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Indian Evidence Act, 1872-Chapter II-Sec. 45–Held, opinion of typewriter expert is admissible in evidence. Words and Phrases: “Science” “Handwriting”-Meaning of-In the context of opinion of typewriting 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-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 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 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 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 evidence of a typewriter expert is not admissible in evidence under Section 45 of the Evidence Act. The decision in Hanumant cannot be taken as deciding that point event though on the basis of that observation the evidence of typewriter expert was excluded as inadmissible. [567-E-F; 559- D-E] Hanumant v. Tlie State of M.P., AIR (1952) SC 343 = [1952] SCR 1091, overruled. 2. The opinion of the typewriter 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. [567-F] 3. Irrespective of the view that the word “handwriting” in Section 45 includes typewriting 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. [567-B] Statutory Interpretation by Francis Bennion, Second edition pp. 617 to 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 (Typewriting)’ by Billy Prior Bates pg. 59, referred to. 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 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 Dictionary, Vol. 2; Collins Dictionary of the English Language, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 461 of 1987. =1996 AIR 1491, 1996( 2 )SCR 556, 1996( 2 )SCC 428, 1996( 2 )SCALE37 , 1996( 2 )JT 186

CASE NO.:
Appeal (crl.) 461 of 1987

PETITIONER:
STATE (THROUGH CBI/NEW DELHI)

RESPONDENT:
Braille Writer

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S.J.CHOUDHARY

DATE OF JUDGMENT: 13/02/1996

BENCH:
JAGDISH SARAN VERMA & G.N.RAY & N.P.SINGH & FAIZAN UDDIN & G.T.NANAVATI

JUDGMENT:
JUDGMENT

Delivered By:
JAGDISH SARAN VERMA

J.S VERMA. J.

 The reference made in this appeal to the Constitution
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 ?
 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
of 1983. 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 Evidence Act, 1872 (for short "Evidence Act") based
on the decision of this Court in Hanumant vs. The state of
Madhya Pradesh, AIR 1952 SC 343 = 1952 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.
 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 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 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 led. The High Court
 rightly held that opinion of such
 experts was not admissible under
 the Indian Evidence Act as they did
 not fall within 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 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 conclusion based
 on inadmissible evidence has
 therefore to be ignored."
 (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 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. In our opinion, the decision in
Hanumant cannot be taken as deciding that point even though
on the basis of that observation the evidence of typewriter
expert was excluded as inadmissible. This 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 relating
to 'Relevancy of 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
 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.
 Such persons are called experts."
Illustration (c) to Section 45 is as under:
 "(c) The question is, whether
 a certain document was written by
 A. Another document is produced
 which is proved or admitted 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."

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
questions as to identity of - handwriting, or finger
impressions as relevant facts. 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.
 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.
 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 the
dictionaries are : The Oxford Encyclopedic English
 Dictionary : "Science.....a systematic and
 formulated knowledge, esp. of a
 specified type or on a specified
 subject (political science). b. the
 pursuit or principles of
 this......."
 The New Shorter Oxford English
 Dictionary, Vol. 2.,:
 "Science...2a Knowledge acquired by
 study; acquaintance with or 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 systemetic study
 of the nature and behavior of the
 material and physical universe,
 based on observation, experiment,
 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 technique..."
 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 science study of
the two typewritings with reference to the peculiarities
therein; and the opinion formed by an expert is based on
recognized principles resulting 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.
 There cannot be any doubt that the opinion of an expert
in typewriting about the questioned typed document being
typed on a particular typewriter is based on a scientific
study of the typewriting 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
constructing 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 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
 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, is nevertheless to be
 construed in accordance with the
 need to treat it as current law.
 xxx xxx xxx
 ( Page 617 )
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 in such
 a way as to give effect to the true
 original intention. Accordingly the
 interpreter is to make allowances
 for any relevant 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 Rct is regarded as 'a
 living Act'. That today's
 construction involves the
 supposition that Parliament was
 catering long ago for a state of
 affairs that did not then exist is
 no argument against that
 construction. Parliament, in the
 wording of an enactment, is
 expected to anticipate temporal
 developments. The drafter will try
 to foresee the future, and allow
 for it in the wording.
 xxx xxx xxx
 An enactment of former days is thus
 to be read today, in the light of
 dynamic processing received over
 the years, with such modification
 of the current meaning of its
 language as will now give effect to
 the original legislative intention.
 The reality and effect of dynamic
 processing provides the gradual
 adjustment. It is constituted by
 judicial interpretation, year in
 and year out. It also comprises
 processing by executive officials."
 ( Pages 618-619 )
 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 - Obviously, 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
development of the branch of science relating to examination
of questioned typewriting.
I 'Questioned Documents', Second Edition, by Albert S.
Osborn in the Chapter of "questioned typewriting" this
aspect is considered and, therein at page 598, it is stated
thus:
 "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
 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
 deformities are as remote with
 typewriters as with persons."
 In 'Photographic Evidence' by Charles C. Scott, Second
Edition, Volume 1, under the heading "Typewriting-Identity
or Non-identity of Typing" it is stated thus:
 "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 a
 certain typewritten document was
 typed on a particular machine
 ragardless of its make. By the use
 of the proper microscopes 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 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)
 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
 individuality 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 it
 two or more machines is practicable
 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 character-
 istics must be shown in both
 instruments, and these coincidences
 considered collectively must demand
 a single conclusion."
 (pages-451-452)
 In 'Typewriting Identification (Identification System
for Questioned Typewriting)' by Billy Prior Bates, the
conclusion of the principles is stated thus:
 "Conclusion
 TYPEWRITING 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
 mastestomy 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 identity
 should be based upon only a few
 dissimilarities (or similarities).
 It is the combination of
 measurements and characteristics
 all together make up the
 conclusion.
 When good, clear specimens ere
 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)
 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 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 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 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 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.
 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 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.

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