Holding

The opinion of a typewriter expert is admissible as expert evidence under Section 45 of the Indian Evidence Act, 1872.

Summary

The State prosecuted S.J. Chaudhary for murder and offences under the Explosive Substances Act, seeking to introduce the testimony of a typewriter expert to identify the machine that produced a disputed document. The trial court and the Delhi High Court excluded the expert's opinion, relying on the earlier Supreme Court decision in Hanumant v. State of Madhya Pradesh, which had held such evidence inadmissible under Section 45 of the Indian Evidence Act. On appeal, the Supreme Court examined whether Section 45's reference to "science" and "handwriting" could encompass typewriting and the scientific analysis performed by a typewriter expert. The Court held that the term "science" in Section 45 is broad enough to include the specialized scientific study of typewriting, making the expert's opinion admissible. It further overruled the Hanumant decision as no longer good law on this point. Consequently, the Court allowed the appeal, setting aside the orders of the trial and High Courts.

Issues considered

Whether the opinion of a typewriter expert is admissible as expert evidence under Section 45 of the Indian Evidence Act, 1872.
Whether the word "handwriting" in Section 45 includes typewriting, or whether the word "science" suffices to admit typewriter expert testimony.
Whether the precedent set in Hanumant v. State of Madhya Pradesh remains good law.

Legislation cited

Explosive Substances Act, 1908s. 3, s. 4
Indian Evidence Act, 1872s. 45

Subjects

typewriter expertexpert opinionSection 45Indian Evidence Actadmissibility of scientific evidencehandwritingscienceHanumant overruledcriminal evidence

Judgment

A STATE (THROUGH CBI/NEW DELHI)
v.
S.J. CHOUDHARY

FEBRUARY 13, 1996

B [J.S. VERMA, G.N. RAY, N.P. SINGH, FAIZAN UDDIN
AND G.T. NANAVATI, JJ.) ...
Indian Evidence Act, 1872--Ch°apter II-Sec. 45-Held, opinion of
typewriter expe1t is admissible in evidence.
c
Words and Phrases : "Science" "Handw1iting"-Meaniitg of-In the
context of opinion of typewliting expert-S.45 of Evidence Act. 1872.

The respondent was tried in the Sessions Court, New Delhi for
offences under Sections 302 IPC and Sections 3 and 4 of Explosive Sub-
D stances Act, 1908. When the prosecution wanted to examine a typewriter
expert for proof of certain incriminating facts against the respondent
based on the identity of a typeWriter on which a material document was
alleged to have been typed, an objection was taken to the admissibility of
the opinion evidence of the typewriter expert under Section 45 of the Indian
E Evidence Act, 1872 based on the decision of the Supreme Court in
Hanumant v. The State of Madhya Pradesh, AIR (19952) SC 343 = [1952]
SCR 1091. The trial court upheld the objection. The Revision Petition
before the High Court was also dismissed.

The Appellants challenged the correctness of the findings in
F Hanumant's case and sought for reconsideration of the said judgment.

Allowing the appeal, this Court

HELD :_1. The observations made in the decision in Hanumant's case
on the basis of a concession does not reflect the correct position of law on
G this point and should, therefore, be treated as no longer good law on the
point. The decision in Hanumant's case proceeds on the concession that the

-
evide!~~e of a typewliter expe1t is not admissible in evidence under Section 45
of the Eviden,ce Act. The decision in Hanumant cannot be taken as deciding
that point event though on the basis of that observation the evidence of
H typewriter ex11ert was excluded as inadmissible. [567-E-F; 559-D-E]
556
STATE v. S.J. CHOUDHARY 557

Hanwnant v. 17ie State of M.P., AIR (1952) SC 343 =[1952] SCR A
1091, overruled.

