KESHAV DUTTversusSTATE OF HARYANA

                   [2010] 10 S.C.R. 151


                      KESHAV DUTT                               A
                             v.
                  STATE OF HARYANA
           (Criminal Appeal No. 1560 of 2010)
                    AUGUST 19, 2010
                                                                8
      [ALTAMAS KABIR AND DR. MUKUNDAKAM
                  SHARMA, JJ.]

    Prevention of Corruption Act, 1988: s.13(1 )(d) -
Conviction based on report of handwriting expert - Bribe C
amount recovered from the co-accused - Appellant not
present on the spot nor did he receive the money - Held: It
was only the report of handwriting expert which connected the
appellant with the offence on account of the paper which was
said to be in his handwriting - The handwriting on the paper D
was not formally proved by the prosecution - The expert was
not examined - In the absence of examination of expert, his
report cannot be relied on - The complicity of appellant was
thus not established beyond doubt - Appellant entitled to
benefit of doubt - His conviction set aside.                  E
    Evidence: Report of handwriting expert - Admissibility of
- Held: Report of a handwriting expert cannot be admitted in
evidence without examination of the expert - Prevention of
Corruption Act, 1988.
                                                                F
     The prosecution case was that the appellant-accused
alongwith the co-accused employed as meter readers
under the Electricity Board went to the house of the
complainant for checking the electricity meter. After such
checking, they informed the complainant that the load in        G
the meter was excess of the permissible load which was
liable to fine. The meter reading was noted on a paper
Ex.PR by the appellant. They informed the complainant

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    152      SUPREME COURT REPORTS         [2010] 10 S.C.R.


A that if he paid bribe money, the matter would be hushed
  up. After about a week, both the accused again went to
  the complainant's house and demanded the bribe money
  and ultimately a sum of Rs.2000 was fixed. The complaint
  was made and trap was laid. The co-accused as well as
B one 'M' went to the complainant's house. The raiding
  party recovered money from 'M'. All the three accused
  were charged under Section 7 read with Section 13(1)(d)
  of the Prevention of Corruption Act, 1988. The appellant
  and the co-accused were convicted under Section
C 13(1 )(d) and sentenced to undergo rigorous
  imprisonment for a period of three years. However, 'M'
  was acquitted of all the charges. The appellant and the
  co-accused filed the appeals challenging the conviction
  and the sentence. State also filed appeal against the order
D of acquittal of 'M'. The High Court affirmed the judgment
  of conviction~ It, however, reduced the sentence of
  imprisonment from three ·years to one year. The High
  Court also dismissed the appeal preferred by the State.

E      In the instant appeal, it was contended for the
  appellant that without examining the handwriting expert,
  reliance could not be placed on his report; and that since
  the appellant was acquitted under Section 7 of the
  Prevention of Corruption Act, 1988, his conviction under
F Section 13(1)(d) of the Act was not maintainable.

          Allowing the appeal, the Court

      HELD: The appellant had neither received the bribe
  money nor was he present at the spot when the same
G was received by the co-accused, who handed over the
  same to 'M', but the involvement of the appellant did not
  require his presence at the time of the raid as he was
  connected with the offence in view of Ex.PR which was
  the paper on which the meter reading was jotted down
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      KESHAV DUTT v. STATE OF HARYANA               153


allegedly by the appellant. Ex~PR was proved by the A
handwriting expert to be in the handwriting of the
appellant. In that context, the question whether the
opinion of the handwriting expert could have been relied
upon without examining him was relevant. The report of
the fingerprint expert who was not examined, indicated B
that a specimen writing was given by the appellant and
on a comparison of the same with the writings in Ex.PR,
the fingerprint expert came to the conclusion that they
were written by the same person. The trial court skirted
the issue by holding that the defence could have C
examined an expert to rebut the report. The High Court
recorded that the report having gone unrebutted could
be relied upon without any demur. The views of the trial
court as well of the High Court in that regard cannot be
accepted. When the trial court chos~ to rely on the report D
of the handwriting expert, 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 accused had admitted the report E
 of the handwriting expert. Both the trial court and the
 High Court erred in denying the appellant such
 opportunity and shifting the onus on him to disprove
 Ex.PR which was not formally proved by the prosecution.
 It was only the report of the handwriting expert, Ex.PY, F
 which connected the appellant with the offence on
 account of Ex.PR which was 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 G
 treated on a different footing and since his complicity
 was not established beyond doubt 011 the basis of Ex.PR
 and Ex.PY, he must be given the benefit of doubt. The
 impugned order is liable to be set aside on this ground
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    154       SUPREME COURT REPORTS             (2010] 10 S.C.R.


