Handwriting Expert Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Comparison, Specimen Writings, Section 72 and Evidentiary Value

Handwriting is named in the same breath as finger impressions in Section 39, yet the courts treat the two very differently. A fingerprint comparison is accepted as capable of identifying a single source; a handwriting comparison is approached with a caution that has produced its own body of case law. The difference is not in the statute but in the discipline: writing varies naturally from day to day, can be disguised, and can be imitated, and the comparison therefore rests on judgment in a way that ridge characteristics do not.

1. The Four Routes to Proving Handwriting

Before turning to the expert, it is worth placing him in context. Handwriting may be proved in four ways, and the expert route is the weakest of them.

Direct evidence — the testimony of a person who saw the document written or signed. This is the strongest and, where available, makes the rest unnecessary.

Admission — where the writer himself admits the writing. Under Sections 15 to 21 this is substantive evidence against him and is very difficult to displace.

Opinion of a person acquainted with the handwriting under Section 41(1). This rests on familiarity acquired in one of three defined ways, and it is the route most often used in ordinary civil litigation.

Expert opinion under Section 39(1). This rests on skill in comparison rather than familiarity with the writer, and it is the route the courts scrutinise most closely.

A fifth possibility is comparison by the court itself under Section 72, which is not a route to proof so much as a power the court may exercise in aid of the others.

2. The Expert and the Acquainted Person

Section 41(1), BSA — Opinion as to handwriting

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.

The Explanation is exhaustive of the ways in which acquaintance may be acquired, and this is regularly overlooked. A witness who says only that he is 'familiar with' the handwriting, or that he has 'often seen' it, without bringing himself within one of the three modes, has not laid the foundation the section requires, and his opinion is not receivable at all.

The difference between the two witnesses is worth stating plainly. The acquainted person knows the writer, and forms an impression in the way anybody recognises a familiar hand. He gives no reasons and cannot be expected to; his opinion is worth what his familiarity is worth. The expert does not know the writer at all. He compares the disputed writing with standards, applying criteria the discipline recognises, and his opinion is worth exactly as much as the reasoning he offers for it.

3. What the Expert Compares

A handwriting examination proceeds by comparing the disputed writing with known standards across a range of features. The features divide, as in every identification discipline, into class and individual characteristics.

Class characteristics are those shared by a group — the copybook style in which a person was taught, features common to writers educated in a particular system or period, and habits general to a language or script. These narrow the field and exclude, but identify nothing.

Individual characteristics are the habits a particular writer has developed and executes without conscious attention: the formation and proportion of individual letters, the manner in which letters are connected, the slant and its consistency, spacing between letters and words, the relationship of the writing to the baseline, pen pressure and its distribution, the beginning and terminal strokes, the placement of diacritics and punctuation, and the overall line quality — whether the writing flows or hesitates.

The examiner looks for a combination of individual characteristics occurring together, and for the absence of any fundamental difference. The comparison is not a count of similarities; two hands may share many features, and what identifies is the coincidence of a set of habits none of which is individually decisive.

3.1 The three problems

Three features of handwriting make the comparison harder than a fingerprint comparison, and they are the source of every caution the courts have expressed.

Natural variation. No person writes the same word twice in exactly the same way. Fatigue, haste, posture, the writing surface, the instrument and the passage of years all alter the product. An examiner must distinguish variation within one hand from difference between two hands, and that is a judgment.

Disguise. A person writing a document he intends to deny may deliberately alter his hand. Disguise is usually detectable because it cannot be maintained consistently and because deeply ingrained habits persist, but it complicates the comparison considerably.

Simulation. A person forging another's signature may copy it with care. A skilled simulation reproduces the outward form; what it cannot reproduce is the fluency, and the examiner looks for the hesitation, tremor, pen lifts and retouching that copying produces.

4. Specimen and Standard Writings

A comparison is only as good as the standards used, and inadequate standards defeat more handwriting cases than any weakness in the science.

