Keshav Dutt vs State Of Haryana

this Appeal. One is whether the opinion of a

handwriting expert can be admitted in evidence 2

without examination of the handwriting expert and

the other is whether a person who is charged of an

offence under Section 7 read with Section 13(1)(d)

of the Prevention of Corruption Act, 1988, and is

subsequently acquitted of the charge under Section

7, can still be convicted under Section 13(1)(d) of

the aforesaid Act.

3. The Appellant and one Kewal Kumar were

convicted by the Special Judge, Yamuna Nagar at

Jagadhari, under Section 13(1)(d) of the Prevention

of Corruption Act, 1988, and were sentenced to

undergo rigorous imprisonment for a period of three

years and to pay a fine of Rs.2,000/-, in default,

to undergo rigorous imprisonment for a further

period of six months. The co-accused Mahesh Kumar

was, however, acquitted of all the charges.

4. According to the prosecution, on 23rd April,

2002, one Anil Kumar, son of Kewal Prakash Mehta,

made an application to the Superintendent of 3

Police, Vigilance, Ambala, stating that he was

running a dairy adjoining his house. On 19th April,

2002, Kewal Kumar and the Appellant herein, who

were employed as Assistant Lineman and Meter

Reader, respectively, under the Electricity Board,

Sadhaura, came to his house for checking the

electric meter. After such checking, the said Anil

Kumar was made to sign on a paper and was informed

that the load in the meter was in excess of the

permissible load and the matter would have to be

reported to the Board which could entail a fine of

at least Rs.14,000-15,000/-. The accused persons

then informed him that he would have to pay a sum

of Rs.7,000/- as bribe if he wanted the case to be

hushed up. The further case of the prosecution is

that on 25th April, 2002, both the accused came to

Anil Kumar's house and, once again, demanded the

bribe money and ultimately the said two accused

agreed to accept a sum of Rs.2,000/- between 4.00-

5.00 p.m. on the next date, failing which the case 4

against him would have to be made ready, but if

payment was made, the matter would be hushed up.

5. The matter was endorsed by the Superintendent

of Police to the Vigilance Inspector before whom

the complainant produced Rs.2,000/- for the purpose

of laying a trap. Ultimately, the accused Kewal

Kumar as well as Mahesh Kumar came to the

complainant's house and went inside and on a signal

being given, the members of the raiding party went

inside the house and asked Kewal Kumar to hand over

the bribe money which he had taken from the

complainant. Kewal Kumar indicated that the money

had been given to Mahesh Kumar and on demand Mahesh

Kumar made over the same to the Inspector. The

hands of both Kewal Kumar and Mahesh Kumar were got

washed separately in a solution of Sodium

Carbonate, the colour of which turned pink. The

accused were put under arrest and after police 5

investigation, a charge sheet was filed against

them in Court for their trial.

6. All the three accused were charged under

Section 7 read with Section 13(1)(d) of the above-

mentioned Act and were convicted and sentenced as

mentioned hereinbefore. The judgment and order of

the Trial Court was questioned before the High

Court in Criminal Appeal No.427-SB of 2005 filed by

Keshav Dutt, the Appellant herein, and Criminal

Appeal No.438-SB of 2005 filed by Kewal Kumar.

The third Appeal No.1328-SB of 2009 was filed by

the State of Haryana against the acquittal of

Mahesh Kumar of the charges framed against him.

The High Court while affirming the judgment of the

Trial Court as far as Kewal Kumar and the Appellant

are concerned, reduced the sentence of imprisonment

from three years to one year. The High Court also

dismissed the Appeal preferred by the State. 6

7. It is against the said order that the present

Special Leave Petition has been filed.

8. The main contention of Mr. Nitin Sangra,

learned Advocate appearing for the Appellant, is

whether a charge under Section 120-B IPC could be

maintained against the Appellant in respect of an

offence committed by his co-accused. Elaborating

further, learned counsel also raised the question

as to whether the Appellant's conviction under

Section 13(1)(d) of the Prevention of Corruption

Act, 1988, was maintainable when the accused had

been acquitted under Section 7 of the Act and the

Appellant neither received the bribe money nor was

he present when such bribe amount was said to have

been paid to the co-accused and no charge under

Section 120-B/34 IPC had been brought against the

accused persons.

9. The other question raised was whether without

examining the handwriting expert his report could 7

have been admitted into evidence and relied upon

although the same formed the main basis of

conviction. In this regard, the learned counsel

placed reliance on the decision of this Court in

State of Maharashtra Vs. Damu [2000 (6) SCC 269],

wherein while considering the case of abducting and

triple infanticide, this Court had occasion to

consider whether reliance could be placed on the

opinion of the Assistant State Examiner of

Documents without examining him as a witness in

Court. This Court held that from the opinion

itself it could not be gathered whether his office

would fall within the purview of Section 293

Cr.P.C. Accordingly, the Court observed that

without examining him as an expert witness, no

reliance could be placed on his opinion. Learned

counsel urged that the conviction of the Appellant

on the basis of the above could not be sustained. 8

10. The submissions made on behalf of the Appellant

were opposed on behalf of the State of Haryana and

it was submitted that the provisions of Sections 7

and 13(1)(d) contemplated separate offences which

could stand independently and were not entirely

dependent on each other. Learned counsel urged

that even if an accused was acquitted of the charge

under Section 7, he could still be convicted under

Section 13 of the Prevention of Corruption Act,

1988, as has been done in the instant case. It was

observed by the High Court that PW.5 had

categorically stated that he had not authorized

accused Kewal Kumar as also the Appellant to check

the meter installed at the residence of the

complainant and that it was because of this reason

that the Trial Court had excluded this accused from

the offence under Section 7 of the Act. The Trial

Court, in fact, observed that the complaint Ex.PJ

was written by some official of the Vigilance

Department or by someone at the instance of the 9

Inspector and even the complainant could not

identify the person who had written the complaint.