A alone. The judgment of conviction and sentence of the
  appellant under Section 13(1)(d) of the Prevention of
  Corruption Act, 1988, is set aside. [Paras 11, 12, 13, 15]
  [158-E-H; 159-A-E; D-E-G]

B       CIRMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1560 of 2010.

        From the Judgment & Order dated 08.09.2009 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 427-SB of 2005.
c
          Nitin Sangra, Gaurav Agrawal for the Appellant.

        Rajeev Gaur 'Naseem', Nazid K. Hye, Kamal Mohan
    Gupta for the Respondent.
D         The Judgment of the Court was delivered by

          ALTAMAS KABIR, J. 1. Leave granted.·

       2. Two short points fall for consideration in this Appeal.
E One is whether the opinion of a handwriting expert can be
  admitted in evidence 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
F 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
G 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.
H
       KESHAV DUTT v. STATE OF HARYANA                    155
              [ALTAMAS KABIR, J.]
      4. According to the prosecution, on 23rd April, 2002, one A
Anil Kumar, son of Kewal Prakash Mehta, made an application
to the Superintendent of 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 B
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 C
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 D
accept a sum of Rs.2,00Q/- between 4.00-5.00 p.m. on the next ·
date, failing which the case against him would have to be made
ready, but if payment was made, the matter would be hushed
up.
                                                                  E
      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 F
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 G
 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 investigation, a charge sheet was filed against
 them in Court for their trial.
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    156     SUPREME COURT REPORTS              [2010] 10 S.C.R.


A      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-S8 of 2005 filed by
8 Keshav Dutt, the Appellant herein, and Criminal Appeal
  No.438-S8 of 2005 filed by Kewal Kumar. The third Appeal
  No.1328-S8 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
C 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.

      7. It is against the said order that the present Special
D 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 120-8 IPC could be maintained against the
E 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
F 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 120-8/34 IPC had been brought against the accused
  persons.

G     9. The other question raised was whether without
  examining the handwriting expert his report could 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
H of Maharashtra Vs. Damu [2000 (6) SCC 269], wherein while
         KESHAV DUTT v. STATE OF HARYANA                       157
                [ALTAMAS KABIR, J.]
 considering the case of abducting and triple infanticide, this        A
 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       B
 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
 .O_~ppellant on the basis of the above could not be sustained.

         10. The submissions made on behalf of the Appellant were      C
  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            D
  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      E
  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        F
   the 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              G
  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         H
    158      SUPREME COURT REPORTS               (2010] 10 S.C.R.


A   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
B Appellant did not justify interference of 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
C   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
D   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
E   relevant. The Trial Court has dealt with this 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
F   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
G   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
H   of one and the same persons. The High Court went on to
       KESHAV DUTT v. STATE OF HARYANA                        159
              [ALTAMAS KABIR, J.]
observe that the Appellant did not have the courage to examine        A
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.   8
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         C
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             D
accused to 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-        E
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 · F
     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.     G

     (2) xxx                   xxx             xxx
     (3) xxx                   xxx             xxx
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    160          SUPREME COURT REPORTS                 [2010] 10 S.C.R.

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

           (a)       xxx        xxx        xxx
           (b)       xxx        xxx        xxx
B
           (c)       xxx        xxx        xxx
           (d)       xxx        xxx        xxx
           (e) The Director [Deputy Director or Assistant Director of·
c          a Central Forensic Science Laboratory or a State forensic
           Science Laboratory];

           (f) xxx                        xxx                 x:xx"
           13. In the instant case, it is only the report of the handwriting
D expert, Ex.PY, which connects the Appellant with the offence
  on account of Ex.PR which is said to be in his hand\.yriting.
  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
E 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
F   have been raised in this Appeal, we are of 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 P.revention of Corruption Act, 1988, is
G 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.

    D.G.                                                 Appeal allowed.
H