• 2. The opinion of the typewriter expert in the present case is admis·
sible under Section 45 of the Evidence Act and the contrary view taken by
the Trial Court and the High Court is erroneous. [567-F]
B
3. Irrespective of the view that the word "handwriting" in Section 45
includes typewriting the word "science" is wide enough to meet the require·
ment of treating the opinion of a typewriter expert as an opinion evidence
coming within the ambit of Section 45 of the Evidence Act. [567-B]

Statutory Interpretation by Francis Bennion, Second edition pp. 617 to
c
619; 'Question Documents, Second Edition, by Albert S. Osborn pg. 598~
'Photographic Evidence' by Charles C. Scott., Second Edition, Volume 1 pg.
, 636; 'Law of Disputed and Forged Documents', by J. Newton Baker pp.
451-453 and 'Typewriting Identification (Identification System for Questioned
(Typew1iting)' by Billy Prior Bates pg. 59, referred to. D
4. The word "Science" occurring independently and in addition to the
word "handwriting" in Section 45 of the Act of 1872, is sufficient to indicate
that the opinion of a person specially skilled in the use of typewriters and
having the scientific knowledge of typewriters would be an expert in this
science and his opinion about the identity of typewriting for the purpose E
of identifying the particular typewriter on which the writing is typed is a
'·
relevant fact under Section 45 of the Evidence Act. [561-E-F]

The Oxford Encyclopedic English Dictionary; the New Shorter Oxford
English Dictiona1y, Vol. 2; Collins Dictionary of the English Language, F
referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
461of1987.

From the Judgment and Order dated 20.5.87 of the Delhi High Court G
in Crl. R. No. 105 of 1987.

A. Jayaram Additional Solicitor General, A. Subha Rao and P.
Parmeswaran for the Appellants.

Respondent in-person (N.P.). H
558 SUPREME COURT REPORTS (1996] 2 S.C.R.
)
A The Judgment of the Court was delivered by

J.S. VERMA, J. The reference made in this appeal to the Constitu-
tion Bench is for deciding the important question of law : Whether the
opinion of a typewriter expert is admissible in evidence under Section 45
of the Indian Evidence Act, 1872?
B
The respondent - S.J. Chaudhary was being tried in the Court of
Addl. Sessions Judge, New Delhi, on charges punishable under Section
302, IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 in
Sessions Case No. 36 1983. the prosecution wanted to examine a typewriter
C expert for proof of certain 'incriminating facts against the respondent based
on· the identity of a typewriter on which a material document was alleged
to have been typed. An objectioi{ was taken to the admissibility of the
opinion evidence of the typewriter expert under Section 45 of the Indian
Evidence Act, 1872 (for short "Evidence Act:) based on the decision of this
Court in Hanumant v. The State of Madhya Pradesh, Air 1952 SC 343=1952
D SCR 1091, and the Trial Court upheld that objection. Criminal Revision
No. 105 of 1987 was filed in the Delhi High Court by the prosecution
challenging that order. The Delhi High Court has dismissed the revision,
hence this appeal by special leave.

E The present criminal appeal came up for hearing before a Division
Bench comprising of two learned Judges of this Court. The correctness of
the observations in Hanumant's case by a Bench of three learned Judges
on this point was doubted and reconsideration thereof was sought on
behalf of the appellant. Accordingly, by order dated March 22, 1990 the
Division Bench took the view that this important question of law involved
F in this appeal should be considered and decided .by a larger Bench. This
question of law is the only point involved for decision in this appeal and
the decision thereon would dispose of the appeal.

In Hanumant (supra), while dealing with one of the arguments
G advanced therein, it was stated thus :
"Next it was argued that the letter was not typed on the office
typewriter that was in. those days, viz., article B, and that it had
been typed on the typewriter article A which did not reach Nagpur
-
till the end of 1946. On this point evidence of certain experts was
H led. The High Court rightly held that opinion of such experts was not
STATE v. S.J. CHOUDHARY [J.S. VERMA, J.] 559

admissible under the Indian Evidence Act as they did not fall within A
the ambit of section 45 of the Act. This view of the High Court was
not contested before us. It is curious that the learned Judge in the
High Court, though he held that the evidence of the experts was
inadmissible, proceeded nevertheless to discuss it and placed some
reliance on it. The trial magistrate and the learned Sessions Judge
B
used this evidence to arrive at the finding that, as the letter was
typed on article A which had not reached Nagpur till the end of
December, 1946, obviously the letter was antedated. Their con-
clusion based on inadmissible evidence has therefore to be ig-
nored."
c
(page 1110)
(emphasis supplied)

