Case: State Vs. S.J. Choudhary

often can determine the question and by the use of photographic comparison charts he can demonstrate his findings, usually with unimpeachable certainty.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 or not that typewriter was used in typing the subject document, provided the subject document contains sufficient typewriting and 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 are extremely minute and elusive, but theoretically at least there are identifying differences that can be discovered by microscopic 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 eye." * (page 636) 15. In Law of Disputed and Forged Documents by J. Newton Baker, while dealing with the basic principles of identification of Typewriting generally it is stated : ".......Since typewriting possesses individually it can be compared and identified in the same manner as handwriting....." (page 453) Therein while discussing individuality of typewriting, it is stated thus : "The individuality of the typewriter is established by the character of its type impressions on the paper. These characteristics of typewriting can be analyzed, compared and differentiated and can 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 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 established. To prove that two instruments were written on a particular typewriter similar coincidences of characteristics must be shown in both instruments, and these coincidences considered collectively must demand a single conclusion." * (pages 451-452) 16. In Typewriting Identification (Identification System for Questioned Typewriting) by Billy Prior Bates, the conclusion of the principles is stated thus : "ConclusionTYPEWRITING identification is based on the same principle 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 identified in general by his sex, size, features etc., and in addition, for example, by a radical mastectomy scar. 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 identify should be based upon only a few dissimilarities (or similarities). It is the combination of measurements and characteristics which altogether make up the Conclusion.When good, clear specimens are available in sufficient amount 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 probability of the same combination of these characteristics divergent from the norm appearing in two machines is practically nil. The evidence of the twelve points of comparison can be conclusive proof." (page 59) 17. It is, therefore, clear that the examination of typewriting and identification 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 within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. 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 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 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 handwriting 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 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.19. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. 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 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 typewriters were then practically unknown. However, the expression science, or art in Section 45 in addition to the expressions 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 narrow meaning in Section 45 and each of the words science and art has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, whenever the Court has to form an opinion upon a point relating to any aspect of science or art.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 done on the same typewriter is based on a scientific study of the two typewritings with reference to the peculiarities therein; and the opinion formed by an expert is based on recognised principles regulating the scientific 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 science which is admissible in evidence under Section 45 of the Indian Evidence Act.9. There cannot be any doubt that the opinion of an expert in typewritings about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference 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 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.It is, therefore, clear that the examination of typewriting and identification 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 within the ambit of Section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard textbooks on the subject.18. 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 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 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 handwriting 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 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.19. 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.