Delhi District Court
State vs . Ct. Dharamvir Singh & Anr. on 10 October, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, Delhi
In re:
CNR No. DLCT11-001973-2019
CC No. 350/2019
State Vs. Ct. Dharamvir Singh & Anr.
FIR No. 07/2014
P.S Vigilance
U/s 120B of IPC & Sec. 7, 12, 13(2)
r/w Sec. 13(1)(d) of POC Act, 1988.
State
Vs.
1) Dharamvir Singh
S/o Sh. Gajraj Singh
R/o VPO Austholi
Tehsil Kasna Sadar,
Distt. G. B. Nagar, U.P.
2) Ravinder Kumar
S/o Sh. Sher Singh
R/o H. No. 322, Gali No. 7,
Shakti Vihar, Meetha Pur Extn.
Badarpur, Delhi.
Date of institution: 20.12.2019
Date of arguments: 01.10.2022
Date of judgment: 10.10.2022
JUDGMENT
1. The above named two accused faced trial in the present matter for offences U/s 120B of IPC & Sec 7, 12, 13 (2) r/w Sec. 13(1)(d) of the POC Act, 1988.
2. Brief facts of the case are that on 04.02.2014, a program titled as "Operation Delhi Police" was aired on TV News Channel "Aaj Tak". In it, few sting operations conducted against Delhi Police officials were aired, in which CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 1 of 30 2 various police officials were discretely video recorded accepting bribe from undercover agent for doing or refraining from doing official duties.
2.1. The above named two accused were also seen in one of the sting operations.
Ct. Dharamvir Singh (A1) was at the relevant time working as Constable of Delhi Police, whereas the second accused Ravinder Kumar (A2) was a Delhi Home Guard Constable, both deputed at Police Station Jaitpur. After airing of the said program, the ACP of PS Vigilance, namely, L. C. Yadav gave a written complaint on 04.02.2014 itself directing registration of FIR and the present FIR was accordingly registered.
2.2. After registration of FIR, three unedited DVDs, which were stated to be containing raw footages of the sting operations, were obtained from one Satya Prakash, Assistant Manager, Legal Department of concerned news channel owning agency, namely, TV Today Network Limited (TVTN). From those DVDs, the sting operation relating to the present accused was copied in a separate DVD by the computer operator of Vigilance Branch.
2.3. During investigation, the undercover agent Akshay Singh and his associate Sapan Gupta were examined U/s 161 Cr.P.C. Sapan Gupta stated that the sting operation pertains to the two accused which was recorded by him and Akshay, and that the sting operation reveals that A2 is accepting bribe from him on behalf of A1 and, A1 is seen directing Sapan to go with A2. During investigation, both Akshay and Sapan were shown the DVD containing video footage, which was allegedly collected from TVTN. After watching the contents of DVD, both Akshay and Sapan confirmed that they video recorded the said sting operation. It is the case of investigating agency that a sum of Rs. 2000/- was obtained by the accused persons in connivance with each other.
2.4. During investigation, A1 refused to give his voice sample, whereas Akshay and Sapan provided their voice samples in CFSL / CBI. Their voice samples were got matched with the sting contained in the DVD supplied to the CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 2 of 30 3 investigating agency, which was a copy of the original sting operation, and the FSL result dated 10.04.2015 opined that it contained probable voice of Akshay and Sapan. The original recording could never be obtained in this case and could never be supplied. It seems that voice sample of A2 was not even attempted to be obtained in the present matter.
2.5. After obtaining Sanction under Sec. 19 of the POC Act against A1, both the accused were charge sheeted. A2 had been removed from services being Home Guard Constable, before filing of the charge sheet and, therefore qua him, no Sanction was obtained.
3. Charge U/s 120B of IPC & Sec. 7 & Sec. 13 (2) r/w Sec. 13(1)(d) of the POC Act was framed against the A1. Charge U/s 120B of IPC & Sec. 12 of the POC Act, 1988 was framed against A2. Both the accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined 17 witnesses.