The above passage in that decision is the basis of the view taken that the
opinion of a typewriter expert is not admissible under the Evidence Act D
and that it does not fall within the ambit of Section 45 of the Act. It is
significant that this view taken by the High Court in that case was not even
contested in this Court and, therefore, the decision in Hanumant proceeds
on the concession that the evidence of a typewriter expert is not admissible
in evidence under Section 45 of the Act. Jn our opinion, the decision in
Hanumant cannot be taken as deciding that point even though on the basis E
of that observation the evidence of typewriter expert was excluded as
inadmissible. The question of law has, therefore, to be answered without
any further assistance being available from the decision in Hanumant.

In the Indian Evidence Act, 1872, chapter II related to 'Relevancy of p
Facts' contains Sections 5 to 55 and therein under the heading 'Opinions
of Third Persons, when relevant' are Sections 45 to 51. Section 45 reads
thus:

-
"Opinions of experts - When the Court has to form an opinion
upon· a point of foreign law, or of science, or art, or as to identity· G
of handwriting [or finger impressions] (Ins. by Act 5 of 1899, S.3),
the opinions upon that point of persons specially skilled in such
foreign law, science or art, [or in questions as to identity of
handwriting] (Ins. by Act 18 of 1872, S.4), [or finger impressions)
(Ins. by Act 5 of 1899, S. 3), are relevant facts. H
i

560 SUPREME COURT REPORTS [1996] 2 S.C.R.
)
A . Such persons are called experts."

Illustration (c) to Section 45 is as under :

"(c) The question is, whether a c.ertain document was written
by A. Another document is produced which is proved or admitted
B to have been written by A.

The Opinions of experts on the question whether the two
documents were written by the same person or by different persons
are relevant."

C The plain meaning of Section 45 is that the Court in order to form an
opinion upon a point of foreign law, or of science, or art, or as to identity
of handwriting, or finger impressions can treat the opinion upon that point
of person specially skilled in such foreign law, science or art, or in ques-
tions as to identity of handwriting, or finger impressions as relevant facts.
D In other words, the opinion of persons specially skilled in such foreign law,
science, or art, or questions as to the_ identity of handwriting or finger
impression, called experts therein, are relevant facts. The opinion of such
experts is admissible in evidence as relevant facts by virtue of Section 45
of the Evidence Act.

E In our opinion, irrespective of the view taken on the question of
meaning of the word 'handwriting' in Section 45 to include typewriting, the
word 'science', occurring independently and in addition to the word
'handwriting' in Section 45, is sufficient to indicate that the opinion of a
person specially skilled in the use of typewriters and having the scientific
F knowledge of typewriters would be an expert in this science; and his
opinion about the identity of typewriting for the purpose of identifying the
particular typewriter on which the writing is typed is a relevant fact under
Section 45 of the Evidence Act. It is obvious that the Indian Evidence Act
when enacted originally in 1872 did not specifically mention typewriting in
addition to handwriting because typewriter-s were then practically un-
G known. However, the expression 'science, or art' in Section 45 in addition
to the expression 'foreign law' and 'handwriting' used in the Section as
originally enacted, and the expression 'finger impressions' inserted in 1899
is sufficient to indicate that the expression 'science, or art' therein is of
wide import. This expression 'science, or art' cannot, therefore, have a
H narrow meaning in Section 45 and each of the words 'science' and 'art' has
STATE v. SJ. CHOUDHARY [J.S. VERMA, J.] 561
)
/
to be construed widely to include within its ambit the opinion of an expert A
in each branch of these subjects, whenever the Court has to from an
opinion upon a point relating to any aspect of science or art.

