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INTHECOURTOFSHRISHAILENDERMALIK:ACMM/ NORTHEAST,KARKARDOOMACOURTS,DELHI. CBIVs.RajivKumarEtc. RC13(5)/01 U/S:420/419/468/471IPC P.S.:Shahdara DateofInstitutionofcase:02.01.03 Dateonwhichjudgmentisreserved:04.6.2012 Dateonwhichjudgmentisdelivered:04.06.2012 UniqueI.D.No.02402RO257722003 JUDGMENT a)Sl.no.ofthecase 11/CBI/10 b)Dateofcommissionofoffence14.08.2001 c) Nameofcomplainant Dr.P.K.Dave,Director AIIMS,NewDelhi d)Nameofaccused,hisparentage1.RajivKumar S/oPrakashNarayanSinha R/oVill&POSarika,PO Maudna,Distt.Sheikhpura, Bihar 2.AlokKumar S/oGaneshPrasadArya R/oPunchMohallamain Road,Jehanabad,Distt Jehanabad,Bihar
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e)OffencecomplainedoforprovedU/S:420/419/468/471IPC f)Pleaoftheaccused g)Finalorder h)Dateofjudgment :Pleadednotguilty :Convicted :04.06.2012

j)Briefreasonsforthejustdecisionofthecase 1. CBI had chargesheeted accused Rajeev Kumar son of Prakash Narayan SinhaandAlokKumar sonofGaneshPrasad Aryafor offence u/S 419/420/468/471 R/W section120b IPC. Factual matrixofthematteristhatCBIregisteredthecaseonawritten complaintsentbyDr.P.K.Dave,DirectorAIIMS,NewDelhiby hisletterdated14.08.2001,whereinhehasallegedthatduringthe entrance examination for B. Sc. (Hons) Paramadical Course whichtookplaceon27.06.2001atCambridgeSchool,Shriniwas Puri,NewDelhi8instancesofimpersonationweredetectedby counselingcommittee.Itisallegedthattheseinstancesappearto be systematic, preplanned and organized action on thepart of somemischievouspersonstoobtainadmissionbyunscrupulous meansforconsiderationtodestroythesanctityofexaminationat
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AIIMS and to cheat persons. Letter was enclosed with 8 cases detectedbythecounsellingcommitteeincludingonecandidate namely accused Rajeev Kumar having roll No. 5404, it is also stated in the said letter that accused Rajeev Kumar when appearedbeforecounselingcommittee,headmittedhisguiltin writing.Assuchaninvestigationwassoughttobecarriedouton suchincidentofcheatingandimpersonation. 2. On the basis of said letter case was registered and investigationwascarriedout.Itcameoutintheinvestigationthat inrespectofentranceexaminationforB.Sc.(Hons)Paramedical Course, accused Rajeev Kumar had applied and on his applicationhepastedtwophotographs.Regardingexamination, accusedRajeeventeredintocriminalconspiracyinBihar,Orissa andDelhiduring2001withonePankajKumarandAlokKumar (accusedNo.2herein).ItcameinlightthatPankajKumarand Alok Kumar visited Delhi on 26.06.2001 and stayed in Hotel Paramount at Paharganj and thereafter on 27.06.2001 Pankaj Kumar and Alok Kumar visited Cambridge School and Alok
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Kumar appeared in the examination personating himself as RajeevKumar.InthatwrittenexaminationwhenaccusedRajeev Kumarwasdeclaredsuccessfulandinresponsetocallletterfor counseling, when accused Rajeev Kumar appeared before counselingcommitteeofAIIMS,duringcounseling,membersof committeegotsuspiciousaboutaccusedRajeevKumarandwhen hewassubjectedtodetailsofwrittenexam,RajeevKumarstated tohaveadmittedhisguiltbeforecounselingcommitteethathe himself did not appear in the examination. He admitted so in writing.ItalsocameinlightthatonePankajKumarapproached accusedAlokKumarandaskedhimtoappearinexaminationin place of Rajeev Kumar. During the investigation admitted signaturesandwritingetcweretakenandweresenttocompare with certain documents collected from the expert and expert reportwasplaced onrecord.Itwasstatedthataccused Pankaj Kumar is escaping and thus charge sheet was filed against accusedRajeevKumarandAlokKumar. 3. AfterfilingofchargesheetLd.Predecessorofthiscourttook
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the cognizance and summoned the accused persons, in pursuancethereofboththeaccusedpersonsappearedandcopy ofchargesheetwassuppliedtoboththeaccusedfreeofcostin termsofprovisionsofsection207/208CrPC.Afterconsideringthe material available on record Ld. Predecessor of this court vide order dated 23.05.2006 concluded that primafacie offence u/s 420 r/w section 511/419/468/471 IPC R/w section 120B IPC is madeout.Chargewereframedon15.02.2007fortheabovesaid offences as against accused Rajeev Kumar and Alok Kumar, to whichboththeaccusedpleadednotguiltyandclaimedtrial. 4. In order to substantiate the charge, on behalf of CBI, eleven witnesses were examined. PW1 is Narender Kumar Gupta, Assistant(NS)ExaminationSection,AIIMS.PW1saysthatduring 2001hewasworkingasUDCinAIIMSandon27.06.2001,hewent Cambridge School, Shriniwas Puri, as on that day AIIMS conductedexaminationforB.Sc.(Hons)ParamedicalCourseand PW1statedtobeondutyonthoseexaminationincontrolroom. PW1saysthatthereweresomeminorcomplaintsinexamination
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hall with regard to variation of signatures of some candidates. PW1saysthatSh.P.K.DaveandY.K.Guptavisitedthecentre andtookroundofexaminationroom.

5.

