Bangalore District Court
Cbi/Acb/Bangalore vs Manish Kumar S/O Late on 23 March, 2018
IN THE COURT OF THE XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE,
BANGALORE.
(SPL.COURT FOR CBI CASES)
-: Present :-
SRI. J.B. SHIVAPUJI, B.SC., LL.B. (SPL.)
XVII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BANGALORE.
C.C.NO.21102/2015
DATED : 23RD DAY OF MARCH, 2018
COMPLAINANT : CBI/ACB/Bangalore
// Vs //
ACCUSED: Manish Kumar S/o late
Dinanath Singh, Multi
Tasking Staff,
Employees' State
Insurance Corporation
Hospital, Peenya,
Bangalore.
JUDGMENT
This is a charge sheet submitted by the inspector of police C.B.I./ACB/Bangalore against the accused for the offences punishable 2 C.C.No.21102/2015 u/Secs.419 and 420 of the Indian Penal Code and the accused is tried for the same.
2. The case of the prosecution in a nutshell is as here under;
The employees' state insurance corporation, the regional office, Karnataka in order to fill up vacancies for the posts of Multi Tasking Staff (MTS) and Upper Division Clerk (UDC) issues notification and recruits the required posts as and when required. In the year 2012 vide notification dated 06.01.2012 called for the recruitment for 68 of MTS and other posts. Likewise, in the year 2013 vide notification dated 23.05.2013 called for the recruitment for 54 of UDC and other posts. The basic qualification for MTS was of matriculation with pay band of Rs.5,200/- - 20,200/- and grade pay of Rs.1,800/-. There was only one objective type written examination paper of 200 marks for MTS and the subjects of numerical ability, english language, general intelligence and general awareness were having 50 questions each. Likewise, the basic qualification for UDC was of any degree with pay band of 3 C.C.No.21102/2015 Rs.5,200/- - 20,200/- and grade pay of Rs.2,400/-. There were two papers one paper part - I objective type written examination paper of 200 marks as in MTS and the other, paper - II computer skill test of 50 marks on preparation of power point presentation, typing letter/passage and preparation of tables. The recruiting authority the regional office, ESIC, Bengaluru on receiving instructions from its head office, New Delhi as to mode of conducting examination, mode of receipt of applications and as of collecting recruitment fees approached the National Informatics Centre (NIC) for designing portal for receiving online applications from candidates with scanned photographs, scanned signatures and other necessary details and Canara Bank for enabling their system to accept the recruitment fees through challan on pan India basis. Thereafter, the NIC after consultation with the concerned bank designed the portal and after testing and approval from the regional office the said portal was uploaded in the website of ESIC. The concerned candidate in order to apply for the 4 C.C.No.21102/2015 posts of MTS and UDC first has to upload the application by filling the required information along with his or her scanned photograph and scanned signature. After generating challan has to remit fee if required to the concerned bank. Thereafter, by feeding the remittance of fee in his application has to take the printout and after signing in the printout application has to send the same to the regional office, ESIC, Bengaluru. The NIC after making proper arrangement for conducting examination and after collecting information created one more web page enabling the candidates to take the printouts of their admit cards and at the same time the NIC sent the soft copy of the attendance sheets containing scanned photographs with scanned signatures and other details to the regional office, ESIC, Bengaluru and based on the soft copy of attendance sheets the same were made available with the invigilators at the time of examination.
3. That on 23.06.2013 the part - I written examination for 200 marks and on 19.01.2014 the part - II computer skill test for 50 marks for 5 C.C.No.21102/2015 UDC posts were held in Bengaluru and other centers within Karnataka. That on 29.04.2012 the written examination for 200 marks for MTS posts was held in Bengaluru and other centers within Karnataka. The candidates accused Shashi Ranjan Kumar and Chandan Kumar had applied for the posts of UDC and accused Manish Kumar, Anuj Kumar and Niraj Kumar had applied for the posts of MTS. The part - I written examination of the accused Shashi Ranjan Kumar on 23.06.2013 was scheduled at Rajaji Nagar first grade college of commerce, Rajaji Nagar, Bengaluru and the part - I written examination of the accused Chandan Kumar on 23.06.2013 was scheduled at SJR college for women, Rajaji Nagar, Bengaluru. Thereafter, the examination for part - II for computer skill tests for both Shashi Ranjan Kumar and Chandan Kumar were scheduled at R.V. institute of management, Jayanagar, Bengaluru on 19.01.2014. The written examination for MTS posts of Manish Kumar, Anuj Kumar and Niraj Kumar on 29.04.2012 was scheduled at St. Joseph Pre - University College, Residency road, 6 C.C.No.21102/2015 Bengaluru. The written examination paper - I of UDC dated 23.06.2013 and written examination paper of MTS dated 29.04.2012 were of 2 hours duration from 10.00 a.m., to 12.00 p.m. The examinations of paper - I of UDC and of MTS are in various colleges and for conducting examination a chief supervisor was deputed covering all the venues within Bengaluru and a supervisor was deputed to each venue and 2 invigilators one from ESIC side and one from college side were deputed to each room having 24 candidates. The invigilators were duly instructed as to conducting of examination. The computer generated admit card was with two parts in a single sheet the first upper part was with scanned photograph and scanned signature and the second lower part was with blank space instructing to affix a photograph and to put across signature at the time of examination. The attendance sheets were with scanned photographs and scanned signatures of candidates. The candidates were asked to bring the admit cards with their photographs to the examination and they were instructed to 7 C.C.No.21102/2015 affix the photographs in the blank space of the second part of the admit card and the invigilators were asked to verify the respective candidates with the help of admit card and attendance sheets and they were asked to take the left hand thumb impressions and signatures of the candidates in the space provided in both the admit card and attendance sheets and they were asked to collect the second part of the admit card with affixed photograph and return the first part of the admit card which was with scanned photograph and scanned signature to the candidates. The invigilators were also asked to take the signature and declaration from the candidates in their own handwriting in the OMR answer sheets.
4. The examinations were held as scheduled. After examination, sealed covers of answer sheets, attendance sheets and second portion of admit cards from venue supervisors along with their reports received and they were sent to the head office, New Delhi. The papers were valued at the head office, New Delhi and they forwarded the result to the regional office, 8 C.C.No.21102/2015 Bengaluru and the regional office, Bengaluru prepared the eligible list. In case of UDC examination, after written examination of part - I, total 164 eligible candidates in the ratio of 1:3 were selected qualifying to write the second paper computer skill test. The computer skill test was conducted with the external agency M/s Merit Trac, Bengaluru. Thereafter, the results were declared and offer of appointment were issued to the selected candidates and the selected candidates reported to duty to their place of appointment. After issuance of offer of appointment order and after joining to duty generally regular appointment orders are issued and accordingly regular appointment orders were issued to some of the candidates who have reported to duty.
5. After declaration of results, the regional office received Fax messages that some candidates have adopted impersonations while writing examination and then the director of the regional office instructed that the verification process of the candidates must be very stringent and he asked to obtain finger prints 9 C.C.No.21102/2015 and signatures of the selected candidates and others at the time of reporting to duty. Thereafter, a preliminary verification was conducted and they short listed the suspected 9 cases based on the fingerprints and signatures available in the attendance sheets, second copy of admit cards and records taken at the time of reporting. Then all the suspected 9 cases were referred to the forensic science laboratory and the forensic science laboratory reported that 7 cases out of 9 referred to them are cases of impersonation. Them on the direction of the director the regional office, Bengaluru the said 7 candidates were terminated from service. The accused Shashi Ranjan Kumar and Chandan Kumar appointed as UDCs were posted to ESIC model hospital, Rajaji Nagar, Bengaluru after termination of 7 candidates from service and now they are in service but regular appointment orders have not been issued to them. The accused Manish Kumar, Anuj Kumar and Niraj Kumar appointed as MTS were reported to their place of appointment and they were already reported to duty when the said 7 candidates 10 C.C.No.21102/2015 were terminated. The accused appointed as MTS are in service and regular appointment orders have been issued to them. The regional director of the regional office, Bengaluru had also directed to verify the records of the candidates subsequently reported to duty and then even they found some suspicious cases but meanwhile the C.B.I. on source information registered the case and as such, they could not proceed further.
6. Thereafter, the C.B.I. took up the investigation and in the investigation it came to know that the accused Shashi Ranjan Kumar dishonestly and fraudulently cheated the ESIC and the deserving merit students and engaged some one to impersonate him to write part - I written examination for UDC dated 23.06.2013 at Rajaji Nagar, first grade college, Rajaji Nagar, Bengaluru and on selection based on the first paper, later he himself appeared for the computer skill test dated 19.01.2014 and appointed and joined on 14.04.2014 and since then he is working as UDC at the ESIC model hospital, Rajaji Nagar, Bengaluru. The accused 11 C.C.No.21102/2015 Chandan Kumar dishonestly and fraudulently cheated the ESIC and the deserving merit students and engaged some one to impersonate him in his paper part - I written examination for UDC dated 23.06.2013 held at SJR College for Women, Rajajinagar, Bengaluru. Later, he himself appeared for paper - II computer skill test dated 19.01.2014 at R.V. Institute of management, Jayanagar, Bengaluru and based on it, appointed and joined in the month of May 2014 and since then he is working as UDC at the ESIC model hospital, Rajaji Nagar, Bengaluru. The accused Manish Kumar, Anuj Kumar and Niraj Kumar dishonestly and fraudulently engaged some others to impersonate them to write the written examination for MTS dated 29.04.2012 at St. Joseph Pre - University College, Residency road, Bengaluru and cheated the ESIC and the deserving merit students. The accused Manish Kumar got appointed and joined as MTS and since October 2014 has been working in the ESIC hospital, Peenya, Bengaluru. The accused Anuj Kumar got appointed and joined as MTS 12 C.C.No.21102/2015 and since August 2012 has been working in the ESIC model hospital, Rajaji Nagar, Bengaluru. The accused Niraj Kumar got appointed and joined as MTS and since May 2014 has been working in the ESIC regional office, Binnipet, Bengaluru.
7. That on 31.10.2014 on source information, the CBI/ACB/BLR in their RC No.19(A)/2014 registered the case for the offences punishable u/Secs.120 - B r/w 419 and 420 of the IPC and u/Sec.13 (2) r/w 13 (1)
(d) of the Prevention of Corruption Act and submitted the FIR to the Hon'ble 21st Addl. City Civil and Sessions Judge and Spl. Judge for C.B.I. cases, Bangalore. Then P.W.27 Sri R. K. Shivanna, the inspector of police, CBI/ACB/BLR took up the investigation. First after obtaining the search warrant, he and other officers searched the residential premises of the accused and collected materials available with them. He secured all the 5 accused and obtained the specimen signatures, handwritings and left thumb impressions in the presence of the independent witnesses. He collected 13 C.C.No.21102/2015 documents from the regional office, ESIC, Bengaluru connected with the case. He also recorded the statement of a witness and thereafter, on 23.02.2013 handed over the investigation to P.W.28 Sri T. Murugesan, the Inspector of Police, C.B.I./ACB/Bengaluru. He collected admitted writings and signatures of all the 5 accused available in the ESIC offices. He sent the questioned documents on specimens collected both to the fingerprint bureau, Madivala, Bengaluru and forensic science laboratory, Madivala, Bengaluru seeking expert opinion on collected disputed fingerprints, handwritings and signatures. He recorded the statements of the witnesses, secured the documents from ESIC offices and secured the reports both from fingerprint bureau, Madivala and forensic science laboratory, Madivala. The reports revealed that the disputed fingerprints, handwritings and signatures are not identical with the standard fingerprints, handwritings and signatures of all the accused. During investigation he could not trace out the real impersonators. As such, he after obtaining the 14 C.C.No.21102/2015 court permission forwarded the soft as well as hard copies of collected left thumb impressions of all the accused to the Unique Identification Authority of India, New Delhi seeking their opinion as to identification of impersonators. But, the Unique Identification Authority of India turned down the request refusing to disclose the personal details. The college authorities intimated that no video coverage has been taken by them during examination covering all the examination halls and no closed circuit television (CCTV) facility was installed/available at their college premises during the relevant point of time. Further, a team of officers from the C.B.I./ACB/Bengaluru was deputed to various districts of Bihar with necessary inputs to trace out the impersonators but they submitted the report for their inability to trace out the impersonators. Even though concert efforts were made, the real impersonators could not be find out and as such, keeping live the investigation against them and also as involvement of the officials could not be made out, he has filed 5 separate charge sheets 15 C.C.No.21102/2015 against the accused punishable u/Secs.419 and 420 of the Indian Penal Code. The others also have been tried simultaneously along with the accused in separate C.C.Nos. in this court.
