Solely on the basis of this evidence the accused was convicted. The Supreme Court upholding  the conviction observed as under:

  • “Both under section 45 and section 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 is to apply its own observation verify the opinion of the witness. This is not to say that the Court may play the role of an expert, but to say that Court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or the other witness.”

In Ram Narain v. State of U.P., (1973) 2 SCC 86, our Apex Court also observed as under:

  • “6. … Now it is no doubt true that the opinion of a handwriting 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. …” (Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326, our Apex Court observed as under:

  • “Both under Section 45 and Section 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 admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and 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 in 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.” (Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

Admissibility & Reliability – Different Aspects

In Malay Kumar Ganguly Vs. Sukumar Mukherjee. AIR 2010 SC 1162, it is pointed out that the evidence of an expert should be interpreted like any other evidence.

In Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1, it is observed as under:

  • “Whether the FSL Report on its own was sufficient to hold that the suicide letter was written by Neeraj.
  • 60. However, the mere fact that the expert report was admissible in evidence does not mean that it should on its own form the basis of conclusion that the suicide letter was written by Neeraj. Admissibility and reliability/credit worthiness of a piece of evidence are entirely different aspects. An inadmissible piece of evidence is to be eschewed. But when a piece of evidence is admissible, as to what weight it would carry for determining a fact in issue would depend on the proven facts and circumstances of the case.

Court Not To Base Finding Solely On Opinion Of Expert

In Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1, our Apex Court continued after referring its various previous decisions as under:

  • “65. The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.
  • 66. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report. It be noted that section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court. What is important is that in the instant case there is no witness statement identifying the handwriting of Neeraj or disclosing that Neeraj wrote the suicide letter in his presence. There is also no evidence to explain the relevance of the contents of the suicide letter. Interestingly, the suicide letter indicts one Chhote Porwal. As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent. Besides that, there is no evidence to show that the investigating officer queried person(s) conversant with the handwriting of the deceased to rule out possibility of the suicide letter being in the writing of the deceased himself. In our view, such an exercise was necessary to lend assurance to the prosecution story of the suicide letter being written by Neeraj to mask the murder, because, firstly, the death on its face was not suicidal, and, secondly, it could have ruled out possibility of it being written in contemplation of some other event. Seen in that light, barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by Neeraj.
  • xxxxxx
  • 68. A glance at those injuries would reflect that five of them were perforating or penetrating wounds cavity deep. Out of those, two were on chest and three on abdomen. Such injuries are clearly homicidal therefore, masking this homicidal event as a suicide does not appeal to logic. Further, the injuries are not of same dimension. In these circumstances, a question would arise as to why would Neeraj who has no proven connection with the deceased or the co accused Santosh, or for that matter the apartment where the dead body was found, make a futile effort to mask the event of murder and thereby leave a trace of his own culpability. To answer that, the prosecution has led no admissible evidence. Thus, even if we assume that a suicide letter was found, at what stage it was written — prior to, or post the murder, or in connection with some other event which the deceased contemplated — is anybody’s guess.
  • 69. In light of the discussion above, taking into account that Neeraj has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by Neeraj, we are of the considered view that though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by Neeraj.”

Evidence of a handwriting expert is unlike that of a fingerprint expert

In Bhagwan Kaur v. Maharaj Krishan Sharma, AIR 1973 SC 1346: (1973) 4 SCC 46, it was observed as under::

  • “The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of a handwriting expert.”

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