Delhi District Court
Cbi vs Nasib Singh Constable on 19 January, 2019
IN THE COURT OF ANIL KUMAR SISODIA
SPECIAL JUDGE (PC ACT)(CBI)-04: TIS HAZARI COURTS:
DELHI
CNR No. DLCT01-012173-2016
New CC No. 532384/2016
RC No. 7 (A)/2014/CBI/ACB/ND
U/s 7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988
or in the alternative Section 11 of P.C. Act, 1988
CBI Versus Nasib Singh Constable
S/o late Sh. Daultat Singh,
R/o 86, Sultan Pur, Ambala,
Haryana.
Date of Institution : 07.09.2016
Judgment reserved on : 24.12.2018
Date of Judgment : 19.01.2019
Memo of Appearance:
Sh. A.K.Rao, learned Sr.PP for CBI,
Sh. Sandeep Sharma, Learned counsel for accused
JUDGMENT
1. This is one of the six cases registered by CBI on the directions of Hon'ble High Court of Delhi vide order dated 14.02.2014 in criminal writ petition no. 1823/12 filed by the complainant Chetan Prakash.
PROSECUTION VERSION
2. A sting operation was conducted by complainant Chetan Prakash Sharma on accused Ct. Nasib Singh with the help of his friend CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 1 of 47 Swarandeep Shukla. He filed a Writ Petition (Crl.) No. 1823/12 in the Hon'ble High Court seeking direction for investigation and registration of FIR against corrupt police/other public servants exposed by him in sting operation conducted by him.
3. The Hon'ble High Court vide order dated 14.2.2014 directed CBI to investigate the complaint. Chetan Prakash has produced five hard disks and five memory cards before the Hon'ble High Court. These hard disks and memory cards were kept in sealed container in safe custody of Ms. Anita Malhotra, Assistant Registrar (Criminal), High Court of Delhi in compliance of the order dated 5.2.2013 of the court.
4. These hard disks and memory cards were taken by CBI from the Hon'ble High Court and sent to CFSL, New Delhi, requesting them to opine as to whether any hard disks or memory card has been tempered with or not. On request of CBI, CFSL has provided copies of data recovered from the five memory/micro SD cards in a compact disk to CBI and opined that the clippings are continuous and no form of tempering has been detected therein.
5. Investigation has revealed that folder "Ex. 6-2 KINGSTON 2 GB"
= "Myrecord" = 'V0120002.AVI" pertaining to this case was played, seen and heard in the presence of Sh. Chetan Prakash and independent witness Sh. Dinesh Kumar, Assistant Administrative Officer, LIC of India, Connaught Place on 15.12.2014. Sh. Chetan Prakash identified his voice, voice of Sh. Swarandeep Shukla @ Sanuj Shukla and voice of accused. He also confirmed that said audio-video has been prepared by him at near Ranhola nala, police picket during December, 2010. He also identified accused in the audio video CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 2 of 47 transcription of the recorded conversation.
6. Accused is visible accepting Rs. 900/- as illegal gratification from Swarandeep Shukla, friend of complainant Chetan Prakash, who was also present there. Accused is also visible in the said recording keeping Rs. 900/- in his brown colour wallet. The said bribe amount was taken by accused as protection money from Sh. Swarandeep Shukla to run his illicit liquor trade and on refusal accused may implicate him in some false case. Inspector Sajjan Singh, H/Ct. Raghuraj Singh, Inspector Raj Kumar Bajaria, Ct. Pradeep Kumar and Ct. Tej Bir Singh from Delhi Police have identified accused as Constable Nasib Singh in the aforesaid video clipping posted at PS Ranhola at the relevant time.
7. Investigation has revealed that photograph of the accused were obtained from his office and was sent to CFSL for comparison of the same with the persons visible in the recorded video clipping. CFSL vide its report dated 12.5.2016 confirmed that persons visible in sample photograph to be same who are visible in the audio-video. The specimen voice of accused could not be recorded as he refused to give his specimen voice.
8. Specimen voices of complainant and his friend Swarandeep Shukla were recorded in memory card S-7 & S-6 respectively, in the presence of two independent witnesses and sent to CFSL for comparison with memory card Ex. 6/2. CFSL vide its report dated 17.4.2015 opined that it contains probable voices of Chetan Prakash and Swarandeep Shukla.
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 3 of 479. Complainant Chetan Prakash has also issued certificate under Section 65-B of Indian Evidence Act regarding the recording of audio- video. The investigation revealed that accused had taken voluntary retirement, hence, no sanction for his prosecution is required.
10. After completion of investigation,chargesheet was submitted before the court on 07.09.2016.
COGNIZANCE AND CHARGES
11. Cognizance was taken by the court on 23.09.2016 and the accused was directed to be summoned.
12. Arguments on charge were heard and vide order dated 29.11.2016, charge was framed against the accused for commission of offences under Sections 7 of PC Act, 1988 and 13(1)(d) r/w Section 13(2) PC Act or in alternative Section 11 of PC Act to which the accused pleaded not guilty and claimed trial.
13. It will be also not out of place to mention here that the accused was also directed to admit or deny the documents relied upon by the prosecution and number of documents were admitted by accused Nasib Singh Constable as is evident from the order sheet dated 09.12.2016.
14. Following documents were admitted by accused Nasib Singh Constable:-
S. No. Document Exhibit Number Brief Description of Document Number 1 D-2 Ex.AD-1 (colly) Forwarding letter dated 18.02.2014 along with CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 4 of 47 certified copy of Hon'ble High Court order dated 14.02.2014 in Writ Petition (Criminal) 1823/2012.
2 D-3 Ex.AD-2 (colly) Certified copy of Writ Petition (Criminal) 1823/2012 3 D-4 Ex.AD-3 (colly) Certified copy of court orders dated 21.12.2012, 16.01.2013, 05.02.2013, 13.02.2013, 17.04.2013, 03.07.2013, 24.07.2013, 19.08.2013, 16.09.2013, 01.10.2013, 30.10.2013, 21.11.2013, 17.12.2013,
15.01.2014, 14.02.2014 PROSECUTION EVIDENCE
15. Prosecution has examined 21 witnesses in support of its case. These witnesses can be broadly classified as under:-
(A). Witnesses from Hon'ble High Court of Delhi 15.1 PW1 Sh. Mahesh Kumar is Sr. Judicial Assistant, Crime Branch-1, Delhi High Court, Delhi who produced the original record of Writ Petition (Crl.) No. 1823/2012 titled as Chetan Prakash Vs. Union of India & Ors. He has deposed that in compliance of order of Hon'ble High Court dated 5.2.2013, complainant Chetan Prakash and his counsel Sh. Anil K. Aggarwal produced five hard disks and five memory cards on 11.2.2013 and handed over the same to the office of Registrar General, High Court of Delhi. He has proved the proceedings dated 11.2.2013 as Ex. PW 1/A and has identified the signatures of the then Ld. Registrar General (now Hon'ble Mr. Justice V.P.Vaish) at point 'A' and Registrar (Appellate) Sh. Ramesh Sharma at point 'B'. He also proved the forwarding letter signed by Sh. Anil K. Aggarwal at point 'A' as Ex. PW 1/B and Ex. PW 1/C (colly.) containing details of hard disks and memory cards.
(B). Witnesses from Delhi Police 15.2 PW3 HC Parmendra Singh, DCP Office PCR Model Town, CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 5 of 47 Delhi has produced original posting register from SIP branch West District and has proved the details of posting of accused Ct. Nasib Singh (775-W). He deposed that vide order No. 20255/SIP/W dated 10.11.2002, Ct. Nasib Singh was transferred from District Lines to PS Ranhola and remained there till his suspension, i.e. 26.1.2011. He has proved the attested copy of page no. 775-W regarding accused Ct.
