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Delhi District Court

N. Sri Rama Reddy vs Sh. V. V. Giri In Reference To A Tape on 12 May, 2014

    IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
                P.C. ACT (CBI­09), CENTRAL DISTRICT, 
                        TIS HAZARI: DELHI 


CC No.93/2011
R.C. No.48(A)/04
Case I.D No.02401R0623072007

Central Bureau of Investigation

                   Versus
Shri Satish Kumar
S/o Sh. Attar Singh
R/o Village & Post  Tikri Kalan,
New Delhi.

Date of Institution                  :  29.06.2007
Date of reserving Judgment  :  29.10.2013
Date of Pronouncement                :  19.04.2014


JUDGEMENT

PRELIMINARY The accused in this case was sent up for trial for having committed offences punishable under Section 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of C.C. No. 93/11 Corruption Act, 1988, while he was posted as Constable in Delhi Police, after getting the sanction for his prosecution under Section 19 of the Prevention of Corruption Act from the competent authority.

BRIEF FACTS

2. As per the allegations in the charge sheet, the complainant Sh. Chetan Prakash had videographed several personnel of Delhi Police and Excise Department of Govt. of NCT of Delhi taking money from bootleggers selling liquor illegally in the area under the jurisdiction of Police Station Uttam Nagar in order to expose their corrupt practices. He had approached Hon'ble High Court of Delhi through a Criminal Writ Petition no. 367 of 2004 seeking protection and direction for investigation by CBI. By orders dated 4.10.2004 Hon'ble High Court had directed CBI to investigate this matter. In compliance thereof CBI, ACB, New Delhi had registered FIRs bearing nos. RC 48(A)/04, RC 49(A)/04 and RC 50(A)/04. The present case C.C. No. 93/11 relates to RC 48(A)/04 in respect of the incidents falling under the jurisdiction of P.S Uttam Nagar.

3. The complainant Sh. Chetan Prakash had provided VHS Video cassette and 5 Hi­8 cassettes to CBI through Hon'ble High Court of Delhi which formed the basis of the investigation in this case. One of the places where the complainant Sh. Chetan Prakash had prepared the video film clandestinely was inside the premises of Sh. Devraj Diwan situated behind Bus Stand, Om Vihar, Uttam Nagar, New Delhi, known as Kala Sansi ka Adda. Sh. Devraj Diwan was running his business of bootlegging from this premises and had employed one Sh. Bengali and Sh. Goonga his servants for selling liquor illegally from his premises. There were many cases registered against Devraj Diwan at P.S Uttam Nagar under the Excise Act. This video film was prepared during the year 2004.

4. During the investigation it came to light that Sh. Chetan Prakash had prepared the video film in question on Hi 8 video C.C. No. 93/11 cassettes and also copied their contents in VHS video cassette. The five original Hi 8 cassettes which were received from Hon'ble High Court were sent to CFSL, Chandigarh for seeking its opinion if the same had been edited or tampered with. CFSL, Chandigarh had submitted its report dated 19.12.2006 giving the opinion that the video recordings in the Hi 8 cassettes were camera original and had not been edited or tampered with. CFSL, Chandigarh had provided copies of the said five Hi 8 cassettes in the form of CDs for the purpose of investigation.

5. During the investigation the said CDs and the video films were shown to the complainant and several police personnel of Delhi Police and questioned about the persons visible in the video clippings. The accused herein was found to be visible in one of the video clippings in CD marked as Ex.P2 by the CFSL, Chandigarh. He could be seen in the video clipping in police uniform. This video scene contains visuals of people purchasing liquor bottles from this place. Accused Const. Satish Kumar was heard announcing his name. He was also seen C.C. No. 93/11 collecting money in several currency notes of smaller denominations. The money was offered to him by one Sh. Bengali servant of aforesaid Devraj Diwan. The accused Const. Satish Kumar was caught on the camera accepting illegal gratification other than legal gratification from Bengali and Goonga.

6. During the investigation the specimen voice of the accused Const. Satish Kumar was obtained and was sent for forensic examination along with questioned video cassettes to CFSL, New Delhi. CFSL, New Delhi had given its report dated 16.4.07 and given the opinion that the specimen voice of Const. Satish Kumar matched with the voice in the questioned video clipping. The complainant Sh. Chetan Prakash and one Sh. Man Singh, ASI had identified the face of Const. Satish Kumar during the investigation in the video scene in question. CHARGE

7. On the basis of the allegations, the charge under Section 7 and under Section 13(2) read with Section 13(1)(d) of the C.C. No. 93/11 Prevention of Corruption Act, 1988 was framed against the accused to which the accused pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

8. Witness PW1 Sh. Chetan Prakash is the complainant. In his testimony he had given the background in which he had taken the decision to expose the officials of Delhi Police involved in taking bribe from bootleggers involved in selling of liquor illegally and its supply illegally to bootleggers and thereafter during the period 2002 to 2004 he had videographed police officials and the officials of Excise Department accepting bribe from bootleggers. In his testimony he had also stated that he had caught on camera about 250 police officials involved in such activities. He had named the Senior Officers of Delhi Police whom he had approached informing them of the illegal activities being carried out by the officials of Delhi Police. He had provided them video cassettes. As per his testimony they C.C. No. 93/11 did not take any action but instead came down hard on him. His house was raided and the video cassettes in his house were taken away by them except a few which could not be located by them. As per his testimony he was falsely implicated by the police and after his release on bail after about a month, he had collected those remaining video cassettes and got their copies prepared. He had again resumed recording of video films at the places of "Sansis" residing in the area. Along with the five original video cassettes he had filed a Writ Petition before the Hon'ble High Court wherein the direction was given to the Police Commissioner to take action against the guilty police officials and also directed to give him police protection. He had identified the copy of the said Petition filed before the Hon'ble High Court as Ex.PW1/1 and the orders passed by the Hon'ble High Court as Ex.PW1/2.

9. In his testimony he had also referred to having participated in the vigilance inquiry being conducted by Sh. Jia Lal Sawhney, ACP, Delhi Police and having given his statement during the C.C. No. 93/11 said inquiry and identifying the police officials accepting illegal gratification from "Sansis". Similarly, he also referred to his having participated in the inquiry conducted by the CBI where his statement was recorded and from the video recordings he had identified the police officials who were caught on camera accepting illegal gratification from the "Sansis".

10. The complainant had also identified the video cassette Ex.P2 which was produced in the Court and also the Inlay Card Ex.P2A having the description of various scenes in that cassette in his hand writing. As per his testimony in this video cassette, in the scene dated 07.11.02 commencing at 20:44:41 one Bengali and Goonga were seen talking to customers there to purchase illicit liquor. Accused Const. Satish Kumar was seen entering "Devraj ka Adda" and he being asked his name by Bengali "Naam Toh Bata Do Apna". On which the accused had replied "Satish Naam Hai Mera". The accused was seen in police uniform. He was also seen showing his name plate affixed on the pocket of his shirt. The face of the accused was C.C. No. 93/11 clearly visible. In his testimony there is reference to words being said by Bengali to him and thereafter Goonga counting some currency notes of denomination of Rs.10/­ each and after counting the same handing over the same to the said Satish Kumar and then Satish Kumar accepting it. The accused was also seen counting the said currency notes. While giving the currency notes to the accused Bengali was heard saying to the accused "Kharcha Paani Le Liya Karo, Hamara Kaam Dhanda Manda Hai, Is Mahiney Sau Rupay Kam De Raha Hoon". Thereafter there is reference to some more conversation between Satish Kumar and Bengali. The scene stood completed at 20:48:00. The CD prepared from the said video cassette by CFSL, Chandigarh was also played in the Court wherein the scenes found were identical.

11. Witness PW2 Sh. Rakesh Kumar Saini working as UDC with, Delhi Air Sqn, NCC Department, Safdarjung Airport had deposed that in March, 2007 he was posted in the Department of Trade and Tax at Vyapar Bhawan, ITO, Delhi. On 01.03.07 C.C. No. 93/11 he was deputed by his Department to visit CBI office at CGO Complex. In his presence the voices of two persons of Delhi Police were recorded namely Sh. Satish and Sh. Meghraj. The voices were recorded using a cassette recorder. Before recording their voices, his introductory voice in the said cassette was also recorded. His signatures were taken on the said cassette. The said Satish (accused herein) and Meghraj were given something to read out for the purpose of recording their voices. He had identified the accused Sh. Satish Kumar as one of those persons whose specimen voice was recorded in his presence. The said cassette was sealed in his presence and the seal after use was given to him. He had identified the memo Ex.PW2/A wherein all these proceedings were recorded and his signatures had been taken. He had also identified the cassette as well as the wrapper Ex.P1 and also the Inlay Card of the cassette Ex.P2 and the wrapper Ex.P3 bearing his signatures.

