Delhi District Court
State vs . Gaurav on 8 June, 2022
DLSE020039682016 IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE-06, SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI Cr CASES/95222/2016 STATE VS. Gaurav FIR NO: 05/14 P.S Kalkaji U/s 420 IPC JUDGMENT
Name of the complainant : Ct. Rajnish, Belt No. 5968/T, Traffic PRG, New Delhi.
Date of Commission of offence : 03.01.2014 Name of the accused : Gaurav, S/o Sh. Ashok Kumar, R/o H. No. B-2, 198, J J Colony, Madanpur Khadar, New Delhi.
Offence complained of - 420 IPC Plea of accused : Not Guilty Case reserved for orders : 25.05.2022 Final Order . Acquitted Date of orders . 08.06.2022 BRIEF STATEMENT OF FACTS FOR THE DECISION:-
1. Vide this judgment, | seek to dispose off the case of the prosecution filed against the accused namely Gaurav for having committed the offence punishable u/s 420 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
2. Briefly stated, as per the case of prosecution, the traffic officials posted at Traffic PRJ, Todapur, New Delhi were receiving numerous complaints/information from public regarding charging of excess parking fee by the parking attendants of parking situated at Nehru Place. After receiving the compiaints/information, on 03.01.2014, traffic police officials namely HC Rajneesh and Inspector Sachinder Mohan Sharma had conducted a raid in the parking situated at Nehru Place. During the raid, they had parked their vehicle make model Swift Dzire bearing no. HR 51A 1048 at about 11:45 AM at Nehru Place parking. Inspector Sachinder Mohan Sharma had handed over two currency notes of the denomination Rs. 20 and Rs. 10/- each bearing no. 34A 883957 and 6JR 832795 respectively to HC Rajneesh who had parked the vehicle. The said currency notes were signed by the Inspector Sachinder Mohan Sharma. Thereatter, the parking attendant accused Gaurav had given him parking receipt. HC Rajneesh left the area and came back after some time to take out the vehicle. Accused Gaurav had charged Rs. 30/- from HC Rajnessh when he was taking out his vehicle. HC Rajneesh confronted the accused that the prescribed parking fee mentioned on the parking slip was Rs. 10. However, the accused insisted him to pay Rs. 30/- in place of Rs. 10/-. The said amount was paid by HC Rajneesh by way of two currency notes which were handed over by Inspector Sachinder Mohan Sharma. Thereafter, HC Rajneesh had he had signaled the other traffic officials present there who apprehended the accused. Information was given to the PS Kalkaji pursuant to which ASI Ghanshyam had arrived at the spot. Accused was handed over to ASI Ghanshyam who had also conducted his personal search during which the said two currency notes (which were given by HC Rajneesh) were recovered from the possession of accused.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused. Thereafter, charge was framed against the accused vide order dated 27.07.2018 u/s 420 IPC, to which he pleaded not guilty and claimed trial.
4, In order to prove the guilt of accused, the prosecution examined following eight witnesses:
* HC Rajneesh deposed as PW-1:
* Sh. Mahesh deposed as PW-2:
* Inspector S M Sharma deposed as PW-3; * Sh. Jagdamba Singh deposed as PW-4: * Sh. Vinod Kumar deposed as PW-5; ¢ Ct. Babal deposed as PW-6;
* SI Ghanshyam deposed as PW-7: and * SI Manmeet Malik deposed as PW-8.
5. PW-1 deposed that on 03.01.2014 he was posted as Constable at Traffic PRu, Todapur, Delhi. On that day, he along with Inspector Sachinder Mohan, HC Virender visited Nehru Place parking for which several complaints were received for over charging of parking fee. They had parked their vehicle bearing no. HR 51A 1048 Swift Dzire at about 11:45 AM. Before parking, Inspector Sachinder Mohan had briefed him about the case and handed over to him two notes of Rs. 20/- and 10/- with his signature. At the parking of the said vehicle, accused had handed over to him parking slip bearing no.