PW2 is Yogender Kumar Gupta, Professor and Head of Department,AIIMS,who hastestifiedthatinyear 2001hewas ProfessorInchargeofExaminationSection,AIIMS,PW2further saysthatentranceexaminationforB.Sc.(Hons)Paramedicalwas beingconductedannuallyandinresponsetothepublicationof advertisement in newspaper regarding that course 577 applications for examinations were received and eligible candidates were called upon to attend written test which was conducted in one centre in Delhi at Cambridge School. PW2 admittedthelistoftheeligiblecandidatesasdocumentsD17. PW2furthersaysthatrollno.5404wasallottedtoRajeevKumar son of Prakash Narayan whose name appeared in the list of eligiblecandidates.PW2saysthatonthedayofexaminationhe andProfessorP.K.Davereachedattheschoolatabout10.30AM and evaluation process was started in his presence and of Dr.

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Deepakincomputersectionofexaminationcentre.PW2further says that result of the said examination was declared on 28.06.2001andaccusedRajeevKumarbearingRollNo.5404was in the list of successful candidates having 29th rank and list of candidatesisExPW1/2andPW1/3,resultnotificationismarked as Ex PW2/1 and in which serial number 32 is marked as Ex PW2/2. PW2 says that list of candidates who were allowed to appearintheexaminationheldon27.06.2001wasprepared by Asstt.ControllerExamination,thiscontainsthenameofRajeev Kumar at serial No. 294 bearing Roll No. 5404. PW2 says that counselling committee was constituted by Director, AIIMS and PW2wasoneofthememberofsaidcommittee. 6. PW2has further testified thatbefore examination day,hiswife had received unknown phone call that some students are appearingwithothernamesandheinformedthisfacttosubdean andAsstt.ControllerofExaminationforbeingmorevigilantand wedecidedtohavesomeAIIMSphotographerdeputedatcentre totakephotographs ofsomecandidatesduringexaminationas
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peradviseofinvigilatorandofficialonduty.
7. PW2 says that during counselling candidates were asked some

question about examination, their signatures and documents weretallied.AccusedRajeevKumarwascalledforcounsellingon 30.07.2001andsomequestionsabouttheexaminationwereasked buthewasnotabletotellanythingcorrectly.Afterthataccused Rajeev Kumar confessed before entire counselling committee memberthatsomeotherpersonhadappearedonhisbehalfand hedidnotknowthenameofthatperson.PW2proveddocument MarkX3 andhadstatedthatinterimreportofthecounselling committee was prepared bearing his signatures, photocopy of whichis ExPW1/5 andoriginalis PW2/3 andfinalreportofthe counsellingcommitteeisalsoprovedasEXPW2/4.PW2wasduly crossexamined,hiscrossexaminationwillbediscussedinlater partofthejudgment.
8. PW3 is Pawan Arora, who has testified that he isowner of the

hotel Paramount situated at New Delhi Railway Station, Paharganj.PW3saysthatwhenacustomerentersinthehotelfor

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a room, he has to fill name in a register issued by Deputy CommissinoerofPolice(LicensingBranch).PW3whenshownthe registerofhishotelpertainingto23.01.2001to25.09.2001,PW3 testifiesthatinregisterentryNo.1796dated26.06.2001nameof PankajKumaandAlokKumarinColumnNo.7forRoomNO.206 wasmentioned.PW3saysthattheseentriesweremadebythose persons andtheystayedinthesaidroomforoneday.Witness provedthatentryasEXPW3/1andsaysthatitbearssignatureof Pankaj Kumar being one of the occupant of the said room, at columnNo.20(b)and22.PW3furthersaysthatseizurememo regardingseizureofsaidregisterwaspreparedandwhichis EX PW3/2.
9. PW4isChittaranjanTripathi,whohastestifiedthatheisworking