12. Witness PW3 Sh. Deepak Kumar Tanwar is the Sr. Scientific Officer who had examined the specimen voice of the C.C. No. 93/11 accused and the questioned voice in the video clipping. He had deposed about the procedure he had followed in the proceedings for conducting the forensic examination of the specimen voice of the accused and the voice in the questioned video clipping. As per his testimony he had conducted the auditory examination of the two voices and he had found the specimen voice of Const. Satish (accused herein) matched with the questioned voice in respect of its linguistic and phonetic features. He had also conducted spectrographic examination of some common clue words/sentences selected from questioned as well as specimen voice recording and found that they were similar in respect of their number of formants, formants frequency distribution, intonation pattern and other general visual features in the voicegrams. On the basis of the similarities in the linguistic characters and phonetic features using auditory and voice spectographic analysis, he had concluded that the questioned voice was the probable voice of the accused Const. Satish Kumar. He had prepared a consolidated report of the 5 Hi 8 cassettes which were sent to C.C. No. 93/11 him for examination along with the connected specimen voice of the different police/excise officials involved. He had identified the said consolidated report as Ex.PW3/A bearing his signatures and also the official seal. He had identified those cassettes which he had examined and also his signatures appearing thereon.

13. Witness PW4 Dr. C. P. Singh at the relevant time was posted as Scientific Officer at CFSL, Chandigarh who had examined 5 Hi 8 cassettes sent to him including the cassette Ex.P2, referred to in this case, to answer the queries raised by the CBI relating to the said video cassettes that is :

i) To examine whether video recorded on the video cassettes marked Ex.1 to Ex.5 were in continuity or otherwise ;

ii) To examine whether video recorded video recorded on the video cassettes were edited or otherwise ; and

iii) To examine whether video recorded on the video cassettes are original master copy or copy of the master copy.

C.C. No. 93/11

14. As per his testimony he had examined the same with the help of VISAR tool, Vectorscope and Waveform monitor and on examination following was revealed :

i)     All video shots were in continuation ;

ii)    There was no indication of editing of video cassettes and 

there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that the video recordings were camera originals ; and

iii) Those video recordings were original master copies and not copy of original master copy.

15. He had identified his report Ex.PW4/A which was forwarded to CBI by letter Ex.PW4/B signed by the Director of CFSL, Chandigarh. He had also identified said cassettes in the Court as well as the CDs prepared from them.

16. Witness PW5 Sh. Mukesh Kumar Inspector is one to whom the investigation was first handed over. He had deposed that on 10.12.2004 he was assigned the investigation of RC C.C. No. 93/11 48(A)/2004 registered against fourteen officials of Delhi Police/Excise Department connected with demand and acceptance of illegal gratification by them from bootleggers operating in P.S Uttam Nagar area. He had identified the FIR Ex.PW5/A which was registered by Sh. D.C Jain, the then S.P who had assigned the case to him for investigation. During the investigation he had visited spots where two video recordings were shot by the complainant Sh. Chetan Prakash. He was handed over one VHS cassette forwarded by GNCT, Vigilance Department having some video recordings in which accused persons in the said cases were seen demanding and accepting illegal gratification from bootleggers. He had prepared one video CD from the said video cassette with the help of Inspector Prem Nath for the purpose of showing it to the complainant and other witnesses for identification. He had forwarded the said video cassette to CFSL for speaker identification after sealing the same with the seal of CBI though it was earlier received in an un­sealed open condition by him. He had recorded specimen voices during the course of investigation which were C.C. No. 93/11 lateron forwarded by Sh. D.K. Thakur to CFSL after the investigation had been taken over by him. He had identified the memo Ex.PW5/B by which he had taken the specimen voice recordings of many of the accused persons including the accused herein. He had also identified the cassette Ex.PW5/A bearing his hand writing on the side B where it was recorded "Specimen Voice of Shri Satish, Driver Const. 724/RB, RC 48A/04 (S­10)". He had further identified the cloth wrapper Ex.PW5/B bearing the signatures of Sh. Satish Kumar. He further had also identified the letter Ex.PW5/C by which the specimen voice and the VHS cassette was sent for examination in the Court. He had added at the end of his testimony that Sh. D.K. Thakur Inspector to whom the investigation was handed over had separately recorded the specimen voices during the course of the investigation and had sent the same to CFSL.

17. Witness PW6 Sh. Jia Lal Sawhney was the ACP in the Vigilance Department of Delhi Police who had conduced the internal inquiry. According to his testimony on a Writ Petition C.C. No. 93/11 filed by the complainant Sh. Chetan Prakash making allegations against the officials of Delhi Police and Excise Department collecting money from bootleggers, he had conducted the Vigilance Inquiry. From the High Court Registry, one VHS cassette was received by his Department. By his Senior Officer he was supplied a copy of the Petition and VHS cassette on the basis of which he had conducted the inquiry. During the inquiry he had prepared digital photographs of video cassette and transcriptions of the recorded conversation in the said cassette. He had also called the concerned officials for identifying the officials visible in the video accepting money from the bootleggers. He had further collected copies of relevant duty roster, daily entries regarding the deployment of staff involved in collecting the money from bootleggers as visible in the said cassette. He had prepared detailed report and submitted to his seniors. He had identified the said report in the Court Ex.PW6/A along with its annexures as well as the cassette. C.C. No. 93/11

18. Witness PW7 Sh. Kuldeep Singh had deposed that he was serving as Inspector with Delhi Police and posted at P.S Malviya Nagar. As per his testimony no one can run a shop or sell liquor without a proper license from Department of Govt. of NCT of Delhi. As per his testimony it was an offence under Delhi Excise Act and under the earlier Punjab Excise Act to sell liquor without license.

19. Witness PW8 Sh. S.B.S Tyagi who was posted as DCP, Rashtrapati Bhawan (Security) in the year 2007 had deposed that he had received documents and papers relating to granting of sanction for prosecution under the Prevention of Corruption Act of the accused herein Const. Driver Sh. Satish Kumar. He had gone through all the papers and after having satisfied himself accorded the sanction for prosecution of Const. Driver Sh. Satish Kumar. He had identified the said order as Ex.PW8/A in the Court.

C.C. No. 93/11

20. Witness PW8 (wrongly numbered) is Sh. Deepak Purohit who was posted as ACP, Excise Intelligence Bureau with the Excise Department of Delhi Government in the year 2006 and had deposed that there was a letter received dated 27.11.2006 from SP, CBI, ACB, New Delhi addressed to Sh. B. L. Sharma, Dy. Commissioner, Excise Department, Govt. of NCT of Delhi with regard to certain questions raised in the said letter. He was called by Sh. B. L. Sharma and handed over the said letter. After discussion, there was a reply thereto prepared dated 29.11.2006. He had personally carried the said letter to the CBI office along with the notification of the Excise Department notifying inter­alia that in Delhi liquor could not be sold without having proper license from the Excise Department and also that the Excise Department did not provide any advance source money to any Const. or Head Const. for gathering intelligence. The source money was given only after the seizure of liquor based on the quantity and quality as a reward. This witness had identified the letter Ex.PW8/A received by his Department from CBI, reply thereto bearing the signatures of Sh. B. L. Sharma C.C. No. 93/11 Ex.PW2/B and also the notification of Excise Department Ex.PW8/B1.

21. Witness PW9 Sh. Man Singh posted as Assistant Sub Inspector in PCR (West) during the period 2002­04 was working as Duty Officer in PCR, West Zone. Const. Satish Kumar was also posted as Driver along with him in the PCR West Zone. On 31.07.2006 he was called to the CBI office where he was asked to view video clippings wherein he had identified Const. Satish Kumar having some money in his hand. He had identified the said video clipping played in the Court. He had identified the accused in the video clipping as well as from the photograph prepared from the said video clipping, wherein the accused was clearly visible.

22. Witness PW10 Sh. Devraj son of Sardar Makhan Singh had deposed that in the year 2003­04 he was residing at C­2, WZ, Anand Vihar, Uttam Nagar, Delhi. He had a small grocery store at C­9, Sharda Puri, Delhi. After closing the said shop he C.C. No. 93/11 had shifted to Uttam Nagar. He used to sell liquor illegally from his residence. He had informed that he had some cases registered against him under the Punjab Excise Act.

23. Witness PW11 Inspector D. K. Thakur had taken over the investigation of this case from Inspector Mukesh Kumar. As per his testimony he had forwarded Hi 8 Cassettes to CFSL, Chandigarh in order to obtain its expert opinion. He had received a positive report from CFSL, Chandigarh. CFSL had also provided him copies of recordings in Compact Discs for the purpose of investigation. He had identified the letter Ex.PW4/B of CFSL, Chandigarh and also report Ex.PW4/A which was received from CFSL, Chandigarh. As per his testimony with the assistance of Delhi Police officials and complainant Sh. Chetan Prakash he had tried to identify the officials of Delhi Police and that of Excise Department who were seen in those video clippings as well as the locations where the said video clippings had been shot. He had prepared one Video Identification and one CD Identification Memo regarding these proceedings. He C.C. No. 93/11 had identified the same as Ex.PW11/A and Ex.PW11/B. The scene relating to the accused was identified to be in the portion X1 to X1 in Ex.PW11/A (Scene no.7­Video Identification memo) and Ex.PW11/B (Scene no.4­CD identification memo). He had obtained the specimen voice of the accused persons including Sh. Satish Kumar (accused herein) and prepared the memo Ex.PW2/A. He had sent the specimen voice of Sh. Satish Kumar (accused herein) which was recorded on one side of the cassette and that of Sh. Meghraj (accused in another case) on the other side, to CFSL, New Delhi along with the questioned video cassette for obtaining the spectrography report vide letter Ex.PW3/B. Subsequently, there was a report Ex.PW3/A received from CFSL, New Delhi confirming that the specimen voice of the accused Sh. Satish Kumar matched with the questioned voice contained in the video clipping in question. He had also identified the letter Ex.PW3/B by which the said report was sent to SP, CBI, ACB, New Delhi, which was then marked to him by Sh. S.K. Palsania, SP, CBI, ACB, New Delhi. As per his testimony he had thereafter sought certain clarifications from C.C. No. 93/11 the Excise Department by letter dated 27.11.2006 Ex.PW8/A. In response thereto the clarifications were received vide letter dated 29.11.2006 supplied by Sh. B.L. Sharma Ex.PW8/B along with annexures Ex.PW8/B1 including that the liquor cannot be sold from residential premises in Delhi.