Nasib Singh as Ex. PW 3/A. 15.3 PW4 Inspector Raj Kumar Bajaria, SHO PS Maya Puri, Delhi has proved the proceedings in departmental enquiry against accused Ct. Nasib Singh belt No. 775-W and Ct. Ravinder belt No. 1234-W. He identified his signatures at point 'A' in the departmental enquiry file which as exhibited as Ex. PW 4/A (colly.) (D-18). He also identified the signatures of competent authority Sh. Devender Arya, IPS on the copy of common final order. He also deposed that he had gone through the transcription of conversation which was received along with the file and had also signed the draft summary of allegations, list of documents, list of witnesses and the clippings of audio-video was shown to him in CBI office.
15.4 PW6 Inspector Sajjan Singh (Retd.) who has deposed that he was SHO of PS Ranhola from Sept. 2009 to June, 2011 and accused Ct. Nasib Singh and Ct. Ravinder Singh were posted at PS Ranhola during his tenure. He joined the investigation at CBI office and was shown three video clippings out of which two were relating to accused Ct. Nasib Singh and one related to Ct. Ravinder. He identified Ct. Ravinder Kumar taking money in the clipping from unknown person. He also deposed that on 26.1.2011, Chetan Prakash had submitted a complaint in the police station against accused Ct. Nasib CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 6 of 47 Singh and Ct. Ravinder Singh and had also submitted a CD relating to the incident. The complaint was entered in DD no. 69. After consultation with senior officers, Ct. Nasib Singh and Ct. Ravinder were placed under suspension vide DD no. 32-A dated 27.1.2011 and CD and complaint was forwarded to senior officers. On 22.2.2011 he had prepared a draft summary of allegations against accused Ct. Nasib Singh and Ct. Ravinder and had also prepared Hindi transcription of conversation contained in CD and these drafts were submitted to senior officers for necessary action. He identified the signatures of Sh. Rishipal, Addl. DCP in the DE file, already exhibited Ex. PW 4/A (colly.) and the complaint filed by Chetan Prakash. He also identified the copy of picket duty of Ct. Nasib Singh and Ct. Ravinder Kumar bearing the signatures of the then ACP Sandeep Bayala. He also deposed that he had attested the CDR of mobile No. 9540524604 from period 5.12.2010 to 27.1.2011 and prepared the transcription of the conversation. He further deposed that he had conducted preliminary enquiry regarding the aforesaid allegations and recorded the statement of Ct. Nikhil, accused Ravinder and accused Ct. Nasib Singh. The witness also identified accused Ct. Nasib Singh and the charge framed by enquiry officer Raj Kumar Bajaria as Ex. PW6/A. He also identified the signatures of Inspt. Raj Kumar in the departmental file at point 'A' on documents Ex. PW 6/B (colly.). He identified his signatures at point 'A' on draft summary of allegations, list of documents and list of witnesses prepared by him and the same were exhibited as Ex. PW 6/C. He also identified accused Nasib Singh in video file no. V0120002 and also identified his voice.
15.5 PW7 Ct. Pradeep Kumar, ACP Office, Nangloi, Delhi has deposed that SHO PS Ranhola had sent a request for obtaining CDR CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 7 of 47 and had also sent the CD containing audio-video clip in respect of accused Ct. Nasib Singh and Ct. Ravinder which was played and seen by him. He further deposed that he was authorized to obtain the CDR from the service provider company after obtaining written approval from ACP. He deposed that he had obtained the CDR of mobile No. 9540524604 (in the name of Ravita Shukla) already Ex. PW 4/A (colly.) and also deposed that the number under column A between point A to A at page 57 is 9868321855 and on the same page under column A at point B to B at page 57 is 9540524604 and similarly under column B number of CDR at page 57 between portion A to A and B to B are 9540524604 and 9868321855 respectively. He further deposed that CBI had called him to examine him in respect of CDR and had played some video clippings in respect of accused Ct. Nasib Singh and Ct. Ravinder and he had seen both these accused in ACP office but he was not knowing their names. However, on seeing them in the video clipping shown by CBI, he identified them. The witness also identified accused Nasib Singh in the court but could not recognize the voice of the accused.
15.6 PW8 HC Tejbeer Singh has deposed that he was posted in PS Ranhola in 2010 and 2011 and he knew accused Ct. Nasib Singh as he had seen him in PS Ranhola on one or two occasions. He proved DD no. 6-B dated 31.12.2010 PS Ranhola as Ex. PW 8/A and identified his signatures at point 'A'. He deposed that in the aforesaid DD entry, his place of duty and place of duty of accused Ct. Nasib Singh was rightly mentioned. He also deposed that when he was shown video clipping on 31.8.2015 in CBI office he had identified Ct. Nasib Singh. He identified accused Ct. Nasib Singh and his voice when video file No. V012002 and video file no. V0123002 were played in the CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 8 of 47 court.
15.7 PW10 Inspector Udham Singh, SHO PS K.N. Katju Marg, Rohini District, Delhi has deposed that on 11.12.2014 he was posted as SHO PS Ranhola Delhi and on the asking of CBI he had handed over certified copies of documents as detailed in the letter dated 11.12.2014 (D-6) to IO Inspt. Kailash Sahu and proved the said letter as Ex. PW 10/A. He also identified the DD entry No. 30-A dated 26.1.2011 regarding receipt of complaint of Chetan Prakash, certified copy of DD entry no. 6-B dated 31.12.2010 regarding deployment of Ct. Nasib Singh No. 755-W on picket duty at Bakkarwala and certified copy of DD no. 22-B dated 31.12.2010 regarding deployment of Ct. Ravinder No. 1234-W at Ranhola Nala picket. DD no. 22-B was exhibited as Ex. PW 10/B (colly.).
15.8 PW11 Ct. Pawan Kumar, 4th Battalion, DAP has deposed that he had handed over the dak regarding personal details and posting of accused Ct. Nasib Singh to Inspt. Kailkash Sahu vide letter dated 8.12.2014 (D-7) and identified the signatures of Sh. Kime Kaming, the then DCP 4th Battalion. He also deposed that along with the letter photo copy of photograph of Ct. Nasib Singh was also provided and the same were exhibited as Ex. PW 11/A (colly.). He also identified the accused present in the court and the photograph of the accused Nasib Singh Ex. PW 11/B. He also identified accused Nasib Singh in video file V0120002 when played in the court, however, he after seeing the video file V0123001 stated that accused Ct. Nasib Singh is not clearly visible in the said video clip.
15.9 PW13 ASI Ranbir Singh, PS Ranhola, Outer District Police, CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 9 of 47 Delhi has deposed that on the directions of then SHO Uddam Singh he had handed over photo copy of DD entry Ex. PW 10/B to the CBI officer who had come to the police station. He also deposed that the photo copy of the DD was made from the original DD register and was attested by him vide endorsement at point 'A' on each page. He also produced the original DD register containing DD no. 30-A dated 26.1.2011, DD no. 6-B dated 31.12.2010 and DD no. 3-B dated 31.12.2010 and identified the photo copies available on record and already exhibited as Ex. PW 10/B. 15.10 PW15 ASI Raghuraj Singh, PS Mukherjee Nagar, Delhi has deposed that he had attended CBI office and was shown video clippings of accused Nasib Singh and Ct. Ravinder Ram and had identified them as he was posted with them and was well aware about their facial features. He also identified accused Ct. Nasib Singh in video file V0120002 but declined to identify his voice.
(C) Expert witnesses 15.11 PW16 Dr. Subrat Kumar Choudhry, Sr. Scientific Officer Gr- II (Physics) CFSL, New Delhi has proved his report No. CFSL- 2014/P1779 dated 17.4.2015 as Ex. PW 16/A whereby he had examined the voices of Chetan Prakash, Swarandeep Shukla in the video clippings and had compared with the specimen voices and has observed that the voices in the video clippings are similar to the specimen voices of these persons.
15.12 PW20 Sh. P.K. Gottam, Sr. Scientific Officer-I (Photo) CFSL, CBI, New Delhi has compared the photograph of accused Ct. Nasib Singh (S-10) with the video file no. V0120002 and V0123002 and came CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 10 of 47 to the conclusion that the person appearing in the sample photograph S-10 appeared to be similar with the person visible in the aforesaid video files. He also proved his report dated 12.5.2016 as Ex. PW 18/F (D-17).