However, as far as the offence under Section

13(1)(d) is concerned, the High Court affirmed the

findings of the Trial Court that the bribe money

had been demanded and received by the accused

persons. The Appeal Court also observed that the

bribe money had been initially received by Kewal

Kumar who had handed over the same to Mahesh Kumar,

who was acquitted by the Trial Court. However, the

document Ex.PR which bears the signature of the

complainant, coupled with Ex.PY, the report of the

Forensic Science Laboratory, connected the

Appellant herein with the commission of the crime

and it was held that he could not be allowed to go

free only because he was not present or apprehended

at the time of the raid. Learned counsel for the

State submitted that the submissions made on behalf

of the Appellant did not justify interference of 10

this Court with the impugned judgment of the High

Court.

11. We have considered the submissions made on

behalf of respective parties and have also taken

note of the fact that the Appellant had neither

received the bribe money nor was he present at the

spot when the same was received by Kewal Kumar, who

handed over the same to Mahesh Kumar, but the

involvement of the Appellant did not require the

presence of the Appellant at the time of the raid

as he was connected with the offence in view of

Ex.PR which is the paper on which the meter reading

was jotted down allegedly by the Appellant, which

was proved by the handwriting expert to be in the

handwriting of the Appellant. In this context, the

plea taken on behalf of the Appellant as to whether

the opinion of the handwriting expert could have

been relied upon without examining him becomes

relevant. The Trial Court has dealt with this 11

question by taking recourse to Section 73 of the

Indian Evidence Act, 1872, which enables the Court

to compare the signatures, writing or seal with

others admitted or proved. In the instant case,

the report of the fingerprint expert who had not

been examined indicates that a specimen writing had

been given by the Appellant and on a comparison of

the same with the writings in Ex.PR, the

fingerprint expert had come to the conclusion that

they had been written by the same person. The Trial

Court skirted the issue by holding that the defence

counsel could have examined in their defence to

rebut the findings of the Assistant Director,

Forensic Science Laboratory, Haryana. The High

Court also skirted the issue by observing that the

science of handwriting being imperfect and

inaccurate, it is very difficult, if not impossible

to give the opinion that the writings were in the

hand of one and the same persons. The High Court

went on to observe that the Appellant did not have 12

the courage to examine any counter expert in

rebuttal of the report. The High Court recorded

that the report having gone unrebutted could be

relied upon without any demur.

12. We are afraid that we cannot concur with the

views either of the Trial Court or of the High

Court in the above regard. When the Trial Court

chose to rely on the report of the handwriting

expert (Ex.PR), it ought to have examined the

handwriting expert in order to give an opportunity

to the Appellant and the other accused to cross-

examine the said expert. There is nothing on

record to show that the Appellant and the other

respondents had admitted the report of the

handwriting expert. In our view, the Trial Court

ought to have allowed the Appellant an opportunity

to cross-examine the expert and both the Trial

Court and the High Court erred in denying him such

opportunity and shifting the onus on the accused to 13

disprove Ex.PR which had not been formally proved

by the prosecution. The decision cited on behalf

of the Appellant regarding reliance on the opinion

of an expert who had not been examined as a

witness, however, includes an Assistant Director of

the State Forensic Science Laboratory in clause (e)

of Sub-section (4) of Section 293 Cr.P.C. Section

293(1)(4)(e), which is relevant for our purpose is

extracted below :-

293. Reports of certain Government scientific experts.

(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2) xxx xxx XXX (3) xxx xxx xxx

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

(a) xxx xxx xxx 14

(b) xxx xxx xxx

(c) xxx xxx xxx

(d) xxx xxx xxx

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

(f) xxx xxx xxx"

13. In the instant case, it is only the report of

the handwriting expert, Ex.PY, which connects the

Appellant with the offence on account of Ex.PR

which is said to be in his handwriting. Since the

Appellant had neither received the money nor was he

present at the spot from where the other accused

were apprehended, his case has to be treated on a

different footing and since his complicity has not

been established beyond doubt on the basis of Ex.PR

and Ex.PY, he must be given the benefit of doubt.

14. Without, therefore, going into other questions

which have been raised in this Appeal, we are of 15

the view that the same should be allowed on the

aforesaid ground alone.

15. The Appeal, accordingly, succeeds and is

allowed and the judgment of conviction and sentence

of the Appellant under Section 13(1)(d) of the

Prevention of Corruption Act, 1988, is set aside.

In the event, the Appellant has since been

apprehended and is in custody, he shall be released

forthwith, if not wanted in connection with any

other case.

.........................................................J. (ALTAMAS KABIR)

............................................................J. (DR.MUKUNDAKAM SHARMA) New Delhi, Dated: 19.08.2010.