asaseniorclerkinMKCGMedicalCollege,Berampur,Orissaand during 2002 he was working as junior clerk and during investigationofthiscase,PW4statedtohavehandedovertoCBI, descriptiveroleofaccusedAlokKumar,runningintosevenpages byseizurememodated28.10.2002,EXPW4/1.PW4saysthesaid
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descriptive role was filled by the candidate himself and countersignedbytheprincipal.PW4saysthatthesaiddescriptive roleincludescertificates,transfer/conductcertificate,admitcard andverificationformetcandallthesedocumentsweregivento CBI. 10. PW5isUmaDuttBhargava,whosaysthathewasworkingas Asstt.ControllerofExaminationinAIIMSduringNovember1999 to November 2003 and AIIMS conducts examination for admissiontoB.Sc.(Hons)ParamedicalCoursesandinyear2001 inresponsetoadvertisementpublishedinnewspaperregarding thatcourse,580applicationswerereceivedand577candidates were found eligible and to them admit cards were dispatched containingtheirnames,rollnumberandphotographs(facsimile) of candidates, name of examination centre, date and time etc. PW5 says that examination was conducted on 27.06.2001 at Cambridge School and attendance list containing details of 5 candidates on each page was prepared and sent to centre superintendent. Attendance Sheet contains four columns
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facsimile,signatureandphotographsofcandidate,scannedfrom theirapplicationsandnameandrollnumberwereprintedinfirst columnandcolumnNo.2,3&4ofattendancesheetwereblank. Theseweretobefilledintheschoolonthedayofexaminationas in column number 2 and 3 candidate was to fill his question booklet number and answer sheet number and has to put his signatureincolumnNo.4. 11.PW5furthertestifiesthathewaspresentatexaminationcentre onthedayofexaminationandonthatdayDr.P.K.DaveandDr. Y. K. Gupta had visited the examination centre. PW5 interalia testifies that result of the said examination was declared on 28.06.2001andapplicationsofselectedcandidatesweresentto AcademicSectionofAIIMSandsuccessfulcandidateswerecalled uponforcounselling.PW5saysthathewasoneofthememberof counselling committee. Total 67 candidates were called for counselling.Duringthecounsellingsomecasesofimpersonation weredetectedandthereforeallthecandidatesofgeneralcategory wereaskedtocomeagainon30.07.2001.PW5saysthatfirstcase
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of impersonation was detected in first counselling held on 24.07.2001 and second case was detected on the basis of anonymouscomplaintreceivedon24.07.2001andduringsecond counsellingon30.07.20016morecasesweredetected. PW5further says regarding accused Rajeev Kumar thatafter seeing the scanned application form and duplicate application forminthenameofRajeevKumar,thoseapplicationformswere provedas EXPW5/1 andwhenwitnesswasshowndocumentin thenameofaccusedRajeevKumar,issuedtohimforcounselling to appear before counselling committee on 30.07.2001, these documentswerealsocollectivelyprovedasEXPW5/2.PW5says that a candidate who found to have procured impersonation during examination admitted to have done so and gave the statementtocounsellingcommittee.PW5saysthaton30.07.2001 accusedRajeevKumaralsogavethestatementinthepresenceof himandinthepresenceofDr.K.K.Deepakandothermembers ofcounsellingcommitteeinwhichheadmittedthathedidnot appearintheexaminationheldon27.06.2001,hisstatementisEX
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PW5/3. PW5 further deposed that counselling committee preparedtheinterimreportandsubmittedtoDirector,AIIMSand during the investigation, SI Sanjay Sharma of CBI has seized certaindocumentsregardingwhichseizurememoExPW5/4was prepared. PW5 also proved seizure memo dated 07.09.2001 regardingphotocopyoforiginalas EXPW5/5.Witnesshasalso seenletterdated29.08.2001senttoaccusedRajeevKumarasking him to furnish 2 passport size photographs snaped after 20.08.2001whichbearthesignatureofthewitness,saidletteris proved as EX PW5/6. Witness was duly subjected to cross examinedtherelevantportionofwhichwillbediscussedlaterin thejudgment. 12.PW6isKrishanKantSharma,whohasalsotestifiedthathewas working as UDC in Examination Section of AIIMS and in year 2001heperformedhisdutyasanInvigilatorinexaminationfor B.Sc.(Hons)ParamedicalCourseheldon27.06.01atCambridge School.PW6saysthatheperformedhisdutyasanInvigilatorina vigilant manner. PW6 interalia says that during the said
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examination, one sick candidate appeared suspicious as his signature were not matching and he immediately informed to Asstt.ControllerofExaminationandtheytookhissignaturethrice ontheanswersheet.PW6saysthatAIIMSphotographerdidnot visittheirroom.
13.PW7isShriPrakashChandraJoshi,whowasalsoworkingin

examination section of AIIMS at relevant time and had also performed duty as invigilator at Cambridge School in examinationheldon27.06.2001.PW7interaliasaysthatquestion paperandanswersheetsweredistributedtothecandidatesinthe roomserialwiseandexaminationstartedat9.00AMandheand his fellow invigilator were vigilant to avoid use of any unfair meansbyanyofthecandidate.PW7whenwasshownattendance list,hehasstatedthatinthesaidattendancelistExPW7/1,three candidates were absentand two candidateswere present. PW7 alsoreiteratedthatattendancelistbearfourcolumnsandcolumn No.2,3and4wastobefilledbycandidatesthemselvesinthe examination room and then the invigilator was to put their
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signatureonattendancelist.PW7saysthatinattendancelist EX PW7/1 nameofSumriti Singhal,AishwaryaBhardwaj,Tajender Kaur, Rajeev Kumar and Rishi Kumar Jha were mentioned. Witnesswhenwasshownquestionbookletnumber040bearing roll No. 5404 in the name of Rajeev Kumar and answer sheet bearingsamerollNo.,witnessidentifiedandhasstatedthatsame were given to Rajeev Kumar by him. Question Booklets is EX PW7/2andanswersheetisEXPW7/3.
14.PW8isNitinRanjanParasar,whostatesthathewasworking

asVicePrincipalinCambridgeSchoolandinyear2001hewas working TGT Maths in the same school and deputed by the principal of the said school as Central Superintendent for examination conducted by AIIMS for B.Sc. (Hons) Paramedical Course.PW8saysthathisdutyasCentralSuperintendentwasto receive sealed question booklet including answer sheet from AIIMSAuthorityandtoprovidemenpowerandinfrastructurefor conducting the examination, PW8 says that on the day of examination,hereachedatthecentreatabout7.30AMandDr.K.
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K.Deepakalsoreachedatthevenuealongwithtwosealedboxes containingsealedpacketsofquestionpaperandanswersheets, whichwerehandedovertohim.PW8saysthatalltheinvigilators reported in the central room and were given necessary instructionsbyDr.Deepakandthensealedboxeswereopenedby Dr.Deepakinhispresenceandhedistributedsealedpacketsof question/answer booklets to invigilators room wise. PW8 says thatexaminationwasstartedat9.00AMandwentonpeacefully. PW8further saysthatduringtheexamination,Director, AIIMS, Dr.Guptavisitedtheexaminationvenueandtookroundinsome rooms.PW8furthersaysthatattendancesheetEXPW7/1isoneof thesameattendancesheetwhichwasgiventohimandheputhis fascilsignaturesatpointE.Witnessalsoidentifiedthequestion booklet and answer sheet EX PW7/2 & PW7/3 to be the same whichwereusedinthesaidexamination.
15.PW9isDr.P.K.Dave,whohastestifiedthatfrom1996toJune