4.1. It may be mentioned here that Akshay Singh expired even before filing of charge sheet and besides him only Sapan was the primary direct evidence. Sapan turned hostile to the case of prosecution. There was no other primary direct evidence available with the investigating agency. The entire case of the prosecution therefore rested upon the proving of video sting operation. For it, it was incumbent on the prosecution to have proved certificate U/s 65B of Evidence Act. In that regard, one Punit Jain was examined as PW10 and his testimony is being discussed hereinafter at appropriate stage in order to avoid repetition. The rest of the witnesses are more or less formal in nature.
4.2. PW1 Ct. Mahesh deposed that on 07.02.2014 on the directions of ACP L. C. Yadav (PW7) he segregated the eleven video clippings contained in three DVDs which were handed over to him by PW7 qua the seven different cases registered against different police officials and then he copied the video clippings separately pertaining to the seven cases. It was PW7 who CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 3 of 30 4 told this witness as to which clipping pertained to which of the seven cases. After copying the relevant video files qua the seven cases on separate DVDs, this witness handed over the DVDs to the IOs of the respective cases. The witness also issued certificate U/s 65B of the Evidence Act which is proved as Ex.PW1/A. In the cross examination by the accused, the witness admitted that his certificate Ex.PW1/A does not contain any date at any place and that he gave that certificate on a subsequent date to the IO, which date he did not remember. The witness also admitted that Ex.PW1/A does not mention necessary particulars and requirements of Sec. 65B of the Evidence Act. The witness also admitted that all the three DVDs containing all the eleven video files were in unsealed condition when handed over by PW7 for the purposes of segregation and copy. The witness even did not remember the make of the DVD on which he copied the video clipping of the present case and he did not even sign that DVD.
4.3. Perusal of Ex.PW1/A reveals that there is no date mentioned anywhere on this certificate, either as to the date of execution of this certificate or as to the date on which the copies were prepared by this witness. Perusal of the contents of this certificate also reveals that except mentioning that the conditions of Sub Section (2) of Sec. 65B of Evidence Act were satisfied, the certificate is lacking as to the requirements under Sub Section (2) & (4) of Sec. 65B of the Evidence Act. It is also important to note here that this certificate speaks about preparation of copies of three DVDs by PW1 which contained eleven clippings and it does not specify that seven different DVDs were separately prepared by this witness, although it is mentioned at one place that this witness had copied the concerned video clippings in a separate DVD in the presence of the IO and handed it over to the IO of the case. Neither the name of any of the seven IOs of the seven FIRs, nor the name of PW7 is mentioned in it.
CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 4 of 30 5 4.4. PW2 Ct. Sikander Mann witnessed obtaining of sample voice of Akshay on 09.06.2014 at CFSL / CBI, Lodhi Road, Delhi, obtained by the CFSL official in micro SD card Ex. S1 and which was seized by the IO Inspector Devender Kumar (PW17) vide seizure memos Ex.PW2/A. 4.5. PW3 SI Dalip Singh, the duty officer, proved registration of FIR in question as Ex.PW3/B and endorsement on rukka Ex.PW3/A. 4.6. PW4 SI Shiv Kumar was the malkhana moharrar who deposed regarding deposition of case property by Inspector Devender Kumar (PW17) on 08.05.2014 and 09.06.2014; sending of the case property to CFSL on 18.06.2014; receipt of CFSL result on 05.06.2015 and 04.12.2019, vide entries, road certificates and acknowledgement receipts, Ex.PW4/A to 4/E. 4.7. PW5 Jayesh Bhardwaj, the Lab Assistant (Physics) at CFSL / CBI, Lodhi Road, Delhi recorded voice sample of deceased Akshay on 09.06.2014 in a micro SD card Ex. S1, which was then seized by the police vide seizure memo Ex.PW2/A after sealing the same by the IO with the seal of DK. During cross examination of this witness by the accused, the relevant text which was spoken to by Akshay at the time of recording of their voice sample was proved as Ex.PW5/D1, after the copy of the same was taken on judicial record from the office file of this witness. The witness admitted that he did not issue any certificate U/s 65B of the Evidence Act qua recording of the voice sample by him.