15.13 PW21 Sh. Gautam Roy Retd. Sr. Scientific Officer and Head of the Department in the computer forensic and head of the department in the computer Forensic Division & Photo Division in CFSL CBI New Delhi examined the memory cards and micro SD card Ex. 6/1 to 6/5 and came to the conclusion that there was continuous flow of video and there was no stoppage, pause etc. and, therefore, there was no tampering on the aforesaid five memory cards. He proved his report as Ex. PW 21/A. (D). Complainant and other public witnesses 15.14 PW2 Sh. Dinesh Kumar s/o late Sh. Bharat Singh, Asstt. Branch Manager (Sales) LIC of India, Shimla has deposed that on 15.12.2014 he reached CBI office, CGO Complex on the directions of his office. He proved the photo copy of the order as Ex. PW 2/A. He further deposed that in the CBI office an officer of CBI along with Chetan Prakash (wrongly mentioned as Chander Prakash) was present and they showed him some audio video recording and also the transcription of the conversation in the clipping. On the instructions of the I.O., he verified the transcription with conversation recorded in the clipping and signed the same. He proved the copy of transcription as Ex. PW 2/B. He also proved the transcription-cum-voice identification memo prepared at CBI office as Ex. PW 2/C. He also deposed that Chetan Prakash had identified the pictures of the persons appearing in the clippings but he could not recall if complainant had CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 11 of 47 identified his voice.
15.15 PW5 Sh. Parmeet Kumar Junior Court Assistant at Supreme Court of India has deposed that he had reached the office of CBI pursuant to his office order on 20.11.2014 along with his colleague Sunny Attri. CBI officials took the voice sample of JE Meena. He also identified accused Ct. Nasib Singh and deposed that he had refused to give his specimen voice relying on some Supreme Court order. He further deposed that all the persons present in the CBI office signed a memo prepared in this regard. He identified his signatures on the memo at point 'A', signatures of Sunny Attri at point 'B' and accused Nasib Singh at point 'C'. The memo was proved as Ex. PW 5/A (D-8). He further deposed that reply given by accused Nasib Singh was also signed by him at point 'A', by Sunny Attri at point 'B' and accused Nasib Singh at point 'C' and reply given by the accused was proved as Ex. PW 5/B. 15.16 PW17 Sh. Sunny Attri s/o Sh. Ashok Kumar, r/o Village Katlu, PS Kundli, District Sonepat has also proved his signatures at point 'B' on the memo Ex. PW 5/A (D-8) vide which accused Nasib Singh had refused to give his sample voice.
15.17 PW9 Sh. Raman Kumar Sharma, Deputy Manager, House & Urban Development Corporation has deposed that he along with Kishan Dutt reached CBI office on 25.11.2014 on the instructions of his department. In the CBI office, sample voice recordings of Chetan Prakash and one Sh. Shukla was recorded in their presence and the voice recording was subsequently sealed and seal after use was given to him. He also deposed that the seal was submitted by him in the CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 12 of 47 court in connected case CC No. 532386/16 titled CBI Vs. Laxman exhibited as Ex. PW 2/C. He identified his signatures on sample voice recording memo at point 'A' and signatures of Kishan Dutt at point 'B' and the said memo was proved as Ex. PW 9/A. He also proved the text of specimen voice as Ex. PW 9/B. The witness also identified the parcel S-7 in which memory card containing specimen voice of Chetan Prakash was sealed by CBI in his presence. The witness also identified the memory card bearing his signature on the plastic cover. He also identified the parcel S-6 in which the memory card containing the specimen voice of Swarndeep Shukla was recorded. He further identified his signatures on the packet containing memory card in which specimen voice of Swarndeep Shukla was recorded. The memory cards were already proved as Ex. PW 3/D and Ex. PW 3/G in CC No. 532386/16.
15.18 PW12 Chetan Prakash is the complainant in the case. He has deposed that he was working as a property dealer for last 20 years and was fighting a war against corrupt government officials for long and had filed many writ petitions in the High Court of Delhi. In Writ Petition (Criminal) 1823/2012 he had prayed for CBI enquiry on the basis of memory cards and hard disks and accordingly Hon'ble High Court had ordered for CBI investigation. He proved the copy of Writ Petition as AD-2 (colly.) (D-3). He has further deposed that in this Writ Petition he deposited five hard disks and five memory cards used in the sting operation before the Hon'ble High Court registry. Sanuj Shukla @ Swarandeep Shukla informed him that some police officials were demanding bribe from him whereas he has stopped supplying illicit liquor and they were threatening to frame him in false cases for not paying the demanded money. He further deposed that Sanuj Shukla CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 13 of 47 requested him to conduct a sting operation of those police officials and he conducted the sting operation. On 31.12.2010, he went to Ranhola nala to make the video of the police official, i.e. Nasib Singh on the asking of Swarandeep Shukla. Swarandeep Shukla met him in the way and he left his vehicle and accompanied him on the scooter as a pillion rider and switched on the camera. Thereafter, Swarandeep Shukla stopped his scooter at police picket nala and called sardarji (accused) on phone and informed him about his location. The accused called Swarndeep Shukla in front of police picket after crossing the nala. After sometime one Sardarji wearing police unitform arrived on his motor cycle and met them. He further deposed that he was also introduced to accused as supplier of liquor by Swarandeep Shukla. Thereafter, accused demanded money from Swarandeep Shukla and gave some instructions on how to bring illicit liquor and when the accused would be available on the picket and accused also asked the number of scooters for transporting the illicit liquor. Swarandeep Shukla gave the demanded money which accused put in his pocket. Complainant also identified the accused present in the court and deposed that all the conversation in transaction were recorded by him in his spy camera, i.e. PV500. After that on 26.1.2011 ( wrongly mentioned as 26.11.2011), he made a complaint against Ct. Ravinder and Nasib Singh in PS Ranhola for registration of FIR but no action was taken by the police. Thereafter, he also conducted many sting operations against police officials, MCD officials etc. and filed the Writ Petition No. 1823/12 as no action was taken by the police. He further deposed that when the case was entrusted to CBI, they were called by CBI many times and were shown the videos in the memory cards on different dates and IO also visited the place of occurrence. CBI also took his voice sample and that of Swarandeep Shukla in the presence CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 14 of 47 of independent witnesses. CBI also prepared the transcript before him which was signed by him. He identified his signatures on specimen voice recording memo Ex. PW 9/A. He also identified his signatures on production-cum-seizure memo dated 30.4.2016 Ex. PW 12/1 (D-14) and his signatures on the certificate under Section 65-B Indian Evidence Act as Ex. PW 12/2 (D-15). He also identified the complaint dated 26.1.2011 on page no. 37 of Ex. AD-1 made to PS Ranhola. He also proved the documents pertaining to the proceedings of seizure of hard disks and memory cards in the High Court registry as Ex. PW1/A to 1/C (colly.) available on page no. 132 to 139 of Ex. AD-2(colly.). He also identified his signature as well as signature of his counsel Sh. Anil Kumar Aggarwal on these documents. He further deposed that he was shown the video clippings of accused Nasib Singh in the presence of independent witnesses by the CBI officers and he had identified accused Nasib Singh and the transactions between Nasib Singh and Swarndeep Shukla. He also identified his signatures on transcription- cum-voice identification memo already exhibited Ex. PW 2/C and deposed that he had identified the voice of accused as well as other persons before the CBI. He also testified that the DVR with which he had made the recording were seized by crime branch of Delhi Police and he had intimated CBI officials in this regard. He also identified the memory cards Ex. 6/2 and Ex. 6/5 and further identified accused Nasib Singh in file V0120002 contained in memory card Ex. 6/2. He also identified the voices of Swarndeep Shukla, accused Nasib Singh and his voice in the said clipping. He further identified accused Nasib Singh talking with Swarndeep Shukla in video file VO123002 contained in memory card Ex. 6/5. He also identified the conversation in transcript of Ex. 6/2 and Ex. 6/5. He further deposed that telephone number 9540524640 belongs to Swarndeep Shukla @ Sanuj Shukla. He also CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 15 of 47 identified his original complaint as Ex. PW 12/5 and the CD containing the clipping sent to PS Ranhola along with the complaint as Ex. PW 12/6.