Standards fall into two kinds. Collected standards are writings made in the ordinary course before the dispute arose — letters, account entries, applications, registers, signatures on earlier documents. They are the more valuable, because they were written without any thought of comparison and therefore show the writer's natural hand. Requested standards are writings taken for the purpose of comparison, and they carry the risk that the writer, knowing why he is writing, will disguise his hand.

Adequate standards must be contemporaneous with the disputed writing, since a hand changes over years; must be sufficient in quantity to display the range of natural variation; must contain the same words, letters and combinations as the disputed writing; and should where possible be written with a similar instrument on similar material. An opinion founded on two or three signatures taken years after the disputed document is a weak opinion however confidently expressed.

5. Obtaining Specimen Writings

Section 72, BSA — Comparison of signature, writing or seal with others admitted or proved

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This section applies also, with any necessary modifications, to finger impressions.

Section 72 does two things. It permits the court to compare a disputed writing with any writing admitted or proved to be genuine, and it permits the court to direct a person present in court to write words or figures for that purpose. The second limb is the source of a long line of authority, because it was for many years the only power available and its limits were narrow.

📖 State (Delhi Administration) v. Pali Ram, (1979) 2 SCC 158

Held: The power under the provision corresponding to Section 72 is exercisable by a court in a proceeding before it, for the purpose of enabling the court to compare the writing with a writing alleged to have been made by that person and already before it. The section does not confer a general power to require specimen writings for the purposes of investigation. The Court also cautioned that although a court is competent to compare writings itself, it should ordinarily be slow to base a finding on its own comparison alone, and should seek the assistance of an expert where the question is genuinely contested.

Ratio: The power under Section 72 is a trial power, not an investigative one, and judicial comparison alone is an unsafe foundation for a finding.

📖 State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343

Held: A Magistrate has no power under the provision corresponding to Section 72 to direct an accused to give specimen writings for the purposes of investigation, where no proceeding in which the writing is to be compared is pending before him. The section applies to a proceeding in which the court has to compare writings before it. The Court noted the practical difficulty this created for investigating agencies and suggested that the legislature consider a suitable amendment.

Ratio: The gap identified in this decision was later filled by an express statutory power to order specimen signatures and handwriting during investigation.

That suggestion was acted upon. An express provision was inserted into the criminal procedure legislation empowering a Magistrate to order any person to give specimen signatures or handwriting for the purposes of an investigation or proceeding, and the power is carried forward in the Bharatiya Nagarik Suraksha Sanhita, 2023. The position today is therefore that specimens may be obtained during investigation under that provision, and under Section 72 the court may in addition direct a person present before it to write for the purpose of its own comparison.

No constitutional difficulty arises. Furnishing a specimen writing conveys no personal knowledge and is identificatory rather than testimonial, and Article 20(3) is therefore not attracted.

6. Evidentiary Value

The case law on the weight of handwriting expert evidence is often described as inconsistent. It is not. Two decisions are read together, and each corrects a possible excess in the other.

📖 Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210

Held: It is unsafe to base a conviction solely on the opinion of a handwriting expert. Such opinion evidence is of a frail character and is hedged about with a great many uncertainties. Before acting upon it, the court must seek independent and reliable corroboration.

Ratio: The classical statement of the caution with which such evidence is treated.

📖 Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704

Held: There is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that the opinion of a handwriting expert must never be acted upon unless substantially corroborated. But the imperfections of the science and the risk of error are such that the approach should be one of caution, and the reasons for the opinion must be carefully probed and examined. Where the reasons are convincing and there is no reliable evidence throwing doubt on them, there is no reason to distrust the opinion. The hazard in accepting such opinion is not because it is unreliable but because human judgment is fallible.

Ratio: No absolute rule against acting on such an opinion, but the weaker the science the greater the caution, and everything turns on the reasoning.

The reconciliation is between a rule and a practice. There is no rule that a handwriting opinion requires corroboration. There is a settled practice of looking for it, because handwriting is a discipline in which competent examiners honestly differ, and because the consequences of error in a case turning on a single disputed document are severe.