8. After filing of the charge sheet, the Court took the cognizance for the offences punishable u/Secs.419 and 420 of the IPC against the accused. The accused secured by issuing summons and he appeared through his counsel and he was enlarged on bail. The charge sheet copies along with the documents were furnished to him.
9. Heard both sides on framing of charge. Since there were prima-facie materials available on record, the charge was framed and it was read over to the accused. The accused pleaded not guilty and he claimed to be tried.
10. The prosecution side in order to substantiate its case has examined PWs.1 to 27 and got marked the documents Exs.P.1 to 55. The defense side, the portions of statements D-1 and D-2 were got marked.
11. The incriminating evidence prevailing against the accused the statement u/Sec.313 of 16 C.C.No.21102/2015 the Cr.P.C. was recorded and read over to the accused. The accused denied the same as false. The accused did not choose to give his defense evidence. The accused furnished the Xerox copies of their confidential and annual performance/appraisal reports.
12. Heard the argument from both sides. Both sides have also relied on certain decisions and they have furnished them. The learned Public prosecutor has filed the written argument.
13. On the materials available on record and also on the argument advanced, the points that arise for my consideration are;
1. Whether the prosecution proves beyond reasonable doubt that the accused that on 29.04.2012 while writing written examination for MTS at St. Josept Pre - University college, Residency road, Bengaluru fraudulently or dishonestly deceived the employees' state insurance corporation and the deserving merit students by engaging someone to impersonate him in writing examination and got appointed as Multi Tasking Staff at the employees' state insurance corporation and 17 C.C.No.21102/2015 thereby cheated the employees' state insurance corporation and the deserving merit students punishable u/Sec.420 of the Indian Penal Code?
2. Whether the prosecution proves beyond reasonable doubt that on the aforesaid date and place, the accused engaged someone to impersonate him in writing the written examination for MTS and got appointed as a Multi Tasking Staff and thereby cheated the employees' state insurance corporation and the deserving merit students by personation punishable u/Sec.419 of the Indian Penal Code?
3. What order or sentence?
14. My findings to the above framed points are as here under:
POINT NO.1 : In the Affirmative
POINT NO.2 : In the Affirmative
POINT NO.3 : As per the final
Order for the following;
:REASONS:
15. POINT NOS.1 AND 2 : The prosecution in order to substantiate these points has relied on the same set of facts. As such and also as the analysis of the facts of the case on these 18 C.C.No.21102/2015 points are interconnected, to avoid repetition, these points are coined together for common discussion.
16. In the beginning the facts of the prosecution case have already been noted down. But, at this juncture, it is worth once again to reiterate the important alleged facts give room to the procedure of applying for jobs of MTS and UDC, the procedure followed in conducting their examinations and how as per the prosecution case the alleged impersonations came to light and how the accused brought to book in these cases. The material facts are that; the recruiting authority the regional office, the employees' State insurance corporation, Karnataka in the year 2012 to fill up 68 MTS posts and in the year 2013 to fill up 54 UDC posts called for the recruitment from the eligible candidates. The ESIC has sought the help of NIC for designing of portal, receiving online applications and creation of admit cards and attendance sheets. The candidates were asked to take the computer printout of the admit card having upper part - I with scanned 19 C.C.No.21102/2015 photo and scanned signature and lower part - II left with blank space for affixing photograph of the candidate with across signature. The candidates were required to bring part - I and part - II of the admit card to the examination venue with one stamp size of their photograph. The attendance sheets were provided to ESIC which were with scanned photographs and scanned signatures of the candidates and in turn they were entrusted to the invigilators. For UDC there were two papers paper - I objective type written examination of 2 hours carrying 200 marks and the candidates succeeded in paper - I were eligible for the paper - II computer skill test carrying 50 marks on 1:3 ratio. For UDC there was only one paper objective type written examination of 2 hours carrying 200 marks. The paper - I of UDC was scheduled on 23.06.2013 on various colleges in Bengaluru and in other centers of Karnataka. After the result of paper - I UDC, the candidates were selected in 1:3 ratio and the paper - II computer skill test was scheduled on 19.01.2014 in only one college as venue of 20 C.C.No.21102/2015 examination at R. V. Institute of management, Jayanagar, Bengaluru. The written examination of MTS was scheduled on 29.04.2012 at various colleges as venues of examination in Bengaluru and other places within Karnataka. For smooth conducting of examinations one chief supervisor to the entire city, one venue supervisor to each colleges and to each room having 24 candidates two invigilators one from ESIC side and one from college side were deputed. The invigilators were required to compare admit card and attendance sheets and also they were required to collect the second part of the admit card with affixed photograph and across signature on it. Accordingly, the examinations were conducted, valuation took place, result announced and the selected candidates reported to duty to their respective place of posting. The accused Shashi Ranjan Kumar and Chandan Kumar appointed as UDCs and the accused Manish Kumar, Anuj Kumar and Niraj Kumar appointed as MTS and as other candidates these accused also reported to duty to their place of posting. Meanwhile, the 21 C.C.No.21102/2015 regional office, ESIC Karnataka received Fax messages alleging impersonations while writing examinations. Then the director of the regional office instructed for the strict verification of the candidates reported to duty and when verification conducted 9 suspicious cases find out and the same referred to the forensic science laboratory and as per report of the forensic science laboratory 7 were the cases of impersonations. The said candidates were terminated and police cases were lodged against them. They also took up the verification of other candidates joined as UDCs and MTS and then they found some suspicious cases but as the C.B.I. on source information registered the case and took up investigation, they did not take up further action as taken earlier. In the investigation it came to know that the accused Shashi Ranjan Kumar and Chandan Kumar engaged some others for writing their written examination paper - I for UDC held on 23.06.2013 and the other accused Manish Kumar, Niraj Kumar and Anuj Kumar engaged 22 C.C.No.21102/2015 some others for writing their examination for MTS held on 29.04.2012.
17. The prosecution in order to substantiate their stand has examined in total 27 witnesses PWs.1 to 27. PWs.1 to 7 are the officials of the ESIC and P.W.8 is the official of NIC deposing as to working out vacancies, steps taken for recruitment process, conducting of examination, conducting of internal verification to find out the suspicious cases on obtaining the standard fingerprints and signatures of the accused and their termination. PWs.9 to 16 are the invigilators deputed from both ESIC and college side. PWs.17 to 23 are the officials of ESIC and bank witnessing taking specimen signatures, specimen number writings, specimen handwritings and specimen left thumb impressions of the accused at the time of investigation. P.W.24 is the fingerprint expert. P.W.25 is the handwriting expert and PWs.26 and 27 are the investigating officers.
18. P.W.1 Sri A. J. Manohar Asst. Head clerk, regional office, ESIC, P.W.2 Smt. K. Radha office superintendent of establishment 23 C.C.No.21102/2015 branch, regional office, ESIC, P.W.3 Sri R. Raju Deputy director, administration, regional office, ESIC, Sri S. Sivaramakrishnan Deputy Director systems & administration, regional office, ESIC and Sri L. Lakshmisha the technical director have deposed regarding the procedural aspects regarding recruitment process, conducting examination and internal verification conducted in the department. These witnesses have reiterated the same facts and as P.W.4 is the deputy director systems & administration being the head compare to PWs.1 to 3, I would like to traverse his deposition. P.W.4 has deposed that; as Dy. Director (Systems and administration) his duties were to look after the administration of personnel & establishment which include recruitments, transfers and postings of staffs through out Karnataka, conduct of departmental promotions etc. The regional director of the concerned regional office of ESIC is the recruiting authority for the posts of group C & D i.e., UDCs, LDCs & MTS. In order to recruit the posts of group C & D employees, first the regional office has to work out the 24 C.C.No.21102/2015 number of vacancies based on reservation & roster as per the instructions of head office, ESIC, New Delhi. After working out the number of vacancies the same has to intimate to the head office, New Delhi with the approval of the regional director of the regional office. Then the head office sends the draft notification and based on the draft notification, the regional office issues the notification in the leading news papers and in the web site of the ESIC. Mean while, the head office, New Delhi also instructs the regional office the mode of conducting examination and mode of receipt of applications and also of collecting recruitment fees. Based on the instructions of the head office, New Delhi the regional office approaches the NIC for designing the portal for receiving online applications from the candidates containing the name of the candidate, his father name, their address, date of birth, educational qualification, scanned photographs, scanned signatures and others. Mean while, the regional office has to approach any nationalized bank for enabling their system to accept the recruitment fees 25 C.C.No.21102/2015 through challan on pan India bases. The NIC after consultation with the concerned bank designs the portal and after testing, the regional office approves the same and after approval the said portal uploaded in the web site of ESIC. The concerned candidate has to open the web link in the web site of the ESIC. One more advertisement will be issued after opening the web link for applying online applications. First the candidate has to upload the application by filling the required information along with the scanned photograph and his scanned signature. Thereafter, the candidates who are required to pay the recruitment fee shall generate the bank challan and based on it he has to remit fee to the concerned bank. After remittance of fee, the candidate has to feed the same in his application and then he has to take the print out and he has to sign in the print out application and he has to send the same to the regional office. After the last date for receipt of applications, the NIC intimate the regional office as to candidate's choice city wise receipt of applications. Based on the information received 26 C.C.No.21102/2015 by the NIC, the regional office initiates for identification of examination centers in each of the cities wherein the examination will be conducted. Then the regional office after charting out the colleges with the sitting capacities intimate the same to the NIC and NIC allot the colleges i.e., the examination centers to the candidates and assign the role numbers and the statistics with details is informed to the regional office and the regional office after verifying approves the same and after taking approval, the NIC creates one more web page enabling the candidates to take the print out of their admit cards. After approval of the web page for taking print out of admit cards the regional office has to once again issues advertisement through the leading news papers and through SMS and E-mail with the help of NIC. The NIC apart from this also generates the attendance sheets containing candidates name, their role number, their scanned photographs along the signature and other details. The NIC sends the soft copy of the attendance sheets to the regional office and the regional office takes 27 C.C.No.21102/2015 the print outs. If the examination centre is of out of station then the print out of the attendance sheets will be sent to them from the regional office. The head office, New Delhi dispatches the question papers and OMR sheets in sealed covers separately to the regional office and in the regional office the same be kept in the dual custody of the regional director and the joint director holding finance.