The meaning of the word 'science' as understood ordinarily with
reference to its dictionary meaning must be attributed to the word as used
in Section 45 of the Indian Evidence Act. Some of the meanings given in B
the dictionaries are :

The OJ..ford Encyclopedic English Dictionmy :

"Science ..... a systematic and formulated knowledge, esp. of a
specified type or on a specified subject (political science). b. the C
pursuit or principles of this ....."

The New Shaner OJ..ford English Dictionmy, Vol. 2. :

"Science .... 2a Knowledge acquired by study; acquaintance with or D
mastery of a department of learning .... .3a A particular branch of
. ...,_ knowledge or study; a recognized department of learning; ... "

Collins Dictionary of the English Language ·:

"Science n. 1. the systematic study of the nature and behaviour of E
the material and physical universe, based on observation, experi-
ment, and measurement, and the formulation of laws to describe
these facts in general terms. 2. the knowledge so obtained or the
practice of obtaining it. 3. any particular branch of this knowledge:
the pure and applied sciences. 4. any body of knowledge organized
in a systematic manner. 5. skill or techniques .... " F
It is clear from the meaning of the word 'science' that the skill or
technique of the study of the peculiar features of a typewriter and the
comparison of the disputed typewriting with the admitted typewriting on a
particular typewriter to determine whether the disputed typewriting was G
done on the same typewriter is based on a scientific study of the two
typewriting~ with reference to the pe•t:uliarities therein : and the opinion
formed by an expert is based on recognised principle regulating the scien-
tific study. The opinion so formed by a person having the requisite special
skill in the subject is, therefore, the opinion of an expert in that branch of
the science. Such an opinion is the opinion of an expert in a branch of H
562 SUPREME COURT REPORTS [1996] 2 S.C.R.

A science which is admissible in evidence under Section 45 of the Indian
Evidence Act.

There cannot be any doubt that the opinion of an expert in typewrit-
ings about the questioned typed document being typed on a particular
typewriter is based on a scientific study of the typewriting with reference
B to the significant peculiar features of a particular typewriter and the
ultimate opinion of the expert is based on scientific grounds. The opinion
of a typewriter expert is an opinion of a person specially skilled in that
branch of the science with reference to which the Court has to form an
opinion on the point involved for decision in the case. In our opinion, on
C a plain construction of Section 45 giving to the word 'science' used therein
its natural meaning, this conclusion is inevitable; and for supporting that
conclusion, it is not necessary to rely on the further reason that the word
'handwriting' in Section 45 would also include typewriting.

Statutory Interpretation by Francis Bennion, Second edition, section
D 288 with the heading "Presumption that updating construction to be given"
states one of the rules thus :

"xxx xxx xxx

(2) It is presumed that Parliament intends the court to apply to an
E ongoing Act a construction that continuously updates its wording
to allow for changes since the Act was initially framed (an updating
construction). While it remains law, it is to be treated as always
speaking. This means that in· its application on any date, the
language of the Act, though necessarily embedded in its own time,
F is nevertheless to be construed in accordance with the need to treat
it as current law.

xxx xxx xxx

(Page 617)
G
In the comments that follow it is pointed out that an ongoing Act is taken
to be always speaking. It is also, further, stated thus :

"In construing an ongoing Act, the interpreter is to presume
that Parliament intended the Act to be applied at any future time
H in such a way as to give effect to the true original intention.
STATE v. SJ. CHC)UDHARY [J.S. VERMA, J.] 563

Accordingly the interpreter is to make allowances for any relevant A
changes that have occurred, since the Act's passing, in law, social
conditions, technology, the meaning of words, and other matters.
Just as the US Constitution is regarded as 'a living Constitution',
so an ongoing British Act is regarded as 'a living Act'. That today's
construction involves the supposition that Parliament was caterfog
B
long ago for a State of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of an enact-
mwt, is expected to anticipate temporal developments. The drafter
will try to foresee the future, and allow for it in the wording.

xxx xxx xxx c
An enactment of former days is thus to be read today, in the light
. of dynamic processing received over the years, with such modifica-
tion of the current meaning of its language as will now give effect
to the original legisla1tive intention. The reality and effect 0f
dynamic processing provides the gradual adjustment. It is con- D
stituted by judicial interpretation, year in and year out. It also
comprises processing by executive officials."

