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TMI Blog1995 (12) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... accused was also charged under Section 404 of the I.P.C. for dishonestly misappropriating or converting to his own use certain gold ornaments of the said Sou Kantabai. He was, however, acquitted of this charge by the learned trial Judge. 2. The prosecution story, as is emerging from the evidence brought on record, briefly put, is as under :- Sou. Kantabai (since deceased) was married to the accused in May 1985. In August 1986, she was serving as a primary school teacher at Umbraj. The accused served as a teacher in Mhalaskant Vidya Mandir, Pali from October 1985 to July 1986. Thereafter he was transferred and posted in the New English School, Kadave. He was, however, residing at Umbraj. The deceased and the accused had rented out two-room suite in the residential house owned by Ganpatrao Thorat (P.W. 2). It is alleged that the accused used to quarrel with his wife on the ground that her pay was insufficient; that she used to visit the houses of teachers; and that she worked in the school beyond school hours. It is also alleged that the accused took exception to the visit of the deceased to her parents' house P.W. 3, Sampatrao Jadhav, uncle of the deceased, learned about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused produced a hand bag, cap, shirt, pant, handkerchief and photo album containing two chits before the investigating officer and those were attached under panchanama, Ex. 17. P.W. 11 obtained specimen handwriting and signatures of the accused in the presence of panchas. The specimen handwriting and signatures were proved at the trial as Exs. 47 to 53. While in police custody, the accused made a statement in the presence of panchas leading to the discovery of gold bangles and gold bormal which allegedly belonged to the deceased. These ornaments were seized from the possession of the brother of the accused at the instance of the accused as per panchanama, Ex. 23. The investigating officer also collected the application and the written apology submitted by the accused to the Head Master. The chits, articles 27 and 28, proved at the trial as Exs. 55 and 32, respectively, were recovered from the house of the accused in the course of search on September 3, 1986 and these were attached under panchanama, Ex. 24. The disputed documents, viz. Exs. 30, 32, 34, and 55, allegedly written by the accused and his specimen handwriting and signatures Exs. 47 to 53, were sent to the Handwr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strained. (xiii) The defence contention that ornaments articles 25 and 26 were entrusted by Kantabai to father of the accused on 22-8-86 is not proved. This indicates that defence is false. were proved by the prosecution. He concluded that there circumstances established that the accused had caused the death of his deceased wife by throttling. He accordingly convicted and sentenced the accused as stated above. 6. Indisputably, the prosecution had depended on circumstantial evidence alone. It is no more open to dispute that in cases in which the evidence is purely, of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt, and the facts and circumstances should not only be consistent with the guilt of the accused, but they must be such in their effect as to be entirely incompatible with the innocence of the accused and must exclude very reasonable hypothesis, consistent with his innocence. In the light of these well-settled principles, we will now examine whether these well-settled principles were kept in view by the learned trial Judge while convicting the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse of the accused. He noticed that the deceased was lying in bed and did not get up. He called a doctor who examined her and declared her dead. The witness in his examination-in-chief has stated that the deceased has visited his house for the last time on August 21, 1986 and had conveyed to him that the accused had gone to Katar-knatav for official work. He further stated that the deceased has also told him that the accused had told her that she should go to her parents' house whenever he was out of station. He further stated that the deceased returned to her house in the morning of August 22, 1986. 8. The evidence of P.W. 2 does not inspire confidence, inter alia, for the following reasons :- (i) His statement that the accused was present in the house during the night intervening August 22, 1986 and August 23, 1986 is only inferential and, in fact, he has not seen the accused therein. He drew the inference that the accused was present in the house from the fact that light was burning in the tenanted premises in the possession of the accused during the night of August 22, 1986, and this led the witness to believe that the accused and the deceased were present in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was examined as P.W. 9. The witness admitted that his office is under the control of Special Inspector General of Police. C.I.D., Crimes. In the course of cross-examination with regard to the reasoning given in Ex. 56, for coming to the conclusion that the disputed chit, Ex. 54, tallies with the specimen handwriting and signatures of the accused, Exs. 47, to 53, he admitted thus :- It is true that in my reason Exh. 56, I did not mention the measurement of the letters. It is true that in the reasons at Exh. 56, I did not specifically mention about pen presentation. It is true that in the reason Exh. 56, I made no reference to pen pause on the writing. All the documents which were examined by me were written by ball pen. Hence, there is no reference to shading in the reason at Exh. 56. It is true that pen presentation, pen pause had measurement, shading are important consideration for forming opinion. A ball pen writing does not produce shading and pen presentation. The witness is shown enlarge photographs Q1 and S1 to S7. It is true that the loop component of letter Shri in the disputed document Q1 is nearer to the staff than the loop component of the same letter in specimen doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l features of the disputed handwriting and the admitted handwriting. Wilson Harrison in his renowned book Suspect Documents at page 343 stated thus :- The rule is simple - whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting, and whose presence is not capable of reasonable explanation. The cross-examination of P.W. 9 is suggestive that the dissimilarity in the specimen handwriting and the disputed handwriting is consistent. 11. Even otherwise, it is well settled that the expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of handwriting expert. The prosecution, to probablise the evidence of P.W. 2, introduced the writing, Ex. 54. To establish that it was in the handwriting of the accused, they got specimen hand-writing and signatures of the accused and got the expert opinion of P.W. 9. The writing, Ex. 54, does not appear to be a genuine document. A reading of this document indicates that beneath the writing there is sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, , that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, , 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 M.P., AIR 1967 SC 1326, and if uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of 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. It is interesting to note that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy is marked as Ex. 22 and it is stated to have commenced at 7.15 a.m. and concluded at 8.30 a.m. It passes our comprehension as to how, when the memorandum of the statement of the accused commenced at 7.00 a.m. and concluded at 7.15 a.m., immediately thereafter the recovery panchanama was commenced. Admittedly, the recovery was effected from the residential house of the accused at his native village Varade. P.W. 2 has stated that Varade is about 5/6 kms. from Umbraj. The police accompanied by the accused cannot reach Varade at 7.15 a.m. The panchanama, Ex. 23, is witnessed by P.W. 1, Shivaji Tukaram Jadhav, and by Baban Jagannath Patil, who was not examined. P.W. 1 is the panch witness of most of the panchanamas. A perusal of the evidence of this witness indicates that he is a convenient witness. His evidence cannot be relied upon in the light of the indisputable facts which have emerged from the perusal of Ex. 2, memorandum of the statement of the accused and the recovery panchanama. As observed by us earlier, the memorandum of the statement of the accused was prepared between 7.00 a.m. and 7.15 a.m. and immediately thereafter the recovery panchanama was begun. The recovery pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The accused thereafter purchased Luna vehicle. Section 498A of the I.P.C. was introduced in the Code by the Criminal Law (Amendment) Act, 1983. By the same Act, Section 113-A has been added to the Indian Evidence Act to raise a presumption regarding abetment of the suicide by a married woman. Section 498A envisages that where a husband or his relative subjects the wife to cruelty, he or that relative shall be punished with imprisonment for a term which may extend to 3 years and fine. Explanation (b) to Section 498A says that 'cruelty' means harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security, is on account of failure by her or any person related to her to meet such demand. A perusal of this provision indicates that it is not every harassment or every type of cruelty that would attract Section 498A. The complainant has conclusively to establish that the beating and harassment in question was with a view to force her to commit suicide or to fulfill the illegal demand of dowry. In the instant case, it is not the prosecution case that the deceased was ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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