19. P.W.4 has deposed that; for conducting examination the regional office deputes their staff and even their staff work as invigilators. Apart from this the regional office requests the concerned college to provide required number of their staff to work as invigilators. The regional director is the chief supervisor to the examination and one central observer is deputed from the head office, New Delhi. On the day of examination, the sealed parcel containing sealed packets of question papers and OMR sheets will be opened and after bifurcating the packets the same will be sent to the respective examination venues along with the venue supervisor. Then in the examination 28 C.C.No.21102/2015 centre first the sealed answer sheets will be opened in the presence of the central observer and an officer of EPFO (Employees provident fund organization) and the same be handed over to the invigilators who are assigned the specific rooms. The answer sheets will be given 30 minutes prior to commencement of examination. The invigilators inform the candidates as to filling of OMR sheets. Prior to 15 mins of commencement of examination the sealed question papers will be opened in the presence of the central observer and an officer of EPFO and the same be dispatched to the concerned invigilator. The invigilator also informs the candidates as to affixing their thumb impression and putting their signature in the attendance sheets and in the bottom half portion of the admit card. The candidates are also required to affix their photograph with the crossed signature in the bottom half of the admit card. The candidates have to put their thumb impressions and signatures in the presence of the invigilators. The thumb impression will be taken in bottom half of the 29 C.C.No.21102/2015 admit card as well as in the attendance sheet. The signatures will be taken in the attendance sheets, bottom half of the admit card and also in the OMR sheets. After examination the invigilator collects the answer sheets i.e., OMR sheets along with the bottom half of the admit card and submits the same to the venue supervisor. Thereafter, the answer sheets and attendance sheets will be sealed in the respective venues in the presence of the venue supervisor and an officer of EPFO and the same along with the bottom half of the admit cards are brought to the regional office by the venue supervisor and handed over to the regional director. Then all the answer sheets and attendance sheets collected from various centers will be sealed in the presence of the regional director and the central observer and the same are sent to the head office, New Delhi through speed post. The venue supervisors and the central supervisor have to give their opinion as to free and fair conducting of examination and based on their report the regional director also sends the report to the head office, New 30 C.C.No.21102/2015 Delhi. In case of MTS there is only one examination i.e., the written examination in the OMR sheets. The head office New Delhi after receipt of answer sheets, it evaluates and sends the details of marks along with the role numbers to the regional office. The regional office prepares the merit list based on the marks and also on reservation etc. In case of UDC there are two parts and part first is the written examination in the OMR sheets and the candidates who wrote the part first are selected to the second part based on 1:3 ratio to the post called for. Thereafter, the successful candidates will have to under go computer skill test and then the soft copy of answers will be taken in the CD and also print outs of the files created will be taken and send to the head office, New Delhi. Then the head office, New Delhi after evaluation sends the marks and the regional office prepares the final merit list based on the marks and other criteria. The computer skill test will be conducted with the help of an external agency under the supervision of the regional office. In case of UDC after the 31 C.C.No.21102/2015 examination of first paper as in MTS the add will be given through leading news papers and also through SMS and e-mail alerts requiring the candidates to take the print outs of the admit cards. Thereafter, the results will be declared in the web site of ESIC and also advertising in the news papers for declaration of result and for seeing the same in the web site of ESIC. Thereafter, the individual candidate will be intimated as to his selection and also requiring him to submit his acceptance of offer of appointment. Then they are also informed in case of their acceptance the place of their reporting. The candidates are also requested to submit the original documents at place of reporting. After their reporting and also after verification of their original records they are asked to join for duty at the respective place of posting. At the time reporting at the respective place of posting the candidates are also required to furnish their details in the attestation form which would be used to verify their antecedents through their respective jurisdictional police station. After getting the 32 C.C.No.21102/2015 report from the concerned police the regular appointment order will be issued to the candidates.
20. P.W.4 has deposed that; in the year 2012 the regional office, Bengaluru had got the approval for appointment of 68 MTS posts and the systems branch of the regional office, Bengaluru was asked to co-ordinate with NIC for conducting examination and also with Canara bank for remittance of the recruitment fee. Then as he was the deputy director of the systems approached the NIC and also Canara bank and with the consultation of NIC he recommended for approval of the portal created by the NIC. Then after the portal was approved he uploaded the said web link in the web site of the ESIC. After the last date of receipt of application he received information from the NIC and he forwarded the same to the establishment branch for identification of examination venues and also for deputation of staff for the purpose of conducting examination. He received the list of candidates from whom the print outs of applications forms were 33 C.C.No.21102/2015 received for the purpose of co-ordination with NIC for generating of admit cards, attendance sheets and for dispatch of SMS alerts. He also coordinated with canara bank to get the daily reports for remittance of the recruitment fees. While conducting MTS examination, he was deputed as Asst. Supervisor to St. Joseph Indian composite pre-university college, Bengaluru. Then he supervised as to collection of sealed packets of question papers and OMR sheets and also attendance sheets of the respective venues. Then he supervised as to opening of the sealed question papers and OMR sheets and also as to conducting the over all examination. In the year 2013, 68 UDC posts were called for recruitment and then as he was holding the charge of administration also he got the details of vacancy position duly approved by the regional director and sent the same to the head quarters New Delhi and also he finalized the final notification in line with the draft notification of the head quarters New Delhi for publication in the news papers. As he was also in charge of systems, coordinated with NIC for 34 C.C.No.21102/2015 conducting examination and also with Canara bank for remittance of the recruitment fees. Then as he was the deputy director of the systems, approached the NIC and also Canara bank and with consultation of NIC he recommended for approval of the portal created by the NIC. Then after the portal was approved he uploaded the said web link in the web site of the ESIC. After the last date of receipt of application he received the information from the NIC and approached the colleges for conducting examination and finalized the venues in respect of Bengaluru center. So for the out side stations are concerned he asked the respective ESIC officers to finalize the venues. He intimated the finalization of venues with the sitting capacities to the head quarters, New Delhi with due approval of the regional director. He also coordinated with NIC for generating of admit cards, attendance sheets and dispatch of SMS alerts. He also coordinated with Canara bank to get the daily reports for remittance of the recruitment fees. While conducting part first paper of UDC examination he received the 35 C.C.No.21102/2015 sealed parcel containing question papers and OMR sheets from the head quarters, New Delhi and kept it in the dual custody of the regional director Sri R. S. Rao and joint director Sri Ramjilal Meena. On the day of examination he supervised the opening of the sealed parcel and of distribution of the sealed packets of question papers and OMR sheets to the respective venue supervisors. He also instructed the deputed staff as to their duties while conducting examination. During examination he visited the examination venues along with the regional director. After examination he supervised the receipts of sealed covers of answer sheets, sealed cover of attendance sheets and also the second portion of admit cards from venue supervisors along with their reports as to smooth conducting of the examination. In his supervision the received sealed covers of answer sheets and sealed covers of attendance sheets of all the venues once again sealed in a single pack in the presence of the regional director and central observer and the officer of EPFO and sent it through speed post to the head 36 C.C.No.21102/2015 office, New Delhi. After receipt of the marks from the head office he prepared the merit list eligible for writing the second part of examination based on the marks they obtained and also on reservation and such others in 1:3 ratio. The list of 164 eligible candidates was uploaded in the ESIC web site and same was published and alerted through SMS. For conducting of second part examination i.e., computer skill test, he coordinated with the external agency M/s Merit Trac, Bengaluru which was short listed on the recommendation of the committee where in he was one of the members. The second part examination conducted on 19.01.2014 at R.V. Institute of Management, Bengaluru. On the day of examination he briefed the deputed staff as to conducting of examination because on the date of examination some anonymous calls were received at the regional office that some attempts of impersonation were going on. On that day question papers received through e- mail with secured password and the printouts of question papers were taken in the 37 C.C.No.21102/2015 examination centre in his supervision and distributed to the invigilators. On that day the computer skill test was conducting batch wise and while screening the candidates before sending to the computer lab the invigilator identified one suspected case of impersonation and it was brought to his notice. He brought it to the notice of regional director and central observer and they allowed that candidate to appear for computer skill test there by getting time to hand over that candidate to the police. He intimated the incident to the police and the police came and they handed over that candidate to the police. He also accompanied police along with the regional director to Tilak Nagar, Police station and the regional director lodged the complaint. After completion of examination, CDs and printouts of answer sheets sealed in the presence of the central observer and officer of EPFO and handed over to the central observer to take them to the head quarters, New Delhi. After receiving the marks list he prepared the merit list and after approval of the regional director uploaded in their web 38 C.C.No.21102/2015 site and published in the news papers and also alerted through SMS. After declaration of UDC results, the regional office received the Fax messages that some candidates have adopted impersonation while writing paper first for UDC post. Then because of that the regional director instructed in the file to make the verification process very stringent and asked to obtain finger prints and signatures of the selected candidates at the time reporting to their duty. Thereafter, the selected candidates reported to their duties then he was asked to make a preliminary verification. He received the attendance sheets from the head quarters in the routine manner and with the help of the attendance sheets along with the second copy of admit cards and finger prints and signatures obtained at the time of reporting he short listed the suspected cases and intimated the same to the regional director for further action. Thereafter, on the direction of the regional director he handed over the documents having thumb impressions and signatures of suspected 9 cases to the forensic science laboratory and 39 C.C.No.21102/2015 obtained their report. Out of 9 cases they reported 7 cases as impersonation. Thereafter, on the direction of the regional director the said 7 candidates were terminated from service. The accused who are appointed as MTS were already joined when 7 candidates were terminated. But the accused appointed as UDC here joined to the service after termination of 7 candidates. Then the regional director also directed him to verify the records of the candidates who are subsequently reported to duty. He verified the records of them and then he found there were some suspicious cases. Mean while, on source information the C.B.I. started investigation. The regional director also directed to verify the records of the candidates who were appointed as MTS in the year 2012 then also he found some suspicious cases.
21. P.W.4 has deposed that; during investigation the C.B.I. official asked their office to furnish the records. Then he furnished the documents Ex.P.1 to 5 and 9 with a receipt memo Ex.P.12. Further on request of the C.B.I. official he furnished the documents Ex.P.6 to 8, 40 C.C.No.21102/2015 10 & 11 along with covering letter and receipt memo Exs.13 & 14. The C.B.I. official asked to furnish OMR sheets and such other documents related to examination. Then he handed over the OMR sheets of the accused appeared for MTS and UDC examination, the bank challans 5 in numbers and printouts of answer sheets of computer skill test along with covering letter and production memos Exs.15 & 16. Ex.P.10 (d) & 11 (d) are the OMR sheets of UDCs examination and Ex.P.17 (a) (b) and (c) are the OMR sheets of MTS examination. Ex.P.19 is the printouts of answer sheets of computer skill test of the accused appointed as UDCs.
22. P.W.5 Sri. P. Antony Rajan, Dy.
Director, administration at ESIC hospital, Peenya, Mathews Mathew, joint director, ESIC model hospital, Rajajinagar and Sri N. Anand Kumar Dy. Director, ESIC hospital, Peenya are the officials of the ESIC where the accused were posted and they were reported to duty and continued their service. P.W.5 has deposed that in the month of April 2015 he was transferred to ESIC hospital, Peenya and then already the 41 C.C.No.21102/2015 accused Manish Kumar working there as MTS and subsequently the accused Manish Kumar has worked under him. He has deposed that prior to his transfer one Sri Vijay Kumar was working there and in his presence the accused has given his signatures and thumb impressions. P.W.6 has deposed that since July 2012 he has been working as joint director, in the ESIC model hospital, Rajajinagar and in the year 2013 the accused Anuj Kumar joined and reported to the ESIC model hospital, Rajajinagar as MTS and in the year 2014 both Shashi Ranjan Kumar and Chandan Kumar reported to duty to the ESIC model hospital, Rajajinagar as UDCs and till today they are working in their office as MTS and UDCs. P.W.7 has deposed that in the year 2012 he worked as deputy director in the ESIC, Peenya and on 21.08.2012 the accused Niraj Kumar came and reported to duty at the sub regional office, Peenya as MTS. PWs.5 to 7 have identified the photographs of the accused submitted to their department at the time of reporting to duty.
42 C.C.No.21102/201523. Ex.P.1 to 22 have been marked through PWs.1 to 8. Ex.P.1 is the MTS recruitment processing file. Ex.P.2 and 3 are UDCs recruitment processing files. Ex.P.4 is the corresponding file after recruitment of UDC post. Ex.P.5 is selection lists of MTS candidates. Ex.P.6 is the application, admit card, attendance sheet and other documents of Manish Kumar. Ex.P.7 is the application, admit card, attendance sheet and other documents of Niraj Kumar. Ex.P.8 is the application, admit card, attendance sheet and other documents of Anuj Kumar. Ex.P.9 is the final list of UDC candidates. Ex.P.10 is the application, admit card, attendance sheet and other documents of Chandan Kumar. Ex.P.11 is the application, admit card, attendance sheet and other documents of Shashi Ranjan Kumar. Ex.P.12 to 16 are the production memos and covering letters for issuance of documents to C.B.I. from ESIC. Ex.P.17 OMR answer sheets of the Manish Kumar, Anuj Kumar and Niraj Kumar. Ex.P.18 are the bank challans. Ex.P.19 are the computer skill test answer sheets of both 43 C.C.No.21102/2015 Shashi Ranjan Kumar and Chandan Kumar. Ex.P.20 to 22 covering letters for issuance of documents. The advocate for the accused has cross examined these witnesses. In the cross examination they have not disputed that the accused did not apply for UDCs and MTS posts and they did not report to duty and they are not in service as deposed by PWs.1 to 8. The accused side have not seriously disputed the procedure and steps taken for recruitment and conducting examinations. Ex.P.1 to 3 the recruitment files of MTS and UDCs contained everything as deposed by these witnesses. Moreover, in the circumstances of the case and as the accused cannot dispute of their applying to the post, being selected and doing service, I thing the evidence on record is sufficient so for the procedure and steps taken for recruitment process and for conducting of examination.
