Chattisgarh High Court
State Of C.G vs Sharad Kumar Thawait on 4 February, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No.428 of 2010
The State of Chhattisgarh
---- Appellant
Versus
Sharad Kumar Thawait, S/o Baldau Thawait, aged about
24 years, R/o Kadam Chowk, Champa, P.S. Champa,
District Janjgir-Champa, Chhattisgarh.
---- Respondent
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For Appellant/State : Mr. Shivnath Shrivas, P.L. For Respondent : Ms. Indira Tripathi, Advocate
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(Proceedings through Video Conferencing) Hon'ble Shri Justice Parth Prateem Sahu Judgment on Board 04.02.2022
1. Appellant/State filed this acquittal appeal under Section 378(1) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') challenging judgment of acquittal dated 19.08.2002 passed by Judicial Magistrate First Class, Janjgir (C.G.) in Criminal Case No.200 of 2002 whereby learned Magistrate acquitted the respondent from charges under Sections 507 and 509 of Indian Penal Code.
2. Facts relevant for disposal of this appeal, are that, complainant Noharlal Dewangan lodged a report on 01.07.1998 with concerned Police Station stating that he is engaged in the business of cloth selling. Since last about 5-6 months, some unknown person is sending unnamed letters of obscene comments. Letters are being sent from Raipur or 2 Korba. In letters, obscene language and comments are being used against his wife, sister and niece. Last letter was received on 24.06.1998. In complaint, suspicion was raised upon five persons namely, Lala Thawait, Ganpati Dewangan, Chootelal Shriwas, Kedarnath Dewangan and respondent. Based on written report, First Information Report was registered. During course of investigation, applicant was arrested and charge-sheet was filed against him. Prosecution examined as many eight witnesses. Statement of respondent was recorded under Section 313 of Cr.P.C., in which, he pleaded not to be guilty. Prosecution also produced the documents, which were marked as Exhibits P/1 to P/24 including report of Handwriting Expert (State Examiner). After conclusion of trial, learned trial Court by impugned judgment acquitted the respondent from aforementioned charges.
3. Mr. Shivnath Shrivas, learned Panel Lawyer for the State/appellant would submit that learned Magistrate has not considered the evidence available on record properly. He submits that based on complaint of PW-2 Noharlal Dewangan, Police seized letter written by unknown person from PW-2 Noharlal Dewangan vide Ex. P/3. After receipt of letter, sample hand writing of respondent was taken. Letter seized and sample hand writing of respondent was sent to 3 Handwriting Expert (State Handwriting Examiner). PW-7 Mahendra Singh Thakur upon examining questioned documents forwarded to him, submitted report on 17.12.2019 and found documents marked as S-1 to S-40 to be written by same person who wrote document marked as Q-1 to Q-6. Opinion of Handwriting Expert is marked as Ex.P/6 and Ex.P/
7. He submits that when there is report of Handwriting Expert against respondent, learned Court below erred in acquitting respondent from charges. It is contented that accused can be convicted on the basis of report of Handwriting Expert. In support of his contention, he places reliance upon rulings, in case of Fakhruddin v. The State of Madhya Pradesh reported in 1967 MPLJ 473 and Ram Narain v. State of Uttar Pradesh reported in 1973 MPLJ 674 (SC). He also contended that learned Court below not appreciated the evidence of witnesses properly, particularly evidence of PW-2 Noharlal Dewangan, PW-5 Surendra Mishra, PW-7 Mahendra Singh Thakur and PW-8 Prashant Katlam. The finding recorded by trial Court is perverse to evidence available on record, hence, it deserves to be set aside.
