In an attempt to upset the concurrent findings by the courts below, Shri. K.T. Sankaran, the learned counsel for the appellant, submitted that the opinion of the expert without corroboration is not conclusive of the genuineness of the thumb impression by the 1st defendant. He also argued that the court has to examine the report with the help of the photographs of the thumb impression and find out whether the report is acceptable or not.
In this connection, it is to be remembered that there is a difference between the opinion of the expert with regard to the handwriting and the Opinion of the expert with regard to the thumb impression. There is no forgery possible with regard to the thumb impression whereas an expert in forgery can write exactly like the original handwriting of another person. This distinction is well recognised by the decision of the Supreme Court. In Jaspal Singh v. State of Punjab (MANU/SC/0129/1979 : AIR 1979 SC 1708), the Supreme Court has stated that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. This decision was followed by this Court in various decisions including the one by a Division Bench in James @ Chacko v. State (MANU/KE/0238/1994 : 1994) 1 KLJ 871) even in a case where the impression was smudged but not to the extent of impossibility of comparison.
Equivalent Citation: 2004(1)KLJ705, 2004(1)KLT991,(2004)2 crimes214
IN THE HIGH COURT OF KERALA
S.A. No. 932 of 1994 (C)
Decided On: 05.02.2004
Appellants: Parukutty Amma & Another
Respondent: Thankam Amma & others
Respondent: Thankam Amma & others
Hon'ble Judges/Coram:R. Bhaskaran, J.
1. This second appeal is filed by defendants 1 and 3 in a suit for permanent prohibitory injunction and damages. The trial court granted a decree restraining the defendants from cutting or selling any tree from the plaint schedule properties and also from demolishing the house and also from committing waste. An amount of Rs. 6,850/- was awarded as damages. The appellate court confirmed the judgment and decree of the trial court. The substantial questions of law formulated on which notice was ordered read as follows:-
(A). Were the courts below justified in relying on Ext. C4 report of the Finger Print Expert alone to grant a decree in favour of the plaintiff?
(B). Without examining the Finger Print Expert, can the report filed by him be relied on, when serious objections are raised against the report of the Finger Print Expert?
(C). Were the courts below justified in not comparing the disputed thumb impression with-the specimen thumb whether the opinion of the Finger Print Expert is correct or riot?
(D). Is not the judgment of the court below vitiated due to non-consideration of the evidence of PW. 3?
(E). Were the courts below justified in not accepting the deposition of the 1st defendant, who was examined on Commission?
(F). Was the court below justified in casting the burden of proof on the defendants in regard to the execution of Ext. Al assignment deed?
(G). Even if the disputed thumb impression put at the time of registration of the document is proved to be that of the 1st defendant, would that be a substitute for proving the execution of Ext. A1 by the 1st defendant?
(H). Were the courts below justified in granting a decree for injunction without fixing the identity of the plaint schedule properties?
(I). Were the courts below justified in ignoring the admissions made by the plaintiff and the discrepancies in the evidence of PW. 1 as well as the inconsistencies in the evidence of PWs. 1 and 2?.
2. The plaintiffs contention is that item No. 1 of the plaint schedule was obtained by the family of the plaintiff and defendants as per assignment deed in 1957 and there was a subsequent partition in 1972 by which it was allotted to the share of the 1st defendant. Item No. 2 was obtained by the 1st defendant as per sale deed No. 1350 of 1954. The plaint schedule item No. 3 was set apart to the share of the 1st defendant in a partition between herself and her son Achuthan Nair. These three items lie as a single compound. The 1st defendant assigned the properties to the plaintiff as per registered assignment deed dated 05-02-1981 and the plaintiff was in possession of the properties. The plaintiff was residing in the house in the plaint schedule. First defendant is none other than the mother of the plaintiff and she was also residing in the house. Defendants 2 to 4 are her children. Subsequently, the plaintiff shifted her residence to her husband's house. Defendants have no right over the plaint schedule properties. On 25-12-1983, the defendants cut and removed 4 jack trees and 12 teak trees and demolished a cattle shed. The plaintiff therefore claimed damages at Rs. 9,000/-.