What this means in practice is that a handwriting opinion is acted upon where it is properly reasoned and unshaken, and is discarded where it is not. An examiner who identifies the characteristics compared, produces enlargements demonstrating them, addresses the apparent differences and explains why they represent natural variation rather than difference of hand, and who maintains that position under cross-examination, will be believed. One who states a conclusion and offers nothing more will not, and Jai Lal applies to him as it applies to any expert who fails to furnish his criteria.

7. Comparison by the Court

Section 72 permits the court to make its own comparison, and courts do so. The power is real, and where the difference between two writings is gross a judge needs no assistance to see it.

But the power is exercised with restraint, for the reason given in Pali Ram: a judge is not trained in the discipline, and a finding founded on his own comparison alone is an unsafe foundation. The circumstances in which it is properly exercised are three — where the comparison confirms an expert opinion already given; where the difference is so obvious that no expertise is required; and where the court is testing an expert's reasoning by looking for itself at the features he has identified.

Where the question is genuinely contested and no expert has been examined, a court should be slow to decide it by its own inspection, and slower still to found a criminal conviction upon it.

8. Lines of Attack

Six objections recur in a contested handwriting case, and each is directed at a different point.

Competence. Whether the witness has demonstrated skill acquired by training and practice, how many comparable examinations he has conducted, and whether he has any qualification or standing in the discipline.

Adequacy of standards. How many standards were used, whether they were contemporaneous, whether they were collected or requested, and whether they contained the same words and letter combinations as the disputed writing.

Reasoning. What characteristics were compared, how many were relied upon, whether enlargements were prepared, and whether the opinion identifies the features or merely asserts a conclusion.

Differences. Whether any difference was observed between the disputed writing and the standards, and how it was explained. An examiner who says he saw no difference at all in a comparison of natural handwriting is asserting something improbable, since natural variation always produces some.

Alternative explanations. Whether the features relied upon are consistent with simulation by another person, or with disguise, and whether the examiner considered and excluded those possibilities.

The document itself. Whether the examination was conducted on the original or on a photocopy. A photocopy loses pen pressure, line quality and much of the detail on which the comparison depends, and an opinion founded on a copy is markedly weaker — a point that should always be established.

9. The Position Stated Shortly

Handwriting may be proved four ways, and expert opinion is the weakest of them; direct evidence and admission are far stronger.
Section 41(1) admits the opinion of a person acquainted with the handwriting, and the Explanation is exhaustive of how acquaintance may be acquired.
Section 72 permits comparison by the court and empowers it to direct a person present in court to write, but it is a trial power and not an investigative one — Pali Ram and Ram Babu Misra.
Specimens may now be obtained during investigation under the express provision carried forward in the BNSS, which filled the gap those decisions identified.
Article 20(3) is not attracted, because a specimen writing is identificatory and conveys no personal knowledge.
There is no rule requiring corroboration, but there is a settled practice of looking for it — Magan Bihari Lal and Murari Lal read together.
Everything turns on the reasoning. A reasoned opinion that identifies the characteristics and addresses the differences is acted upon; a bare conclusion is not.
Adequate standards are essential, and an opinion founded on a photocopy or on a handful of non-contemporaneous signatures is weak whatever its confidence.

10. Related Topics and Provisions

Topic or provision	Connection
Fingerprint Evidence	The other discipline named in Section 39(1), and the parallel power under Section 72
Nature and Evidentiary Value of Expert Evidence	The advisory character of the opinion and the requirement of reasons
Expert and Opinion Evidence — Sections 39 to 45	The statutory scheme in full
Forensic Evidence	Questioned documents within the wider forensic framework
Sections 40 and 45, BSA	Facts bearing on an expert opinion, and the grounds of the opinion
Section 41, BSA	Opinion of a person acquainted with the handwriting, and opinion as to an electronic signature
Section 72, BSA	Comparison of signature, writing or seal by the court
Confession and Article 20(3)	The line between testimonial and identificatory material