4.8. PW6 A. D. Tiwari, the Scientific Officer examined the DVD Ex. Q1 and after examining it frame by frame, gave a report dated 18.04.2016 Ex.PW6/A as to continuity of the video. In his cross examination the witness claimed that since he did not examine the audio part of the recording, therefore he cannot admit or deny whether the lip movement of the persons visible in the recording was in consonance with the audio track or not. He also admitted that in his report he expressed necessity of CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 5 of 30 6 requirement of the original device, for the purposes of carrying out verification and authentication of the video.
4.9. PW7 ACP L. C. Yadav deposed about giving of complaint Ex.PW3/DA, upon which the present FIR was registered, besides giving complaints for six other cases of similar nature on 04.02.2014. He claimed that before giving formal complaints, he had watched the sting operation on TV. The witness also deposed that on 06.02.2014, he received a letter from PW10 Dr. Punit Jain from TV Today Network Limited (TVTN) along with 3 CDs, which were claimed to be containing unedited footages, one CD containing the telecasted footage and, transcripts. He also claimed that along with the letter, transcript of the telecasted footage was also received and that he handed over the said letter and enclosures to the investigating officer of FIR no. 01/2014. It may be mentioned here for the sake of clarity that on 04.02.2014, seven FIRs of the similar nature including the FIR of the present case were registered on the complaint of this witness.
4.10. PW8 Ct. Ravinder Pal carried two sealed parcels from the malkhana of PS Vigilance to CFSL / CBI vide road certificate Ex.PW4/B and after depositing the case property in CFSL he obtained acknowledgement Ex.PW4/C, on 18.06.2014.
4.11. PW9 Amitosh Kumar, the Senior Scientific Officer (Physics) from CFSL / CBI examined the questioned voice of Akshay in the DVD sent to the expert Ex. Q1 along with his respective sample voice contained in Ex. S1 and, vide his report Ex.PW9/A, the witness opined that the voices were matching. In his cross examination by the accused, the witness admitted that transcript of the questioned audio recording was also received whereas there was no reference in the road certificate and the forwarding letter about sending of transcript. He also admitted that the speakers were distinguished in the copy of transcript received in the lab. The witness also admitted that his report was a probable report only. The said transcript from the office CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 6 of 30 7 file of the witness was proved as Ex.PW9/D2. The witness also admitted that as on the date of examination of the questioned video, CFSL, New Delhi was not notified U/s 79A of the IT Act by the Central Government.