(Pages 618-619)
E
There cannot be any doubt that the Indian Evidence Act, 1872 is, by
its very nature, an 'ongoing Act.'

It appears that it was only in 1874 that the first practical typewriter
made its appearance and was marketed in that year by the E. Remington
and Sons Company which later became the Remington typewriter. Ob- F
viously, in the Indian Evidence Act enacted in 1872 typewriting could not
be specifically mentioned as a means of writing in Section 45 of the
Evidence Act. Ever since then, technology has made great strides and so
also the technology of manufacture of typewriters resulting in common use
of typewriters as a prevalent mode of writing. This has given rise to G
development of the branch of science relating to examination of questioned
typewriting.

In 'Questioned Documents', Second Edition, by Albert S. Osborn in
the ChaJ:lter of "questioned typewriting" this aspect is considered and,
therein at page 598 it is stated thus : H
564 SUPREME COURT REPORTS [1996] 2 S.C.R.

A ''The principles underlying the identification of typewriting are
the same as those by which the identity of a person is determined
or a handwriting is identified. The identification in either case is
based upon a definite combination of common or class qualities
and features in connection with a second group of characteristics
made up of divergences from class qualities which then become
B individual peculiarities. -

The mathematical principles outlined in the fourteenth chapter
show how remote -is the_ possibility of coincidence of even a few
scars or deformities on a person, and coincidence of scars and
c deformities are as remote with typewriters as with persons."

Jn 'Photographic Evidence' by Charles C. Scott, Second Edition,
Volume 1, under the heading "Typewriting - Identity or Nonidentity of
Typing" it is stated thus :

D "But even as the nationality of an individual may be perplexing
but does not in any way hamper the determination of his personal
identity by means of his .finger-prints, his handwriting, or other
reliable indications, so also the fact that it is often difficult to
determine the make of a typewriter used in typing a document
does not lessen the reliability of the scientific determination that
E a certain typed heriteed document was typed on a particular
machine regardless of its make. By the use of the proper micro-
scopes and test plates the document examiner often can determine
the question and by the use of photographic comparison charts he
can demonstrate his findings, usually with unimpeachable certainly.
F
From a comparison of the typewriting on a document which is
a subject of controversy with specimens known to have been made
on a certain typewriter it is usually possible to determine whether c;:,,
_or not that typewriter was used in typing the subject document,
· · provided the subject document contains sufficient typewriting and
G the specimens from the known machine are of a suitable kind. This
is true because every typewriter when it comes off the assembly
line is an individual and writes exactly like no other typewriter.
When a typewriter is brand new the differences between it and
other typewriters coming off the assembly line at the same time
H are extremely minute and elusive, but theoretically at least there
STATE v. SJ. CHOUDHARY [J.S. VERMA, J.] 565

are identifying differences that can be discovered by microscopic A
examination and demonstrated photographically. Furthermore, the
more a typewriter is used the more individualistic it becomes and
the easier it is to identify its typewriting. In some instances through
overuse, misuse, or abuse a typewriter develops so many
peculiarities that its typing can be identified readily with the naked
B
eye."

(page 636)

In 'Law of Disputed and Forged Documents' by J Newton Baker,
while dealing with the basic principles of identification of Typewriting C
generally it is stated :

"..... Since typewriting possesses individuality it can be com-
pared and identified in the same manner as handwriting ..... "

(page 453) D
Therein while discussing individuality of typewriting, it is stated thus :

"The individuality of the typewriter is established by the char-
acter of its type impressions on the paper. These characteristics of
typewriting can be analyzed, compared and differentiated and can E
be positively identified as those of a particular typewriter. This
individual comparison and identification of characteristics may
establish the genuineness or forgery of a typewritten instrument
and when admitted in evidence is sufficient proof.