15.19 PW14 Swarandeep Shukla @ Sanuj Shukla is the friend of the complainant. He has deposed that he was introduced with Chetan Prakash by his friend Daya Shankar in the year 2013-14. Prior to meeting with Chetan Prakash, he was in supply of illicit liquor and he met Chetan Prakash to seek help from him with regard to the harassment being caused by Delhi Police Officials who were harassing him after he decided to stop the business of supply of illicit liquor and was insisting to pay "monthly" to them. He further deposed that he knew accused Nasib Singh who was posted at Ranhola picket and identified him in the court. He has further deposed that one day after the stoppage of his business, while he was walking, accused Nasib Singh stopped him and asked about his business of illicit liquor and when he replied that he has stopped the business, accused Nasib Singh threatened him to continue the business of illicit liquor and continue to pay the monthly. He further deposed that since he was not having money on that day, he requested accused that he will make the payment on the next day, thereafter, on the next day before going to the Ranhola picket, he contracted complainant Chetan Prakash and called him near Holy Convent School for making the video of the accused Nasib Singh while handing over money to him. Chetan Prakash arrived there and he took him on his school to Ranhola picket where accused Nasib Singh was present. Accused Nasib Singh instructed him to meet across nala pulia and he also reached there after about 5-7 minutes. Accused Nasib Singh asked about Chetan Prakash and thereafter demanded bribe amount from him. PW-14 took CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 16 of 47 out Rs. 500/- in the denomination of Rs.100/- each and handed over to accused, upon which accused demanded more money and he paid Rs. 400/- to the accused. The accused further demanded money and he requested for sometime for handing over more money and thereafter he along with Chetan Prakash left the spot and reached Holy Convent School where vehicle of Chetan Prakash was parked.
PW-14 has further deposed that CBI officers had examined him and during his examination, they had shown him video clippings of accused Nasib Singh and Ravinder and he identified accused persons in the video clippings and also identified their voices, his own voice and that of Chetan Prakash. CBI officials recorded his specimen voice in the presence of independent witnesses and put his signatures on the documents of the proceedings. The witness identified his signatures at point 'D' on specimen voice recording memo Ex. PW 9/A and the text of specimen voice as Ex. PW 9/B. The witness also identified accused Nasib Singh in video file no. V0120002 in which accused was seen taking bribe money. He also identified the area of Ranhola picket in the video clips.
(E). Officials of CBI 15.20 PW19 Kailash Sahu, Deputy SP, CBI, EO-VII, Bhuveneshwar is the first IO of the case he has deposed that the present FIR was marked to him for investigation. The copy of FIR was proved by him as Ex. PW 18/A. He further testified that he was also handed over copy of the order dated 14.2.2014 passed by Hon'ble High Court in Criminal Writ Petition 1823/2012 along with covering letter dated 18.2.2014 Ex. AD-1 (colly.) (D-2). He also obtained the certified copy of the Writ Petition as well as orders passed in the said Writ Petition which were already exhibited as Ex. AD-2 and AD-3 respectively. He also received CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 17 of 47 sealed packet from Ms. Anita Malhotra, AR (Criminal), Delhi High Court containing hard disk and memory cards as well as seal impression. The receipt memo was proved by him as Ex. PW 18/B (D-5). He testified that the sealed packet containing hard disk and memory cards was sent to CFSL vide letter dated 1.5.2014 Mark PW 18/1. The data retrieved from exhibits by CFSL was received in CD for investigation purpose vide letter dated 24.7.2014 Ex. PW 18/D. He further deposed that he asked the accused Ct. Nasib Singh to give his specimen voice which he declined and denial memo Ex. PW 5/A was prepared. The reasons for denial given by the accused are contained in Ex. PW 5/B. He also deposed that he had prepared the transcriptions of the voices appearing in CD in relation to the sting operation with the assistance of complainant Chetan Prakash Sharma and such entire transcription is contained in Ex. PW 2/B and the relevant transcription is at internal pages 41 to 42. The transcription-cum-voice identification memo Ex. PW 2/C was prepared. He had also taken the sample voice of complainant and Swarndeep Shukla vide memo Ex. PW 9/A and he identified the sealed envelope S-6 and S-7 containing the memory cards. He also collected documents from Delhi Police as well as MCD and details received from 4th Battalion are contained in letter Ex. PW 4/A. He also received further details regarding Ct. Nasib Singh from Inspt. Udham Singh vide letter Ex. PW 10/A which included Ex. PW 10/B. He also received further details from DCP 4th Battalion vide letter Ex. PW 11/A which included the photograph of the accused and recorded the statement of witnesses. Further investigation was entrusted to Sh. Sanjay Upadhyay.
15.21 PW18 Inspector Sanjay Upadhyay, CBI, ACB, Delhi is the second IO of the case and he has deposed that he received the case CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 18 of 47 for further investigation and after completing the investigation, he filed the charge sheet. He also identified the signatures of SP on the FIR Ex. PW 18/A and receipt memo dated 25.4.2014 was proved by him as Ex. PW 18/B. He also identified the various documents received by PW-19 from SHO PS Ranhola and DCP 4 th Battalion and identified the signatures of PW-17 on various documents. He also proved the forwarding letter dated 19.12.2014 along with certificate bearing the signatures of Sh. Anish Prasad, SP CBI authorizing CFSL to examine the exhibits sent to CFSL as Ex. PW 18/C and the copy of letter written by PW-21 to SP CBI as Ex. PW 18/D vide which CDs were provided to the IO for investigation. On 19.1.2015, Sh. D. K. Barik, the then SP had sent exhibits, i.e. photographs Mark S-10 to S-20 to CFSL for comparison with the portrait available in the sting operation vide letter Ex. PW-18/E. He also deposed that report Ex. PW-16/A and Ex. PW- 18/F were received from CFSL and Chetan Prakash had also given certificate under Section 65-B of Evidence Act Ex. PW-12/2 which was seized vide memo Ex. PW-12/1. Request was also sent to the concerned authority for according sanction but it was learnt that sanction was not required as accused had already retired.
Thereafter, PE was closed.
Statement of accused & Defence evidence
16. Statement of accused was recorded under Section 313 Cr.P.C. Accused has denied all the incriminating evidence put to him and has taken a defence that he never met Swarandeep Shukla and never made any such demand. He stated that Chetan Prakash and his associates were in the habit of fabricating videos through professional studios against public servants for the purpose of extorting money from them and in case of failure they used to file false complaints using the CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 19 of 47 fabricated and forged videos and the present complaint had also been filed with ulterior motive. The accused initially preferred to lead evidence in his defence but later on counsel for the accused made a statement on 19.3.2018 stating that accused was not desirous to lead any evidence in defence. Accordingly, defence evidence was closed. Supplementary statement of the accused under Section 313 Cr.P.C. was recorded on 27.9.2018 after examination of PW-21 Gautam Roy and the accused again declined to lead any evidence in defence.
RIVAL CONTENTIONS
17. Ld. Sr. PP for CBI has argued that there are allegations of accused Nasib Singh demanding bribe from PW-14 Swarandeep Shukla and accepting Rs. 900/- as bribe money, which fact was recorded by PW-12 Chetan Prakash in the sting operation. He has argued that the memory card Ex. 6-2 contains the video clippings of the entire incident which show accused demanding and accepting the bribe money from PW-14 Swarandeep Shukla. He has argued that the memory card was sent to CFSL for scientific examination and reports have been received which show that there is no editing or tampering in the memory cards. PW-16 Dr. Subrat Kumar Chaudhary has also given his report comparing the specimen voices of Chetan Prakash and Swarandeep Shukla with the voices in the video clippings and the same were found to be of same persons. It was also argued that accused has denied to give specimen voice sample during the course of investigation and therefore adverse inference should be drawn against him. He further argued that departmental enquiry was also conducted against the accused in which he was found guilty.
