Court No. - 29
Reserved on : 11.08.2021 Delivered on : 23.09.2021 Case :- SPECIAL APPEAL DEFECTIVE No. - 413 of 2021 Appellant :- Guddu Kumar Purbey Respondent :- Union Of India And 2 Others Counsel for Appellant :- Siddharth Khare,Sr. Advocate Sri Ashok Khare Counsel for Respondent :- A.S.G.I.,Anurag Sharma
Hon' ble Munishwar Nath Bhandari, Acting Chief Justice. Hon' ble Rajendra Kumar- IV, J.
(Delivered by Hon'ble Rajendra Kumar-IV, J.)
1. Special appeal has been filed to assail the judgement of learned Single Judge dated 17.03.2021 passed in Writ Petition No.2133 of 2020, (Guddu Kumar Purbey versus Union of India and two others), whereby learned Single Judge dismissed the writ petition filed by the petitioner-appellant.
2. Brief facts giving rise to the present special appeal are as under:-
2(i). The candidature of petitioner-appellant in recruitment for the post of Constable (GD) in CAPFs and Rifle Man (GD) in Assam Rifles Exam, 2013, has been cancelled by respondent no.3 herein and petitioner-appellant was debarred from the examination for a period of three years. Written examination in question was conducted by the Public Service Commission on 12.05.2013. The period of three years was to commence from the date of written examination and accordingly period to end on 12.05.2016. It is also noteable to mention here that in previous round of litigation, in the judgement and order dated 16.04.2016, while quashing the order of respondents in cancelling the selection of certain candidates including petitioner- appellant and debarring them from appearing in the future examination for three years, the Court made certain observations. Against the aforesaid order, Special Appeal No.1045 of 2018 was also filed before the Division Bench of this Court, which was dismissed.
2(ii). In compliance of order of this Court, Commission sent necessary material for obtaining report of finger print and hand writing expert. The report dated 27.05.2016 of hand writing expert along-with report of finger print expert and other materials were supplied to the petitioner along-with show cause notice dated 19.09.2019. The petitioner-appellant filed his reply. Considering the material on record and reply of the petitioner-appellant, respondent no.3 found the petitioner-appellant involved in impersonation in the examination and passed the order accordingly, the same was under challenge in the writ petition.
2(iii). Writ Court in Writ Petition (A) No.2133 of 2020 dealt with the matter in detail and dismissed the petition, finding no merit.
3. Being aggrieved with order of writ Court, present appeal has been filed.
4. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned Counsel for the petitioner-appellant and Sri Shashi Prakash Singh, learned Senior Counsel assisted by Sri Purendu Singh, learned Counsel for respondents and perused the record.
5. Learned Senior Counsel for petitioner-appellant submits that report of finger print expert is self contradictory and no opinion could have been formed on the basis of smudged thumb impression. He further submits that only on the basis of hand writing expert opinion, selection of petitioner should not have been cancelled. Allegation of impersonation is based on hand writing report alone which would not be conclusive in view of fact that expert opinion is only opinion and is a weak type of evidence. Learned Single Judge misinterpreted the judgement relied upon by the petitioner-appellant. He further submits that order impugned is based on hand writing expert alone, which is not according to law.
6. On the other hand, learned Senior Counsel for the respondents, supported the impugned judgement and submitted that the finding of learned Single Judge is well reasoned and speaking. The petitioner- appellant had impersonated in the written examination and therefore his candidature has rightly been cancelled by the authorities and the writ petition was dismissed on merits. Finger print expert clearly opines that configuration of ridges are different, hence, prayed for dismissal of appeal.
7. The comparison of the handwriting and thumb impressions of the petitioner on the sample papers taken by the Commission with the admission card and hand writing in the written examination proves the allegations of impersonation. The expert's report, noted above, cannot be discarded on the plea that the invigilator in the examination hall on the date of the written examination held on 12.05.2013 had identified the candidate from the identity card submitted by him. The thumb impressions of candidates were taken on different dates at different stages of the examination to rule out all possible cases of impersonation. The evidence of fingerprint expert along with the report of handwriting expert proved the allegations of impersonation in all probability, in the facts of the present case.
8. Hon'ble Subba Rao (C.J.) (as His Lordship then was) in Guntaka Hussenaiah Vs. Busetti Yerraiah AIR 1954 Andhra 39 said :
"The expert's evidence is only a piece of evidence. A Judge of fact will have to consider that evidence along with the other pieces of evidence. Which is the main evidence and which is the corroborative one depends upon the facts of each case."
9. The caution, the Court must exercise while considering opinion rendered by an expert is expressed in Murarilal Vs. State of M. P. AIR 1980 SC 531 , where the Court held:
"But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints 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. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'." (Para 4) "Reasons for the opinion must be carefully probed and examined. ... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted " (Para 11)
10. In State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133 , a Division Bench of Orissa High Court held :
"Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The Court has to evaluate the same like any other evidence . The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for ipse dixit of the expert . It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated."
11. In Palaniswamy Vaiyapuri Vs. State AIR 1968 Bombay 127 , a Division Bench of Bombay High Court in para 11 of the judgment said :
"The opinion of an expert must be supported by reasons and it is the reasons and not ipse dixit which is of importance in assessing the merit of the opinion."
12. In Haji Mohammad Ekramul Haq Vs. The State of West Bengal, AIR 1959 SC 488, the Court held that an opinion of expert unsupported by any reason is not to be relied on.
13. On legal principles, the weight of evidence, in such an inquiry, has to be tested on the principles of preponderance of probability. The strict rule of evidence to weigh the material evidence on record, as applicable in criminal case of proof beyond all reasonable doubt, is not applicable. It cannot be said that the material relied by the Commission is irrelevant, extraneous or unrelated to the issue. No malafide is pleaded. The fingerprint expert report along with the handwriting expert report form relevant expert opinion regarding impersonation cannot be ignored as being merely an opinion.
14. The hand writing of the petitioner was obtained. It was in English as well as Hindi to compare it with the writing on the admission card and copy. It was found that hand writing of the petitioner differs and this Court also examined the material placed on record and found apparent difference in the hand writing of the petitioner taken subsequently to compare it with the hand writing on the admission card and the copy and other documents.
15. In view of the above, even if the ink of thumb impression smudged, the hand writing available on record shows it to be a case of impersonation. The opinion of the hand writing experts was also taken apart from the opinion in reference to the thumb impression.
16. We again iterate that even if opinion of thumb impression is inconclusive as the ink smudged, the hand writing on different documents differs, thus the opinion of the hand writing experts cannot be ignored.
17. Having perused the material on record, the decision of the Committee to examine expert's report and the representation moved by the petitioner, we find sufficient material to hold that the petitioner had procured impersonation in the examination.
18. In view of above, we do not find any reason to cause interference in the order passed by learned Single Judge. Appeal fails and is accordingly dismissed.
Order Date :- 23. 09. 2021 I.A.Siddiqui (Rajendra Kumar- IV,J.) ( Munishwar Nath Bhandari, A.C.J. )