0017319 of Rs. 10/-. After Parking, PW1 had left the spot. After one hour, PW1 came back there to take his vehicle and paid Rs. 10/- to accused but accused told to pay Rs. 30/- as parking fee. When he told accused that the parking fee was only Rs. 10/-, accused told him that he had to pay Rs. 30/- as accused used to take Rs. 30/- for parking fee. Thereafter, PW1 had given accused two notes bearing signature of Inspector Sachinder Mohan and gave signal to the said Inspector. He came at the spot and apprehended the accused. Thereafter, Inspector Sachinder called at 100 number and local police official AS! Ghanshyam had come at the Spot and accused was handed over to him. ASI Ghanshyam has made personal search of accused and two currency notes were recovered from shirt of accused. Statement of PW1 was recorded as Ex. PW1/A. |O had prepared the site plan Ex. PW1/B and prepared two seizure memos. Seizure memo of said notes and parking slips are Ex. PW1/C and PW1/D respectively. Arrest memo and personal search memos of 4 accused were also prepared vide Ex. PW1/E and PW1/F. Witness correctly identified the parking slip bearing no. 0017319 which is Mark A. Accused was correctly identified by the witness. Case property in unsealed conditions i.e. currency notes of Rs. 10 bearing no.
883957 and Rs. 20 bearing no. 832795 were produced which were correctly identified by PW1.
6. PWe deposed that he works at car parking at Nehru Place. 2-3 boys including accused used to work under him. PW2 used to give receipt booklet to the accused in the morning to collect parking fee. They used to give him back the maney collected during the day in evening. On 03.01.2014, PW2 had come to know that accused was arrested by the police in connection with some problem regarding collection of parking fee.
7. PW3 deposed that on 03.01.2014, he was posted at PRG Cell of Traffic Unit as Inspector. They were receiving information/complaints with regard to excess charges being received by parking attendants of the parking at Nehru Place area. On 03.01 2014, he along with HC Virender and Cr. Rajnish reached Nehru Place in private car bearing no. HR 51 AL 1048, Thereafter, he had discussed the matter with his team and handed over two currency notes, one of Rs. 20 bearing no. 6JR 832795 and one of Rs. 10 bearing no. S4A 883957 properly signed by him. He had handed over the car to Ct. Rajnish and instructed him to park the same in the parking opposite Hemkund chambers. At about 11:45 AM, PW1 went to the said parking and parked his car. Accused gave him a slip with 1048 and 11-46 written on the said slip. When PW1 reached at the parking again after 5 sometime, accused demanded Rs. 30/- for the parking. An argument had ensued between them and PW1 eventually handed the said notes to accused. Thereafter, on the signal of PW1, PW3 along with other police official reached at the spot and nabbed accused. Thereafter, PW3 made a PCR call after which IO had reached at the spot. PW1 had handed over the parking slip to IO which was seized by him. 10 conducted personal search of accused and above said notes were recovered from possession of accused which were seized by IO in a white envelope and with a white cloth which was stamped GS by him. Thereafter, case was registered and accused was arrested. Witness had correctly identified the case property in the court.
8. PW4 deposed that he run two parkings at 92-95 Nehru Place via tenders from DDA He had given the work of collecting parking amount and giving receipts to accused and another person namely Vinod. He had given the parking receipts as per the rates issued by DDA i.e. Rs. 5 for two wheeler, Rs. 10 for car and Rs. 30 for tempo. Accused used to issue receipts to car owners throughout the day. On 03.01.2014, he had come to know that accused was charging R PwW4 had never asked accused to collect wrong charges. Accused used to deposit the collected amount at the rate of Rs. 10. PW4 had supplied possession letter no. F-99 (12) 292/LPC/Parking/2014 dated 05.03.2020 to the 10.
9. PW-5 deposed that he was working as collection of parking fee in front of 6 s. 30 instead of the authorized rate. He further stated that driver in Delhi. Later on he started work of Modi Tower Nehru Place. Accused Gaurav was also working with PW5 as a collector boy for parking fee. PWS has worked there with him for 02-03 days. After the incident, PW5 had left the job as he got afraid. PW5 used to arrange the parking and exit of the vehicles. Accused was incharge to collect the parking fee. The parking fee of car was 10 rupee and Rs. 5 for bike.
10. PW6 deposed that on 03.01.2014 he along with |O was posted at Emergency duty. IO had received a call at about 12:40 PM regarding conflict with traffic staff. He along with iO reached at the spot and met other police officials present there. They told him and JO about excess parking fee being charged by accused. PW1 had produced one parking slip. Thereafter, 1O conducted his personal search. PW6 had conducted personal search of accused and had found note of Rs. 20/- and 10/- respectively signed by PW3. The said notes were seized by !O. Thereafter, |O had prepared tehrir and handed over to him for registration of FIR. Thereafter, PW6 went to PS and got the FIR registered. After the registration of FIR, PW6 came back at the spot and handed over the copy of FIR to IO.