2003heremainedasDirectorinAIIMSandlodgedthecomplaint with Director CBI regarding impersonation in B. Sc. (Hons)

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Paramedical Course entrance examination which was held on 27.06.2001 at Cambridge School. PW9 says that during counsellingaftertheexamination,8casesofimpersonationwere detected.Witnessprovedhisoriginalcomplaintdated14.08.2001 asEXPW1/AandoriginalcomplaintasEXPW9/1.
16. PW10isInsp.SanjaySharmaCBI,whodeposesthatinyear

2001 when he was Sub Insp. in SCB, Delhi and an FIR was registeredbyCBIon27.08.2001onthewrittencomplaintofthen Director, AIIMS, Shri P. K. Dave and FIR was registered as RC13(S)/2001/SCBI/DLI. PW 10 says that investigation of said casewasentrustedtohimandFIRisEXPW10/1.Witnessstated tohaverecordedstatementsofvariouswitnessesandreceiptcum seizure memo prepared regarding specimen signatures of accusedRajeevKumarandAlokKumarwhichweresenttoGEQD, Shimla for opinion, seizure memo EX PW5/A, Identification memo EXCW10/2 dated20.08.2001,receiptcumseizurememo dated20.08.2002 EX PW10/3,receipt cum seizure memo dated 28.10.2002EXPW4/1bearsignaturesofwitnessPW10.
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18 17.PW10furthersaysthataccusedAlokKumarmadeadisclosure

statementon01.11.2002inpresenceofoneV.N.Kashyapand sameisEXPW10/4.PW10alsoprovedpointingoutcumrecovery memo dated 01.11.2002 bearing signature of the accused Alok Kumaras EXPW10/5.Witnesssaysthatspecimenwritingalong with questioned documents were sent to opinion of GEQD, Shimla by forwarding letter dated 08.11.2002 EX PW10/6 and GEQDOpiniondated29.11.2001wasreceivedintheCBIoffice. PW10furthersaysthatduringinvestigationhealsotookspecimen hand writing of accused Rajeev Kumar and Alok Kumar in presenceofindependentwitnesswhicharecollectivelyprovedas EXPW10/7.Witnesssaysthathefoundintheinvestigationthat accusedAlokKumarappearedonbehalfofaccusedRajeevKumar in the examination of AIIMS held on 27.06.2001 and after completionofinvestigationhefiledthechargesheet.
18. PW11 is Shri N. C. Sood, Govt. Examiner for Questioned

Documents,whowhenappearedinthewitnessboxhastestified thathehasreceivedtraininginhandwritingidentificationand
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forgerydetectionandhasappearedasexpertwitnessinvarious courts and has been into this profession for about 40 years. Witness also says that documents considered as questioned writingasQ1toQ32ondocumentEXPW5/1andcollectivelyQ33 toQ36ondocumentEXPW7/1andQ37toQ43ondocumentEX PW7/2andQ44toQ46ondocument EXPW7/3andQ47toQ91 on document EX PW5/2 and Q92 to Q93 on document EX PW10/DA Q94 on document EX PW5/6 and Q95 to Q97 on documentEXPW3/1whereasspecimenwritingofaccusedRajeev KumarS1toS41andadmittedwritingweremarkedasA1toA3on documentEXPW5/3.SimilarlyspecimenwritingofaccusedAlok KumarweremarkedasS42toS100ondocumentEXPW10/6and admittedwritingofaccusedAlokKumarwasmarkedasA4toA35 ondocumentEXPW4/1.
19. PW11saysthatoncarefulthoroughexaminationofabovesaid

documents, he came to his conclusion and gave report EX PW11/1. Itismatterofrecordthatduringthecourseoftrialoneofthe