4. Per contra, Ms. Indira Tripathi, learned counsel for respondent opposing submissions of learned counsel for appellant would submit that finding recorded by trial Court is based on appreciation of documentary and oral evidence 4 available on record. The case which was reported to concerned Police Station by PW-2 Noharlal Dewangan is based on obscene letter sent on his address by unknown person. Suspicion was raised by complainant against five persons including respondent. As per evidence of PW-8 Prashant Katlam, Investigating Officer, sample handwriting of all suspect persons were taken, but those handwritten document of other suspected persons are not forming part of charge-sheet. No reason has been assigned by Investigating Officer for not proceeding against other suspected persons withholding documents written by them, which was stated by Investigating Officer that it was obtained for the purpose of comparing the handwriting. She submits that report given by Handwriting Expert PW-7 Mahendra Singh Thakur is only an opinion, it is not conclusive. Opinion of expert is to be considered based on other material available on record. When complainant himself raised suspicion upon other person, then it was for the prosecution to send sample of handwriting of all suspects to Handwriting Expert/State Examiner. Investigating Officer in categorical term admitted that handwriting sample of other four persons taken by him, was not made part of charge-sheet and he has not sent those documents to State Examiner for comparing the handwriting with alleged letter sent on address of the complainant, which was seized vide Ex. P/3. She also submits that evidence of 5 PW-7 Mahendra Singh Thakur (State Examiner) is contradictory to the evidence of PW-8 Prashant Katlam (Investigating Officer). In his evidence, PW-7 stated that other letters/handwriting samples were also sent to him and he examined those also. There is material contradiction between Court statements of these two material witnesses, hence, Court below was justified in acquitting the respondent giving benefit of doubt. She submits that PW-2 Noharlal Dewangan (complainant) himself not written complaint filed before concerned Police Station. He was not aware as to what was mentioned in written report. He also admitted that he has not read over the report and signed it without reading the same. She also contended that PW-1 Ramkumari (wife of Noharlal Dewangan) in her statement stated that she is unable to identify letters marked as Article A to Article D to be letters sent to her house. She submits that in view of evidence of PW-1 Ramkumari, it is suspicious that letters seized by Police from possession of PW-2 Noharlal Dewangan are the same letters, which were sent to house of PW-1 Ramkumari, making obscene comments in letter. Referring to Paragraph-11 of impugned judgment, it is argued that trial Court has discussed entire evidence brought on record and recorded a finding that prosecution failed to prove the charges levelled against respondent. She submits that counsel for appellant has not made any submission how 6 finding recorded in paragraph-11 are perverse. It is argued that PW-8 Prashant Katlam (Investigating Officer) in his statement stated that he is not aware as to who sent questioned documents to State Examiner for comparing the handwriting. No proceedings sending other sample handwriting is available on record, hence, there is suspicion upon report of Handwriting Expert. When proper procedure of investigation is not followed, then also, benefit of doubt is to be given to accused. She submits that learned trial Court justified in acquitting the respondent from charges as prosecution has failed to prove it beyond reasonable doubt.
5. I have heard learned counsel for the parties and perused the record of trial Court.
6. The case of prosecution rest on report of Handwriting Expert.
Report of Handwriting Expert is filed as Ex.P/6. Handwriting Expert was examined before trial Court as PW-7 Mahendra Singh Thakur. There is no direct evidence to connect the respondent in aforementioned crime. Handwriting Expert report is not an evidence, but an opinion of expert, which he arrives based on certain test. Opinion of Handwriting Expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result and such evidence has to be received with grate caution. Opinion of 7 Handwriting Expert in the case cannot be made sole basis of conviction; corroboration is necessary.
7. Now, I find it appropriate to consider facts and circumstances of case in hand. A written report was filed before concerned Police Station on 01.07.1998 mentioning that some unknown person is sending obscene letters on his address in the name of his wife and niece. In written report, suspicion was raised against five persons including respondent. Based on written report, First Information Report was registered against five persons named in written report for offences under Sections 507, 509 and 34 of Indian Penal Code. Police investigated into complaint and First Information Report, seized obscene letters sent by unknown person vide Exs.P/3 & P/4. Ex.P/4 is seizure memo, in which, Police seized letters sent for getting the house vacated, which is dated 01.04.1998, other two letters and one practical copy. Seizure was witnessed by one Baldau and Mubarak Ali. Practical copy stated to be seized from possession of respondent/accused. From perusal of seizure memo (Ex.P/4), on its face is apparent that seizure of practical copy is inserted in the document later on after its preparation.