Thereafter, accused was arrested and disclosure statement of accused was also recorded Ex. PW6/A. Witness correctly identified you and the case property.
11. PW? deposed that on 03.01.2014, he was on emergency duty from 08:00 AM to 08:00 PM he received DD No. 25 regarding quarrel! in DDA parking Nehru Place, near Hemkund Chamber. Thereafter, he along with Ct. Babbal reached at the spot where he met with traffic staff from PRG Inspector Sachinder Mohan Sharma, Ct. Rajnish and other Staff. He recorded statement of Ct. Rajnish already Ex. PW1/A. Ct. Rajnish informed PW7 7 RAE that parking attendant charge more price for parking. PRG staff apprehended accused and handed over to PW? Inspector has sent Ct. Rajnish with signed currency of Rs. 10/- and Rs. 20/- to park vehicle to check whether they charge more or not. Thereafter, Ct. Rajnish parked the vehicle and took the receipt and left. After some time, when Ct. Rajnish came back to parking area to take his car, accused charged Rs. 30/- which was paid by Ct. Rajnish. Ct. Rajnish asked accused that the fix rate is Rs. 10/-. In the meantime, Ct. Babbal conducted cursory search of accused and recovered two signed currency notes i.e. Rs. 10/- and Rs. 20/-. He seized the same already Ex. PW1/C. In the meanwhile, he prepared the rukka and gave to Ct. Babbal for registration of FIR. Further, he prepared the site plan at the instance of Ct. Rajnish already Ex. PW1/B. He also recorded the statement of Ct. Rajnish, Inspector Sachinder Sharma. Thereafter, Ct. Babbal came back to the spot and handed over him original copy of FIR and rukka Ex. PW7/A. Further, he recorded the Statement of Ct. babbal. Thereafter, he arrested accused and conducted personal search of accused vide memos Ex. PW1/E and Ex. PW1/F. In the mean time, he seized photocopy of possession letter and parking slip Ex. PW1/D. Thereafter, he recorded disclosure statement of accused Ex. PW6/A. Thereafter, he along with Ct. Babal and accused went to PS. Accused sent to lockup and case property deposited in malkhana. During course of investigation, he obtained the specimen handwriting of accused mark A (Colly). He also recorded statement of accused on next date. He produced the accused before court.
12. PW-8 deposed that the present case was marked to him for further investigation.
He prepared the charge sheet and submitted before the court.
13. Accused has admitted genuineness of documents i.e. FIR No. 05/14 and MHC M register no. 19 u/s 294 Cr.PC.
14. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 08.04.2022. Thereafter, statement of the accused u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") was recorded on 20.04.2022 wherein he denied the allegations and claimed to have been falsely implicated.
15. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross-examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt.
16. | have heard the Ld. APP and Ld. Counsel for the accused and have perused the case file.
17. Before examining the testimonies of the witnesses, it would be prudent to briefly discuss the legal position involved in the present case.
18. Section 420 IPC provides for the offence of cheating and dishonestly inducing delivery of property. Simple cheating is punishable u/s 417 IPC, But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of person deceiving, the same falls under the ambit of section 420. It reads as under:
"S420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person de-
ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"
19. The essential ingredients to attract section 420 IPC are:
e Cheating;
Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security; and Mens rea of the accused at the time of making the inducement.
20. It should also be noted that accused should have dishonest intention to cheat right at the time of making the promise or representation. If he does not have any such intention at the very outset and if he subsequently fails to fulfil the said promise, then he cannot be convicted for the offence punishable u/s 420 IPC. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Hira Lal Hari Lal vs. CBI (2003) 5 SCC 257.
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21. Having discussed briefly the legal Position involved in the present case, | shall now be examining the testimonies of PWs and the defence taken by the accused in the backdrop of the above discussed legal position.
FINDINGS
22. As discussed in the preceding part of this judgment, in the instant case, the accused has been charged for the offences of cheating. After perusing the testimonies of prosecution witnesses and other materials available on record, | am of the considered view that the prosecution has failed to prove the guilt of the offence beyond reasonable dobut due to following reasons:
(i) The prosecution has not filed on record relevant documents showing departure and arrival of the police officials (who were involved in the raid) from their office.
(ii) Contradictions among the testimonies of prosecution witnesses.
(ili) The prosecution has not examined any public / independent eye witness in support of its case.
(iv) FSL Report did not support the case of the prosecution.
23. | shall be discussing these reasons separately in the subsequent paragraphs of this judgment.