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accused namely Rajeev Kumar moved the application for plea bargaining on 26.03.2010 and plea bargaining judge vide judgmentdated09.09.2010,convictedtheaccusedRajeevKumar for offences u/s 419/420/468/471/511 R/w 120 B IPC and sentencedhimforsimpleimprisonmentoftwomonthswiththe paymentofcompensationofRs.25,000/tobepaidtothestate. 20. UponcompletionofPE,alltheincriminatingevidenceswere puttotheaccusedAlokKumarinstatementrecordedintermsof the provisions of section 281/313 CrPC, wherein accused Alok Kumarwhiledenyingtheevidencehastakentheplacethathehas been falsely implicated by the prosecution and there is no evidence against him in support of the allegations and it is requestedthatcasemaybedismissedforwantofevidenceand beingfalse(Sic.). 21.Noevidencewasledindefence. 22. IhaveheardShriAtulKumar,Ld.ProsecutorforCBIandShri UmeshKumarSinha,Ld.CounselfortheaccusedAlokKumar. 23. It is argued by Ld. Prosecutor for CBI that prosecution has
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successfullyprovedalltheavailableevidenceagainsttheaccused. It is submitted that expert witness has clearly given the report regarding signatures/handwriting of accused Alok Kumar in attendancesheetExPW7/1aswellasinthehotelregister.Itis also submitted that beside the expert opinion, evidence of the witnesses corroborate the prosecution version regarding impersonation committed by the accused Alok Kumar by appearingasaccusedRajeevKumarintheexaminationheldon 27.06.2001.Ld.ProsecutorhasalsosubmittedthataccusedRajeev Kumarhadalso confessedbeforethecounsellingcommitteeof AIIMSwhichisExPW5/3sameisalsoacorroboratingpieceof evidenceestablishingtheconspiracyofaccused personsbeside other persons. It is submitted that one of the accused namely Rajeev has already been convicted when he adopted the procedure of plea bargaining. It is stated that defence of the accused is simply denial, whereas onus was on the accused to rebut the evidence which was proved on the record. It is submitted that in such situation mere denial of the accused is
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ratheranincriminatingevidencethenadefence. 24.OntheotherhandLd.Counselfortheaccusedsubmitsthatitis admitted case of the prosecution that impersonation was not detectedatthetimeoftheexaminationandnoneofthewitness examined on behalf of CBI has testified anything against the accusedAlokKumar.Moreover,ifweassesstheattendancesheet EXPW7/1itwouldbeevidentthatwhen3candidatesoutof5 mentioned in that attendance sheet were not appearing in the examination, it was not possible for invigilator not to identify impersonationifitwouldhaveactuallyhappened.Itissubmitted thatthereisnodirectevidencecollectedbytheCBIandinthe absenceofthesamemererelianceonexpertwitnesswhichisnot a substantive evidence, accused cannot be convicted. It is also argued that during the cross examination of witnesses, it has come that during the examination photographers were called uponandvideorecordingwasconductedduringthecounselling butthosephotographsandvideorecordinghavebeenwithheld forreasonsbestknowntotheprosecution.Itisarguedthatonly
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evidenceofexpertwitnesscannotbemadebasisforconvictionas evidence of expert witness is always considered to be a weak quality of evidence, reliance has been placed on judgment in StateV/sSukhdevSingh,AIR1992SC2100,KanchanSinghV/s StateofGujarat,AIR1979SC1077,RamPrasadV/sShyamLal, AIR1984NOC77,AbhayNandV/sStateofBihar,1959Patna 328,M.K.UsmanKoyaV/sC.S.Santha,AIR2003Ker.191. 25. After having heard the submissions at bar and having gone throughtherecordincludingevidenceanddocuments,itcanbe statedpreciselythatallegationsarethataccusedRajivKumarwas eligiblecandidateforgivingwrittenexamsforB.Sc.(Hons)Para Medical course of AIIMS, held on 27.06.01, but accused Rajiv Kumar,inconspiracywithother,did notappearinexamsand accused Alok Kumar appeared in place of Rajiv Kumar and impersonated as Rajiv Kumar and fact regarding this impersonationdidnotcomeinnoticeondayofexamination,but allegedly came in light, during counseling of accused Rajiv Kumar, who stated to have admitted before counseling
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committeeon30.06.01.Besidethisincidence,otherincidenceof impersonationinsaidexamcametothenoticeanduponreport given by counseling committee, Director AIIMS gave a written complaintandpresentcasewasregistered. Now ifwetakethe allegationsandchargeagainstaccusedonthefaceofit,firstofall questionfordeterminationiswhetheraccusedRajivappearedin examsforB.Sc(Hons)ParaMedical,heldon27.06.01,ithastobe keptinmindthatallegedimpersonation,couldnotbenoticedon the day of examination. It is only when accused Rajiv Kumar appeared before counseling of committee, members of said committee got suspicion, when they asked questions about examination,accusedRajivKumarcouldnotgiveproperreply.In this regard PW2 Yogender Kumar Gupta, PW5 Uma Dutt Bhargava are two witnesses who were member of counseling committee,ifwegothroughtheirevidence,onthisfact,bothPW2 andPW5havetestifiedthatondayofcounselingofaccusedRajiv Kumar on 30.07.01, accused Rajiv Kumar was asked some questionsaboutexamination,questionpaper&hewasnotable
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to tell anything correctly and after this Rajiv Kumar confessed before counseling committee, that some other person had appeared onhis behalfandhedid notknow thenameofthat person.SimilarlyPW5alsosaysatpage3ofhisexaminationin chief,inwhichwitnesshasprovedsaidstatementofRajivKumar bywhichheadmittedthathehadnotappearedinexamination heldon27.06.2001.SaidstatementisEx.PW5/3. 26.Now,weneednottogoindetailregardingthisaspectbecause accusedRajivKumarhasalreadyadmittedallallegationsandhas adopted procedure of plea bargaining and has already been convicted. Thus from evidence of PW2 and PW5 and the documentEx.PW5/3,whichremainedunrebutted,evenincross examination of PW2 and pW5 and coupled with circumstance, that accused Rajiv Kumar has laready been convicted in plea bargaining, one thing which is clearly proved on record, that accused RajivKumarhadnotappeared himselfinexamination heldon27.06.2003andsomeoneelsehadappearedinhisplace, by impersonating as Rajiv Kumar. So even if alleged