3. Defendants 1 to 3 filed a written statement contending that the 1st defendant had not executed any assignment deed in favour of the plaintiff. She was laid up with Asthma. She came to know about the document only when the police came and told her that she has executed a sale deed. The signature in the document is not that of the 1st defendant: She has not gone to the registry Office to execute the sale deed. She is in possession of the property and she obtained electric connection and was paying basic tax and house tax. She has also taken a loan from the Co-operative Bank and purchased a motor pump set. The consideration shown in the sale deed is inadequate. The defendants have no other house and there was no possibility of selling the property to the plaintiff. They have not demolished any cattle shed as alleged by the plaintiff. Some trees were cut for the purpose of fire wood and they have not cut any valuable trees as alleged in the plaint.
4. The main question considered in the suit was whether Ext. Al was executed by the 1st defendant. In support of the plaintiff's case she was examined as PW. 1 PW. 2 is the sub-registrar who registered Ext. A1. PW. 3 is an attesting witness. Since execution of Ext. Al document was denied, the thumb impression of the 1st defendant was taken and sent for expert opinion for comparison with her admitted thumb impression.
5. The Finger Print Expert gave opinion which is marked as Ext. C4 stating that the finger print seen in Ext. Al is that of the 1st defendant. Though objection was filed to the report of the finger print expert, the expert was not summoned for the purpose of cross-examination. PW. 3 who is the attesting witness stated that he had not seen Parukutty Amma signing Ext. A1. According to the plaintiff, he was telling a lie. The trial court found that though his evidence will not help to prove Ext. Al, it will not help the defendants in establishing that the document was not executed by her,
6. Though 1st defendant was examined on Commission and since she refused to sign in the deposition, her evidence was not taken into account by the trial court. The trial court after analysing the entire evidence found that Ext. Al was executed by the 1st defendant. On the basis of Ext. A5 series of revenue receipts and Ext. A6 series of building tax receipts produced by the plaintiff in her name and Ext. A3 certificate issued by the Vaniyamkulam Panchayat, it was found that the plaintiff was exercising acts of possession over the plaint schedule properties on the date of filing of the suit.
7. The trial court also found, on the basis of the Commissioner's report, that some tress were cut from the properties. A decree for damages amounting to Rs. 6,850/- including the value of the cattle shed demolished were granted by the trial court.
8. The appellate court confirmed the judgment and decree of the trial court. It was noticed that the 1st defendant even refused to give her thumb impression for the purpose of comparison. The thumb impression was subsequently taken by the Inspector, SDF Bureau, CBCID, Palakkad.
9. In this appeal, it is contended that there is no evidence to prove that Ext. A1 was executed and signed by the 1st defendant. The identifying witness has stated that he has not seen the 1st defendant putting her signature in Ext. A1. The sub-registrar has also stated that he did not know the executant of Ext. A1 personally. It is argued that when there is serious objection filed against the opinion of the Finger Print Expert, the court is bound to look into the objection and decide whether the opinion of the expert is correct or not. It is also argued that there are contradictions between the evidence of PW. 1 and PW. 2. It is also argued that the document was registered after 20 days of the date of execution and no consideration was paid on the date of execution of the document. It is contended that without examining the expert, the report should not have been accepted in evidence.
10. In an attempt to upset the concurrent findings by the courts below, Shri. K.T. Sankaran, the learned counsel for the appellant, submitted that the opinion of the expert without corroboration is not conclusive of the genuineness of the thumb impression by the 1st defendant. He also argued that the court has to examine the report with the help of the photographs of the thumb impression and find out whether the report is acceptable or not.