Non-filing of DD entries showing departure and arrival of police officials conductin raid 11
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24. Asperth on, the @ prosecuti j n h , the traffic police officials i.e..PW1 and PW3 had gone to the spot from office situ ated public re : at Todapur after having received numerous c garding charging of excess parking fee omplaints from the As per the Punj it i jab Police Rules, it is mandatory for the police officials to make entry 25, on in a register kept about i i the arrival and departure on duty at or from the police stati therein. This i isi his ig a mandatory provision which needs to be scrupulously followed by all the olice offici isi p officials. Relevant extract of provision enshrined in Chapter 22 Rule 49 providing for the same is reproduced below:
Matters to be entered in Register no. Il.
"Chapter 22 rule 49 thers, be antered:-
The following matters shall amongst oO (c}) The hour of arrival and departure on duty at or from a police all enrolled police officers of whatever rank, whether olice station or elsewhere, with a statement of immediately eir duty. This entry shall be made | of the officer concerned and ally by signature OF seal.
station of posted at the p the nature of th on arrival or prior to the departure shall be attested by the latter person The term Police Station will in e Posts wh Note-- clude all places such as Police Lines and Polic ere Register No. Il is maintained.
above rule clearly sugge n duty at or from the polic sts that the police officials are mandated to e station. In the instant
26. Perusal of the rival and departure 0 plied by the concer sg. The police officials have mes 29 the record their time of ar ned police witnesse n has not been com d departure of the not been case, this provisio ding the arrival an te 1987 (2) Cri ant entries regal It has been held in Rattan Lal Vs. Sta relev proved on record.
'ble Delhi High Court held that; Hon 12 'if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with Suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
27. In the instant case, PW1 in his cross-examination had admitted that he and PW3 had arrived at the spot from the office. While he could not state the departure entry number for his departure from the office, however he had stated that departure entries of all the officials were made. Similar statement was made by PWS in his cross-examination wherein he had stated that he used to make DD entries in the office for his arrival or departure.
28. Interestingly, no relevant DD entries were produced on record by the prosecution in order to show that PW1 and PW3 were on duty on the date of incident and also to show that they had gone to Nehru Place in order to apprehend the accused Gaurav. Hence, it would appear that both PW1 and PWS had conducted the alleged raid in the present case without making relevant entries regarding their arrival and departure at or from the police Station i.e. Todapur Police Headquarter. They did not even inform the senior police officials or take their permission before conducting the said raid. Failure to do the same on the part of PW1 and PW3 would weaken the case of prosecution against the accused Gaurav.
Contradictions in the testimonies of prosecution witnesses ly
29. Accose scrutiny and examination of the testimonies of prosecution witnesses would reveal certain material contradictions which would create doubt in the whole story of prosecution,
30. First, as per the prosecution, PW1 and PW3 had gone to the spot to conduct a raid after having recelved numerous complaints/information from public regarding charging of excess parking fee. PW1 and PW3 had also supported the prosecution on this aspect and deposed that they had gone to Ihe spot to conduct raid on the date of incident. However, as per the testimony of PW7 (the 1O of the present case), he had received DD No. 25 regarding quarrel in DDA parking Nehru Place, near Hemkund Chamber pursuant to which he had reached at the spot. The said DD is also filed on record. As per the said DD, an information regarding quarrel between the parking attendant and traffic staffs was received at the PS Kalkaji. If the accused was apprehended by PW1i and PW3 after a raid, information should have been given to the PS Kalkaji regarding raid and not regarding quarrel with the accused.
31. Second, PW in his testimony had stated that they had conducted raid after informing the senior officer. He and PW1 had also stated that they had made relevant DD entries before departing from their office to Nehru Place. However, the said entries were not filed on record. In fact, the relevant DD entries were not even available at Toda Pur Police head quarter where PW1 and PWS were required to make relevant entries of their arrival and departure. Reference can be taken from the testimony of PW7, the !O of the 14 Or their duty was given to him."
32. These are material contradictions in the testimonies of 10 and PW1 & PW3 which will cause dent in the Case of prosecution.
Non-examination of public / independent witnesses
33. it is the case of prosecution that many complaints were received at Traffic PRy, Todapur, Dethi regarding charging of more than the prescribed parking charges at Nehru Place. After receiving the complaints, the traffic officials went at Nehru Place and conducted a raid wherein accused was apprehended while charging more than the prescribed parking fee.