8. In the entire record of trial Court, there is no document to show any proceeding initiated against other four persons named in complaint as well as against whom First 8 Information Report was also registered. Other persons have not been proceeded with by Police. In evidence, Investigating Officer PW-8 Prashant Katlam stated that respondent herein admitted his guilt. He also stated that he has not recorded the statement of respondent in writing. He took statement of other four suspected persons. Their sample handwriting were also taken, but those documents/sample handwriting were not made part of charge-sheet. He also admitted that in Ex.P/ 4, there is no mention that Police seized sample handwriting written by accused i.e. respondent.
9. To ascertain evidentiary value of expert opinion, other facts and circumstances, as well as evidence is to be taken into consideration. Seizure of copy stated to be in handwriting of respondent is made vide Ex.P/4 by Investigating Officer PW- 8 Prashant Katlam. He admitted that document Ex.P/4 was prepared by him. He also admitted that in Ex.P/4C, there is no mention of clause-3 entry seizing copy. In Ex.P/4, some addition has been made subsequently, but that was not on another day. He also mentioned that he has not mentioned with regard to number of pages in copy i.e. 'Article E'. He has not specified the seizure of copy of accused. Seizure witnesses of Ex.P/4 are Baldau and Mubarak Ali. Mubarak Ali was examined as PW-6. He did not support the case of prosecution and he refused of any kind of seizure in front of 9 him. Other seizure witness i.e. PW-4 Baldau also not supported the case of prosecution that any document or letter was seized from possession of respondent.
10. In view of aforementioned evidence available on record where both seizure witnesses have turned hostile and not supported the case of prosecution, of seizure of any document from possession of respondent/accused. Seizure of document from possession of respondent/accused as mentioned in Ex.P/4 become suspicious, more so, when from perusal of Ex.P/4, it is apparent that Investigating Officer after preparation of seizure memo has added something in it later on. Insertion of clause-3 in Ex.P/4 is of seizure of practical copy, which is added subsequently. This suspicious seizure of copy is made basis of comparing writing by Handwriting Expert PW-7 Mahendra Singh Thakur.
11. Other aspect of the case is that Investigating Officer PW-8 Prashant Katlam in his evidence, at paragraph-9, has stated that he has not placed on record the memo addressed to Handwriting Expert of sending seized documents. Only on the basis of other documents, he stated that he forwarded normal writing, natural writing and seized copy of respondent to Handwriting Expert. He stated that he has not sent any sample handwriting to other four suspected persons and also stated that he could not able to tell any reason for not 10 sending sample handwriting of other four suspected persons. PW-7 Mahendra Singh Thakur, Handwriting Expert stated that he examined sample handwriting of other suspected persons also. This evidence of Handwriting Expert is contradictory to the evidence of Investigating Officer PW-8 Prashant Katlam. When PW-8 Prashant Katlam Investigating Officer in his evidence categorically stated that he has not sent sample handwriting of other suspect, how and what documents were examined by PW-7.
12. This case is based on circumstantial evidence, primarily, on the basis of report submitted by Handwriting Expert. Seizure of document vide Ex.P/4 has become suspicious in view of evidence of Investigating Officer PW-8 Prashant Katlam and also appearing from bare perusal of Ex.P/4. In Ex.P/4, two lines have been inserted subsequent to preparation of document and proceeding of seizure initiated in front of witnesses. Subsequently, inserted clause-3 is of seizure of practical copy stated to be of respondent, which is made basis for comparison of handwriting with unnamed letters sent to complainant's family. No memo was prepared by Investigating Officer of taking sample handwriting, normal handwriting and natural handwriting from respondent, which is stated to have been sent to Handwriting Expert for examination and comparison of handwriting. The documents 11 collected and sent to Handwriting Expert became suspicious as prosecution failed to prove that documents sent to Handwriting Expert for comparing with questioned document has been seized from the possession of respondent. Memo of taking sample handwriting is important in view of evidence of Investigating Officer PW-8 Prashant Katlam who stated that sample handwriting of other suspect was also taken by him. In the above facts of the case, it cannot be said that the documents examined by the Expert and opining it of matching with some document cannot be said beyond doubt, that it was the document in handwriting of respondent. When the document stated to be handwritten by respondent itself became suspicious to have been collected from respondent and in his handwriting, in the opinion of this Court, entire case of prosecution against respondent collapsed.