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impersonation was not caught on the day of examination on 27.06.2003,butitcanbesaidthatitiswellprovedonrecordfrom evidenceanddocumentsandcircumstancesthatsomeoneelse hadappearedintheexaminationof27.06.03,whoimpersonated himselfasRajivKumar. 27. Now next question for consideration is that if some one else appeared in examination, then who that person was? As per prosecution allegations, accused Alok Kumar had appeared in examinationandimpersonatedasRajivKumar.Sowehavenow toexamineandassesstheevidence,whichCBIhasledtoconnect the accused Alok Kumar with crime. Before examining the evidenceonthisaspect,itisimportanttonotethatargumentof learnedcounselforaccusedthatitwasnotpossibleorprobable that impersonation would have remained unnoticed on day of examination,becauseasperattendancesheetoffivecandidate onlyEx.PW7/1,threecandidateswereabsentandnameofonly two candidates , including name of accused Rajiv were shown present. This argument of impossibility or improbability of
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impersonation,haslostanybearing,onceitisprovedonrecord, that some one else had appeared in examination, in place of accusedRajiv. 28.NowletusexaminetheevidenceasagainstaccusedAlokKumar, itisagainbeingmentionedatthecostofrepetitionthatalleged impersonation was not caught or came to notice on day of examination.Therefore,ithastobekeptinmindwhileassessing theevidencethatinfactitiscasewhereprosecutionisrelyingon circumstances to prove charge. So that being the situation, we needtoremindourselfwellknownpropositionoflawthatchain of circumstances must be so connected that it leads to one specificandclearconclusion. 29. Aspointedout,abovefactthatsomeoneelsehadappearedin examinationof27.06.01,inplaceofaccused,RajivKumarcameto thenotice,onlywhenRajivKumarhimselfadmittedit&gaveitin writingwhichisEx.PW5/5,perusalofthisdocumentwouldshow thatRajivstatedthathisfriendintroducedhimwithoneRajesh beforeexaminationandRajeshKumarwasreadytoappearinhis
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place in paramedical entrance examination. This written admissionwasbasisforinvestigatingagencytoproceedfurtherin collectingevidence.DuringinvestigationaccusedRajivKumaras perhisdisclosure,ledtheinvestigatingagencyandIOSISanjay SharmatoCBSEoffice,whereaccusedRajivKumaridentifiedthe photographofaccusedAlokKumaronhisapplicationformfor AllIndiaPreMedical/predentalexamination2001,tobeone whoappearedinB.Sc(Hons)ParaMedicalExaminationofAIIMS, 2001,inhisplacebyimpersonatinghimselfasRajivKumar,this identificationmemoisEx.PW10/2.ThisevidenceledtheCBIto layitshandonaccused AlokKumar. Nowafterarrest,accused AlokKumar,madedisclosurestatementbeforeIO,whichisEx. PW10/4andinpursuanceofhisdisclosurestatement,whereinhe admitted that he came with one Pankaj Kumar to Delhi and appeared in examination of B. Sc(Hons) Para medical, 2001 in place of Rajiv Kumar. Then Alok Kumar pointed out the Hotel Para Mount where he disclosed to have stayed with Pankaj Kumar. This pointing out memo is Ex. PW10/5. Now by this
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discovery,IOcollectedtheregisterofHotelandjoinedtheowner ofsaidhotelininvestigation. 30.Nodoubtdocuments,Ex.PW10/2,Ex.pW10/4andEx.PW10/5 cannotbegivenverygreatevidentiaryvalue,butitmustbekept inmindtheseevidences,whichgavetheclueto IOtoreachto accusedAlokandthusmaybewecannotattachmuchvalueof proof to these documents but at least, can be taken as one circumstance, specifically when, on these aspects, nothing was askedincrossexaminationofPW3orPW10.Nodoubtinwritten admission of accused Rajiv Kumar Ex. PW5/5 he had not mentioned the name of accused Alok Kumar, but in facts and circumstancesofcase,thisispossiblebecause,evenatthatstage, evenRajivKumarmightnotbeawareaboutnameofperson,who actuallyappearedinexaminationinhisplace. 31. NowletusexaminetheevidencewhichCBIhasheavilyrelied uponagainaccusedAlokKumar. 32. As discussed above during the investigation, Investigating Officer collected many documents as well as also collected
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admittedhandwritingofaccusedRajeevKumarandAlokKumar. Duringtheinvestigation,someofthemostimportantdocuments collected, were document 4 which is Ex PW5/1 which is an application form for entrance examination for Paramedical CoursewhichwasadmittedlyfilledbyaccusedRajeevKumar.On thisdocumentsignaturesandhandwritingoftheaccusedRajeev Kumar are Q1 to Q13 and thereafter on another duplicate application form admitted handwriting of the accused Rajeev KumarisQ17toQ31.Thereafteranotherimportantdocumentis document5ExPW7/1,onwhichadmittedscannedsignaturesof accusedRajeevKumarareQ33andonthesaidattendancesheet ExPW7/1oncolumnNo.2,3&4,handwritingareQ34,Q35& Q36, beside these documents another important document is document42,whichisExPW3/1whichisthecopyoftheregister entry of the Hotel Paramount on which handwriting has been takenandQ95,Q96&Q97.Thesedocumentsalong withother documents were sent for comparison and examination from admittedsignatures ofaccused RajeevandAlokandasperthe
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PW11N.C.Sood,Examinerofquestioneddocument,specimen writingofaccusedAlokKumarweremarkedasS42toS100which werecollectively ondocumentsExPW10/6aswellasadmitted handwriting of Alok Kumar from A4 to A35 on collective documentsExPW4/1.PW11N.C.SoodExaminerofquestioned documents,haswhenappearedinwitnessbox,testifiedthatafter his careful examination and analysis of questioned document withadmitteddocumentsasperpara5ofhisreportExPW11/1 thepersonwhowroteS42toS100andadmitteddocumentA4to A35,hadalsowrotedocumentQ34toQ46.Thusreportindicates thathandwritingonattendancesheetExPW7/1atcolumnNo.2, 3 & 4 was of accused Alok Kumar. Beside this, report also indicates that handwriting on the answer sheet Ex PW7/3 at whicharequestioneddocumentsQ44,Q45,Q46werealsowritten byAlokKumar.Thusasperthereport,itisestablishedthatitwas AlokKumar,whoappearedintheexaminationandfilledcolumn No.2,3&4ofattendancesheetExPW7/1aswellasalsofilledthe answersheetExPW7/3.PW11hasgivenhisreasonsregardinghis