24. The case of the prosecution is that until the commencement of examination everything was proper but the accused engaged some other persons to impersonate on their behalf to write examinations and thereby 44 C.C.No.21102/2015 succeeded in appointing as UDCs and MTS. The specific case of the prosecution is that on 23.06.2013 when the part - I written examination of UDC was conducted the accused Shashi Ranjan Kumar and Chandan Kumar engaged some others to impersonate in their places to write the examination. Likewise, the accused Manish Kumar, Anuj Kumar and Niraj Kumar engaged some others to impersonate in their places to write their written examinations for MTS post dated 29.04.2012. The prosecution side has contended that impersonation came to light later and then they collected standard thumb impressions, handwritings and signatures of the accused both from their working offices and at the time of investigation and obtained the expert opinions affirming that the accused have not written the said examinations and some others have written the examinations on their behalf. The accused side have denied the prosecution case. Since, the prosecution has alleged the offences punishable u/Secs.419 & 420 of the Indian Penal Code the entire case is revolving 45 C.C.No.21102/2015 around what actually happens at the time of writing examinations and how the prosecution has tried to connect the alleged impersonations with the help of both fingerprint and handwriting expert reports. So, in order to bring home the guilt alleged against the accused, the evidence of the invigilators, fingerprint and handwriting experts seem to be vital.
25. PWs.9 to 16 are the invigilators both from ESIC and college side. P.W.9 Sri P. Devaraj Deputy Director recovery officer, ESIC is the invigilator of the room for the examination of paper - II computer skill test dated 19.01.2014 of UDC wherein the examination of the accused Shashi Ranjan Kumar and Chandan Kumar was scheduled. P.W.10 Sri N. Vijayakumar social security officer, ESIC and P.W.16 Kumari V. M. Ashwini Chavan lecturer SJR College for Women, Rajajinagar are the invigilators of the room wherein the written examination part - I for UDC dated 23.06.2013 wherein the examination of the accused Chandan Kumar was scheduled. P.W.12 Sri A. Jayadev attender, P.W.13 Sri Ramachandra Narayana Hanchate 46 C.C.No.21102/2015 System administration and P.W.14 Kumari Soumya lecturer all of St. Joseph Pre - university college, Residency road, Bengaluru are the invigilators of the rooms respectively wherein the examination of MTS dated 29.04.2012 of the accused Anuj Kumar, Niraj Kumar and Manish Kumar were scheduled. P.W.11 Sri S. Saravan Kumar Branch manager, ESIC and P.W.15 Smt. R. Anitha lecturer of Rajaji nagar first grade college of commerce are the invigilators of the room wherein the written examination paper - I dated 23.06.2013 of UDC of the accused Shashi Ranjan Kumar was scheduled. Since, it is the case of impersonation and as such, what actually happens in the examination hall is crucial in order to bring it on record how the examinations were conducted, I would like go through the evidence of all the invigilators herein instead restricting to the respective accused.
26. P.W.9 Deputy Director recovery officer of ESIC in his examination in chief has deposed that; on 19.01.2014 there was part - II examination i.e. computer skill test for the 47 C.C.No.21102/2015 posts of UDCs and then he was deputed as invigilator to R.V. Institute of Management, Jayanagar, Bangalore. There were 40 candidates in one room at the time of conducting the computer skill test. The candidates were divided in two groups having 20 members and he was the invigilator to one group having 20 members. The candidates were required to bring the bottom half sheet of the admit card along with the already affixed their photograph. Their department had supplied the attendance sheet of all the 20 candidates. At the time of examination he verified the examination writing candidate along with the photograph in the attendance sheet and also in the admit card. He also verified the signature of the candidate along with the signature found in the attendance sheet. The candidates put their cross signature on the photograph affixed in the admit card before him. He also took the signatures and left thumb impressions of the candidates both in the admit cards and attendance sheets. On that day one Shashi Ranjan Kumar and another Chandan Kumar 48 C.C.No.21102/2015 appeared for examination and he verified their records. He identifies the admit card and attendance sheet of Shashi Ranjan Kumar marked as Ex.P.11 (e) and Ex.P.11 (f). After examination he took the printouts of answer sheets of the candidates and took the signature of the respective candidates on it. He identifies the answer sheet of Shashi Ranjan Kumar and Chandan Kumar marked as Ex.P.19. While cross examination he has deposed that duration of examination for that paper was 30 minutes and after verification of the candidates along with their respective attendance sheets and admit cards then only he allowed them to write examination. He has deposed that So for Shashi Ranjan Kumar and Chandan Kumar are concerned all were tallied and he allowed them to write examination. He has deposed that if the photographs found in the attendance sheets and admit cards were not tallied with the candidates writing examination he would not have allowed them to write examination and then he would have reported the same to the higher officer.
49 C.C.No.21102/201527. P.W.10 a social security officer of ESIC in his examination in chief has deposed that; on 23.06.2013 there was part-I paper for UDC examination and their director deputed him to work as an invigilator at SJR College for women, Rajajinagar, Bangalore. On that day he worked as an invigilator. On the same day along with him one madam from the college side worked as invigilator. Then where they worked as invigilators in that room there were 20 candidates. The candidates ought to bring the admit card affixing their photograph along with them. The ESIC department had furnished the attendance sheets pertaining to the candidates of that room. He and the other invigilator on that day verified the candidates who appeared for writing examination along with the photographs found in the admit card and the attendance sheet. They also compared signatures found in the admit card along with the signature put in the attendance sheet. The candidates put their signatures and left hand thumb impressions in the admit cards and in the attendance sheets. The candidates did not 50 C.C.No.21102/2015 put their signature across the photograph found in the admit cards in their presence. He identifies the admit card and attendance sheets of Chandan Kumar marked as Ex.P.10 (b) and Ex.P.10 (c). He is not identifying the accused Chandan Kumar before the court. Now he can't say whether the person who wrote the examination on that day was the real Chandan Kumar or not. In his cross examination he has deposed that he served in ESIC nearly 34 years and prior to that he did not work as invigilator and for the first time he worked as invigilator on 23.06.2013. He has deposed that apart from him nearly 20-30 other staffs from ESIC side were deputed to the invigilation duty. He has deposed that one Sri Aruna Sharma the Dy. Director was supervising the examination process and the higher officer prior to examination instructed them how to verify the candidates writing examination and also how to distribute and collect the answer sheets and question papers. He has deposed that they were instructed to compare the photographs and signatures found in the attendance sheet and 51 C.C.No.21102/2015 admit card with the signatures of the candidates put before them and as to physical appearance of the candidates with the available photos. He has deposed that their officers had instructed them that if the photos found in admit cards and attendance sheets were not tallied with the persons appeared for examination and if the signatures were not tallied then such candidates should not be allowed to write the examination. He has deposed that on that day after going through the photo found in the admit card Ex.P.10 (b) and attendance sheet Ex.P.10 (c) they allowed the candidate to write the examination. He has deposed that the photos found in Ex.P.10 (b) and 10 (c) are similar to the accused Chandan kumar now before the Court.
28. P.W.16 the lecturer in her examination in chief has deposed that; on 23.06.2013 in their college the ESIC department conducted part - I UDC written examination and then she was deputed to do the duty of invigilator from their college side. In each room then there were more than 20 candidates and apart from her 52 C.C.No.21102/2015 another one from ESIC side was deputed to do the duty of invigilator. One day before of examination they were instructed how to supervise the examination and how to verify candidates. On the date of examination she and the other invigilator proceeded to the examination hall along with the attendance sheets and the pack containing OMR sheets. Before commencement of examination as and when candidates entered into the examination hall they verified the physical appearance of the candidates along with the photos found in the attendance sheet and the admit card. They took the thumb impressions and signatures of the candidates in the admit cards and attendance sheet. After completion of this, they distributed the OMR sheets then they asked the candidates to fill up the OMR sheets and they took their signatures and declarations. One candidate by name Chandan kumar put his signature and thumb impression in her presence and thereafter she put her signature on it. She identifies the admit card and attendance sheet of Chandan kumar marked as Ex.P.10 (b) and 53 C.C.No.21102/2015 Ex.P.10 (c). The candidate Chandan kumar also put his signature and declaration before her in the OMR sheet. She identifies the OMR sheet marked as Ex.P.10 (d). Now she can't remember whether the accused by name Chandan kumar now before the court is the same person who was present and who was written examination on that day in the name of Chandan kumar. In her cross examination she has deposed that since 9 years she has been working as lecturer and she has worked as invigilator in many examinations. She has deposed that one day before of the date of examination their college principal instructed them how to supervise the examination and how to identify the candidates. She has deposed that the candidate Chandan kumar was allowed to write examination as his physical features were tallied with the photograph found in the admit card and attendance sheet. She has deposed that they were instructed that if there were any discrepancies the same has to report to the chief invigilator and the candidates would not be allowed to write the examination.
54 C.C.No.21102/201529. P.W.11 the branch manager of ESIC in his examination in chief has deposed that; on 23.06.2013 there was part-I paper for UDC examination and the director of ESIC, Bommasandra deputed him to work as an invigilator at First Grade College for Commerce, Rajajinagar, Bangalore and on the same day along with him one lady from the college side worked as invigilator. Then where they worked as invigilators in that room there were 20 candidates. The candidates ought to bring the first and second part of the admit card along with them. The ESIC department had furnished the attendance sheets pertaining to the candidates of that room. He and the other invigilator on that day verified the candidates who appeared for writing examination along with the photographs found in the admit card and the attendance sheet. They also compared signatures found in the admit card and attendance sheets. The candidates put their signatures and left hand thumb impressions in the admit cards and in the attendance sheets and they compared the same with the other 55 C.C.No.21102/2015 available signatures. The candidates also put their signatures across the photograph found in the admit cards in their presence. Then they torn the admit card and handed over the first portion to the concerned candidate. He the admit card and attendance sheet of Shashi Ranjan Kumar marked as Ex.P.11 (b) and ex.11
(c). He is not identifying the accused Shashi Ranjan Kumar before the Court. In his cross examination he has deposed that it is true that the candidate should brought with him both the first part and second part of the admit card and it is true that the first part of the admit card was contained the scanned photograph along with the scanned signature of the candidate. He has deposed that after verifying the candidate who had come to write examination with the photos found in the admit card and attendance sheet and their respective signatures and after ascertaining the same they allowed them to write examination and if there was any discrepancies they would not have allowed the candidates to write examination and if that was so they would have reported the same to the 56 C.C.No.21102/2015 chief invigilator. He has deposed that the duration of examination was of 2 hours and after verification and after satisfaction as to the identification of the candidates then only they issued the OMR sheets.
30. P.W.15 the lecturer has deposed that; in the month of June 2013 in their college the ESIC department conducted part - I UDC written examination and then he was deputed to do the duty of invigilator from their college side. In each room then there were more than 20 candidates and apart from him another one from ESIC side was deputed to do the duty of invigilator. Before one day of examination day their college principal instructed them how to make seat arrangements and how to cross check the verification of candidates. On the date of examination prior one hour the ESIC chief also instructed them and the ESIC staff deputed to do the duty of invigilator as to conducting of examination. On the date of examination before half an hour, they entered the examination hall along with the attendance sheets and the pack containing OMR sheets. While allowing to enter 57 C.C.No.21102/2015 into the examination hall, they verified each candidate then they verified the physical appearance of the candidate along with the other photos available in the attendance sheet and the admit card. Thereafter, they checked whether the candidate were in the proper place and also they verified the candidates along with the admit card and attendance sheet. Then they took the signature and thumb impression of each candidates in the lower part i.e. in the second part of the admit card and also they took the signature and thumb impression in the attendance sheet. Each candidates put their thumb impressions and signatures in the attendance sheets in her presence. After verification and after taking thumb impression and signature of candidates in the admit card and attendance sheet they issued OMR sheets to the candidates and then they filled up and then they put their signatures and declarations in their handwriting in her presence. In her cross examination she has deposed that since 8 years she has been working as lecturer and in so many examinations she has worked as 58 C.C.No.21102/2015 invigilator. She has deposed that prior to attending to the invigilator work of the present case even she worked in other examinations of the ESIC. She has deposed that their college principal while deputing them has instructed how to supervise the examination and how to identify the candidates.