18. Ld. Sr. PP has also argued that the prosecution has proved its CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 20 of 47 case by examining PW-12 Chetan Prakash and PW-14 Swarandeep Shukla who were witnesses to the offence and have also identified the accused demanding and accepting the bribe in the video clippings. He argued that the accused in the video footage was also identified by different witnesses from the police department. The prosecution has also proved on record the details of the duty of accused at Ranhola picket at the relevant time by examining PW-3 HC Parmendra Singh who has proved the photo copy of the posting register as Ex. PW 3/A. The proceedings of departmental enquiry have been proved by PW-4 Inspt. Raj Kumar Bajaria. It has been argued that the prosecution has proved its case by oral evidence and also by electronic evidence. The offence also stands proved by the report of departmental enquiry. He argued that the prosecution has succeeded in proving the demand of bribe and its acceptance by the accused and, therefore, the accused is liable to be convicted.
19. Per contra, Ld. Counsel for the accused has argued that there is no evidence on record to show that Swarandeep Shukla was in the business of selling illicit liquor. PW 12 Chetan Prakash along with his associates is in the habit of fabricating false CDs against the government officials for the purpose of extortion. He himself is having criminal record and no reliance should be placed on the testimony of a person who himself is of criminal background. He has further argued that there is delay in filing the complaint as well as filing writ petition before the Hon'ble High Court and the memory cards of the sting operation were produced much later by the complainant. He has argued that the first complaint was filed by PW-12 on 26.1.2011, almost after a delay of 25 days and there is no explanation as to why the complainant or PW-14 Swarandeep Shukla did not approach the police CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 21 of 47 or other investigating agency immediately. Even along with the complaint, complainant has only filed the CD and not the original memory card. He has further argued that the complainant did not mention the name of the accused either in the police complaint or in the writ petition for the reasons best known to him. The electronic evidence available with the complainant remained in unsealed condition in the custody of the complainant for more than two years which makes it doubtful and unworthy of reliance as the possibility of manipulation and tampering of the evidence cannot be ruled out. Complainant also concealed the fact in his complaint as well as the writ petition that he had taken the memory cards to the photo studio for preparing its copies which again raises doubt about the genuineness of the memory cards. The complainant has also not produced the original recording device and has also not disclosed if the memory card used in the sting operation were new or had already been used in some other sting operation.
20. Counsel for the accused has also argued that complainant was provided with PSO on the directions of the court and as per the complainant also, PSO had accompanied him to the spot but the said PSO has not been examined by CBI. Similarly, PW-14 Swarandeep Shukla who was allegedly the actual victim of the offence neither made any complaint to the police nor filed any affidavit in support of the writ petition which raises serious doubts on the story of the prosecution. He also argued that the contents of the departmental enquiry file cannot be read by the prosecution in the present case moreover in the departmental enquiry proceedings complainant did not appear before the enquiry officer and PW-14 Swarndeep Shukla remained untraced which again reflects the ulterior motives of the complainant and his CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 22 of 47 associates.
21. Counsel for the accused has further argued that there are material contradictions in the testimony of the witnesses. PW-14 has deposed that he was introduced with Chetan Prakash by Daya Shankar in 2013-14 whereas the alleged sting operation was carried out in the year 2010 which makes the story of the prosecution doubtful. He also argued that PW-19 Kailash Sahu in his cross-examination has admitted that he had recorded the statement of Daya Shankar who had revealed that he had been used by Chetan Prakash to fulfill his objective. The folder and the files of the video clippings are having different dates which shows that same might have been tampered with. It is also argued that the evidence of PW-16, PW-20 and PW-21 cannot be treated as evidence of experts as they have not been notified under Section 79-A of I. T. Act and their testimony cannot be considered as testimony of expert evidence under Section 45-A of Indian Evidence Act.
22. Ld. counsel for the accused has also placed reliance on the following judgments in support of his arguments:
i) Ram Singh & ors. Vs. Col. Ram Singh [AIR 1986 SC 3] wherein Hon'ble Supreme Court laid down the conditions for admissibility of tape recorded statements as under:-
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 23 of 47
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
ii) Anvar P. V. Vs. P. K. Basheer & ors. [(2014) 10 SCC 473] wherein three Judges Bench of Hon'ble Supreme Court held that certificate u/s 65-B of Indian Evidence Act is necessary for admissibility of secondary evidence of electronic records. It was further held that the safeguards provided u/s 65-B are to ensure the source and authenticity and electronic records and without such safeguards, whole trial based on proof of electronic records can lead to travesty of justice.
iii) C. R. Mehta Vs. State of Maharashtra [1993 Crl. L. J. 2863] wherein it was held that if the tape recorded evidence is to be acceptable, tape must have been sealed at earliest point of time and not opened except under the orders of court.
iv) Anil Kumar Tito @ Anil Kumar Sharma @ Titto Vs. State NCT of Delhi [2015(8) LRC 297(Del) wherein it was held that where the accuracy of tape recorded statement is not proved by satisfactory evidence, tape recorded conversation does not stand the test of requisites spelt out by Apex Court in the case of Ram Singh (supra).
Accused could not have been convicted of the offence merely on the basis of report of FSL.
v) Sat Paul Vs. Delhi Administration [AIR 1976 SC 294] wherein CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 24 of 47 it was held that where the witnesses have poor moral fabric and have to their discredit a load of bad antecedents which indicate their having a possible motive to harm the accused who was an obstacle in their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources.
vi) Ravindra Mahadeo Kothamkar Vs. The State of Maharasthra [908- Appeal-1152-2004-J.doc dated 9.10.2015] wherein it was held that in appreciating evidence in trap cases, character of complainant assumes importance where the complainant himself had acted contrary to law and faced the danger of inviting action by local authority against the unauthorized constructions were carried by him, his evidence need to be scrutinized with due care.
vii) Achhey Lal Yadav Vs. State [2014(8) LRC 236 (Del) wherein Division Bench of Hon'ble High Court has laid down the conditions which a witness is required to depose concerning computer print out of all details so that the conditions mentioned in section 65-B Sub Section 2 or Sub Section 3 are satisfied to make the secondary evidence admissible at trial.
viii) Ramjanam Singh Vs. The State of Bihar [1956 SC 643 (S) AIR V.43 C.108 Oct.) wherein it was held that the court could only proceed on the evidence given on oath in the witness box by the witness and not made in the letter.
ix) Suraj Mal Vs. The State (Delhi Administration)[AIR 1979 SC 1408] wherein it was held that where witness makes two inconsistent statements in their evidence either at one stage or at two stages, the testimonies of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 25 of 47x) K. Lal Vs. CBI [Crl. A. 261/2003 decided on 20.5.2013 by Delhi High Court (indiankanoon.org./doc/17051328)] wherein it was held that no adverse inference can be drawn against the accused for the refusal to give voice samples when the accused sought to avail his constitutional right to consult his counsel.
xi) Rajinder Prasad Gupta Vs. State (NCT of Delhi) [Crl. MC 148/2017 decided on 13.9.2017 by Delhi High Court] wherein it was held that Section 311-A Cr.P.C permits the Court to direct taking of handwriting samples or specimen signatures for the purpose of any investigation or proceedings under the court. This section does not talk of taking voice samples. In the absence of any provision in the court, the accused cannot compel to give voice sample. The same can be taken only when he furnishes his consent. If the Trial Court makes an observation stating that an adverse inference is drawn against the accused, the same amounts to compelling him to submit his voice sample and Section 311-A Cr.P.C does not permit the same.