The occurrence of similar irregularities· in typewriting in two F
or more machines is practically impossible. The rule that the
typewriter creates for itself a certain distinctive character of writing
which identifies one certain machine from all other machines is
well establic;hed. To prove that two instruments were written on a
particular typewriter similar coincidences of characteristics must G
be shown in both instru~ents, and these coincidences considered

-
collectively must demand a single conclusion."

(pages 451-452)

In 'Typewriting Identification (Identification system for Questioned H
f
-Z,
566 SUPREME COURT REPORTS (1996] 2 S.C.R.

A Typewriting), by Billy Prior Bates, the conclusion of the principles is stated
thus:

"Conclusion

TYPEWRITING identification is based on the same principle
B underlying handwriting identification, or any other thing which has
a great number of possible variations.

The identification of a typewritten document can be likened to
the identification of a particular person. A person may be iden-
. tified in general by his sex, size, features etc., and in addition, for
c example, by a radical mastectomy sear. A typewriter may be
identified in general by characteristics such as type design and size,
possessed by all machines of a specific make and model, and in
addition, for example, by a flaw in the serif on the letter E.

No opinion as to identity should be based upon only a few
D
dissimilarities (or similarities). It is the combination of measure-
ments and characteristics which all. together make up the con-
clusion.

When good, clear specimens are available in sufficient amount
E for a scientific identification of the twelve points of comparison, it
is possible to show with absolute certainty that a document was,
or was not, produced by a particular machine.

The mathematical probabil!ty of the same combination of these
characteristics divergent from the norm appearing in two machines
F is practically nil. The evidence of the twelve points of comparison
can be conclusive proof."

(page 59)

It is, therefore, clear that the examination of typewriting and iden-
G tification of the typewriter on which the questioned document was typed
is based on a scientific study of certain significant features of the typewriter
peculiar to a particular typewriter and its individuality which can be studied
by an expert having professional skill in the subject and, therefore, his
opinion on that point relates to an aspect in the field of science which falls·
H within the ambit of Section 45 of the Indian Evidence Act. Such opinion

-'
STATE v. SJ. CHOUDHARY [J.S. VERMA, J.) 567

evidence of experts in the field has long been treated as admissible A
evidence in similar jurisdiction like United States as is evident from these
1 standard text books on the subject.

In the present case, even without resort to the word 'handwriting' in
Section 45 to include typewriting therein, in the view we have taken, the
word 'science' is wide enough to meet the requirement of treating the B
opinion of a typewriter expert as an opinion evidence coming within the
ambit of section 45 of the Evidence Act. we may, however, add that the
long accepted practice of judicial construction which enabled the reading
of the word 'telegraph' to include 'telephone' within the meaning of that
word in Acts of 1863 and 1869 when telephone was not invented, would C
also be available in the present case to read 'typewriting' within the
meaning of word 'handwriting' in the Act of 1872. This is so because what
was understood by hand-writing in 1872 must now in the present times after
more than a century of the enactment of that provision, be necessarily
understood to include typewriting as well, since typing has become more
common than handwriting and this change is on account of the availability D
of typewriters and their common use much after the statute was enacted
in 1872. This is an additional reason for us to hold that the opinion of the
typewriter expert in this context is admissible under Section 45 of the
Indian Evidence Act.
E
As a result of the above discussion, we hold that the observations
made in the above extract in the decision in Hanumant on the basis of a
concession does not reflect the correct position of law on this point and
should, therefore, be treated as no longer good law on the point.

For the aforesaid reasons, we hold that the opinion of the typewriter p
expert in the present case is admissible under Section 45 of the Evidence
Act and the contrary view taken by the Trial Court and the High Court is
erroneous. This appeal is accordingly allowed and the impugned orders of
·the Trial Court and the High Court are set aside.

V.M. Appeal allowed. G