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opinion at para 5 of his report. PW11 was also duly cross examinedbutnothingwasaskedregardinghisopinionexceptto suggesthimthathisreportisfalse.Thusthereisnothingonthe record with regard totheopiniongivenbytheexpert PW11to disbelievetheopinion. 33. Thustheevidenceoftheexperthasclearlyestablishedthelink between accused Alok Kumar and the crime. It is clearly establishedthatitwasaccusedAlokKumarwhoappearedinthe examination held on 27.06.2001and written on the attendance sheet as well as on answer sheet. This evidence has got corroborationfromtheevidenceofotherwitnesses,ifweassess the evidence came on the record,it would be clear from the evidenceofPW5Shri UmaDuttBhargava,whohasstatedthat duringtheinvestigation,theapplicationformofaccusedRajeev KumarwasgiventotheIO.SimilarlyPW7PrakashChandJoshi has also stated that he handed over the attendance sheet Ex PW7/1 and question booklet and answer sheet Ex PW7/2 and PW7/3. These documents were compared with admitted and
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specimen handwriting of the accused Alok Kumar collected duringtheinvestigation. 34. Thus from their evidence it is very much clear that admitted documents were collected and were sent to expert for comparison. These witnesses were not cross examined at all regarding handing over documents like application form, attendance sheet, question booklet and answer sheet etc. to investigatingofficer.Nowitmustbearinmindthattherecannot be any mathematical formula to assess evidence in a criminal trial. Court is require to assess the evidence and credibility of witnessesinlightoffactsandcircumstancesofcase.Inpresent case, it was not the situation, that direct evidence regarding impersonating by accused person, being available and still not collected. It is admitted position of fact that impersonation by accusedwasnoticedwhenaccusedRajeevKumar,hadadmitted beforecounselingcommittee,thathedidnotappearinwritten examination. It is from that stage CBI started investigation therefore, it collected those evidence, which could have been
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possibletocollect,fromthatstagedandcourthastobearinmind thatweighttobeattachedtoexpertwitness,PW11istobegiven, inthelightofpeculiarfactsandcircumstances. 35.BeforewediscussthejudgmentrelieduponbyLd.Counselfor accused,itisimportanttoreferthatLd.Counselhasarguedthatit has come incross examination ofPW2thatvideo recording of candidateswhoadmittedtheirguiltduringcourseofcounseling wasdonebyAIIMSvideorecorder.Similarlywhilerelyingsome portion of cross examination of PW8 Nitin Ranjan Parashar, whereinwitnessstatedthatphotographsofsuspectedcandidates weretakenbyAIIMSPhotographerduringcourseofinspection.It wasarguedthattheseevidenceofvideographyconductedduring counseling and photography etc during examination, was not collectedorwithheldbyCBI.Igavethoughtfulconsiderationsto thisaspectofmatter,butuponwholisticanalysisofmatter,Ifind thisargumenthasnomuchbearingbecauseitbekeptinmind thatwhileassessingtheevidence,evidenceofwitnesshastobe readcompletelyandnotheextractofevidencecanbemadebasis
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ofanyconclusion.IfwegothroughthecrossexaminationofPW2 intoto,witnesshasstatedthatvideographywasdoneinsome cases.Sothereisnospecificevidence,thatphotographyorvideo graphy was done completely on day of examination or before counseling committee and still it was withheld. PW2 in his examination in chief itself has deposed that .....we decided to have some AIIMS photographer deputed at center and take photographsofsomecandidatesduringexamination......Soitis notthatphotographyorvideorecordingwasconductedduring wholeofprocessandstillwithheld.Moreoveritbekeptinmind fact that some one else appeared in examination, in place of RajeevKumar,isalreadywellprovednotbyevidencebutalsoby accusedRajeevKumarwhenheadmittedallegationsagainsthim andoptedforpleabargaining.Sowhentherebenodoubtasto thefact,whichiswellprovedbyevidenceandcircumstances,that accused Rajeev Kumar did not appear in examination of 27.06.2001,thenthisargumentlosesit'sweight,specificallywhen witnesseshaveclarifiedthatvideographywasnotdoneinevery
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case. 36. Thuswherethereisevidenceofexpertwitnessdulysupported and corroborated by evidence of other witness, in such facts, expertopinioncanbethrownaway.Specificallywhentherebeing nothingincrossexaminationofanyofwitness,astowhyaccused Alok Kumar, would be falsely implicated. Accused has simply deniedeverything.Nodoubtonusisonprosecutiontoprovethe chargebeyondanyreasonabledoubt,butasthesametime,when prosecutionhasestablishedit'scase,accusedwasalsorequired tocomeupwithhiscleardefence.Itisnotacasewheredenialof accused,wassufficient. 37. Let us now assess case law, on this aspect; Identification of handwritingisimportantbecauseunderSection67oftheIndian EvidenceAct,1872identifyingthehandwritingorthesignaturein the documents can prove the identity of the executor of the document.Theordinarymethodsofprovinghandwritingare:(i) Bycallingasawitnessapersonwhowrotethedocument.(ii)By admissionofthepersonagainstwhomthedocumentistendered.
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(iii)Bycallingasawitnessapersonwhosawthedocumentor signed.(iv)BycomparisonofhandwritingunderSection73ofthe Act.(v)Byapersonqualifiedtoexpressanopinionastohand writingunderSection47oftheAct.(vi)Byexpertopinionunder Section45oftheAct. 38. The firstandsecond methodsmentionedaboveareexcluded whenevertheauthorofthedocumentinquestionisaninterested party.Thethird method isnotfeasibleasmoreoftenthannot thereisnoeyewitnessoftheexecutionofthedocumentunless law mandates presence of witnesses for execution of that document. Out of other three methods, expert opinion under Section 45 of the Indian Evidence Act is the most common method employed by courts. Section 45 of the Act states that opinion of a person skilled in question as to identity of handwriting is relevant in determination of the identity of handwriting before the court. There are two ways in which handwriting experts give their opinion. In most cases their opinionisbasedonanocularcomparisonofthehandwritingin