23. In rebuttal, Ld. Sr. PP for CBI has argued that there is no extraordinary delay in filing the complaint by the complainant. It was submitted that complainant filed his complaint with PS Ranhola on 26.01.2011 which is available at page no. 37 of D-2 Ex. AD1-1 (colly) and when no action was taken by the police, complainant approached Hon'ble High Court by filing the criminal writ petition. It was also argued that PW12 and PW14 have corroborated the case of prosecution and have also proved the video recording contained in memory card Ex.6-2. It was also argued that the complainant had no motive to falsely implicate the accused. He further submitted that the report Ex. PW 16/A of PW 16 Dr. Subrat Kumar Choudhary, report Ex. PW 18/F of PW 20 Sh. P.K. Gautam and report Ex. PW 21/A of PW 21 CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 26 of 47 Sh. Gautam Roy have authenticated the video recording of sting operation conducted by PW 12 Chetan Prakash.
24. He also argued that non giving of voice sample by the accused raises an adverse inference against him and the judgment of K.Lal (supra) relied upon by counsel for accused is distinguishable on facts. He also argued that there is nothing on record to establish that the complainant or his associates made any extortion call to the accused persons after recording the sting operation. As regards the non certification/notification of experts under Section 79-A of I.T. Act, Ld. Sr. PP has placed reliance of the judgment of Hon'ble Madras High Court in K.Ramajayam @ Appu Vs. Inspector of Police, Chennai, 2016 Cri.LJ 1542 wherein Hon'ble High Court had approved the method adopted by the police in sending the digital video recording itself to FSL for computer expert to view recording and give report of events and had held that the Central Government has not issued notification under Section 79-A of I.T. Act 2000 on account of which Section 45-A of Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by the Scientific officer of FSL to analysis and give their opinions on electronic data are correct and cannot be faulted with.
25. Ld. Sr. PP for CBI also placed reliance on the order dated 30.01.2018 of Hon'ble Apex Court in Shafi Mohd. Vs State of Himachal Pradesh, SLP (Crl.) No. 230/2017 wherein it was held that where a party is not in possession of device from which the electronic document is produced, such party cannot be required to produce certificate u/s 65-B(4) of the Evidence Act. It further held that requirement of certificate u/s 65-B(4) being procedural can be relaxed by the Court wherever interest of justice so justifies.
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 27 of 47APPRECIATION OF EVIDENCE
26. At the outset, it may be mentioned that accused Ct. Nasib Singh has not disputed the fact that at the time of incident he was an employee in Delhi Police and was posted at PS Ranhola at the rele- vant time. It is also an undisputed fact that no sanction for prosecution u/s 19 of PC Act,1988 was required to prosecute accused Nasib Singh as he had already retired.
27. In the present case, prosecution has relied upon two sets of ev- idence i.e., the video clippings contained in memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] recorded by PW12 Chetan Prakash at the time of the incident and oral testimonies of the witnesses PW12 Chetan Prakash and PW14 Swarandeep Shukla @ Sanuj Shukla who were the main witnesses of the prosecu- tion. Firstly, I shall discuss the electronic evidence produced by the prosecution and thereafter the oral testimonies of the witnesses.
ELECTRONIC EVIDENCE
28. As per the case of prosecution, PW12 Chetan Prakash con- ducted a sting operation along with PW14 Swarandeep Shukla and made a video recording of the accused accepting the bribe money from PW14 Swarandeep Shukla. According to PW-12, the sting operation was recorded with the help of a DVR PV500. It is further the case of the prosecution that on the directions of Hon'ble High Court PW12 de- posited five hard disks and five memory cards in the registry of Hon'ble High Court and the same were sent to CFSL for forensic examination. Three reports were received from the CFSL.
In the first report Ex. PW16/A given by PW16 Dr. Subrat Kumar CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 28 of 47 Choudhary it was observed that the questioned voice marked exhibit 6- 2(2) (K) 6-2 (3) (K) were probable voices of Swarandeep Shukla whose specimen voice was marked exhibit S-6 (3) (K) and questioned voice marked exhibit 6-2(2) (C) and 6-2 (3) (C) were probable voices of Chetan Prakash whose specimen voice was marked exhibit S-7 (4) (C). Accused Nasib Singh had refused to give his sample voice vide memo Ex. PW5/A and the reasons have been mentioned by him in his letter Ex. PW5/B. In the second report Ex. PW18/F given by PW20 P.K. Gautam, it was observed that the person in the sample photograph S-10 (accused Nasib Singh) which is Ex. PW11/B appears to be similar with a person visible in the audio/video file V0120002.AVI (Ex.6-2) and V0123002.AVI (Ex.6-5).
In the third report Ex. PW21/A given by PW21 Sh. Gautam Roy, it was observed that the memory cards Ex. 6/1 to 6/5 are not being tampered.
29. Ld. Sr. PP for CBI has submitted that the reports clearly show that there was no tampering, editing or morphing in the video footage contained in memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] and PW12 Chetan Prakash has also given his certificate u/s 65-B Indian Evidence Act in this regard and the same can be safely relied upon.
30. Ld. Counsel for accused had vehemently argued that the video footage in memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] is edited, morphed and is full of suspicion. PW12 did not produce the original recording device and condition nos. 3, 5 and 6 given by Hon'be Supreme Court in the case of Ram Singh & Ors.
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 29 of 47Vs Col. Ram Singh (supra) have not been complied with. It was also argued that the recordings remained with PW12 for almost two years and in unsealed condition and therefore, the chances of tampering cannot be ruled out. It was also argued that DVR was having internal memory and it has not been proved by the prosecution whether the recording was originally done on the internal memory of the DVR and thereafter transferred to the memory cards or it was done directly on the memory cards. It was argued that the electronic record produced by the prosecution does not inspire confidence and cannot be safely relied upon.
31. When a party produces a documentary evidence in support of its case, two questions are required to be determined before it can be relied upon:- (i)Whether it is admissible in evidence?; (ii)If answer to question (i) is in affirmative, whether the document is genuine and au- thentic and is without any blemish. Hence, first of all I shall look into the question of admissibility of the memory cards produced by the prose- cution.
32. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015 SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 30 of 47 electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e.,electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 31 of 47 the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A Opinion of examiner of electronic evidence.The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
33. The above judgment was again discussed in the case Shafi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 32 of 47"We may, however, also refer to judgment of this Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgement in para 24 it was observed that : "Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65-B of the Evidence Act was not admissible.
However, for the secondary evidence, procedure of Section65-B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu(supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act. Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Section 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section65B(h). Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 33 of 47 party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(4) is not always mandatory.
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
34. Thus, the Hon'ble Supreme Court in the above case of Shafi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies. Though, one of the situation where requirement of can be as discussed by the Hon'ble Supreme Court in the above judgment is where electronic evidence is produced by a party who is not in possession of original device, then in such case applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. However, the Hon'ble Supreme Court has not stated that it is only in case where a party is not in possession of original device that the requirement of certificate under section 65B(4) can be dispensed with and thus, person producing CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 34 of 47 electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65-B Evidence Act is not always mandatory and the applicability of the requirement of certificate under section 65-B can be relaxed whenever interest of justice so justifies.
35. In the present case, although the original recording device has not been produced by the prosecution but it has been claimed that the memory cards produced by PW12 Chetan Prakash are original and contain original recordings of the sting operations conducted by him. However, this fact has been disputed by counsel for the accused. In any case, prosecution has also proved on record certificate u/s 65-B of Indian Evidence Act filed by PW12 Chetan Prakash as Ex. PW12/2 and the same was seized vide production-cum-seizure memo dated 30.04.2016 Ex. PW12/1. Therefore, memory cards produced by the prosecution cannot be rejected merely on the ground that the same are inadmissible in evidence for the want of certificate u/s 65-B of Evidence Act.
36. Now, the next question which requires determination is whether the aforesaid memory cards (electronic record) so produced by the prosecution are genuine and authentic and whether the same can be safely relied upon or not.
