The Importance of Handwriting Expert in Civil and Criminal Cases BHAVNI SAHAI BASICS OF LAW Thu, Aug 20, 2020, at ,10:40 PM Determining who authored or signed a particular document can be a challenge. While computer software has made it easier to tell when a word-processing file was created or modified by a particular machine, determining whether a handwritten item belongs to a particular writer remains difficult. Handwriting expert is an individual who is specialised in his subject area, which helps the attorney to settle questions about written evidence. The expert provides his/her opinion which is admissible by law in the court. What is the importance of expert opinion in a case? There are certain matters which cannot be perceived by the senses. Their existence or non-existence is ascertained by inferences to be drawn by persons specially trained in the science, art or business with which the subject is connected. The general principle is that only those witnesses may appear before the Court who have been well acquainted with the facts because every witness is a witness of facts. But under sections 45 to 51, a third person, who is unknown to the facts, may appear before the Court when Court invites him to give his opinion on a particular point. The opinion of the third person is admissible as an expert's opinion under the provisions. For the purpose, "opinion" means 'something more than gossip or hearsay'. It must be based on some belief, reasoning or result. However, the expert opinion is only opinion evidence on either side and does not aid Court in interpretation; Forest Range Officer v. P. Mohammed Ali, AIR 1994 SC 120. Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons Section 45 of the Evidence Act, provides for the 'expert opinion' in the following words: 45. 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 the identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to the identity of handwriting or finger impressions are relevant facts. Such persons are called experts. According to Sec.45, the definition of an expert is confined only to the five subjects or fields as mentioned above. But practically there are some more subjects or fields on which court may seek opinion an expert. An expert witness is one who has devoted time and study to a special branch of learning and thus he is especially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion Opinion as to handwriting When opinion as to handwriting becomes relevant? The evidence of experts may not be conclusive regarding the handwriting or mark. No doubt that the opinion of an expert has great weight but in addition to that, section 47 of the Act, permits the court to admit the opinion of non-experts. Section 47 reads:- Opinion as to handwriting, when relevant.- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person is a relevant fact. Explanation.-A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Illustration:- The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write. This section provides that the genuineness of handwriting or mark may be proved by the opinions not only of experts but also of non-experts. Competency of a non-expert witness A statement of the non-expert witness who was acquainted with the handwriting is sufficient. Such acquaintance or knowledge might have been acquired: (i) by having at any time seen the person write, or (ii) by the receipt of written communication purporting to be in his handwriting, or (iii) by having observed in the ordinary course of business, received documents written by that person or such documents are habitually submitted to him. In reference to the first point it was held by the Supreme Court in Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326, it was held that handwriting may be proved by evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary. Modes of proving to handwrite What are the ordinary methods of proving to handwrite? The following are the ordinary methods of proving handwriting under the Evidence Act: by the evidence of the writer himself. by the opinion of an expert. by the evidence of a person who is acquainted with the handwriting of the person in question. by the evidence of a person who saw the document being written i.e., attestation witness. by the comparison of the disputed writing with the writing of the alleged writer by the Court. by other circumstantial evidence; Kanya Ram Bira Singh v. Manipur Drivers Association, AIR 1957 Manipur. Relevancy of character in Civil Cases Whether evidence of character is admissible as a relevant fact? Section 52 of the Act, lays down the general principle that evidence of character in civil cases is irrelevant unless the character is in issue, Jagannath v. Ram Chandra, AIR 1952 All 408. This section reads: In civil cases character to prove conduct imputed, irrelevant.- In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant. It may be laid down as a general rule that in civil action evidence of the character of any person concerned (a party to a suit) is not admissible for the purpose of raising an inference as to his conduct. In other words, a party did or did not or may not be established in civil actions. By showing that his character is such as to predispose him to one course or to the other. So the exclusion of evidence of the character of a party as a basis of inference drawn as to his conduct is practically absolute in civil cases. If a man is sued for breaking his promise or wrongfully detaining of another's goods or selling an article inferior to the sample, evidence cannot be given that it was likely for him to do from his disposition and reputation. X files a suit against Y for possession of a house alleging that he (Y) has taken forcible possession of it. In this X cannot lead evidence about Y's character to show that it was likely to him for trespass. Admissible character in civil cases:- There are certainly cases in which character is a fact in issue or a relevant fact, e.g., in a suit for libel, if the libel consisted in attributing that quality, to the plaintiff and the defendant justifies the existence of this quality, this would be a fact in issue and evidence of character may be led. The character of female chastity has been received in evidence in action for breach of promise for marriage. There are some exceptions to the general principle laid in section 52: Section 55 says "in civil cases the fact that the character of any person is such as to affect the number of damages which he ought to receive, is relevant". The evidence of the good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape, evidence of that character of the plaintiff is allowed as it is likely to affect the damages that the plaintiff ought to receive. Evidence can be given of a party's character when his character is itself a fact in issue. Where, for example, an action is brought for divorce on the ground of cruelty, the cruel character of the defendant, is a fact in issue, the plaintiff can lead evidence of it. A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes or throws light upon a party's character (section 52). Relevancy of Character in Criminal Cases Section 53 says that "in criminal cases, the fact that the person accused is of a good character is relevant". Normally, we presume that a person of good character and reputation will not generally respond to any criminal act. Thus, goodness is proved, leads to the presumption against the commission of a crime. According to section 54, evidence may not be received regarding the badness of party's character in criminal proceedings, unless evidence has been given that he has a good character in which case it becomes relevant. In other words, the prosecution cannot lead evidence of the bad character of the accused as a part of his original case. They can produce evidence of bad character only in reply to the accused showing his good character. There are certain cases in which evidence of a prisoner's bad character can be given: To rebut prior evidence of good character (section 54). The character is itself a fact in issue (Explanation 1 to section 54). For example, in a prosecution for rape, the bad character of prosecution (raped woman) may be a fact in issue for it may afford a defence to the accused. A previous conviction is relevant as evidence of bad character in criminal cases (Explanation 2 to section 54). In Prithvi Singh v. State of Uttar Pradesh, 2001 Cr LJ 4424, the prosecution was not allowed to adduce evidence tending to show that accused was a person of bad character.