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thequestioneddocumentwithauthenticsamplesofhandwriting oftheauthor.Inothercases,theiropinionisbasedonobserving thequestioneddocumentsundercertainscientificinstruments. In this case PW 11 has adopted scientific method to assess & comparethehandwritingetc. 39. Lawwithregardtoappreciatinghandwritingexperthasbeen consistent&therehasalwaysbeenruleofcautionattachedwith evidenceofexpertbecausesuchevidencethoughhelpscourtin process of decision making but can not be over dependent on suchevidence.Thusitisnotthatevidenceofhandwritingexpert issomethingwhichhastobetakenwithsuspicionbutitisarule ofcautionthatwhileappreciatingevidenceofsuchexpert,court hastoassessallfacts&circumstance&alsotoexaminereasoning given by such witness. In order to rely on the evidence of an expert the Court must be fully satisfied that he is a truthful witness and also a reliable witness fully adept in the art of identification of handwriting in order to opine whether the alleged handwriting has been made by a particular person or
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not.Ifevidenceofhandwritingexpertclearsallthesetests&is also getting corroboration from other direct or circumstantial evidence,thenitcanbereliedupon.In StateofMaharashtrav. SukhdeoSinghAIR1992SC2100itwasheldthatahandwriting expert is a competent witness whose opinion evidence is recognizedasrelevantundertheprovisionsoftheEvidenceAct and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinionevidencewithsuspicionbutthecorrectapproachwould betoweighthereasonsonwhichitisbased.Thequalityofhis opinionwoulddependonthesoundnessofthereasonsonwhich itisfounded.ButtheCourtcannotaffordtooverlookthefactthat thescienceofidentificationofhandwritingisanimperfectand frailoneascompared tothescienceofidentificationoffinger prints; Courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroborationbutthatisnottosaythatitisaruleofprudenceof general application regardless of thecircumstances of thecase
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andthequalityofexpertevidence.Nohardandfastrulecanbe laiddowninthisbehalfbuttheCourthastodecideineachcase onitsownmeritswhatweightitshouldattachtotheopinionof the expert. In the instant case the opinion evidence of handwritingexpertwasnotsohighastocommendacceptance withoutcorroboration. 40. In AmeerMohammedv.BarkatAliAIR2002 Raj.406 itwas held that the opinion of the Handwriting expert cannot by rejectedonlyonthegroundthathewaspaidbyapartyforgiving opinion nor it can be rejected solely on the ground that the opinion is based upon an imperfect science. All the facts and circumstancesarerequiredtobeseen..Condemning theexpertasremuneratedwitnessesavailableonhiretopledge theiroathinfavourofthepartywhohaspaidthem,appearstobe absolutely unwarranted. Comparison of the handwriting and forminganopiniononthebasisofthehandwriting,isascience andthepersonsareacceptingtheprofessionofthehandwriting expert and are being taught and thereafter the experts are
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permittedtogiveevidenceasofhandwritingexpert. 41. Ld counsel for accused has relied upon judgment in M. K. UsmanKoyav.C.S.SanthaAIR2003Ker.191 whereinitwas observethatcomparisonofhandwritingisanimperfectscience andanexpertwouldnotbeabletostatewith100%certaintythat a particular signature is that of the person who purportedly signedit.Hecanonlystatethatthereishighprobability.Having gonethroughthejudgment,thereisnodenialtofactthatscience of identification of hand writing is not completely scientific or perfect. But for this reason only expert evidence can not be thrown away in every case, if that would have been situation, therewouldnothavebeenlegalrecognitionofsuchevidence.As pointedabove,suchevidencehastobetakenwithcaution&tobe scrutinized, to see reasoning, corroboration etc. before concluding to rely or notrely upon suchevidence. Inpresent case as stated above expert witness has got corroboration & experthasgivenadetailedreasoningofhisopinion,inpara5of hisreportEx.PW11/1,perusalofsamewouldmakeitclearthat
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thereisnoreasononrecordtorejectsuchopinion,specificallyhe hasnotbeentestedbywayofdetailcrossexamination.Similarly judgment in Abhayanand Mishra (AIR 1959 Pat. 328), Ram Prasad case AIR 1984 NOC 77 (All.) only reiterate well established principle to be kept in mind while appreciating evidenceofhandwritingexpert.Regardingwhichtherecannotbe anydenial,excepttosaythatevidenceofsuchwitnesshavetobe assessedinlightoffacts&circumstanceofparticularcase. 42.LdcounselforaccusedhasalsorelieduponjudgmentinStateof Maharashtra v. Sukhdeo Singh AIR 1992 SC 2100, which has alreadybeenratherrelieduponbythiscourt&discussedabove, inthatjudgment,convictionofaccusedwasupheldbyApexcourt & it was observed that a handwriting expert is a competent witnesswhoseopinionevidenceisrecognizedasrelevantunder theprovisionsoftheEvidenceActandhasnotbeenequatedto theclassofevidenceofanaccomplice.Itwould,therefore,notbe fair to approach the opinion evidence with suspicion but the correctapproachwouldbetoweighthereasonsonwhichitis
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based. Thus from above discussion I conclude that CBI has established that it was accused Alok Kumar who appeared in examinationofB.Sc.(Hons)ParaMedicalCourseofAIIMSand impersonated as accused Rajeev Kumar, thus I find charge for offenceundersection419/420R/wsection511IPCiswellproved and accordingly accused stands convicted for these offences. Similarlyinviewoftheexpertevidencecameontherecord,Ifind thatoffenceu/s468/471IPCisalsowellprovedagainstaccused AlokKumar.However,intheabsenceofanyevidencemadeout foroffenceu/s120BIPCaccusedisacquittedforthatoffence.Let he be heard on the point of sentence for offences for which accusedisconvictedon07.06.2012.

ANNOUNCEDINOPENCOURT ON04.06.2012) (SHAILENDERMALIK) ACMMII,NorthEast, KARKARDOOMACOURTS: DELHI

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