31. P.W.12 the attendar has deposed that; on 29.04.2012 there was examination in their college for MTS posts of ESIC and then the supervisor of their college deputed him to do the invigilation work. On that day he did the work of invigilation. Along with him the other person from the ESIC side also worked as invigilator. On that day in the examination hall there were 40 candidates. On that day he and the other invigilator verified the admit cards and attendance sheets and they compared the photos found in them to the person who had come to write examination. The witness has not identified the accused Anuj kumar before the Court. The candidates put their thumb impressions and signatures both to admit cards and attendance sheets before them. The photo 59 C.C.No.21102/2015 was already affixed to the admit card when he verified it and then it was already cross signed. He identifies admit card and attendance sheet of the accused Anuj Kumar Ex.P.8 (b) and Ex.P.8 (c). After examination he also took the handwriting, signature and thumb impression of the concerned candidates and Ex.P.17 (a) is the OMR sheet of the accused Anuj Kumar. In his cross examination he has deposed that on that day the timings of the examination was from 10.00 a.m. to 12.00 p.m. and the candidates were instructed to come to the examination hall before 30.00 minutes of the commencement of examination. He has deposed that it is true that they the invigilators verified the records during the said 30.00 minutes. He has deposed that when the candidates came they have already had the affixed their photographs in the second part of the admit card and the candidates did not put their signatures on the photographs before him.
32. P.W.13 the system administrator has deposed that; on 29.04.2012 there was examination in their college for MTS posts of 60 C.C.No.21102/2015 ESIC and then the Principal of their college deputed him to do the invigilation work and along with him the other person from the ESIC side also worked as invigilator. On that day in the examination hall there were 20 candidates. The candidates ought to bring the admit card containing first and second part. Then some candidates brought already affixed photograph admit card and some of them affixed their photograph before them. If the admit card was already affixed again we did not take the across signature on it. But if the photograph affixed before them then they took the across signature on it. They verified the photos found in the admit card and attendance sheet and compared the same with the person appeared for examination. They took the signatures and thumb impressions of the candidates both in the admit cards and attendance sheets and they compared them with the signatures already found in the attendance sheets. The witness is not identifying the accused Niraj kumar before the Court. In his cross examination he has deposed that on that day first they verified the 61 C.C.No.21102/2015 concerned candidate along with the photo found in the admit card. He has deposed that the admit card was containing first and second part and in the first part there was scanned photograph and scanned signature of the candidate and in the second part there was a blank space and in that the photo ought to be affixed and the candidates are required to put their signatures across the photo before them. He has deposed that they compared the photos found in the admit card and attendance sheet with the person appeared for examination and also they compared the signatures found in the admit card and attendance sheet. He has deposed that on verification if the photos and signatures were tallied then only they allowed them to write the examination and if the same were not tallied they would have reported the same to the chief invigilator.
33. P.W.14 the lecturer in her examination in chief has deposed that; on 29.04.2012 there was examination from ESIC for the purpose of recruiting MTS and then she was deputed to the work as invigilator from their college side. Then 62 C.C.No.21102/2015 in each examination hall there were 20 candidates and in each room there were two invigilators one from college side and the other from ESIC side. About one and half hour prior to commencement of examination the ESIC officials instructed them to how to check the sitting arrangements, how to check the hall tickets of the candidates with reference to the attendance sheets and admit cards. They were instructed that if everything was found correct then only i.e. prior to 15 minutes the OMR sheets were to be issued to the candidates and the candidates ought to have filled them within that 15 minutes. They were instructed to take the signatures of the candidates in their presence. On that day when the candidates entered the examination hall they verified the physical appearance of the candidates along with the admit card with them and also the attendance sheet with them and when the same were tallied they allowed them to enter into the examination hall. Thereafter, prior to 15 minutes of commencement of examination they distributed the OMR sheets to the candidates 63 C.C.No.21102/2015 and in that period they filled up the OMR sheets and in that 15 minutes only after filling the OMR sheets the candidates put their signatures to OMR sheets in her presence. In each room there were 40 candidates and in each room there were two invigilators and one invigilator has to verify the records of 20 candidates. Like that she verified the records of 20 candidates. After that 15 minutes they distributed the question booklets and examination commenced. During the examination once again they verified the physical appearance of the candidates along with the photos found in the attendance sheet and the scanned photograph in the admit card. If the scanned photograph in the admit was not available then the candidates ought to affix their photograph and that was attested by the center chief. In their examination hall some candidates were having scanned photographs in their admit cards and some of them affixed their photographs and got the attestation by the center chief. There was only 30 minutes for verification of the candidates as such, they could not thoroughly verified each of the 64 C.C.No.21102/2015 candidate. She can't identify the accused Manish kumar before the Court whether he is the same person who wrote the examination on 29.04.2012. She identifies admit card, attendance sheet and OMR sheet of the accused Manish Kumar marked as Ex.P.6 (b), Ex.P.6 (c) & Ex.P.17. In her cross examination she has deposed that 30 minutes was provided before the commencement of examination for verification of admit card and attendance sheet. She has deposed that it is true to suggest that only after verifying the affixed photograph and the thumb impression and signature of the candidate the room invigilator ought to put his/her signature in the space provided in the second part of the admit card. She has deposed that on the day of examination she went through the photographs found in the admit card and attendance sheet and signatures therein and after satisfied then only she placed her signature to authorize the candidate to write the examination.
34. PWs.1 to 4 the official witnesses have deposed that for conducting examination of 65 C.C.No.21102/2015 UDCs and MTS a proper arrangement was made and for the whole city a chief supervisor was deputed and for each venue there were venue supervisors. They have deposed that in the supervision of these chief supervisor, venue supervisors and other officials of the ESIC, the examinations were conducted. P.W.4 has deposed that while conducting part - II computer skill test for UDC the invigilator identified one suspected case of impersonation and then it was brought to his notice and he brought it to the notice of the regional director and central observer and thereafter, they handed over the said candidate to the police along with the complaint.
35. The attendance sheets on record show that they are having scanned photographs along with scanned signatures of the candidates. The invigilators and the other officers have deposed that the computer printout of the admit card contained two parts the upper first part and the lower second part. The witnesses have deposed that the upper first part was contained scanned photograph along with the scanned signature of 66 C.C.No.21102/2015 the candidate and the lower second part was left blank for affixing photograph. The invigilators have deposed that the candidates were required to bring their positive photograph to the examination and they had to verify the candidate on seeing the positive photograph and two scanned photographs found in the admit card and attendance sheet. Some of the invigilators have deposed that some candidates were having already affixed photograph and cross signed lower second part admit card. Sheet Nos.222 & 223 of Ex.P.2 are may be the office copy are the instructions for the invigilators deputed to examination duties. The instructions enumerated their in show the duties of the invigilators and they are in terms of the evidence adduced by the invigilators herein. The invigilators at the time of cross examination have admitted they tallied the admit cards and attendance sheets of all the candidates along with their photographs and if they were not tallied with the candidates writing examination they would not have allowed them to write examination and they would have 67 C.C.No.21102/2015 reported the same to the higher officers. These invigilators have deposed that now they can't able to identify the accused before the court and they can't be in a position to tell whether the accused before the court are the same persons who wrote the examination on the respective dates. It is obvious that the invigilators and the accused were not acquainted with each other at the time of examination and as such, if we ask the invigilators to identify whether the accused were the same persons who have written the examination then certainly they can't depose in sure terms and they have to depose in terms of their general duly to be discharged at the time of invigilation work. P.W.4 has deposed that after declaration of UDC results, their regional office received Fax messages that some candidates have adopted impersonations while writing paper - I for UDC post and then the regional director instructed to make verification process very stringent and ask to take fingerprint and signatures of selected candidates at the time of reporting duty. He has deposed that he was asked to make a 68 C.C.No.21102/2015 preliminary verification and he secured attendance sheets from the head quarters and with the help of attendance sheets, second copy of admit cards and fingerprints and signatures obtained at the time reporting he short listed 9 suspected cases of impersonations and thereafter, the said cases were referred to the forensic science laboratory and their report confirmed 7 cases out of 9 referred were the cases of impersonation. He has deposed that thereafter, the regional director terminated the said 7 candidates from service and lodged the police complaint. Apart from the said 7 cases of impersonation and tracing out of one impersonation at the time of writing examination the C.B.I. has charge sheeted 5 accused who are tried here for impersonation. So, the allegations are not in respect of a single instance and the allegations are in respect of mass malpractices. No doubt the stand of the invigilators is a strong ground in favor of the accused the allegations of malpractices make it think twice in order to believe the version of the invigilators. The circumstances suggest that we 69 C.C.No.21102/2015 can't rule out the negligence of the invigilators in discharging their duties and failure of the ESIC officials in conducting fair and transparent examination. It doesn't mean that if the invigilators failed in discharging their duties and the ESIC officials failed in conducting fair and transparent examination we should forgive the candidates if they have done malpractices and able to succeed in getting jobs. So, in the absence of other evidence we have to accept the version of the invigilators and as such, the other available evidences on record play vital role in fixing or not fixing the responsibility on the accused.
36. P.W.17 Sri Chandrashekar R. Patil Deputy director, ESIC model hospital, Rajajinagar, P.W.18 Sri Sachin Martand Tajave Deputy director ESIC model hospital, Rajajinagar, P.W.19 Sri Robert Guite the Deputy director regional office, ESIC, P.W.20 Sri Vijaykumar Deputy director ESIC hospital, Peenya, P.W.21 Sri S. Sukumar the Asst. General manager the then State bank of Mysore, Bengaluru, P.W.22 Sri V. G. Nainoor 70 C.C.No.21102/2015 Sr. manager Alahabad, Bengaluru and P.W.23 Sri S. Krishnamurthy Sr. Manager, Union bank of India, Bengaluru are all the witnesses as to taking of thumb impressions and signatures at the time of reporting duty of the accused and taking of specimen left thumb impressions, signatures, handwritings and number writings of the accused at the time of investigation.
37. PWs.17 to 21 have deposed that in the year 2014 some were newly recruited and posted to their ESIC hospitals and offices and then their controlling authority had asked their office to take the fingerprints and specimen signatures of the newly recruited UDCs and MTS at the time of reporting duty. These witnesses have deposed that the accused Shashi Ranjan Kumar, Anuj Kumar, Chandan Kumar, Niraj Kumar and Manish Kumar when reported to duty they took their respective fingerprints and signatures. P.W.17 has deposed that Ex.P.23 are the fingerprints and signatures of the accused Shashi Ranjan Kumar and Ex.P.8 (h) are the fingerprints and signatures of the accused Anuj Kumar taken at 71 C.C.No.21102/2015 the time of reporting duties. P.W.18 has deposed that Ex.P.10 (j) are the fingerprints and signatures of the accused Chandan Kumar taken at the time of reporting duty. P.W.19 has deposed that Ex.P.7(h) are the fingerprints and signatures of the accused Niraj Kumar taken at the time of reporting duty. P.W.20 has deposed that Ex.P.6 (i) are the fingerprints and signatures of the accused Niraj Kumar taken at the time of reporting duty. The accused side have cross examined these witnesses and they have disputed that they have not taken any fingerprints and signatures of the accused. But it is not possible to disbelieve the version of these witnesses.
38. Further PWs.17 to 21 have deposed that on the instructions of their higher officials they visited the C.B.I. office and in the C.B.I. office the accused were present and then P.W.26 Sri R. K. Shivanna the Police Inspector took the specimen signatures, number writings, handwritings and left thumb impressions of the accused. P.W.26 has also deposed that he obtained specimen signatures, number 72 C.C.No.21102/2015 writings, handwritings and left thumb impressions of the accused in the presence of the witnesses PWs.17 to 23. P.W.17 has deposed that Ex.P.24 to 27 are the specimen signatures, number writings, handwritings and left thumb impressions of the accused Shashi Ranjan Kumar. P.W.18 has deposed that Ex.P.28 to 31 are the specimen signatures, number writings, handwritings and left thumb impressions of the accused Chandan Kumar. P.W.19 has deposed that Ex.P.32 to 35 are the specimen signatures, number writings, handwritings and left thumb impressions of the accused Niraj Kumar. P.W.20 has deposed that Ex.P.36 to 39 are the specimen signatures, number writings, handwritings and left thumb impressions of the accused Manish Kumar. P.W.21 has deposed that Ex.P.40 to 42 are the specimen signatures, number writings and handwritings of the accused Anuj Kumar. PWs.22 & 23 have deposed that the C.B.I. official took the specimen signatures of the accused Niraj Kumar, Shashi Ranjan Kumar and Manish Kumar as per Ex.P.43 to 45 in 73 C.C.No.21102/2015 their presence. P.W.26 Sri R. K. Shivanna and P.W.27 Sri T. Murugesan the investigating officers have deposed that during investigation they obtained specimen signatures, number writings, handwritings and left thumb impressions of the accused and they sent the same along with the disputed signatures, number writings, handwritings and left thumb impressions to fingerprint bureau and forensic science laboratory seeking their opinion. The accused side have cross examined these witnesses but it is not possible to brush aside the version of these witnesses.