37. Ld. Sr. PP for CBI has argued that PW12 Chetan Prakash has given certificate u/s 65-B Evidence Act Ex.PW12/2 that there is no tampering in the memory cards produced by him. Expert from CFSL CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 35 of 47 has also certified that the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] are not tampered and are genuine. Ld. Counsel for the accused has disputed this fact and has argued that the possibility of tampering of the memory card cannot be ruled out as it remained in unsealed condition in the custody of complainant PW12 for almost two years before it was produced and sealed before the Ld. Registrar General in compliance of the orders of Hon'ble High Court. It was also argued that PW12 himself has admitted in his cross examination that he had taken the memory card to a studio for obtaining its copies and further he was also not aware if the memory card used in sting operation was new or had been used earlier which creates doubt about the genuineness of the memory card Ex. 6-2 produced by the prosecution.
38. I have given by thoughtful consideration to the arguments advanced at the Bar.
39. It is pertinent to note that in the present case sting operation of the accused Nasib Singh was conducted on 31.12.2010 and writ petition no. 1823/12 [Ex. AD-2 (colly)] was filed before the Hon'ble High Court in December, 2012. As per testimony of PW1 Mahesh Kumar, complainant Chetan Prakash had handed over five hard disks and five memory cards to the office of Registrar General on 11.02.2013 vide proceeding Ex. PW1/A and till then the memory card remained with him. PW12 Chetan Prakash further admitted in his cross examination that he had taken memory card to a studio namely M/s Palji Movies Uttam Nagar for preparing a CD. He also deposed that he could not tell the difference between memory card and CD. The mere fact that the memory cards remained unsealed in the custody of complainant CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 36 of 47 show that possibility of tampering of the memory cards cannot be totally ruled out and a doubt is created regarding genuineness of the memory cards. Even though PW12 has claimed that the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] were original and contained original recordings but except for his bald statement there is no other material to prove it.
40. Secondly, PW12 has admitted in his cross examination that he had taken the memory card to M/s Palji Movies for preparing the CD. This fact was also mentioned by him in para 5 of his certificate u/s 65-B of Evidence Act Ex. PW12/2. However, during the course of investigation none of the IOs have made any attempt to examine the owner of the aforesaid studio as well as the complainant regarding the fate of the copies of the memory cards/CDs prepared at the studio and no attempts were made to recover those copies. The manner in which investigation was conducted on this aspect by both the IOs, raises serious doubts. Had they examined the owner of the Palji Movies/Pal Studio and recovered the copies of the CDs, it could have been ascertained as to what actually transpired in the studio between Chetan Prakash and the owner of the studio.
41. Non production of the original recording device i.e DVR PV500 during the trial is another factor which creates doubt about the genuineness of the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)]. PW12 Chetan Prakash in his examination-in-chief stated that the recordings in the memory cards were made by him with the help of DVR PV500 which was having internal memory for recording of videos and the same was seized by Crime Branch from him and he had intimated the seizure of the same CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 37 of 47 to CBI Offices during investigation.
42. Surprisingly, no attempt seems to have been made by the IOs of the case namely PW18 Inspector Sanjay Upadhaya and PW19 Inspector Kailash Sahu to seize the DVR used for recording the sting operation and for sending it to CFSL to ascertain whether it was in working order or not and whether it was compatible with SD card for recording the video clippings. Hence, in the absence of the original recording device i.e DVR, it cannot be said with certainty that the video files available in the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] were recorded directly or they had been copied from some other source.
43. Ld. Sr. PP has argued that in CFSL report Ex. PW21/A it has been observed that the memory cards are not being tampered. Hence, it would not be proper to raise doubt on the report of CFSL. Counsel for the accused has argued that PW21 himself has stated in the cross examination that in the absence of examining original recording device, conclusive opinion regarding tampering or non tampering of digital file cannot be given and therefore his report cannot be accepted as gospel truth.
44. It is now well settled that the opinion given by the experts in a case is not binding on the court. The court has to apply its own mind and only when the court concurs with the opinion of the experts, the same graduates into the opinion of the court. In the present case prosecution has relied upon the three reports of CFSL. The report regarding non tampering of the memory card has been given by PW21 Sh. Gautam Roy in his report Ex. PW21/A. He appeared in the CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 38 of 47 witness box to prove his report and deposed that there was continuous flow of video and there was not stoppage, pause, etc and therefore, there was no tampering in the five memory cards examined by him. However, when he was cross examined by counsel for the accused, he admitted that every digital file carries its unique hash value and although he had mentioned the hash value of hard disks sent to him but he has not mentioned the hash value of any of the file of the memory cards examined by him. However, no reason has been given by him for not mentioning the hash value of the digital files contained in the memory cards Ex. 6/1 to Ex. 6/5 examined by him. He further admitted that all the digital files also carry their own properties which include the time and date of creation as well as modification of these files. He deposed that he had looked into the properties of the files and prepared the screen shots of the same in his file. He further deposed that he had brought his file but the screen shots were not available in his file and volunteered that the same were saved in his computer. Again, there is no satisfactory explanation forthcoming as to why copies of screen shots were not kept by him in his file or produced in the court. He also volunteered that in his report he has mentioned the duration against memory card Ex. 6/2, its time was actually the time of creation of digital file. However, a bare perusal of the report Ex. PW21/A would show that no date of creation or modification of files in memory cards Ex. 6/1 to Ex. 6/5 have been mentioned in the report. He has also admitted in his cross examination that he cannot tell through which instrument the recording was done in the memory cards. He further admitted that in the absence of examining original recording device conclusive opinion regarding the tampering or non tampering of digital files cannot be given. The cross examination of PW21 Gautam Roy thus shows that he himself has contradicted his own report CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 39 of 47 regarding non tampering of the memory cards examined by him. Hence, I do not deem it appropriate to place reliance on his report Ex. PW21/A and the same is accordingly rejected.
45. Keeping in mind aforesaid inconsistencies and infirmities, I am of the considered opinion that the possibility of tampering or manipulation in the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] cannot be ruled out as the memory cards have remained in unsealed condition for almost two years in possession of the complainant Chetan Prakash and the prosecution has failed to produce the recording device i.e., DVR PV500 showing that it was in proper working condition at the time of sting operation and the device was compatible with the memory cards produced by the complainant. Hence, no reliance can be placed on the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] produced by the prosecution.
ORAL EVIDENCE OF THE WITNESSES
46. Once the memory card Ex. 6/2 [Ex. PW12/3 (M)] and memory card Ex. 6/5 [Ex. PW12/4 (M)] are excluded from consideration, the only material evidence left with the prosecution is the testimonies of PW12 Chetan Prakash and PW14 Swarandeep Shukla who had conducted the sting operation on the accused Nasib Singh. The remaining witnesses are either police officials who had handed over the documents relating to posting, departmental inquiry etc. of accused Nasib Singh to CBI or had joined the investigation in recording of the specimen voice of complainant and Swarandeep Shukla and preparation of transcript of the videos file of memory cards. Hence, there is no need to discuss their testimonies in details.
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 40 of 4747. At the outset, it may be mentioned that there is a delay of almost two years in filing the writ petition by PW12 Chetan Prakash before the Hon'ble High Court and there is also delay in filing of the complaint Ex.PW12/5 (part of D-18) by PW12 Chetan Prakash before the SHO PS Ranhola which had been filed on 26.01.2011. No explanation has been given as to why no complaint was made to the police immediately after conducting the sting operation. It is also pertinent to note herein that PW12 has himself admitted in his deposition that he had earlier also done sting operations and had filed number of writ petitions against the officials of Delhi Police in the Hon'ble High Court of Delhi and he was also aware about the existence of Anti Corruption Branch (ACB) and CBI and was also aware that they could also catch any dishonest and corrupt person red handed if someone makes complaint to them but still no complaint was made by PW-12 or PW-14 either to CBI or ACB immediately after bribe was demanded by accused Nasib Singh or after the sting operation was conducted on him which raises serious doubts on the real motives of the complainant PW-12 and PW-14.