4.12. PW10 Dr. Punit Jain deposed that he was working as Group Chief, Law & Compliance Officer and also Group Chief, Corporate Affairs Officer in TVTN. He proved certain notices received from the investigating agency on different dates as Ex.PW10/A1 to A7, and his own replies of different dates as Ex.PW10/B1 to B7. This witness also exhibited certificate U/s 65B of Evidence Act, dated 20.12.2017 as Ex.PW10/D and one more undated certificate under the same provision as Ex.PW10/C. During cross examination, the witness admitted that the original I-phone which was used as a recording device for recording of the sting in question was never provided to the investigating agency. He claimed that it had been sent to U.P. Vidhan Sabha in connection with some inquiry relating to some other sting operation. He claimed that the investigating agency was supplied with raw footage of the sting operation after copying it from the company's server. Meaning thereby that from the I-phone the recording were copied on the company's computer server system and from there, it was copied in the DVDs supplied to the investigating agency. The witness also admitted in his cross examination that one Mr. Deepak Sharma was the In-charge of Special Investigating Team of TVTN and that he was In-charge of the computers installed at SIT Department of TVTN. The witness also admitted that the concerned In-charges of SIT and library were the custodians of the computers installed in their respective branches and that the entire set up of TVTN was divided in different department / branches which were headed by their respective functional heads. PW10 was functional head of the legal department. He admitted that he was not functional head of either the IT Department or the Library Department of TVTN in 2014. Rather he claimed that there was a shift system of eight hours in TVTN and according to those shifts, even the functional heads / In-charges used to change. When CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 7 of 30 8 the witness was questioned as to the date on which the DVDs were prepared, which were supplied to the IO, the witness replied that he did not know it and he did not even remember the dates when the recordings were transferred from the original recording devices to the computers of library and thereafter the dates when the recordings were copied from the library computers to the computers of SIT. He did not remember whether the hash value of the recordings was ever provided to IO or not. He could not even recall whether he ever saw the recordings of the sting operations. He specifically admitted that the issues relating to sting operations used to be dealt with by the Editorial Section and the recording device belonged to TVTN only, but he did not know as to which department of TVTN used to issue it to the team going for sting operation. The witness also admitted that he was not even aware as to which department of TVTN used to keep the recording device, which department used to issue the device to the team going for sting operation and he was not even aware whether TVTN had several I-phones which used to be given to the different team members for conducting sting operations.
4.13. PW11 Sapan Gupta, who as per the case of prosecution was a primary witness of the incident in question, did not support the case of prosecution and turned completely hostile. He deposed that on the instructions of Mr. Deepak Sharma, the Senior Editor of TVTN, he along with deceased Akshay went to different police stations to conduct sting operations in January / February 2014, in which they pretended themselves as complainant before the police officials. So far as the present case is concerned, he could recollect only the fact that he visited PS Jaitpur on one day and after entering the police station to complain, he came out of police station and then informed Akshay about it. He could not recollect any other fact and was then declared hostile by the Prosecution and cross examined by the Prosecutor. In the cross examination by the Prosecutor, the witness could not even recollect whether he made statement U/s 161 Cr.P.C CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 8 of 30 9 Ex.PW11/A to the IO of this case. Nothing material came out of the cross examination of this witness by the prosecution. To most of the questions asked by the Prosecutor, the witness claimed that he did not remember. Though the witness identified his signature on seizure memo Ex.PW11/B dated 08.05.2014, but he failed to even identify signatures of Akshay Singh on it. Vide this seizure memo, the DVD containing copy of the sting operation was sealed by the IO Inspector Devender and then taken into possession on that day after its contents were played before deceased Akshay and this witness on 08.05.2014. When the said DVD was also shown to the witness in Court, he could not identify his own signature claiming that the signature on the DVD though appeared similar to his signature, but he was not sure. He failed to identify signature of Akshay on this DVD. When the contents of that DVD Ex. P2 were played, it was found to be containing one video file namely "5.mov". When that video was played before this witness, the witness did not identify anyone visible in this video and he could not identify anybody's voice in this video. It would be worth mentioning here that the properties of this video file available in the DVD Ex. P2 were obtained on record by taking a screenshot of the properties of the video file and was exhibited as Ex. P-2B. In the said properties of this video file, the time of accessing and modifying the file exists with the date 05.02.2014 at 16:36:06 hours. When the witness was suggested by the Prosecutor specifically that this video was made in PS Jaitpur on 04.02.2014 in the presence of this witness, the witness specifically denied that suggestion and instead deposed that he was out of the police station and this video was not recorded in his presence. The witness also specifically denied the suggestion of Ld. Prosecutor that in the presence of this witness, deceased Akshay spoke to the two accused present in the Court on 04.02.2014 at PS Jaitpur or that in presence of this witness the accused persons accepted bribe from deceased Akshay or that on the directions of A1, A2 accepted the bribe CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 9 of 30 10 amount of Rs. 2000/- from Akshay or that the contents of DVD Ex. P2 were recorded in his presence.