39. P.W.24 Sri Mahabaleswara Hegde the DSP and fingerprint expert, fingerprint bureau, Madivala, Bengaluru in his examination in chief has deposed that; since 2002, he has been working in the Finger print bureau, the dept. of Karnataka Police. In the year 2014 - 15, he was working in the Finger print bureau, Madivala as deputy Supt. of Police and Finger print expert. The central Finger print bureau is conducting Finger print expert examination through out India and in the year 2005, he passed that 74 C.C.No.21102/2015 examination and they have given certificate to him. The Finger print opinion is the scientific evidence. While examining Finger prints first they observe by microscope/Lenin tester. At the time of Lenin tester they observe ridge characteristics of Finger prints. Thereafter, they enlarge Finger prints and mark the ridge characteristics on the enlarged photographs and on them they come to conclusion and give the opinion. At the time of taking the thumb impressions of individuals there is no strict procedure and it is not required first to wash fingers and dry them with dry cloth. Generally in case of aged old people in order get clear ridges of fingers before taking thumb impressions by using ink, wax type of oil is used slightly to clean fingers. In the year 2015, the Supt. of Police Finger print bureau, Madivala had received the requisition from the C.B.I. Bengaluru seeking Finger print opinion. Thereafter, the same requisition with the annexed documents were given to him for examination vide SPFPB memo dated 18.06.2015. He received attendance sheets, 75 C.C.No.21102/2015 admit cards, OMR sheets, the thumb impressions taken before ESIC officials and the left hand specimen thumb impressions taken at the time of investigation. All such documents were originals. He put his initial to all the selected thumb impressions whether they are the disputed, admitted or specimen. Thereafter, he enlarged and examined the disputed, admitted and specimen thumb impressions of all the 5 candidates and then he gave opinion and grounds for opinion. Thereafter, the same was forwarded to the C.B.I. through SPFPB. The covering letter forwarded by SPFPB is marked as Ex.P.46. The report with enlarged photographs of all the candidates and grounds for opinion containing from sheet nos.2 to 16 is marked as Ex.P.47. So for, Anuj Kumar is concerned, he has opined that the disputed finger impression marked as Q10 is identical with the admitted LTM marked as A1. He has opined that the disputed finger impressions marked as Q3, Q75 & Q6 are unfit for comparison. So for, Manish Kumar is concerned, he has opined that the disputed 76 C.C.No.21102/2015 finger impressions marked as Q19 & Q22 are inter identical and they are identical with the admitted LTM marked as A2. Further the disputed finger impressions marked as Q13 & Q71 are not identical with the admitted LTM marked as A2. Further the disputed finger impression marked as Q16 is unfit for comparison. So for, Niraj Kumar is concerned, he has opined that the disputed finger impression marked as Q31 is identical with the admitted LTM marked as A4. Further the disputed finger impressions marked as Q25, Q79 & Q27 are not identical with the admitted LTM marked as A4. So for, Chandan Kumar is concerned, he has opined that the disputed finger impressions marked as Q42, Q44 & Q48 are inter identical and they are identical with the admitted LTM marked as A3. Further the disputed finger impressions marked as Q34 & Q37 are not identical with the admitted LTM marked as A3. So for, Shashi Ranjan Kumar is concerned, he has opined that the disputed finger impressions marked as Q62, Q60, Q66 & Q68 are inter identical and they are identical 77 C.C.No.21102/2015 with the admitted LTM marked as A5. Further the disputed finger impressions marked as Q52 & Q55 are not identical with the admitted LTM marked as A5. Further the disputed finger impression marked as Q53 is unfit for comparison. For giving the above opinion he has given the grounds.
40. The accused side has cross examined P.W.24 in length. In his cross examination P.W.24 has deposed that he has received practical training of Finger Print comparison for 2 ½ years and he has experience of 15 years in this field. He has deposed that he has examined around 80 cases and he has given evidence in nearly 40 - 45 cases. He has deposed that it is true to suggest that in order to get the clear ridge characteristics the finger prints must be taken with the fullest extent by rolling the fingers and similarly in order to get the clear ridge characteristics the printers black ink is to be used. He has deposed that it is true to suggest that in order to get the clear ridge characteristics before taking the finger print impressions the fingers should be washed in 78 C.C.No.21102/2015 either water or alcohol and they should be wiped to dry. He has deposed that there is no mandatory procedure prescribed for washing fingers at the time of taking finger prints. He has deposed that he has read the book written by Eswar S. Enner on the finger print comparison. He has deposed that he concur with the opinion as written in his book at page no.138 written "¨ÉgÀ¼ÀÄ ªÀÄÄzÉæUÀ¼À£ÀÄßvÉUÉzÀÄPÉƼÀÄîªÁUÀ ¸ÀzÀj ªÀåQÛAiÀÄ PÉÊUÀ¼À£ÀÄß ¸ÀjAiÀiÁV ¸ÀéZÀá ªÀiÁr ¥ÀÇtð vÉêÁA±ÀªÀÅ ºÉÆÃUÀzAÀ vÉ ªÀiÁqÀ¢zÀÝgÉ DvÀ£À PÉÊAiÀÄ°ègÀĪÀ DzÀæðvÉ ªÀÄvÀÄÛ zÀƽ£À PÀtUÀ¼ÀÄ PÀÆrPÉÆAqÀÄ ªÀÄÄzÉæAiÀÄ°ègÄÀ ªÀ gÉÃSÉUÀ¼À ªÀÄvÀÄÛ gÉÃSÁ aºÉßUÀ¼À ¸ÀégÀÆ¥ÀªÉà §zÀ¯ÁzÀAvÉ PÁtÄvÀÛzÉ ªÀÄvÀÄÛ PÉ®ªÀÅ ¸ÀAzÀ¨ÀsðUÀ¼À°è gÉÃSÁaºÉßUÀ¼ÀÄ PÁuÉAiÀiÁUÀĪÀ ¸ÁzÀsåvÉAiÀÄÆ EgÀÄvÀÛzÉ''. The witness deposes it is true that if the finger was wet and with dust then there may be in some part of a finger print there is change in the ridge characteristics. He has deposed that in order to get clear ridge characteristics at the time of taking finger prints first printers black ink must spread over the glass/board and it must be rolled uniformly 79 C.C.No.21102/2015 so to spread the ink and then the fingers must be rolled in the fullest extent and if there is over inking or if the finger prints were taken using the ink pad the ridge characteristics cannot be properly identified. He has deposed that there is no uniform procedure through out world in comparing the ridge characteristics and in different countries different procedure is followed and even in our country also there is no uniform procedure in counting or comparing minimum ridge characteristics. He has deposed that earlier in our state 12 minimum ridge characteristics were required to be identified but now it is reduced to 8 ridge characteristics. The investigating officer while taking thumb impressions of the accused here has used the ink pad and the ink is blue ink and not printers black ink and the thumb impressions that he has chosen for comparison from the specimen are even not fully rolled thumb impressions. He has deposed that even in the attendance sheets, admit cards and OMR sheets the blue ink and ink pad has been used and the thumb impressions are not fully rolled.
80 C.C.No.21102/201541. In the book "Handwriting, fingerprints and graphology" written by Dr. Gupta & Agrawal at chapter No.19 it is observed that; science of identifying the thumb impression is an exact science and does not admit of any mistake or doubt. Human, ingenuity has not so far been successful to forge fingerprints. Scientific study and analysis have established that fingerprints cannot be forged. Signatures or handwritings may be imitated or tampered with but no method or process has ever been discovered whereby fingerprints can be successfully counterfeited and tampered with. Fingerprints are now accepted as the most reliable means of identification of persons. In fact the reliability and infallibility of fingerprint identification has laid to the conclusion of palm and sole impressions for identifying persons. The raised lines on the palms, fingers and soles are called ridges and ridges in their course and formation are permanent and unchangeable from birth to death. Even the minute ridge characteristics don't undergo any change during the entire lifespan. In fact these will not 81 C.C.No.21102/2015 change even after death. They only get destroyed as the skin decomposes.
42. In chapter 20 in the said book the patterns of fingerprints have been explained. A fingerprint pattern is a particular design formed by the flow of ridges and the pattern area is the area of the pattern surrounded by type of lines. P.W.24 fingerprint expert has deposed that the patterns of finger prints are classified into 4 kinds namely arches, loops, whorls and composites. He has deposed that the arches again are divided into plain arches, tented arches and exceptional tented arches and the loops are divided into radial and ulnar and the composites are divided into central pocket loops, twin loops, lateral pocket loops and accidental loops. In this chapter the explanation as to patterns of fingerprints is as here under;
i) Arches - In arches the ridges run from one side to the other, making no backward turn. There is no ordinarily no delta, but when there is appearance of a delta, no ridge must 82 C.C.No.21102/2015 intervene between the inner and outer terminus.
ii) Loops - In loops some of the ridges make a backward turn but without twist and there is one delta.
iii) Whorls - In whorls some of the ridges make a turn through at least one complete circuit. There are two deltas. Whorls are single cored or double cored.
43. In chapter 21 therein, basis of identification and method of examination has been explained. It is explained that; the identification of fingerprints is based on the identical coincidence of ridge characteristics in any two prints, their pattern being similar. Ridge characteristics are common to all prints. But, neither their frequency is same nor do they occur in the same sequence unless the prints are from the same finger. The identification is solely based on the sequence or the order of the ridge characteristics. In fingerprints sufficient points of similarities i.e., sufficient identical ridge characteristics occurring in the same order are required to establish the identity of 83 C.C.No.21102/2015 two prints. But, a single radical difference would be sufficient for proving non identity. Pattern is the factor which presents either similarity or difference at the first sight. So, before considering the details, one may, at the outset, look to find out whether the two fingerprints under examination show similar pattern or different patterns. If the pattern happens to be similar, the other details need to be looked into. In case the pattern differs then the impressions are not identical and further details need not be looked into. Since, in these cases the expert has to look into non identity rather than identity, the present observation made by the author attracts special attention.
44. P.W.24 has opined that the disputed fingerprints of all the accused except Anuj Kumar are not identical with the admitted fingerprints. The investigating officer has sent the admit cards, attendance sheets and OMR answer sheets of the accused. The left thumb impressions of the accused herein are taken as disputed and they are marked in Q series. The investigating officer has also sent the left thumb 84 C.C.No.21102/2015 impressions taken of the accused at the time of reporting their duty and left thumb impressions taken during investigation. The left thumb impressions taken at the time of reporting duty are taken as disputed and are also marked in Q series. Whereas, the left thumb impressions taken during investigation are taken as standard and they are marked in A series. The court cannot delegate its adjudicatory power to an expert and the court has to take the assistance of the expert while adjudicating on its own. As such, even I have carefully gone through the disputed and standard left thumb impressions and their respective enlarged photographs.
45. The disputed left thumb impressions found in the admit card, attendance sheet and OMR answer sheet of the accused Manish Kumar are respectively marked as Q-13, Q-16 and Q-71. The left thumb impressions of the accused Manish Kumar taken during reporting duty are marked as Q-19 & Q-22 and left thumb impression taken during investigation is marked as A2. The expert has given his opinion 85 C.C.No.21102/2015 that Q-19 & Q-22 and A2 are identical and Q- 13 and Q-71 are not identical with admitted A2 and Q-16 is unfit for comparison. Ex.P.6 (b), Ex.P.6 (c) and Ex.P.17 are the admit card, attendance sheet and OMR answer sheet of the accused Manish Kumar of MTS examination dated 29.04.2012. The expert has given the reason for his analysis of non identical that the disputed left thumb impressions Q-13 and Q-71 are of arch pattern whereas the admitted left thumb impression of A2 is of twin loop pattern and they differ in their basic pattern itself. I perused the left thumb impressions found in the admit card, attendance sheet and OMR answer sheet along with one taken during investigation and their respective enlarged photographs and compared them.