24. He had during the investigation recorded statements of certain witnesses. He had also received one letter from DCP (West) whereby photocopies of FIRs registered at P.S Uttam Nagar against one Jasbir Sansi, Beena Sansi and Devraj Diwan under Excise Act were supplied. He had identified the said letter Ex.PW11/C along with the copies of the FIR received by him. As per his testimony he had also received copy of the report Ex.PW6/A along with its annexures conducted by Sh. Jia Lal Sawhney of Vigilance Department of Delhi Police.

25. After obtaining the sanction Ex.PW8/A and on completion of investigation, he had filed the charge sheet in the Court. C.C. No. 93/11 STATEMENT UNDER SECTION 313 Cr.P.C.

26. All the incriminating evidence which had come on record was put to the accused and his statement under Section 313 Cr.P.C had been recorded.

ARGUMENTS

27. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsel. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution as well as defence.

"Silent Witness" Theory

28. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent "worth thousand words". More often than not in case of a videography the words and the C.C. No. 93/11 acts of the accused herself/himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually a court depends on the account of events which had taken place in the commission of an offence, narrated by a person, who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court may not have been present at the time the offence was committed but it is as good as the court having seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what witnesses have to say about it. 1 In R. M. Malkani's case Hon'ble Supreme Court had described a tape recorded evidence as "real evidence". It was stated "When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."

29. There is another factor may be referred here that human 1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 C.C. No. 93/11 memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.

30. I am of the view this evidence is not only substantive evidence but can be also a preferred evidence in case of difference in the testimony of a witness have may claim to have seen an incident and then a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. 1 N. Sri Rama Reddy Vs Sh. V. V. Giri in reference to a tape 1 1971 AIR SC 1162 C.C. No. 93/11 recorded conversation, while approving the decision in one 1 Scottish case " From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.

31. This "silent witness" though is "worth thousand words" but still cannot be subjected to cross­examination. Thus the only way it can be defeated is to question its admissibility and relevancy.

32. American jurisprudence would define it as " Silent Witness 2 Theory" . In brief it means " A theory or Rule in the Law of Evidence: Photographic evidence (as photograph or videotapes) produced by a process whose reliability is established may be 1 Hope & Another V H M Advocate (1) Scots Law Times 264 2 dictionary.findlaw.com/definition/silent­witness­theory.html C.C. No. 93/11 admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify the accuracy of its depiction." One can find the elaboration of this rule and its applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State 1 of Arkansas [ 7 Ark. App. 1 (1982)] . The relevant part of the Judgment reads as under:

"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation. A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photo­graphic evidence is a "silent 1 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx C.C. No. 93/11 witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).

In Arkansas, photographic evidence is admissible under the "pictorial testimony" theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter. Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969); Gross v. State, 246 Ark. 909, 440 S.W.2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark.

731, 324 S.W.2d 520 (1959); Reaves v. State, 229 Ark. 453, 316 S.W.2d 824 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v. State, 219 Ark. 367, 242 S.W.2d 701 (1951); Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910) The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases. However, the precise objection made in the case at bar was not raised in either case. See, C.C. No. 93/11 French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).

This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness"

theory. We hold that the trial court correctly ruled that the video tape recording was admissible.

The Uniform Rules of Evidence, Rule 901 (a), Ark. Stat. Ann. § 28­1001 (Repl. 1979), provides that authentication is a condition precedent to the admissibility of evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims. Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 28­1001 (Repl. 1979), provides that "photographs" includes photographs, x­ray films, video tapes, and motion pictures.

X­ray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark. 83, 163 S.W. 180 (1914); Miller v.

C.C. No. 93/11

Minturn, 73 Ark. 183,83 S.W. 918 (1904). Obviously, it is impossible for a witness to testify that an x­ray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, x­rays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.1969). Every jurisdiction admits x­ray films as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally. We note that Rule 1001 (2) treats x­rays, photographs, video tapes, and motion pictures, as one and the same.

Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye­ witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 41­54 (2d ed.1969). Photographic evidence can observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word.

C.C. No. 93/11

We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness"

theory are fundamentally different from the foundational requirements under the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness" theory, .since. the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion."

The reflection of the Rule in the Indian Law

33. As it may seem the expression "silent witness theory" in C.C. No. 93/11 this form or any other form does not find reference in the Indian Jurisprudence but the expression like "Real Evidence" in R M Malkani (supra) and expression like "primary and direct evidence" in Sh. N. Rama Reddy v. V. V. Giri (supra) take us in the same direction.

34. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in terms of appreciation of such evidences. It is true that the technology has made it easier to doctor or morph 1 video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same.

35. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.

1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 C.C. No. 93/11

36. It was laid down by the Hon'ble Supreme Court in R. M. Malkani as under:

"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."

37. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with " care and caution".

C.C. No. 93/11

38. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Crl. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:

a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice.

Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.

b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.

c) 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.

C.C. No. 93/11

d) The statement must be relevant according to the rules of Evidence Act.

e) The recorded cassette must be carefully sealed and kept in safe or official custody.

f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.

39. The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions (b) (c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done by resorting i.e. speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination of videotapes by using VISAR tool, Vectorscope and waveform C.C. No. 93/11 monitor to determine that a videotape is genuine and not tempered with."

INTEGRITY OF VIDEO SHOTS IN FIVE AUDIO VIDEO CASSETTES:

40. In order to establish that the video clipping in this case is original and not a copy of the original and that it was not edited or tampered with. There was a specific query sent by the Investigating Officer to CFSL, Chandigarh. Before proceeding further I would like to point out, as noted above, that there were five Hi­8 video cassettes which were the subject matter of different cases registered including the present case i.e. RC 48(A)/04. It may also be added that each Hi­8 video cassette had number of video clippings having been shot at different places on different dates involving different officials of Delhi Police / Excise Department. Therefore, the opinion sought was in relation to all the five Hi­8 cassettes. The Hi­8 cassette in which the clipping related to this case was recorded was exhibited in Court as Ex P­2, whereas, for the purpose of C.C. No. 93/11 examination in CFSL, Chandigarh it was given exhibit number as as Ex­2. This report is a consolidated report and is in respect of the entire content which was found in the cassette including the clipping related to this case. The queries before the scientific officer Dr. C. P. Singh, CFSL Chandigarh (PW­4) were:

"To examine 1) whether the video recorded on the video cassettes marked Exh­1 to Exh­5 are in continuity or otherwise. 2) Whether the video recorded on the videocassettes is edited or otherwise. 3) whether the video recorded on the videocassettes are original master copy or copy of master copy. 4) To prepare working copies (Two each) of the video recordings on CDs."

41. What was found in respect of the cassette Exh­2 is as under :

The videotape in videocassette marked Exh­2, is found recorded with 47 video shots. The first shot of 13 seconds is indicated to be of rerecorded (over recording in order to delete some portion that too in­camera) and thereafter next shot of 3 seconds is indicated to have C.C. No. 93/11 been left. Subsequently, the 3rd & 4th shots of 1 second & 7 seconds are also indicated to be of recorded (over recording in order to delete some portion that too in­camera). The indicated date­times of over recordings are 21­11­03 at 9:43PM, 21­11­03 at 7:10 PM and 21­11­03 at 9:45 PM. The 5th to 35th video shots are indicated to have been recored during 2­11­02.

There are indications that these sots are being over recorded on a previously used tape. The subsequent shots i.e. shot­36 to shot­40 are indicated to have been recorded on 28­3­02 (between 9:10PM to 9:20 PM). Thereafter the shot­41 to shot­47 are indicated to have been recorded during 9­11­03 to 19­11­03. Some of the shots are taken with super­night­shot option on.

42. This examination was conducted by Dr. C.P. Singh by using VISAR tool, Vectorscope & Waveform monitor. The conclusions reached by PW­4 Dr. C.P. Singh are as under :

1. There is indication that the video recordings on the video cassettes are made by hand held camera.

C.C. No. 93/11

2. There are a number of obvious on/off points on the videotapes. These are indicated to be of in­camera (camera operator's on­off switching).

3. There is no evidence of second­generation deterioration in image quality.

4. There is significant evidence to support the contention that the video recordings are the camera originals.

43. It may be seen from the reading of the description given above of what was found to be recorded in video cassette Ex­2 (Court Ex. P­2) that the person shooting the video had been over­recording or in other words recording on the material already on the cassette and thereby erasing/deleting what was already recorded on the cassette but all these operations were done in­camera. Thus, in so far as the recording which was there appearing in the cassette was original in itself though it may have been recorded on material already recorded on the cassette on it being used earlier.