11. In this connection, it is to be remembered that there is a difference between the opinion of the expert with regard to the handwriting and the Opinion of the expert with regard to the thumb impression. There is no forgery possible with regard to the thumb impression whereas an expert in forgery can write exactly like the original handwriting of another person. This distinction is well recognised by the decision of the Supreme Court. In Jaspal Singh v. State of Punjab (MANU/SC/0129/1979 : AIR 1979 SC 1708), the Supreme Court has stated that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. This decision was followed by this Court in various decisions including the one by a Division Bench in James @ Chacko v. State (MANU/KE/0238/1994 : 1994) 1 KLJ 871) even in a case where the impression was smudged but not to the extent of impossibility of comparison. According to the learned counsel, whether it is thumb impression or handwriting, they are only relevant facts as contained in S. 45 of the Evidence Act and this Court has to arrive at an opinion after taking into account the report of the expert with the evidence.
12. It is no doubt true that it is open to the defendant against whom the report is obtained to call the expert as a witness and cross-examine him to bring out the error in his opinion. Having failed in doing that, it is not possible to accept the argument of the learned counsel to reject the opinion. No such attempt was made in the courts below also. I have also tried to see the thumb impression in the document as well as in the specimen thumb impression and I could not find any dissimilarity in the two impressions. It is true that the court is not an expert in the subject and the request of the counsel to form an opinion after taking into account the report of the expert should be considered with that in mind. Many of the decisions cited by the learned counsel for the appellant are decisions relating to opinion of handwriting expert which I have already found stand on a different footing from that of finger print expert. The decision relied on by the learned counsel for the appellant in Lalit Popli v. Canara Bank MANU/SC/0144/2003 : (2003) 3 SCC 583) stated that both under Ss. 45 and 47 the evidence is an opinion. In both the cases the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. It is also held that evidence of the handwriting expert need not be invariably corroborated. It is true that with regard to the finger print expert's opinion also, it is S. 45 that is applicable. But the observations of the Supreme Court in the above case was with regard to opinion of handwriting expert which has not attained the exactness as in the case of science of identifying thumb impressions. Even in the case of handwriting expert's opinion, the decision states that it need not be invariably corroborated. It is not necessary to multiply authorities on this point. The learned counsel for the appellant emphasised two aspect. One was that though the Sub-Registrar was examined, he has stated that he had no personal knowledge about the 1st defendant. The second aspect is that though PW. 3 is an attesting witness to the sale deed, he has admitted that he did not see the executant signing the document. With regard to the evidence of Sub-Registrar, he was examined only to prove that official formalities for registration of a document were complied with and it is too much to expect the Sub-Registrar to know personally the executants of each and every document registered by him. With regard to the attesting witness, the definite case of the plaintiff is that he has been won over by the defendants and he was permitted to be cross-examined as even in the chief examination, he stated that he did not see the 1st defendant signing in Ext. A1. In cross-examination, he admitted that he signed in it as an attesting witness as Achuthan Nair brought it to his party office for his signature and he signed believing Achuthan Nair. As help by a Division Bench of this Court in George & Others v. Varkey & Others ( MANU/KE/0504/2003 : ILR 2004 (1) Ker SN, Case No. 1), when the sole attesting witness who is alive and aged gave evidence evasively and purposely against the attestation, other evidence can be adduced to prove execution of the document. Achuthan Nair is the identifying witness and the son of the 1st defendant. The plaintiff and Achuthan Nair are the children of the 1st defendant in her marriage with Narayanan Nair where as defendants 2 to 4 are her children by her husband Madhavan Nair. Defendants 2 to 4 were residing with the 1st defendant. 1st defendant refused to sign even the deposition taken by the Commissioner and she refused to give her specimen thumb impression and at one stage her defence was struck off. It was in revision by this Court that one more chance was given to her to give her thumb impression and it was thereafter that she gave her specimen thumb impression. The conduct of the 1st defendant as stated above cannot be ignored by a court of law as she would have been more than willing to give her thumb impression for expert opinion if she was definite that she did not put even her thumb impression in the document. Thus the evidence of PW. 3 also will not help the 1st defendant to disprove the case of the plaintiff.
Thus on an anxious reconsideration of the entire aspects, I am not in a position to come to a different conclusion than those reached by the courts below. No other point has been pressed by the learned counsel for the appellant as substantial question of law and the question of law formulated are found to be not substantial questions requiring interference in second appeal. The appeal is dismissed without any order as to costs.