4.14. PW12 R. K. Srivastav, the Principal Scientific Officer (Physics), CFSL / CBI, Delhi computed the "MD5 Hash Value" of the DVD containing questioned video vide his report Ex.PW12/A. 4.15. PW13 Rajveer Singh Chauhan had accorded Sanction U/s 19 of the POC Act against A1 as Ex.PW13/A on the request of the investigating agency dated 10.04.2017 Ex.PW13/C. In the cross examination, the witness admitted that a draft Sanction Order Ex.PW13/D1was placed before him by the concerned sub ordinate in his office. The witness also deposed that in the office file concerning grant of Sanction, copies of draft charge sheet, rukka, FIR, transcript, CFSL report, refusal of accused persons to give voice samples and statements of witnesses are available. He admitted that no copy of the questioned video recording was supplied by the investigating agency and no such copy was received before according Sanction. He specifically deposed that DCP is the appointing authority of a Constable and not the Commissioner of Police.
4.16. PW14 Inspector Vinay Kumar received further investigation of this case in June 2017 and during his tenure of investigation, Sanction U/s 19 of the POC Act was received. The witness deposed that on the police file already a certificate U/s 65B of the Evidence Act Ex.PW10/C was available, but it was not from competent person and therefore he sought afresh certificate vide his communication Ex.PW10/A7. Thereafter, he examined Punit Jain who claimed that he was the competent person to grant certificate and also that Mr. Punit Jain issued another certificate U/s 65B Ex.PW10/D which is dated 20.12.2017. Perusal of Ex.PW10/A7 reveals that it is specifically mentioned that the certificate Ex.PW10/C was issued by a person who was not In-charge of the computer which was used to transfer the data from the I-phone to the office system and it was not issued by the person who had CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 10 of 30 11 prepared the DVDs. It is also mentioned in this document specifically that the person or the In-charge of the computer system who downloaded the raw footage from I-phone to the computer system and who prepared DVDs was required to give certificate U/s 65B of Evidence Act. The witness also deposed that he collected documents as to duties of both the accused vide Ex. A10 to A12 and that A1 refused to give his voice sample vide Ex.PW14/A and thereafter further investigation of the case was assigned to some other IO. In his cross examination, PW14 admitted that the original recording device through which the sting operation was conducted and recorded, i.e. the I-phone were never made available to the investigating agency. He even admitted that Punit Jain did not disclose him that he himself personally at any stage transferred the data in question from the I- phone to the computer system or subsequently till the DVDs were prepared. The witness even admitted that in letter Ex.PW10/B4 dated 29.05.2015, it was informed that the person in-charge of the computer on which the sting footage was downloaded in TVTN was Mr. Deepak Sharma who was also the then SIT Editor. The witness claimed that he examined Deepak Sharma and even recorded his statement U/s 161 Cr.P.C and also asked Deepak Sharma to furnish certificate U/s 65B of evidence Act, but Deepak Sharma did not issue any such certificate and instead told that in TVTN only Punit Jain used to issue such certificates. Perusal of Ex.PW10/B4 reveals that the investigating agency was informed that it was Deepak Sharma who was in- charge of the computer system on which the sting footage was downloaded and that thereafter the DVDs were prepared by the library of TVTN. It is also mentioned in this letter that Sapan Gupta (PW11) and one Umesh Dang gave the footage to library. Though this witness claimed that he recorded statement of Deepak Sharma U/s 161 Cr.P.C, but neither there is any such statement of Deepak Sharma relied by the Prosecution or filed with the charge sheet nor even Deepak Sharma was cited as a witness. The witness even admitted that no site plan of the place of occurrence was available in CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 11 of 30 12 the file and he did not make any effort to get the place of occurrence identified from any of the witness and he himself did not prepare any site plan of PS Jaitpur. He