46. The disputed left thumb impressions found in the admit card, attendance sheet and OMR answer sheet of the accused Niraj Kumar are respectively marked as Q-25, Q-27 and Q-
79. The left thumb impression of the accused Niraj Kumar taken during reporting duty is marked as Q-31 and left thumb impression 86 C.C.No.21102/2015 taken during investigation is marked as A4. The expert has given his opinion that Q-31 and A4 are identical and Q-25, Q-27 and Q-79 are not identical with admitted A4. Ex.P.7 (b), Ex.P.7 (c) and Ex.P.17 (b) are the admit card, attendance sheet and OMR answer sheet of the accused Niraj Kumar of MTS examination dated 29.04.2012. The expert has given the reason for his analysis of non identical that the disputed left thumb impressions Q-25, Q-27 and Q-79 are of plain whorl pattern whereas the admitted left thumb impression A4 is of lateral pocket loop pattern and they differ in their basic pattern itself. I perused the left thumb impressions found in the admit card, attendance sheet and OMR answer sheet along with one taken during investigation and their respective enlarged photographs and compared them.
47. The disputed left thumb impressions found in the admit card and attendance sheet of the accused Chandan Kumar in respect of Paper - I dated 23.06.2013 are marked as Q-34 & 37. The said admit card and attendance sheet 87 C.C.No.21102/2015 are marked as Ex.P.10 (b) and Ex.P.10(c). The admit card and attendance sheet of the accused Chandan Kumar of paper - II computer skill test dated 19.01.2014 are marked as Q-42 & Q-
44. The left thumb impression of the accused Chandan Kumar taken during reporting duty is marked as Q-48 and left thumb impression taken during investigation is marked as A3. The expert has given his opinion that Q-42, Q-44, Q-48 and A3 are identical and Q-34 and Q-37 are not identical with admitted A3. The expert has given the reason for his analysis of non identical that the identical ridge characteristics found in the disputed left thumb impressions marked as Q-34 and Q-37 are not available in the admitted left thumb impression A3. I perused the left thumb impressions found in the admit card and attendance sheet pertaining to paper - I dated 23.06.2013 along with one taken during investigation and their respective enlarged photographs and compared them.
48. The disputed left thumb impressions found in the admit card and attendance sheet of the accused Shashi Ranjan Kumar in respect 88 C.C.No.21102/2015 of Paper - I dated 23.06.2013 are marked as Q- 52, 53 in the admit card and Q-55 in the attendance sheet. The said admit card and attendance sheet are marked as Ex.P.11 (b) and Ex.P.11(c). The admit card and attendance sheet of the accused Shashi Ranjan Kumar of paper - II computer skill test dated 19.01.2014 are marked as Ex.P.11 (e) and Ex.P.11 (f) and the thumb impressions therein are marked as Q-60 and Q-62. The left thumb impression of the accused Shashi Ranjan Kumar taken during reporting duty is marked are marked Q- 66 & Q-68 and left thumb impression taken during investigation is marked as A5. The expert has given his opinion that Q-60, Q-62, Q-66, Q-68 and A5 are identical and Q-52 and Q-55 are not identical with admitted A5. The expert has given the reason for his analysis of non identical that the identical ridge characteristics found in the disputed left thumb impressions marked as Q-52 and Q-55 are not available in the admitted left thumb impression A5. I perused the left thumb impressions found in the admit card and attendance sheet 89 C.C.No.21102/2015 pertaining to paper - I dated 23.06.2013 along with one taken during investigation and their respective enlarged photographs and compared them.
49. The disputed left thumb impressions found in the admit card, attendance sheet and OMR answer sheet of the accused Anuj Kumar are respectively marked as Q-3, Q-6 and Q-75. The left thumb impressions of the accused Anuj Kumar taken during reporting duty is marked as Q-10 and left thumb impressions taken during investigation is marked as A1. The expert has given his opinion that Q-10 and A1 are identical and Q-3, Q-75 and Q-6 are unfit for comparison. Ex.P.8 (b), Ex.P.8 (c) and Ex.P.17 (c) are the admit card, attendance sheet and OMR answer sheet of the accused Anuj Kumar of MTS examination dated 29.04.2012. I perused the disputed left thumb impressions Q-3, Q-6 and Q-75 and they are smudged possibly because of over ink or overlap. He has opined that Q-10 taken joining duty and A1 during investigation are identical and they are of whorl pattern. Three left thumb impressions 90 C.C.No.21102/2015 have been taken during examination. Here all the three left thumb impressions are smudged and there is no clarity even in a single left thumb impression.
50. The advocate for the accused has contended that in order to get clear ridge characteristics at the time of taking fingerprints printers blank ink has to be used and the fingers must be rolled in the fullest extent. He has contended both the investigating officers and the invigilators have not followed the said procedure, the opinion based on such fingerprints cannot be accurate. In the book referred above it is observed that a single radical difference would be sufficient for proving non identity. In the decisions relied by the learned P.P. the Hon'ble Supreme Court has reiterated that identification of fingerprints is proved beyond doubt as an infallible means of personal identification. If a science like fingerprint has attained perfection the court cannot doubt the science but it has to look into the expertization of the expert and the reasons assigned for his opinion. Here in these cases so 91 C.C.No.21102/2015 for the accused Manish Kumar and Niraj Kumar are concerned the disputed and admitted fingerprints are different in the basic patterns itself. In case of Chandan Kumar and Shashi Ranjan Kumar the identical ridge characteristics found in the disputed thumb impressions are not available in their admitted thumb impressions. So, there are radical differences. In case of giving opinion as to identical fingerprints the expert has to go through the minute details of ridge characteristics but at the same time looking of minute details does not arise in case of giving opinion as to non identical fingerprints. Even a lay man can observe the difference in between two fingerprints if they happen to be belonging to different finger patterns like arch, loop and whorl. So, in these circumstance we cannot question the expertization and reasons given by the expert in coming to conclusion here in this case and we cannot say that the fingerprints taken using ink pad and ink without rolling in fullest extent lead to inaccurate result. Therefore, I am of the opinion that the disputed 92 C.C.No.21102/2015 fingerprints found in the admit cards, attendance sheets and OMR answer sheets of the accused Manish Kumar, Niraj Kumar, Chandan Kumar and Shashi Ranjan Kumar are non identical with their admitted fingerprints.
51. The last witness remains P.W.25 Smt. Shameembanu K. Patil handwriting expert. She in her examination in chief has deposed that; in the year 2004, she has been appointed as a Scientific Assistant, Questioned documents division, FSL, Madivala, Bengaluru and since then she has been working as Scientific Assistant. From June 2015 to December 2015, she was in charge of scientific officer QD section at FSL, Bengaluru. When they were appointed, 3 months basic training was given to them at NICFS, New Delhi. That on 01.08.2015, their FSL office had received a requisition with annexed documents seeking examination of signatures and handwritings and they were allotted to her and then first she conducted the preliminary examination i.e., whether the documents forwarded are sufficient and suitable for scientific examination. Thereafter, they go 93 C.C.No.21102/2015 through examination of the questioned and standard signatures and writings using different scientific instruments like VSC 5000 i.e., Video spectral comparator 5000 and micro watcher. Here, first she conducted the preliminary examination and when the documents forwarded are sufficient and suitable for examination then with the help of the assistants, she examined the questioned and standard signatures and writings. Thereafter, she has given her certificate of examination along with the reasons for opinion and enlarged printouts of the questioned and standard signatures and writings. After completion of examination she forwarded whole documents with specimen seal in a sealed cover to the dispatch section of the FSL and thereafter, the same were forwarded to the C.B.I. Ex.P.48 is the opinion with the reasons for opinion. She was subjected to a detailed cross examination by the accused side. In her cross examination she has deposed that since 2004 she has been working in forensic science laboratory as scientific assistant. She has deposed that it is true to 94 C.C.No.21102/2015 suggest that the best standards for comparison are the signatures, writings made in the normal course of business and near in time to the disputed signatures and writings. She has deposed that it is true to suggest that the specimen writings and signatures made to request are likely to be conscious and disguise. She has deposed that it is true to suggest that there may be chronological natural variations in the persons writings and signatures and then she has voluntarily deposed that the formation of characters, pattern of signature, rythum and quality remain the same. She has deposed that it is true to suggest that if a person becomes conscious of his writing process then his writing speed becomes slow, the rhythm is disturbed, the movement is lowered, the line quality becomes defective, the pen hold becomes regid, the writing quality becomes inferior and the internal consistency is disturbed. She has deposed that it is true to suggest that in human beings the natural variations in handwritings and signatures is an inherent characteristics 95 C.C.No.21102/2015 because handwriting is not mechanically reproduced.
52. The investigating officer has sent the admit cards, attendance sheets, OMR answer sheets, answer sheets of paper - II of UDCs, the official records of ESIC and the standard signatures and writings taken during investigation for handwriting expert opinion. P.W.25 in her opinion and reasons for opinion Ex.P.48 has opined that the questioned signatures and the questioned writings are produced by means of imitation forgery and they are not written by the persons written the admitted signatures and handwritings. In this report the admitted signatures & writings of the accused both in the official records and taken during investigation are marked in A & S series. Whereas, the disputed signatures and writings are marked in Q series.
53. Q-1 is the disputed signature and Q-2 and Q-4 are the disputed writings of the accused Anuj Kumar in the admit card. Q-5 is the disputed signature of the accused Anuj Kumar in the attendance sheet. Q-74 is the 96 C.C.No.21102/2015 disputed signature, Q-76 and Q-77 are the disputed writings of the accused Anuj Kumar in the OMR answer sheet. The expert for her reasons for opinion has given reason that there is free and firm movement in writings of the admitted writings and signatures in case of Anuj Kumar and there are lot of variations compare to the disputed signatures and handwritings. Likewise, the disputed signatures and handwritings of the accused Manish Kumar, Niraj Kumar, Chandan Kumar and Shashi Ranjan Kumar found in their admit cards, attendance sheets and OMR answer sheets have subjected to examination with their respective admitted signatures and handwritings. The expert here also has given the opinion that there are lot of variations when compared the disputed signatures and handwritings with the admitted once. She has given the opinion that the disputed signatures and handwritings in the admit cards, attendance sheets and OMR sheets of these accused have been produced by means of imitation forgery. I have also gone through the 97 C.C.No.21102/2015 enlarged photographs of the disputed signatures and handwritings of the accused found in their admit cards, attendance sheets and OMR sheets and their admitted signatures and handwritings. Even from bare eyes we can notice material differences in between the disputed signatures and handwritings when compared to the admitted signatures and handwritings of the respective accused. Therefore, there is no reason to disbelieve the reasons assigned by the handwriting expert and as such, I am of the opinion that the disputed signatures and handwritings found in the admit cards, attendance sheets and OMR sheets are not of the same persons who have written the admitted signatures and handwritings of the accused.
54. The learned public prosecutor has argued that the science of fingerprint identification has reached a stage of perfection and as such, the opinion of a fingerprint expert cannot be compared to other expert opinions like handwriting expert opinion. She has contended so for handwriting expert opinion a 98 C.C.No.21102/2015 further corroboration is required and the same criteria shall be applicable to consider the importance of fingerprint expert opinion. The advocate for the accused has argued that fingerprint expert opinion is an opinion evidence and an opinion evidence always is a weak type of evidence and without corroborative evidence the court cannot come to conclusion as to guilt of the accused. Both sides have relied on various citations. The citations relied by the accused side are in respect of the importance of the handwriting expert opinion. Whereas, the prosecution side have relied the citations applicable for appreciation of fingerprint expert opinion.
55. The prosecution side has relied on the citations mentioned herein. In the decision of the Hon'ble Supreme Court "Jaspal Singh V/s State of Punjab" reported in AIR 1979 SC 1708 it is held that "The science of identifying thumb impression is an exact science and does not admit of any mistake or doubt ". In the decision of the Hon'ble Supreme Court " Murari Lal V/s State of Madhya Pradesh" reported in 1980 AIR 99 C.C.No.21102/2015 931 it is held that "The more developed and the more perfect a science, the less the chance of incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of fingerprints has attained near perfection and the risk of an incorrect opinion is practically non existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher ". In the decision of the Hon'ble Supreme Court "Himachal Pradesh Administration V/s Shri Om Prakash" reported in 1972 AIR 975 it is held that "The reason why the reports of the director of the fingerprint bureau is treated as evidence without examining the persons giving the report is that the comparison and identification of fingerprints has now developed into a science and the results derived therefrom have reached a stage of exactitude".