C.C. No. 93/11

44. Witness PW­4 Shri C.P. Singh had supported his conclusions in the Court as well when he had deposed with reference to the examination of hi­8 cassettes :

I had examined the same with the help of VISAR tool, Vectorscope and Waveform monitor. On examination following was revealed :

(a) I had found that all the video shots were in continuity;

(b) The above findings also indicated that there was no indication of editing on the video cassettes; and

(c) As there was no evidence of second­ generation deterioration in the image quality and there was significant evidence to support the contention that video recordings were camera originals, I had concluded that video recordings on the above said videocassettes were original master copies and not copy of original master copy.

C.C. No. 93/11

Objections to the Report :

Unsealed and morphed

45. In order to challenge the integrity of the Hi­8 cassette the witness was cross examined primarily at two levels, first, that the video cassettes which were received from the office of SP, CBI, ACB, New Delhi were not sealed and second, that the video shots in above video cassettes were not in continuity and the said video cassettes had been edited/doctored before being sent for examination. I have not been able to find an incisive cross examination of the witness on these lines. There were suggestions given to the witness and they were denied by the witness. The relevant part reads as under :

"It is incorrect to suggest that the parcel in which the above video cassettes were received from the office of SP, ABI, ACB, New Delhi, were not sealed. The said parcels was opened by me in the laboratory in the presence of my Assistant. I do not recollect his name now. It could be Mr. Gokul Krishna. It is C.C. No. 93/11 incorrect to suggest that I am deposing falsely that the said parcel was opened by me in the presence of my Assistant Sh. Gokul Krishna. (Vol.) I have already stated above that it could be Sh. Gokul Krishna or some other Assistant who had been working with me.

It is incorrect to suggest that the video shots in the above video cassettes were not in continuity and the said video cassettes had been edited/doctored before being sent for examination."

46. There is noting else pointed out by the Ld. Defence Counsel so as to establish that the said cassettes were received at the CFSL, Chandigarh unsealed. In fact, in the examination in chief the witness had deposed :

"On 9.11.2006 while I was working as CFSL. Chandigarh one sealed parcel was received from SP, CBI, ACB, New Delhi. The seals on the parcel were intact and tallied with the specimen seal provided along with the forwarding letter. On opening the parcel, five video cassettes of SONY Hi8 were found and these were marked as Ex. 1 to Ex. 5 by me in the laboratory."

C.C. No. 93/11

47. On the basis of the above cross examination in my view the integrity of the video clippings found (also called video shots) can not be doubted.

Report bears the RC No. 49(A)/04 whereas the number of this case is RC No. 48(A)/04.

48. The submissions made by the Ld. Defence Counsel reads as under :

" That another interesting and important fact in this case is that as per the charge sheet there are 3 RC registered as per the orders of the Hon'ble High Court and the same were RC 48(A)/04, RC 49(A)/04 and RC 50(A)/04. The 5 Hi­8 cassettes were sent to CFSL, Chandigarh in RC 49(A)/04 and the report Ex. PW­4/A was also received in RC 49(A)/04. Then how can CBI used the report of another RC in the present case. This is, however, more interesting that CBI had filed closure report in RC 49(A)/04 and RC 50(A)/04. It cannot be legal that a document can be used against the accused when on whose basis CBI had filed a closure report. On one hand the CBI had C.C. No. 93/11 filed a charge sheet on the basis of a CFSL report and on the other hand CBI had filed a closure report on the basis of same CFSL report. It is totally against the interest of justice."

49. One may read the explanation given by the witness PW­11, Shri D. K. Thakur in this regard, the same reads as under :

"There were three cases registered on the directions of the Hon'ble High Court viz. RC 48, RC 49, and RC 50 of 2004. Though the cases were of similar nature involving similar evidence but there were three cases registered on the basis of the territorial jurisdiction of the incidents. The incidents related to three police stations namely PS Uttam Nagar, PS Nangloi and PS Rohini.

The video cassettes were received from the Hon'ble High Court in one single sealed envelope. The video clippings in the said video cassettes were sent to CFSL, Chandigarh to obtain expert opinion to know the authenticity of the contents of the said cassettes in FIR no. RC 49/2004 by SP Sh N. M. Singh and accordingly report was also received in the said FIR. Since, the cassettes were related to all the FIRs registered, the same report was utilized in the investigation of the FIRs registered including the C.C. No. 93/11 FIR related to the present case i.e. FIR no. 48(A)/2004. As I have explained that the report received giving the FIR number as 49/2004 also related to the cassette/video clipping which is the subject matter of this case".

50. I find that the explanation given by the Investigating Officer as satisfactory that as to how on the CFSL report of Chandigarh the number given was RC 49(A)/2004. In my opinion mentioning the FIR no. RC 49(A)/2004 on the report of CFSL, Chandigarh would have no bearing on the outcome of this case.

There is no continuity in the date and timing of the recordings.

51. It is submitted by the Ld. Decence Counsel "for the sake of arguments if we consider it the report of this case then also the details given at page no. 4 of CFSL, Chandigarh report Ex PW­4/A we can find that there is no continuity in date and timing of the recording. It is not possible if the first scene is shot on 21.11.2013 and the second scene is shot on 02.11.2002". First C.C. No. 93/11 of all I find that if the Ld. Defence Counsel had an issue on this score then it was necessary that he should have brought it to the attention of PW­4 Dr. C. P Singh and sought explanation from him as he was the best person to have explained it. In the absence of any question being put to the witness in this regard it would be unfair if the Ld. defence counsel is allowed to raise this question at this late stage for the first time in the arguments. I have still examined the issue and I find that answer to this lies in the report itself wherein it had been repeatedly emphasized that there were shots which were over­recorded to delete some portion that too in­camera. As per this annexure the first shot was of 13 seconds dated 21.11.2003, second shot was of 3 seconds of 02.11.2002, third shot was of 1 second of dated 21.11.2003 and fourth shot was of 7 seconds dated 21.11.2003. Then there were shots from 5 to 19 all of 02.11.2002. In simple terms it would mean that on some of the video shots of 02.11.2002 there was some over­recordings made of a few seconds on 21.11.2003. In the report it has been explained like this :

C.C. No. 93/11

"The first shot of 13 seconds is indicated to be of rerecorded (over recording in order to delete some portion that too in­camera) and thereafter next shot of 3 seconds is indicated to have been left. Subsequently, the 3rd & 4th shots of 1 second & 7 seconds are also indicated to be of recorded (over recording in order to delete some portion that too in­camera)".

52. In my view,therefore, on this account also the forensic report can be doubted.

Difference in timing of the video shot described in the video identification memo Ex PW­11/A and the CD identification memo Ex PW­11/B and the duration given in the CFSL report Ex PW­4/A.

53. It is submitted by the Ld. Defence Counsel that there is difference in the duration of timing given in the above 3 documents which create doubt about the recording and according to him it would show that the recordings had been manipulated by the complainant Chetan Prakash and, therefore, cannot be relied upon.

C.C. No. 93/11

54. Video identification memo Ex PW11/A relates to a VHS cassette prepared after copying the contents from the Hi 8 cassettes by the complainant himself . It may be noted that memo related to the said VHS cassette Ex PW11/ A may have been prepared but it has not been relied as far as this case is concerned. It was not produced in the Court and not checked for the timing of scene. In this scenario in my view whatever duration has been given related to this clipping really does not matter. For the sake of record, however, one may note that as per the scene 7, described in the video identification memo Ex PW11/A, the period of the said scene is of 2 minutes and 29 seconds. As per the description given the scene in the CD identification memo (CD prepared by CFSL, Chandigarh Ex­2, corresponding to the Hi­8 cassette Ex­2) the total duration is 53 seconds same as given in the CFSL report of Ex PW­4/A, annexure related to shot identification Ex­2 (shot 34). As I have noted above that the material evidence before us is the Hi­8 cassette Ex P 2 and the report related thereto Ex PW4/A which proves that the video clipping in question was camera original C.C. No. 93/11 and not tampered with. In view of this report there is no reason to doubt the integrity of the Hi 8 cassette the video shot related to this case.

CONCLUSION

55. In my opinion in the above given circumstances there is no doubt that the Hi­8 cassette in question having various video shots including the shot related to this case were camera original and not tampered with.

SPEAKER IDENTIFICATION Recording of specimen voice of accused Satish Kumar.

56. In order to establish that the part of the conversation heard in the video clipping attributed to the accused is indeed of the accused. The Investigating Office Shri D.K. Thakur had obtained the specimen voice of the accused Satish Kumar on 01.03.2007 in the presence of an independent witness namely Shri Rakesh C.C. No. 93/11 Kumar Saini. He had prepared the specimen voice recording memo Ex. PW­2/A on the same day when the specimen voice of the accused herein Satish Kumar had been obtained the specimen of Meghraj, Head Constable (accused in one another case) had also been taken. The entire proceeding recorded on the specimen voice recording memo reads as under :

" Date and Time : 01.03.2007 FROM 1600 HOURS TO 1800 HOURS In the presence to the signatories to this memo the Specimen voice of the two accused persons namely Shri Meghraj Singh, Head Constable, No. 9149/DAP and Shri Satish Kumr, Constable No. 724/RB (both the accused from Delhi Police), have been recorded with their consent and without any duress. Before recording the specimen voice, the purpose of the recording being done was explained to the independent witness and the accused persons. Before the recording was done on the audio cassette, it was ensured by playing it before the signatories to this memo that the audio cassette of make "SONY ZX 90" is totally blank on both the sides 'A' and 'B'.