13. In the aforementioned facts of the case, it cannot be said that even if handwriting in some document sent by Police to have matched with questioned document, it is not proved beyond reasonable doubt that those documents sent by Police is of respondent.
14. To convict the person based on Expert report, entire chain connecting accused involved in commission of offence has to be completed.
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15. In aforementioned facts of the case, chain to connect the respondent is not completed in view of discussions in preceding paragraphs with respect to Ex.P/4 seizure memo, evidence of PW-7 Mahendra Singh Thakur (Handwriting Expert) and PW-8 Prashant Katlam (Investigating Officer).
16. Hon'ble Supreme Court in case of Ramesh and Others v.
State of Rajasthan reported in (2011) 3 SCC 685 has held thus :
"17. Before we proceed with the matter, it has to be borne in mind that this case depends upon circumstantial evidence and, as such as, per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and perfect that the only inference of the guilt of the accused should emanate therefrom. At the same time, there should be no possibility whatsoever of the defence version being true.........."
17. So far as evidentiary value of Handwriting Expert is concerned, Hon'ble Supreme Court in case of Smt. Bhagwan Kaur v. Shri Maharaj Krishan Sharma and Others reported in (1973) 4 SCC 46 has held that 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 13 wary to give too much weight to the evidence of handwriting expert. The Court observed that conclusions based upon mere comparison of handwriting must at best be indecisive and yield to the positive evidence in the case.
18. In case of S.P.S. Rathore v. Central Bureau of Investigation and Another reported in (2017) 5 SCC 817, Hon'ble Supreme Court has held that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usual to see if it is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. In the aforementioned ruling, Hon'ble Supreme Court has further recorded thus :
"50. It is thus clear that uncorroborated evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence."14
19. There is no dispute on the principles laid down by Hon'ble Supreme Court in case of Fakhruddin (supra) and Ram Narain (supra), in the case law relied upon by counsel for appellant, in which, Hon'ble Supreme Court held that report of expert is an opinion which is to be corroborated by other material and evidence.
20. In the case at hand, seizure of document stated to be possessed from respondent become suspicious in view of addition of entry of seizure after preparation of document, which was admitted by Investigating Officer PW-8 Prashant Katlam; further that no memo has been prepared by Investigating Officer PW-8 Prashant Katlam of taking normal/ natural handwriting of respondent, which was stated to have sent to Handwriting Expert for comparison as also contradictory evidence of Handwriting Expert of examining other documents in the handwriting of other four suspected persons, which were never sent by Investigating Officer as stated by him before the Court.
21. In view of aforementioned facts of the case as also rulings of Hon'ble Supreme Court, I do not find any illegality or perversity in the finding recorded by trial Court acquitting the respondent from charges defined under Sections 507 and 509 of Indian Penal Code. The finding arrived at by learned trial Court is one of the plausible view.
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22. The Hon'ble Supreme Court in case of Ramanand Yadav v.
Prabhu Nath Jha and Others reported in (2003) 12 SCC 606 has considered scope of interference by Appellate Court while dealing with acquittal appeal and held thus :
"21. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P., (2002) 4 SCC 85. The principle to be followed by appellate Court considering the 16 appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.
These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225, Jaswant Singh v. State of Haryana, (2000) 4 SCC 484, Raj Kishore Jha v. State of Bihar, (2003) 11 SCC 519, State of Punjab v. Karnail Singh, (2003) 11 SCC 271 & State of Punjab v. Pohla Singh, (2003) 11 SCC 58."
23. Hon'ble Supreme Court again in case of Kallu alias Masih and Others v. State of M.P. reported in (2006) 10 SCC 313, held thus :
"8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse 17 the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court."
24. Hon'ble Supreme Court in case of Dhanapal v. State By Public Prosecutor, Madras reported in (2009) 10 SCC 401 has observed that when two reasonable or plausible views can be reached one that leads to acquittal and other to conviction, the High Court/Appellate Court must rule in favour of accused. Some of the principles to be considered while considering acquittal appeal which read as under :
"39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court 18 must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
25. For the foregoing reasons and discussions, I do not find any tenable ground to interfere with impugned judgment of acquittal, appeal being sans merit, which is liable to be and is hereby dismissed.
Sd/-
(Parth Prateem Sahu) Judge Yogesh