34. PW1 in his testimony had categorically stated that 'on 03/01/2014 | was posted as Constable at traffic PRJ, Todapur, Delhi. On that day, | along with Inspector Sachinder Mohan, HC Virender visited at Nehru Place parkino as we have got many complaints regarding my charging of the parking as prescribed.' Similar statement was made by PW3 in his testimony wherein he had deposed that they have been receiving information/complaints with regard to excess charges being received by parking attendants of the parking at Nehru Place area.
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35. Interestingly, not even a single person who had made the said complaints or had provided information to the police officials were examined at the time of trial. In fact, none of them were examined during the course of investigation. It is not the case of prosecution that secret information received by the police officials. If numerous complaints were made regarding charging of more than the prescribed parking fee then the prosecution had the duty to prove the source of information. However, the prosecution has failed to prove the same in the present case.
36. 'It should also be noted that after receiving the complaint in this regard the traffic police officials should have informed the local police station having the jurisdiction over Nehru Place. They should have also informed the local police before conducting raid at parking of Nehru Place. However, the local police officers were not informed before the raid. They were only informed when the accused was apprehended at the spot while charging excess parking fee from the traffic officials. This could be corroborated from the admission made by PW1 in his cross-examination where he had categorically admitted that he had not made any entry in the local PS on arrival and inspection of the spot.
37. Also, in this case, raid was conducted in a very well-planned manner. As per the testimonies of PW1 and PWS, on 03/01/2014, they had reached spot where PW3 had handed over to currency notes of = 20/- and % 10/- denomination having his signatures over the same to PW1. Thereafter, they had parked their vehicle at the spot and the accused who was a parking attendant had handed over parking slip Marked A. After 1 16 h our, when they came back to take out their vehi shen thew: eir vehicle, PW1 went to take out his vehicle cused forced him to ay R - i j he poco of pay Rs. 30/- as parking fee. This would clearly mean that e offici lals had planned the raid beforehand. However, int i secon was neta , interestingly no public ed in the said raid. In order to strengthen their case, they should hav included i i i | , public person in the said raid. Even if no public person was included in the raid al beforehand , and they should have been made to join the raid at the spot itself which admitted] y was a crowded place. However, no such endeavor was made by the police officials conducting the raid.
38. Inf ; 1s act no public persons were joined by the IO during the course of investigation. If the a , ccused was charging excess parking fee then he would have also charged excess amount from other persons also who had parked the vehicles at the spot. However, no such person was examined by the 1O during the course of investigation. No endeavour in this regard was made by 10.
39, Itis a settled proposition of law that the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, e scrutinised in more detail. If it is found the police however, their testimonies should b estigation did not even make endeav mes and details etc. then it officials during the course of inv our to ask the public ation, did not even ask their na witnesses to join the investig police officials. At this stage, would cast a very serious doubt on the testimonies of the m the decision of the Hon 17 'ple Supreme Court in the case of reference can be taken fro Apex Court held interalia the following:
40.
v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject "In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded an the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence. however, only requires a more careful scrutiny of their evidence. since they can be said to be interested in the result of the case projected hem. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of me independent witn f the locality to lend corroboration to__their evidence, does not in any way affect__the creditworthiness of the prosecution case. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record."
Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
1841. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more strictly. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
42. As discussed in the preceding paragraphs of this judgment, IO did not even make any endeavor to join the public witnesses, It should be noted that if PW1 and PWS had apprehended the accused charging excess parking fee after conducting a well-planned raid, prosecution should have brought the relevant records showing their arrival and departure and should have proved by documentary evidence that they were on patrolling duty by producing DD entry for the same. They did not even inform the superior officials or taken their permission before conducting the raid. No such documents could be found by the IO during the course of investigation.
43. Hence, non-examination of public witnesses/independent witnesses would further weaken the case of prosecution.
inconclusive nature of FSL Report 44, During the course of investigation, sample signature and handwriting of the accused were collected and the same was sent to FSL along with the original parking receipt.