Introductory voice of the independent witness was recorded on side 'A' of the said cassette and after C.C. No. 93/11 that the introductory voice of Sh. Meghraj Singh, Head Constable No. 9149/DAP (Accused in this case) was recorded and was played before all for verifying proper recording. After ensuring the proper recording the specimen voice of Sh. Meghraj Singh, Head Constable No. 9149/DAP was done using the conversation script as recorded in the alleged video film. After the recording was completed, again an introductory voice of the independent witness was obtained in token of fairness and genuineness of the specimen voice recording. This side of the cassette was marked as "S­19".

Again the introductory voice of the independent witness as mentioned below was recorded on the side 'B' of the aforesaid cassette and after that the introductory voice of Sh. Satish Kumar, Constable No. 724/RB (Accused in this case) was recorded and was played before all for verifying the proper recording. After ensuring the proper recording, the specimen voice of Sh. Satish Kumar, Constable No. 724/RB was done using the conversation script as recorded in the alleged video film. After the recording was completed, an introductory voice of the independent witness was obtained in token of fairness and genuineness of the specimen voice recording. This side of the cassette was marked as "S­20".

C.C. No. 93/11 For ensuring the proper recording, both the sides of the cassette was played and after that the same was sealed with CBI Seal and Lac after wrapping it into a piece of clot. The independent witness, myself and both the accused persons have signed on the cloth wrapper.

Specimen and seal impression was also retained for future use and the seal was handed over to the witness Sh. Rakesh Kumar Saini for producing the same in future whenever required."

57. Witness Shri D. K Thakur PW­ 11 Investigating Officer had identified the said memo which he had prepared with regard to taking the specimen voice of the accused Satish Kumar and also his signatures thereon. There is no cross examination of the witness on the line either that the specimen voice had not been taken by Shri D.K. Thakur of accused Satish Kumar or that it was not given voluntarily by him. The independent witness namely Rakesh Kumar Saini in whose presence the specimen voice of the accused Satish Kumar had been recorded had also deposed in the court that on 01.03.2007 after being deputed by C.C. No. 93/11 his department he had visited the CBI office at CGO complex where in his the voices of persons named Satish and Meghraj were recorded. He had also identified the accused in the Court as the person whose voice had been recorded in his presence. He has broadly given the process which was followed while recording the specimen voice of the said two accused persons as follows:­ "In the office there were two personnel of Delhi Police were sitting. Their voices were recorded in my presence. Name of one of them was Satish and name of the other was Meghraj. The voice was recorded by using a cassette recorder. On the cassette on which the recording was to be made, my signatures were taken and before proceeding to record the voices of Sh. Satish and Meghraj, my introductory voice was recorded. There was something given to them in writing which they were supposed to read out for the purpose of recording their voices. The sequence which was followed for recording their sequence was - first my introductory voice was recorded and thereafter the voice of one of them was recorded and again my voice was recorded on one side of the cassette. The same process was repeated for recording of the voice of C.C. No. 93/11 the other person on the other side of the cassette i.e. first my introductory voice was recorded, then the voice of the said person from Delhi Police was recorded which was again followed by my voice. The same was played and heard in my presence. The cassette thereafter was sealed and after sealing it again my signatures were taken on it".

58. He had also identified the memo which was prepared and his signatures thereon. In his cross examination also there was only a suggestion given that no proceedings had taken place in his presence as narrated by him in his testimony. That in my view is hardly sufficient to shake the testimony of the witness that the specimen voice of the accused had not been taken in his presence.

59. It has been submitted by Ld. Defence Counsel that the seal which was used for sealing the cassette in which the specimen voice of the accused was recorded was not produced in Court.

C.C. No. 93/11

60. The witness Shri Rakesh Kumar Saini had clearly deposed that the seal after use had been given to him. The only thing he had added was that he did not recollect as to where he had kept the said seal. He had deposed " the seal after use was given to me but I do not recollect where I had kept the said seal". The fact that the seal was not produced in the Court would have assumed some significance if it could be demonstrated that the seal after use had been returned to the Investigating Officer before the cassette containing the specimen voice had been sent for forensic examination. There is no cross examination either of the witness Shri Rakesh Kumar Saini PW2 or Shri D.K. Thakur Investigating officer on this line. There is not even a suggestion given to anyone of them that the seal which was given to Shri Rakesh Kumar Saini after use was misused or there was any possibility of it being misused.

61. I am therefore, of the view that just by saying that the seal was not produced in the Court by the Independent witness Shri C.C. No. 93/11 Rakesh Kumar Saini would create no doubt as to the specimen voice of the accused having been taken by Shri D.K. Thakur, Investigating Officer in the presence of the Independent witness or the same having been tampered with or edited at any stage before being sent for forensic examination.

62. There is also a connected submission made by the Ld. Defence Counsel that in this case the specimen voice of the accused had been taken twice once by Inspector Mukesh Kumar on 08.05.2006 Ex. PW­5/B and second time on 01.03.2007 Ex. PW­2/A by Shri D.K. Thakur, the second investigating officer (already referred above). According to the submission made by the Ld. Defence Counsel the prosecution has not submitted the CFSL report related to the specimen voice of the accused being recorded on 08.05.2006 and the report Ex. PW­5/C of CFSL Delhi relates to only the specimen voice of the accused recorded vide the second memo Ex PW­2/A. According to him it would show that the investigation carried out by the CBI was not fair.

C.C. No. 93/11

63. What has been submitted by the Ld. Defence Counsel is factually correct but the question is that as to why he did not ask this question either from Inspector Mukesh Kumar or Inspector D.K. Thakur. He could have legitimately asked as to what happened to the earlier specimen voice which had been taken or what had been the report of CFSL Delhi related to the said specimen voice of the accused taken by Inspector Mukesh Kumar. It may be noted that the prosecution may place on record only those documents which it proposes to rely but it does not stop the defence from calling any record which the prosecution may have in its possession and necessary for its defence. In other words defence could have called for the said report if it had thought that it would be favorable to it. In any case the answer to it is not difficult to be found from the record itself.

64. As has already been noted above that apart from the five Hi­8 cassettes which were received from the Hon'ble High Court in sealed condition there was a VHS cassette also received from C.C. No. 93/11 the vigilance department of GNCT of Delhi. This VHS cassette was received in unsealed condition and it by and large had the contents copied from the five Hi­8 cassettes which were received from the Hon'ble High Court in sealed condition. It is evident from the letter Ex. PW­5/C, the letter which was sent to CFSL along with the specimen voices recorded of different persons/police officials and along with it the above VHS cassette marked as Q­1 sent for giving the opinion thereon. The said VHS cassette is not a relied upon article/document in this case. The relied upon cassette is one of those Hi­8 cassettes (Ex. P­2) which was received from the Hon'ble High Court. The CFSL report relied upon also relate to this Hi­8 cassette. Thus, in the absence of the said VHS cassette being relied upon there was no point in placing on record the CFSL report related to the VHS cassette. I am of the view that placing on record the CFSL report related to the VHS cassette was not necessary. I am of the view that even placing on record the memo Ex. PW­5/2 and the letter EX. PW­5/3 were not strictly necessary as their presence on record is of no consequence except to an extent to C.C. No. 93/11 show as to what investigation was carried out by the first Investigating officer Inspector Mukesh Kumar. I am, therefore, of the view that the absence of the CFSL report connected with the earlier specimen voice recording of the accused and the VHS cassette would not create any doubt as to the case of the prosecution.

Reports of CFSL Delhi with regard to speaker identification

65. Sh. Deepak Tanwar a Scientist from CFSL Delhi was examined as witness PW­3 in this case to prove that the specimen voice of accused Satish Kumar recorded during the investigation had matched with the recordings questioned video clipping.

66. In his testimony the witness has deposed that his office had received a letter dated 16.03.2007 from CBI along with four sealed parcels five unsealed compact disk, specimen seal impressions and other related documents for examination. He C.C. No. 93/11 had received another letter dated 22.03.2007 along with one sealed parcel and specimen seal impression. He had tallied the specimen seal impressions with the seals on the parcels and found them to be intact. All the parcels were opened by him out of the four parcels received through letter dated 16.03.2007 the parcel marked­4 were related to this case. The parcel marked S­19 and S­20 contained one normal size audio cassette of 'Sony ZX 90' make. On the A side of the cassette there was specimen voice recording of HC Meghraj (accused in one another case) and that of Constable Satish Kumar, accused in this case on Side B. The specimen voice of Satish Kumar beginning with the sentence "Satish, Satish, Satish, Satish, Satish, Satish, Sahab achchha abhi aa jata hoon..." was marked by him as S­20(A). He had also selected some common clue words/sentences for voice spectographic analysis. On opening of the parcel mark­4 he had found five Hi­8 audio visual cassettes herein he had marked them as Q1 to Q5 out of them the cassette marked EX.Q­2 was related to this case. On playing the same he had found that there were eleven video C.C. No. 93/11 clippings. The clipping related to this case were marked by him as Ex Q­2(1) starting with the sentence "Oh Satish naam hai mera, Satish , Satish, Satish hai yaar, achchha, baraha ke park, haan, haan abhi jata hoon....." out of this portion he had selected some common clue words/sentences and marked them as Ex. Q­2 (1) (A) with respect to the specimen voice of Satish Kumar Ex. S­20(A) for voice spectographic analysis . He had conducted the auditory examination of the specimen voice as well as of he questioned voice and on examination of the voices he had found that they were similar in respect of their linguistic features.