56. The accused side have relied on various citations but same are pertaining to handwriting expert opinion. They have relied on the following citations;
100 C.C.No.21102/2015i) Bazari Hajam and another V/s King Emperor reported in AIR 1922 Pat 73.
ii) Ramachandra and another V/s State of Uttar Pradesh reported in AIR 1957 SC 381.
iii) Shashi Kumar Banerjee and others V/s Subodh Kumar Banerjee reported in AIR 1964 SC 529.
iv) Fakhruddin V/s The State of Madhya Pradesh reported in AIR 1967 SC 1326.
v) Mohmood V/s State of Uttara Pradesh reported in AIR 1976 SC 69.
vi) Magan Biharilal V/s The State of Punjab reported in AIR 1977 SC 1091.
vii) Alamgir V/s State of NCT, Delhi reported in AIR 2003 SC 282 and
viii) Sri K. Varadaraj Pai and another V/s State by C.B.I. reported in 2013 (3) KCCR 2368.
In these decisions, it is observed that it is well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of handwriting expert. It is observed that it is unsafe to base a conviction solely on expert 101 C.C.No.21102/2015 opinion without substantial corroboration. But, the principle observed in these decisions cannot be applicable to the opinion evidence of the fingerprint expert. The decisions relied by the learned P.P. place the evidence of fingerprints on different footing compare to the evidence of handwriting. In the decision "Fakir Mohomed Ramzan V/s Emperor" of 12th November, 1935 his lordship Beaumont has convicted the accused solely based on the fingerprint evidence.
57. The advocate for the accused has vehemently contended that the evidence of the invigilators on record is a strong ground in favor of the accused. He has contended that the prosecution side have failed to bring the alleged impersonator and in the absence of him the prosecution cannot say that the accused adopted malpractices and got written their examinations by some others. The investigating officer in his chief examination has adduced that he made concrete efforts and even approached the Unique Identification Authority to find out the impersonators and failed to bring 102 C.C.No.21102/2015 them to book. In this situation, it cannot be said that the accused can get the benefit of non finding of impersonators. In the decisions relied by the accused, it is observed that in order to convict based on opinion evidence there must be corroborative evidence either direct or circumstantial and it is not a rule of law and it is a rule of caution and prudence. It is pertinent to note here that in the decisions relied by the accused there may be single instances disputed handwritings. But, here in respect of each accused except the accused Anuj Kumar there are 2 - 3 instances of disputed fingerprints in respect of which there is expert opinion and number of disputed signatures and handwritings wherein the handwriting expert opinion is on record. It is held that the disputed fingerprints except Anuj Kumar, signatures and handwritings are not of the accused and as such, it need not be said that the accused got written the examination by the others. Here, each instance of either disputed fingerprint or disputed signature or disputed handwriting is evidence on record and the instances of other 103 C.C.No.21102/2015 disputed fingerprints, signatures and handwritings act as corroborative evidences to the first one. So, here we have number of corroborative evidences. No doubt, in case of Anuj Kumar we don't have the opinion of expert on fingerprints but we have the handwriting expert opinion on number of disputed signatures and handwritings and the same interse act as corroborative evidences. Moreover, the accused ought to put his fingerprint on three occasions, on admit card, on attendance sheet and on OMR answer sheets. But the expert did not subject these fingerprints to examination as they were unfit for comparison. I perused these fingerprints and it is cleared that these are smudged because of over ink or overlap. If one fingerprint was smudged because of over ink or overlap then we may be considered it as a natural but when all the fingerprints were smudged may be it shows the intention of the impersonator. Apart from these, in the department inquiry on tracing out of 7 cases of impersonations they have been terminated from service and because of 104 C.C.No.21102/2015 registration of the case by the C.B.I. they could not proceed further. Sec.415 of the Indian Penal Code reveals that even a dishonest concealment of facts is a deception. Sec.416 of the Indian Penal Code defines that a person is said to cheat by personation if he cheats by pretending to be some other person or knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person is. As such, the acts committed by the accused come within the ambit of penal provisions Secs.419 and 420 of the Indian Penal Code. Therefore, I am of the opinion that the prosecution has able to prove beyond reasonable doubt that the accused Manish Kumar dishonestly and fraudulently cheated the ESIC and the deserving candidates and engaged some one to impersonate him in writing written examination for MTS dated 29.04.2012. Accordingly, I answered the point Nos.1 & 2 in the Affirmative.
105 C.C.No.21102/201558. POINT NO.3: In view of the reasons assigned to the Point Nos.1 & 2, I proceed to pass the following;
ORDER The accused is found guilty and he is convicted under Section 248(2) of the Cr.P.C. for the offences punishable u/Secs.419 and 420 of the Indian Penal Code.
[Dictated to the Typist directly on the computer, computerized by him, corrected and pronounced by me in the open Court on this the 23rd day of March, 2018.] [J.B. SHIVAPUJI] XVII ADDL.CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
106 C.C.No.21102/2015Heard both the learned public prosecutor and the learned advocate for the accused on passing of sentence.
ORDER ON SENTENCE The accused is convicted for the offences punishable u/Ss 419 and 420 of the Indian Penal Code. The learned PP has submitted that the offences committed by the accused are having serious effect on the social condition of the State and create unhealthy atmosphere in the working place and as such, the Court has to impose maximum prescribed punishment. The accused side have contended that now the accused has already spent sufficient time in doing his service and the confidential and annual performance and appraisal reports submitted herein show the good conduct of the accused. They have contended that now the accused has already been married and he is having children and as such, a lenient view be taken at the time of imposing sentence. The offences committed herein surely affect on the social condition of the society and they are capable of causing injury to the carrier of the 107 C.C.No.21102/2015 meritorious candidates. In the present circumstances, I proceed to pass the following -
SENTENCE
The accused is sentenced to
undergo R.I. for a period of 3 years for the offence punishable u/Sec.420 of the IPC and he shall pay fine amount of Rs.25,000/-. In default of payment of fine amount, he shall undergo R.I. further for a period of six months.
The accused is sentenced to undergo R.I. for a period of 2 years for the offence punishable u/Sec.419 of the IPC and he shall pay fine amount of Rs.25,000/-. In default of payment of fine amount, he shall undergo R.I. further for a period of six months.
The accused in total shall pay fine amount of Rs.50,000/-.
The sentences of imprisonment imposed against the accused herein shall run concurrently.
108 C.C.No.21102/2015 The imprisonment awarded in
default of payment of fine amount
against the accused shall be in
addition to the substantive sentences of imprisonment.
Free copy of judgment shall
supply to the accused. A copy of
judgment shall be sent to the
Recruiting Authority, the Regional
Director, Regional Office, ESIC,
Bangalore for necessary action.
[Dictated to the Stenographer directly on the computer, computerized by her, corrected and pronounced by me in the open Court on this the 24th day of March, 2018.] [J.B. SHIVAPUJI] XVII ADDL.CHIEF METROPOLITAN MAGISTRATE, BANGALORE.
109 C.C.No.21102/2015-: ANNEXURE :-
I. LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:-
P.W.1 : A.J. Manohar
P.W.2 : K. Radha
P.W.3 : R. Raju
P.W.4 : S. Sivaramakrishnan
P.W.5 : P. Anthony Rajan
P.W.6 : Mathews Mathew K.M.M.
P.W.7 : N. Anandkumar
P.W.8 : Lakshmisha
P.W.9 : P. Devaraj
P.W.10 : N. Vijaykumar
P.W.11 : S. Saravankumar
P.W.12 : A. Jayadev
P.W.13 : Ramachandra
P.W.14 : Kum. Sowmya
P.W.15 : R. Anitha
P.W.16 : Kum. V.M. Ashwini Chavan
P.W.17 : Chandrashekar R. Patil
P.W.18 : Sachin Martand Tajave
P.W.19 : Robert Guite
P.W.20 : Vijaykumar
110 C.C.No.21102/2015
P.W.21 : S. Sukumar
P.W.22 : V.G. Nainoor
P.W.23 : S. Krishnamurthy
P.W.24 : Mahabaleshwara Hegde
P.W.25 : Shameembanu K. Patil
P.W.26 : K. Shivanna
P.W.27 : T. Murugesan
II. LIST OF WITNESSES EXAMINED FOR THE DEFENCE:-
- NIL -
III. DOCUMENTS EXHIBITED ON BEHALF OF THE PROSECUTION:-
Ex.P.1 : MTS recruitment processing file Ex.P.2 to 4 : UDC recruitment processing files Ex.P.5 : Selection list of MTS candidates Ex.P.6 : Application, admit card, attendance sheet and other documents of Manishkumar Ex.P.7 : Application, admit card, attendance sheet and other documents of Niraj Kumar Ex.P.8 : Application, admit card, attendance sheet and other documents of Anuj Kumar Ex.P.9 : Final list of UDC candidates eligible for appoint to the post of 111 C.C.No.21102/2015 UDC.
Ex.P.10 : Application, admit card attendance sheet and other documents of Chandan Kumar. Ex.P.11 : Application, admit card attendance sheet and other documents of Shashi Ranjan Kumar Ex.P.12 to : Production memos and covering 16 letters for issuing document to C.B.I. from ESIC Ex.P.17 : 3 OMR answer sheets of Manish Kumar, Anuj Kumar and Niraj Kumar.
Ex.P.18 : 5 bank challans
Ex.P.19 : Answer papers of part II of
Shashi Ranjan Kumar and
Chandan Kumar
Ex.P.20 : Covering letter containing the
records of ESIC having standard
writings and signature of Niraj
Kumar
Ex.P.21 : Covering letter containing the
records of ESIC having standard
writings and signature of Anuj
Kumar
Ex.P.22 : Covering letter containing the
records of ESIC having standard
writings and signature of
Manish Kumar
112 C.C.No.21102/2015
Ex.P.23 : Specimen signature,
handwriting and LTMs of Shashi
Ranjan Kumar
Ex.P.24 to : Specimen signatures, specimen 27 number writings specimen handwriting and specimen left hand thump impression of Shashi Ranjan Kumar Ex.P.28 to : Specimen signatures, specimen 31 number writings specimen handwriting and specimen left hand thump impression of Chandan Kumar Ex.P.32 to : Specimen signatures, specimen 35 number writings specimen handwriting and specimen left hand thump impression of Niraj Kumar Ex.P.36 to : Specimen signatures, specimen 39 number writings specimen handwriting and specimen left hand thump impression of Manishkumar Ex.P.40 to : Specimen signatures, specimen 42 number writings and specimen handwritings of Anuj Kumar Ex.P.43 : Specimen Signatures of Manish Kumar Ex.P.44 : Specimen Signatures of Niraj Kumar Ex.P.45 : Specimen Signatures of Shashi Ranjan Kumar 113 C.C.No.21102/2015 Ex.P.46 : Covering letter Ex.P.47 : Report with enlarged phographs of all the candidates and grounds for opinion Ex.P.48 : Certificate of examination with reasons for opinion and enlarged printouts of signatures and writings.
Ex.P.49 : Documents forwarded by C.B.I. Ex.P.50 : Covering letter Ex.P.51 : FIR Ex.P.52 : Search list for saearching the residence premises of Shashi Ranjan Kumar Ex.P.53 : Search list for saearching the residence premises of Chandan Kumar Ex.P.54 : Search list for saearching the residence premises of Niraj Kumar Ex.P.55 : Search list for saearching the residence premises of Manish Kumar 114 C.C.No.21102/2015 IV. LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
Ex.D.1 : Portion of statement of P.W.12 Ex.D.2 : Portion of statement of P.W.12 V. LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION:-
-NIL-
VI. LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE:-
-NIL-
NOTE: Since the prosecution side had filed the original records in C.C.No.21097/2015, the same have been called for and have been marked in this case. As such, the marked documents are not kept here and they are with C.C.No.21097/2015.
XVII A.C.M.M., BANGALORE.