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45. FSL Report was filed on record by way of supplementary charge-sheet o 15.03.2017. FSL Report is in the nature of evidence of hand writing expert which is admissible in evidence under section 45 of the Indian Evidence Act. It is admissible per se u/s 293 Cr.P.C also and can be used as evidence during the course of trial without it being formally proved,
46. However, it is settled proposition of law that before acting upon the opinion of the hand-writing expert, prudence requires that the court must see that such evidence is corroborated by other evidence either direct or circumstantial evidence. The evidence of an expert is rather a weak piece of evidence, and, therefore, should not be considered as "conclusive" proof in the absence of any independent and reliable corroboration. At this Stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Magan Bihari Lal v. State of Punjab (1977) 2 SCC 21 0, wherein while dealing with the evidence of a handwriting expert, the Apex Court Court opined that:
"... We think it would be extremely appellant merely on the strength handwriting expert. It is now well must always be received with great so with more caution than the opinio hazardous to condemn the of opinion evidence of a setiled that expert opinion caution and Perhaps none nofa 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 20 by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra Vv. Mohd. 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 Banerjee v. Subodh Kumar Banerjee 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 MP. 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 and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
This ratio was reiterated by the Hon'ble Supreme Court in the case of Murari Lal v. State of Madhya Pradesh (1 980) 1 SCC 704, wherein while discussing reliability of evidence of hand writing expert, the Apex Court held as under:
"Go eceens 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 experis, 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 \, 21 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 fo 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 Davis v. Edindurgh Magistrate, 1953 SC 34 quoted by Professor Cross in his evidence)."
SL eee
6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the Court has to form an apinion upon @ 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......... So, corroboration may not invariably be insisted upon before acting on the opinion of an 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."
47. Recently, in the case of Padum Kumar vs. State of Uttar Pradesh (2020) 3 SCC 35, the Hon'ble Supreme Court examined in detail the relevancy and reliability of the evidence of hand writing expert and reiterated that such evidences are relatively weak 22
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piece of evidences which need to be corroborated from other evidences available on record.
48. In the instant case, perusal of the FSL Report would show that it remained inconclusive on the point of matching of sample handwriting/signature of accused with the handwriting'signature present on the parking raceipt. As par the said report, it was not possible to link the authorship or otherwise of the questioned handwriting i.e. parking slip with the sample handwriting. It was further mentioned that further attempt could be made if some other standard admitted handwritings preferably on parking slips of contemporary period of the accused. However, no such effort was made by the IO to collect other sample admitted handwriting/signature of the accused.
49. Hence, even the FSL report cannot be used by the prosecution in its favour. In fact, the inconclusive nature of FSL Report would further weaken the case of prosecution.
50. 'It is a settled proposition of law that in a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some Statutory exceptions. It was observed in Partap v. State of U.P.. (SC) 1976 A.LR. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee 23 burden i i en is always is on prosecution and never shifts
51. There in vi j fore, in view of the above discussions and findings, while there are grave mitted the alleged offence, however, suspicions against the accused for having com his guilt beyond reasonable doubt. Requisite safeguards prosecution has failed to prove cting raid were not taken by PW1 and cting the raid. There are certain material PWw3. Local police station was before or after condu d by PW1 and PW3 before condu of prosecution witnesses. No ersons who had filed compl not informe public/independent eye-
adictions in the testimonies aints with d by the prosecution. Other p ined during the course O contr witnesses were examine f investigation nor were the traffic police officials were neither exam they examined at the time of trial.
52 Hence accused Gaurav stands acquitted for the offence punishab'e u/s 420 IPO. . 3 A 7! wie ple eat ;
Kumar g / Zi-
ced in the open court on 08.06.2022 (Animesh v8 'rn MM-06, South East, New Delhi a e De bears rtified that this judgment contains ola Pa ef and 8 Oa pag tis ceru 62 rain "cual of oi) 2b a MM-06, south h East, New peihi/08- 96.2022 Slog ve Slate ef Ue Po GG) 1880/8) S.C, 180 Rt was again held that in criminal casas burden is always 18 an prosecution and never shifts, St. Therefore, in vlaw af the above discussions and findings, while there are grave auapicions agaist the aecused far having committed the allaged affance. hawever, pragecullan has falled to prove his gullt bayand reasonable doubt. Requisite safeguards batare ar atter conduating rad were not taken by PW and PWS. Local police station was hat Infarmed by PWT and PWS before canduating the raid, There are carain material BaNtAdotONS Ih the tastinonias af prosecuilan witnesses, No publicdindepandant aye.
the traffig potiee atficials were nedher examined ding the course of Investigation nor were thay axantiied at the tine at tial.
He Hande, adcueed Gauray etands acauitted for the attenoe punishable US ARQ IBS, AY oat yey Ae Sh Rian ates Annauneed in the apen court an 08.08.2028 (Animesh Kumar)es, ;
MM-06, South Bast, New Delht.
it is eertitied that this Judgment contains 34 pages and each page bears My signaturer. by wet ohh Ke ser Re (Antnesh Kanvar) MIN-06, South East, Naw DathlOs.08. 2022