67. He had then subjected the common clue words/sentences selected from the questioned as well as specimen voice and found them to be similar in respect of their number of formants, formants frequency distribution, intonation pattern and other general visual features in the voice grams on the consolidated effects of similarities in the linguistic characters and phonetic features using auditory and voice spectrography analysis he had C.C. No. 93/11 reached the conclusion that the voice marked Q­2 (1) (A) was the probable voice of the person named Satish Kumar whose specimen voice was marked EX. S­20(A). He had identified his report Ex. PW­3/A in the Court.

68. I have seen the cross examination of this witness. There had been suggestion given to him that the audio cassette was not received by him in sealed condition and also that there had been additions, deletions and alterations made in the audio cassettes and audio video cassettes the witness had denied the same. He was then questioned that if it was possible for someone to mimic the voice of the other person and have it recorded as the voice of the other person the witness had explained that though it was possible to mimic the voice of a person by another but according to him it was not impossible to distinguish the original voice from the mimicked voice on the basis of scientific examination. Lastly, the witness was questioned that what he meant by "probable" in his report? He had explained that by probable it was meant that it was possible C.C. No. 93/11 to say with 85­90 per cent accuracy that the specimen voice matched with the questioned voice.

69. On the basis of the above cross examination I am of the view it would not be possible to believe that the questioned audio tape or the audio/video tape were not received with their seals intact or they had been edited or altered as tried to be put by the defence in the cross examination. The cross examination of the witness is not deep enough to create a dent in the testimony of this witness or to believe that the report given by the forensic expert with regard to speaker identification can not be believed.

Conclusion

70. Thus it can be said the voice which could be heard in the Video clipping was that of Accused.

C.C. No. 93/11 WHAT IS VISIBLE IN THE VIDEO CLIPPING

71. The video clipping was played in the Court during the testimony of the witness PW­1, Shri Chetan Prakash, complainant and PW­9 S.I. Man Singh. The accused Satish Kumar herein could be seen entering into a place where the liquor was being sold. The complainant had identified the same place as "Devraj ka adda" situated behind Om Vihar bus stand". One of the persons at the said place was identified as Bengali by PW­1, Shri Chetan Prakash. This person is seen asking the Accused his name by saying "naam toh bata apna" to which the accused had replied "Satish naam hai mera". The accused could be seen in police uniform, going to the extent of showing his name on the name plate on the pocket of his shirt. After some conversation in between, one person identified as "Gunga" by the complainant was seen counting some currency notes of denomination of Rs. 10/­ each and handing over the same to accused Satish Kumar. The accused then counts the currency notes and keeps with himself. When this cassette was C.C. No. 93/11 played in the presence of PW­9, S.I. Man Singh he too had identified the accused visible in the said clipping seen receiving money from one of the persons visible in the clipping.

72. The description of the scene as given in the testimony of the witness PW­1, Shri Chetan Prakash, complainant is as follows:

"There is a scene dated 07.11.2002, which commences at 20:44:41 hours, wherein Shri Bangali and Shri Gunga are seen talking with a customer of illicit liquor and then he i.e. Shri Bangali had not taken and Shri Bangali was calling someone sayhing "Ajaao". Thereafter, back side of accused Satish Kumar is seen and he was entering Dev Raj ka Adda situated behing Om Vihar Bus Stand. While accused Satish Kumar was enterng said Adda, Shri Bangali had asked him that "Naam Toh Bata Do Apna". On which, accused Satish Kumar replied saying "Satish Naam Hai Mera".

Accused Satish Kumar, who is in police uniform, is also seen showing his Name Plate affixed on the pocket of his shirt. Face of the accused is clearly visible in the video now, at this stage. Thereafter, the video cassette had been further played, wherein Shri Bangali is saying to the accused that "Pichhe C.C. No. 93/11 Bhi Ek Sasin Daaru Bech Rahin Hai" to which accused said 'Acha'. Shri Bangali again said "Park Ke Pass, Masjid Ke Saamne, Ek Nayi Sasin Daaru Bech Rahi Hai, Theek Hai". On which accused said 'Theek Hai, Abhi Jata Hun'. Thereafter, Shri Gunga is seen counting some currency notes of denomination of Rs. 10/­ each and after counting the same, he i.e. Shri Gunga is giving the said currency notes to accused Satish Kumar, who had accepted the same. Thereafter, accused is seen counting the said currency notes. While giving the said currency notes to accused, Shri Bangali is saying to accused "Kharcha Paani Le Liya Karo, Humara Kaam Dhanda Manda Hai, Is Mahiney Sau Rupay Kam De Raha Hoon". Accused Satish Kumar further said "Cheh Mahiney Ho Gaye, Men Toh Uske Pass Gaya Nahin". Thereafter, accused is seen leaving the said Adda saying "Jaa Raha Hun MeriSasu Ke Pass". Thereafter, Shri Gunga is seen taking out quarter bottle of illicit liquor from the drawer of a table and giving the same to a customer. Customer is seen consuming the said liquor at the Adda. This scene stands completed at 20:48:00 hours"

73. I had also called for the said video cassette for my own satisfaction after the arguments had been heard and I was to C.C. No. 93/11 dictate judgment in this case. It could be seen that the accused Satish Kumar had brazenly entered the said place in uniform clearly declaring his name and emphasizing it by pointing at the name plate on his shirt. Thereafter, receiving the money in the form of currency notes of Rs. 10/­ and leaving the said place.

74. The viewing of the said video clipping in the Court and the examination of witnesses PW­1, Shri Chetan Prakash, complainant and PW­9 S.I. Man Singh leave no scope for doubt that it was the accused only who had visited the said place for taking the money and after taking the money had left the said place.

Commission of Offence punishable under section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.

75. Once it could be seen that the accused in his uniform had visited place where liquor was being sold had demanded and accepted the money even without the aid of Section 20 of the Act I am of the view of that it can be said he had taken the C.C. No. 93/11 money by abusing his position as public servant for forbearing to take action against them and thus committed offences U/s 7 and U/s 13(2) read with Section 13 (1) (d) of PC Act. Other defences of the Accused Difference of date/period of the incident mentioned in the charge sheet and the charge

76. It has been pointed out by the Ld. Defence Counsel that in the Charge there is no specified date given of the accused having accepted the bribe except that he had accepted the bribe in the month of November 2002. As per his submissions what has been stated in the Charge is in conflict with what is stated in the Charge Sheet wherein it is stated "video film was prepared during the year 2003". I am of the view that what has been stated in the Charge Sheet would not really matter because the trial has been conducted on the basis of what has been stated in the Charge. It has not been pleaded or argued by the Ld. C.C. No. 93/11 Defence Counsel that as a result of it any prejudice has been caused to the accused or he has been mislead in any way. Non examination of bribe­giver Sh. Bengali

77. According to the submissions made by the Ld. Defence Counsel it was one Bangali from whom the accused had accepted the illegal gratification but he has neither been produced nor examined by the CBI. He has also submitted that Shri Devraj was examined in the Court as PW­10 and as per the testimony of the witness PW­1, Shri Chetan Prakash, complainant said Bangali was working with Shri Devraj, no question was put to Shri Devraj to know from him if he knew about Shri Bangali or any person by the name of Bangali had been working with him or not. The video clipping was also not played before him to get Bangali identified in the video clipping. As per his submission there is no clarification given by the Investigating Officer as to why he had not examined Shri Bangali during investigation.

C.C. No. 93/11

78. All what has been stated above by th Ld. Defence Counsel is factually correct. The question, however, is to what extent it can be said that the case of the prosecution stands affected/discredited on account of the non­examination of Shri Bangali or the person who is seen giving bribe to the accused.

79. It has already been discussed above that the video is a substantive piece of evidence and can stand alone provided it is relevant and its integrity is not in doubt. It is not even the case of the defence that the video clipping in question is not relevant and it has already been concluded above that the integrity of the video clipping is not in doubt, as stated above that the video clipping in the circumstances can even be accepted as stand alone evidence. Thus, in my opinion though it would have been better if said Shri Bangali had been examined as a witness in the Court but his non­examination would not defeat the case of the prosecution.

C.C. No. 93/11 No site plan of the place or site identification memo

80. Though it has been claimed by Shri Mukesh Kumar, Investigating Officer that he had visited the site alongwith the complainant Shri Chetan Prakash where he had shot the said video clipping but it is a matter of record that there was no memo prepared by Shri Mukesh Kumar, Investigating Officer in this regard. There is also no site plan on record to fix the identity of the place where this incident had taken place. In my opinion this would also not hit the credibility of the case of prosecution. It would have mattered if someone had claimed that the place visible in the video clipping was "imaginary" and not "real". It has not even been put up as a defence that in the said clipping the accused is not being seen as demanding and accepting illegal gratification.