48. Another important aspect of the matter is that the name of the accused is not mentioned in para 9 (viii) and (ix) of the writ petition Ex. AD-3 filed by the complainant Chetan Prakash despite the fact that he had come to know about the name of the accused before filing of the writ petition. Both PW12 and PW14 have stated in their cross examination that they came to know about the name of the accused Nasib Singh when the complaint Ex. PW12/5 was filed at PS Ranhola. It is also beyond comprehension as to why affidavit of PW14 Swarandeep Shukla @ Sanuj Shukla was not filed along with the writ CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 41 of 47 petition when affidavits of other complainants/victims such as Sheela, Naresh Kumar, Pooran Singh, and Phoola Devi were filed along with the writ petition Ex. AD-3.
49. Further, perusal of the writ petition Ex. AD-3 reveals that PW12 and PW14 had conducted two sting operations on 31.12.2010. One was against accused Nasib Singh and another sting operation was against ASI Ajeet Singh and (driver). However, the testimony of PW12 and PW14 does not even mention about the second sting operation conducted on that day. A bare perusal of their testimony would show that on 31.12.2010 after conducting the sting operation of accused Nasib Singh, both PW12 and PW14 returned back to their home and did not meet each other which casts a serious doubt on their deposition.
50. The testimonies of PW12 and PW14 are also contradictory to each other in material particulars which raises serious doubt in the mind. PW12 has deposed that he must have done 10 to 15 stings together with Swarandeep Shukla and the first sting with Mr. Shukla was in 2006-2007 against one police official meaning thereby that PW12 and PW14 were known to each other since 2006-2007. However, PW14 in his testimony has deposed that he was introduced with Chetan Prakash by his friend Daya Shankar in the year 2013- 2014. However, he corrected himself and stated that he knew Chetan Prakash two year prior to the sting operation i.e., from 2008 only. He further stated that within a period of two years, they had conducted sting operations against 20-25 persons to whom he had given bribe. PW14 also deposed that he had lodged complaint against those public servants only against whom he had carried out sting in association with CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 42 of 47 Chetan Prakash. But this statement of PW14 is apparently false as no complaint has been filed by PW14 against accused Nasib Singh either with the police or with the court and only complaint has been filed by PW Chetan Prakash with PS Ranhola.
51. Another major contradiction in the testimony of PW12 and PW14 is with regard to the presence of PSO of PW12 Chetan Prakash at the time of sting operation. PW12 has stated that he was having a PSO on the date of sting operation of the present case and PSO was with him at the time of sting in question but he was at little distance and PSO had accompanied PW12 to the spot in the vehicle of PW12. However, PW14 in his cross examination states that he does not know if PW12 was having PSO at the time of sting on 31.12.2010 and further states that he does not know if anyone else was sitting in his car. The case of the prosecution is that PW12 had reached in his car in front of Holy Convent School and from there PW12 accompanied PW14 on his scooter to the police picket Ranhola nala. If at all PW14 had met PW12 at Holy Convent School where PW12 had parked his car, how it is possible that PW14 did not notice the presence of PSO of PW12 in the car. These contradictions in the testimony of PW12 and PW14 cast a serious doubt if at all they had met with each other on 31.12.2010 for conducting the sting operation or not.
52. Further PW14 has deposed that on 30.12.2010 he was stopped by the accused who had threatened PW14 and demanded bribe from him. PW14 has further deposed that he was not having money with him and requested the accused that he will make the payment on the next day and on the next day prior to going to the Ranhola picket he had contacted Chetan Prakash and called him near the Holy Convent CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 43 of 47 School. PW14 does not say that he had contacted PW12 on 30.12.2010 whereas PW12 has deposed that PW14 has contacted him one day prior to the sting operation i.e on 30.12.2010.
53. Ld. Sr. PP for CBI has further argued that the prosecution has also proved the departmental inquiry file of accused Nasib Singh and Ct. Ravinder Ram conducted by Delhi Police as Ex. PW4/A and they both were held guilty. It was also argued that the evidence in the said case also proves the guilt against the accused Nasib Singh. Counsel for accused has argued that the evidence recorded in departmental inquiry cannot be read against the accused in the present case as the witnesses who had deposed in the departmental inquiry have not been examined in this case. He further argued that PW12 Chetan Prakash did not appear at all in the inquiry proceedings and PW14 Sanuj Shukla remained untraced. Reliance in this regard has been placed on the judgment of Ramjanam Singh Vs State of Bihar (supra) wherein it was held that court can only proceed with the evidence given on oath in the witness box and not on the statement made in the letter.
54. A bare perusal of the file containing the proceedings of departmental inquiry Ex. PW4/A reveals that the complainant PW12 Chetan Prakash and PW14 Sanuj Shukla never appeared in the inquiry proceedings. Other witnesses in the inquiry proceedings were the police officials including inquiry officer. The CD relied upon in the inquiry proceedings was not sent to CFSL for ruling out the possibilities of tampering and manipulation and this fact is established from the statement of PW6 Inspector Sajjan Singh who in his cross examination has admitted that they have not got the CD examined by any expert to know whether the same was fabricated or not. He also deposed that he CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 44 of 47 cannot comment upon the genuineness of CD/clipping as he was not an expert. Further the inquiry officer i.e PW4 Raj Kumar also admitted in his cross examination that he had not heard the contents of the CD containing the clippling during the inquiry proceedings. Hence, in my considered opinion, the findings in the inquiry proceedings are of no help to the prosecution as the standard of proof required in the criminal proceedings to convict an accused are much higher than the standard of proof required in departmental inquiry to hold a person guilty. Secondly, the findings are also of no benefit to the prosecution as the basic principles of Evidence Act for admitting or proving electronic record have not been complied with by the inquiry officer. Thirdly, the complainant Chetan Prakash and his friend Swarandeep Shukla who were the material witnesses to the prosecution did not appear and depose before the inquiry officer. Hence, I am not inclined to place any reliance on the findings given against the accused in the inquiry proceedings.
55. Hence, in view of the aforesaid discussion, I am of the considered opinion that the testimonies of PW12 and PW14 are full of material contradiction and there is no independent corroboration to their testimonies. It has also come on record that PW12 and PW14 were having criminal background and therefore, it would be unsafe to rely upon their testimonies without independent corroboration. Although Sr. PP for CBI has argued that the character of the complainant is not relevant in criminal cases. However, I am unable to accept the submission made by Ld. Sr. PP in view of the judgment of our own High Court in Sat Paul Vs Delhi Administration (supra) wherein it was held that where the witnesses have poor moral fabric and have to their discredit a load of bad antecedents which indicate their having a CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 45 of 47 possible motive to harm the accused who was an obstacle in their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources. I also find support in my view from the judgment of Ravinder Mahadev Kothamkar Vs State of Maharashtra (supra) wherein it was held that in appreciating evidence in trap cases, the character of complainant assumes importance and where the complainant himself was a law breaker, his evidence needs to be scrutinized with due care.
56. In the present case both PW-12 and PW-14 had a criminal background and a possibility cannot be ruled out that they might have conducted the sting operations to implicate the police/govt. officials who may have been creating hurdle in running of their illegal activities. It is beyond comprehension that despite being aware about the existence of the specialized agencies like Anti Corruption Branch of Delhi Police and CBI which deal with the offences of corruption by public servants, complainant chose to conduct the sting operation himself without informing any of such agencies, which also raises doubts about his real motives behind such sting operations.
CONCLUSION
57. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubts and accused is entitled for benefit of doubt. Accordingly, accused Nasib Singh is acquitted for the charged offences u/s 7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988 or in the alternative Section 11 of P.C. Act, 1988. Previous bail bonds of accused stands cancelled. Surety stands discharged. The accused is directed to CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 46 of 47 furnish bail bonds u/s 437A Cr.P.C.
File be consigned to Record Room after due compliance.
ANIL KUMAR Digitally signed by ANIL
KUMAR SISODIA
SISODIA Date: 2019.01.19 14:09:03
+0530
Announced in the open court (ANIL KUMAR SISODIA)
On 19th day of January, 2019 Special Judge (PC Act) (CBI)04
Central Distt: Tis Hazari Courts
Delhi
CC No. 532384/16 CBI Vs. Nasib Singh Constable Page 47 of 47