81. One may also note that a site plan is nothing but one of the methods of documenting the scene of the crime. Its importance in a large number of cases cannot be C.C. No. 93/11 overemphasized. At the same time it may also be noted its importance can vary from case to case and also that it is not the only method of documenting the scene of the crime. Photographs and video taping are also the tools employed to document the scene of the crime. It is an exercise which is undertaken post the commission of the crime to reconstruct as to how the crime may have been committed or to pick up pieces of evidence form the scene of the crime. But what can be better then having the crime itself being captured as it was committed. It not only documents the scene of the crime but also the crime. In the present case I am of the view preparation of site plan would have been nothing but a formality not likely to serve any purpose.

82. I am of the view that in these circumstances the non preparation of the site plan or any memo relating to the identification of place would have no impact on the case of the prosecution.

C.C. No. 93/11 Delay in sending the Hi­8 cassettes to CFSL for examination

83. Ld. Defence Counsel had pointed out that the investigation of this case was handed to Inspector Mukesh Kumar on 10.12.2004 and he had also been handed over the sealed Hi­8 cassettes. He had also examined complainant Chetan Prakash as well as other witnesses showing him the video clippings from the VHS cassette. The investigation had been handed over to Inspector D.K. Thakur in November 2006 it would, therefore, show that the investigation of this case had remained with Inspector Mukesh Kumar for almost two years. According to him it is very strange that the sealed envelope containing five Hi­8 cassettes was sent to CFSL, Chandigarh almost after two years and as per the report of the CFSL the seals of the registry of the Hon'ble High Court had remained intact for so long. It is also added that Inspector Mukesh Kumar had not seen the alleged video shots from any of the five Hi­8 cassettes during his tenure of investigation.

C.C. No. 93/11

84. First of all, one may note that it has not been claimed by Inspector Mukesh Kumar that he had seen the video shots from any of the five Hi­8 cassettes. He had deposed it clearly that the had undertaken the exercise of getting the accused persons identified from the VHS cassette which was received from the Vigilance Department of Government of NCT of Delhi in an unsealed condition. The video identification memo Ex. PW­11/A would also show that he had used the VHS cassette during the investigation for the purpose of identification of the accused persons. Thus, since, he had not used the Hi­8 cassettes during the investigation there is a reason to say that he had not opened the seal of the five HI­8 cassettes which were later on sent to CFSL, Chandigarh for forensic examination.

85. I find no basis to assume that the seals on the parcels containing the video cassettes could not have remained intact for a period of almost two years. The experience would show that if the articles are preserved or handled properly the sealing wax seals may last for very long time. I do not find any force in C.C. No. 93/11 the submission to discard the testimony of the witness PW­4 Dr. C.P. Singh that he had found the seals to be intact on the parcel received by him containing five Hi­8 cassettes. Video camera not sealed or sent to CFSL, chandigarh for getting an expert opinion as to whether hi­8 cassettes were shot from the same camera or not.

86. According to me this submission would have made some sense to me if it had been explained to me on some scientific basis that in the absence of the seizure and sealing of the video camera with which the said video clippings had been shot and recorded in five Hi­8 cassettes the expert PW­4 Dr. C.P. Singh could not have reached the conclusions which he had reached. In my view so long as it could be said that the recordings in the five Hi­8 cassettes were camera original ruling out the possibility of they being edited or manipulated, it would be immaterial as to what kind of camera had been used for shooting the said video clippings. What is material is the recordings in the Hi­8 cassettes and not the camera which had been used for making the said recordings.

C.C. No. 93/11 Complainant is an interested witness.

87. There is no doubt in this case that the complainant is an interested witness in the sense that if he had taken so much of pains of having clandestinely recording the police officials/officials of Excise Department including the present case and had thereafter moved to Hon'ble High Court on the basis of the recordings he had made for conducting an investigation, he can be said to be interested in securing the conviction of the accused herein.

88. I have examined testimony of the complainant his testimony would show that he had himself shot various scenes including the video clipping in question and recorded the same in a Hi­8 cassette. I am also prepared to believe him on this account because the venture he had undertaken was unusual and highly risky and in all probability, therefore, he could not have delegated this task to someone else or used someone else's material to expose the corrupt practices of officials of C.C. No. 93/11 Delhi Police and Excise Department claiming the same to be of his own. I have seen the cross examination of this witness and I do not find any serious challenge to the proposition that the video clipping had not been shot by the complainant. This angle was not probed to the extent that he could be disbelieved on this account. The suggestions given to him were broadly on the line that the recordings were manipulated and while cross­examining the witness on this line there was no consistency. At one stage he was asked if he had used the handy­cam for shooting the video which he had admitted. It was then suggested to him that it was possible to make the dubbing in the handy­cam camera used by him and also possibility to change the pictures. It was immediately followed by the suggestion that the films(videos) were assembled by him after obtaining the same from somewhere. The entire cross examination in this regard reads as under:

"It is correct that the Handy Cam of Sony make used by me, was of a high quality. It is wrong to suggest that dubbing is possible in the Handy Cam used by me. It is also wrong to suggest that pictures C.C. No. 93/11 can also be changed with the help of Handy Cam. It is wrong to suggest that the aforesaid video films were not prepared by me. It is also wrong to suggest that the aforesaid films were assembled by me after obtaining the same from somewhere.".

89. At one other place the suggestion was given to him that the clip in question had been 'manufactured' by him. The said part of the cross examination reads as under :

"It is wrong to suggest that the clip in question has been manufactured by me with a view to falsely implicate the Delhi Police officials".

90. Except for one clear suggestion that the video films in the Hi­8 cassettes had not been prepared by him there is no serious questioning which may lead to discrediting the testimony of the complainant that the said video had not been shot by him. If he had himself shot the video then it can also be said that he had seen the incident with his eyes. It has already come on record that the video clippings in the Hi­8 cassettes were camera original including the video clipping at serial no. 34 in the hi­8 video cassette Ex P­2.

C.C. No. 93/11

91. In any case, in the real sense deposition of the complainant Chetan Prakash cannot be seen independent of what could be seen or heard in the video clipping. He had merely narrated in his testimony what could be seen or heard on playing the cassette in court as has already been discussed. Inquiry report of Shri Jai Lal Sawhney

92. Shri Jai Lal Sawhney, PW­6 was working as ACP, Vigilance in the year 2004 and had conducted a vigilance inquiry in this matter in respect of the allegations made against the officials of Delhi Police/Excise Department in the writ petition filed before the Hon'ble High Court with regard to their collecting money from bootleggers. In the said inquiry he had used VHS cassette (already referred above). On the conclusion of the inquiry he had submitted the report Ex. PW­6/A reaching certain conclusions.

C.C. No. 93/11

93. It has been submitted by the Ld. Defence Counsel inter­ alia that in the said report the video shot related to the accused Constable Satish Kumar has not been described. He had also added that the VHS cassette is a secondary evidence which can not be read against the accused and also that the said VHS cassette was not played in the Court in the presence of witness Shri Jia Lal Sawhney.

94. First of all I would like to state whatever may have been the conclusions reached by Shri Jia Lal Sawhney they are not binding on this Court. It was an inquiry of Fact Finding Nature. The conclusion reached in this inquiry would not have even binding on an Inquiry Authority appointed under disciplinary rules to take action against any of the erring officials. The testimony of Shri Jia Lal Sawhney in that sense is of no consequence for this Court. Similarly, since, VHS cassette is not a relied upon document in this case, therefore, there is no necessity of going into the question that as to whether it is a secondary evidence or not. Similarly, the question of having not C.C. No. 93/11 played the said VHS cassette in the presence of the said witness Shri Jia Lal Sawhney is meaningless.

95. I am of the view accordingly that the report of Shri Jia Lal Sawhney is not required to be considered for reaching any conclusion either in favor of the accused or against him. No demand, no recovery

96. According to the Ld. Defence Counsel in this case the prosecution had failed to establish that there had been any demand of bribe made by the accused and admittedly no money recovered from him. He has further pointed out that Shri Bangali (already referred to above) has not even been sighted as a witness by CBI who allegedly had paid the bribe to the accused.

97. I am of the view the question of "demand" and "recovery" is required to be seen or examined within the factual matrix of a particular case. There can not be a set formula how the same C.C. No. 93/11 can be proved if the accused could be seen demanding and keeping the bribe in his pocket and there is a credible evidence to prove this fact, the physical recovery is not necessary. As has already been discussed above if Shri Bangali had been examined as a witness it would have been better but his absence really does not defeat the case of the prosecution because as already discussed above the accused could be seen clearly demanding the money and keeping the money with him in the video clipping at a place where the business of selling liquor was in progress and it as been proved by the prosecution that the said video clipping is camera original and had not been tampered with. I am of the view that this submission of the Ld. Defence Counsel as far as this case is concerned is hardly material.

SANCTION OF PROSECUTION

98. PW­8 Shri S.B.S Tyagi, who was posted as DCP, Rashtrapati Bhawan (security) in the year 2007 had deposed C.C. No. 93/11 that he had accorded the sanction for prosecution Ex PW­8/A of the accused after having examined all the documents etc. which had been placed before him and after being satisfied that it was a case where sanction should be granted for the prosecution of the accused. It has been submitted on the behalf of the accused that in this case the sanction was accorded without the application of mind and only on the basis of a draft supplied by CBI.

99. It has been pointed out that the sanctioning authority, PW­8 Shri S.B.S Tyagi had admitted that there was no CD or video cassette had been received by him and also that according to him he had gone through the statements of witnesses but none of the witnesses in their statements U/s 161 Cr.P.C had named the accused. Even the statement of the complainant recorded is of general nature. C.C. No. 93/11 Sanction on the basis of draft

100. There is no indication in the entire examination or cross examination of PW­8 that he had been supplied with any draft sanction order as has been claimed by the Ld. Defence Counsel. I am of the view that even if it were so it could not have mattered if ultimately he had accorded the sanction after having gone through the material supplied.

According Sanction without watching Video

101. It has been submitted that the sanctioning authority had not admittedly watched the video clipping before according the sanction for prosecution. The Ld. Defence Counsel questioned that as to how the sanction could be granted by the sanctioning authority without having gone through the video clipping in question in a case where the sole basis for building the case against the accused is nothing but a video recording. C.C. No. 93/11

102. There is no dispute with the proposition that Sanctioning Authority is required to apply its own independent mind as to the facts of the case before reaching the conclusion to accord or not to accord sanction of the prosecution and allow its independent judgment to be fettered by the dictates of any other authority as is evident from the Judgment of the Hon'ble High Supreme 1 Court by the Ld. defence Counsel in Mansukhlal's case . This judgment would also make it clear that according sanction is an administrative act and the court's jurisdiction to examine it limited to well settled principles of administrative law. It may be noted that the Court while examining an administrative order like this does not sit in appeal and therefore it would be more concerned with the decision making process and not so much as to the decision and also it will not go into the question of sufficiency of material available with it to reach such a conclusion so long as it is possible to say that on the basis of

1. Mansukhlal Vithaldas Chauhan V. State of Gujarat, (1997) 7 SCC 622 C.C. No. 93/11 material such a decision could be reached as to be not called perverse. One may here not the observation of the Hon'ble Madras High Court in (WA 69 of 2010) M. S. Vijayakumar vs The Chairman And Managing Director, Indian Overseas Bank decided on 12 March, 2012:­ "28.While dealing with the same Section 6(1) of the Prevention of Corruption Act, 1947 in Mansukhlal Vithaldas Chauhan V. State of Gujarat, (1997) 7 SCC 622, the Hon'ble Supreme Court, while referring to the hierarchy of the judgments on granting of sanction, has held that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servants against frivolous prosecutions. The Hon'ble Supreme Court in that case has held that the grant of sanction is based on the application of mind and the materials and evidence collected during investigation and it was also further held that the High Court by exercising its power under Article 226 of the Constitution of India is entitled to take a decision if the Sanctioning Authority has not made its decision on the materials. Of course, it is not the sufficiency of materials which has to be considered by the High Court, but the availability of the materials that have been C.C. No. 93/11 considered to the satisfaction of the Sanctioning Authority. It is not the decision making process, which can be the subject matter under Article 226 of the Constitution of India. The categoric pronouncement of the judgment by the Hon'ble Apex Court is reflected in the following paragraphs. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that public servant is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that the Central or the State Government or the other authority has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.

103. It may be noted that while examining a matter for according the sanction the sanctioning authority is only required to 'satisfy' itself that as to if on the basis of the material produced it should accord the sanction and not necessarily examine the matter from the angle if the case is put to trial C.C. No. 93/11 whether it would result in the conviction of the public servant. Once the sanctioning authority has deposed in the Court that it was satisfied from the material before him that it was a case where sanction could be accorded there can be no reason to disbelieve him. He had stated that he had gone through the FIR, CFSL report and evidence collected by the Investigating officer of the CBI before according the sanction. Once he had said so, in my opinion it cannot be said that on the basis of the said material he could not have accorded sanction for the prosecution of the accused, despite the fact that he had not viewed the video clipping in question for he had before the description of the relevant scenes before him and also the report of the CFSL.

ORDER

104. In view of the forgoing discussion and the facts and circumstances of the case I am of the view that the prosecution has been able to prove that the accused had committed the C.C. No. 93/11 offence punishable under Section 7 and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988. I hold the Accused guilty as charged and convict him accordingly.

Announced in the Open Court                        ( L. K. GAUR )
on 19th of April, 2014                        Special Judge, P.C. Act  
                                           (CBI­09), Central District, 
                                                      Delhi.




C.C. No. 93/11

IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI­09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No.93/2011 R.C. No.48(A)/04 Case I.D No.02401R0623072007 Central Bureau of Investigation Versus Shri Satish Kumar S/o Sh. Attar Singh R/o Village & Post Tikri Kalan, New Delhi.

Date of Institution                  :  29.06.2007
Date of reserving Order              :  10.05.2014
Date of Pronouncement                :  12.05.2014


ORDER ON SENTENCE


Preliminary 

1. Convict Satish Kumar, who was posted as Driver (Constable) in Delhi Police, has been convicted for having committed offences under section 7 and section 13(1)(d) punishable under section 13(2) of the prevention of corruption Act, 1988.

C.C. No. 93/11 Hearing

2. I have heard Ld Defence Counsel for the convict as well as Ld. Public Prosecutor for CBI and have gone through the record of this case.

Guidelines of Sentencing

3. The broad guidelines for sentencing can be found in Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders. The same reads as under:

"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to C.C. No. 93/11 the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."

Extenuating Circumstances

4. The following extenuating circumstances have been pointed on behalf of the defence:­

(i) It is submitted that the convict is a sole bread earner of his family. He has aged parents to support who are about 80 years of age. He has a daughter of marriageable age. His wife suffers from some serious eye disease for which she is undergoing treatment for last 15 years.

(ii) It is not clear as to how much money was taken by the convict but what could be made out was that he had accepted a few currency notes of Rs. 10/­ denomination. C.C. No. 93/11 Aggravating circumstance

5. Ld. Public Prosecutor for CBI on the other side has made a submission that the convict is an official of police and the nature of offence he has committed does not deserves any leniency and he should be awarded sufficient deterrent punishment.

Sentence of imprisonment

6. The Convict is stated to be the sole bread earner of the family and has family responsibilities. As per the submissions made he has aged parents and his daughter is of marriageable age. In my view punishment of long incarceration of the convict in the jail will have an adverse impact on his family. The amount of bribe was not certain in this case but certainly it cannot be said to be very high as what he could be seen receiving were a few currency notes of Rs. 10/­.

C.C. No. 93/11

7. At the same time, it cannot be lost sight of the fact that the convict was posted as Driver (Constable )with Delhi Police. It was his duty to prevent commission of such offences for which he had accepted the money. The way the convict had visited the place where liquor was being sold to take money is certainly a factor which would suggest that the punishment which should be awarded to convict should be on the higher side.

8. The maximum punishment which has been provided in terms of imprisonment under section 7 of the Act is five years and the maximum punishment provided in terms of imprisonment under section 13(2) of the Act is seven years. It may be kept in view that this punishment which has been provided is even for the cases where highest level of Government functionaries are involved and amount involved may run into crores of rupees. If I have to balance the extenuating and aggravating circumstances and also taken into account the maximum punishment provided for the above offences, in my view the ends of justice would be met if the C.C. No. 93/11 convict is sentenced to rigorous imprisonment for a period of three years for the offence under section 7 of the P.C. Act and also rigorous imprisonment for the same number of years for the offence under section 13(2) read with section 13(1)(d) of the Act with a direction that both the sentences shall run concurrently. Sentence of Fine

9. Sentence of fine is an integral part of section 7 as well as section 13(2) of the Act. Imposition of fine is one of the effective ways of punishment in the economic offences. It can be meant to make the convict realise that earning through illegal means would not pay. However, while imposing the fine the Court also can not be oblivious of the fact that the fine to be imposed may ultimately not turn out to be having a ruinous effect on his family. At the same time the fine to be imposed should have correlation not only with the money earned by illegal means but also the position the public servant was holding. I want to add that in such cases while imposing the fine, I am in favour of actually C.C. No. 93/11 recovering the fine from the convict and not to just get away by suffering imprisonment in default of payment of fine.

10. In the light of foregoing discussion and the facts and circumstances of the case in my opinion imposing a fine of Rs. 25,000/­ for having committed offence under section 7 of P.C. Act and imposition of fine of Rs. 25,000/­ for having committed offence under section 13(2) read with section 13(1)(d) of the P.C. Act would serve the ends of justice.

Sentence

11. In the light of above discussion, I am sentencing the convict to undergo rigorous imprisonment for a period of Three years alongwith fine of Rs. 25,000/­ for having committed the offence under section 7 of the P.C. Act and to further undergo rigorous imprisonment for a period of Three years alongwith a fine of Rs. 25,000/­ for having committed the offence under section 13(2) read with section 13(1)(d) of the P.C. Act. C.C. No. 93/11

12. The sentences imposed shall run concurrently. It is noted that the convict had not remained in jail at any point of time in this case.

13. The Convict will have time of three weeks to make the payment of fine. In case of his failure to pay the fine during the said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.

Ordered accordingly.

Announced in the Open Court                          ( L. K. GAUR )
on 12  of May, 2014                            Special Judge, P.C. Act  
        th


                                             (CBI­09), Central District, 
                                                        Delhi.




C.C. No. 93/11