did not even visit PS Jaitpur during investigation. The witness even claimed that he did not come to know as to who from TVTN prepared the DVDs, but he was sure that Punit Jain did not prepare it. He did not even come to know as to who was the Library In-charge in TVTN, but Punit Jain was not In-charge of Library. He admitted that certificate Ex.PW10/D was regarding the DVDs received on 06.02.2014 and that he did not collect any document / authorisation in favour of Punit Jain from TVTN to issue any certificate U/s 65B of the Evidence Act. He even admitted that he did not make any effort to get the face or voice of either of the accused identified in the video in question from any staff of PS Jaitpur. The witness admitted that neither he received any statement of Satya Prakash in the file when he received investigation, nor he recorded statement of Satya Prakash. He even claimed that the DVD produced by Satya Prakash on 06.02.2014 was not the case property of the present case, therefore he did not deem it appropriate to record statement of Satya Prakash. In his cross examination, one seizure memo dated 06.02.2014 Ex.PW14/D1 was put to the witness which is a copy of seizure memo prepared in FIR No. 01/2014 in which Satya Prakash is claimed to have handed over the three DVDs containing raw footages and one edited DVD with transcripts to Inspector M. S. Shekhawat in presence of Inspector Kapil and Inspector Virender Singh Puniya.
4.17. PW15 the then Inspector Virender Singh conducted part investigation of this case, during which he sent notices Ex.PW10/A1 and A2 to TVTN, but he did not receive any response to those notices. In his cross examination, the witness admitted that he did not visit PS Jaitpur at any point of time nor he got the place of sting operation reflected in the video identified from Akshay or Sapan and he did not prepare any site plan. In his examination in chief, the witness mistakenly identified signature of one Inspector CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 12 of 30 13 Virender Singh Puniya on seizure memo Ex.PW14/D1, which he clarified in his cross examination that by mistake having seen the name of Virender Singh mentioned on the document, he mechanically identified the signature on it. Thus, this witness was not a witness to the seizure memo dated 06.02.2014 Ex.PW14/D1, which was actually witnessed by one Inspector Virender Singh Puniya and Inspector Kapil.
4.18. PW16 Inspector Deveshwari also conducted part investigation of this case which is more or less inconsequential as regarding A2 she wrote a communication Ex.PW16/A seeking Sanction against A2 which was replied by the department of A2 vide Ex.PW16/B informing that A2 had been discharged from services as a Home Guard and therefore no Sanction U/s 19 of the POC Act was required. Even this witness did not prepare any site plan and did not make any effort to examine Deepak Sharma and Satya Prakash or to cite them as a witness even though she filed the final report under her signatures.
4.19. PW17 Inspector Devender Kumar received investigation of this case in March 2014 during which he issued notices Ex.PW17/A1 to A3, Ex.PW17/B1 to B3, Ex.PW17/C1 & C2, D1 & D2, E1 & E2 & F1 to F3. The witness deposed that on 08.05.2014 both Sapan and Akshay joined investigation and the DVD was played before them and thereafter the DVD was sealed by him with his seal of DK and then DVD was taken into possession on that day vide memo Ex.PW11/B. During investigation, he also obtained sample voice of deceased Akshay on 09.06.2014; got the case property deposited in FSL and obtained FSL result. He also issued notices to Punit Jain seeking certificate U/s 65B of the Evidence Act. He also deposed that he received three replies Ex.PW10/B2 to B4 from Punit Jain. Perusal of Ex.PW10/B3 reveals that Punit Jain informed this witness vide this letter dated 06.06.2014 that the I-phones which were used to conduct sting operation had limited memory and after transfer of the video footage CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 13 of 30 14 in question from I-Phone to the computer system of TVTN, the footages were deleted from the I-phones. Vide Ex.PW10/B4 dated 29.05.2015, Punit Jain informed this witness that Mr. Deepak Sharma was In-charge of the Computer on which the sting footage was downloaded and Mr. Deepak Sharma was also the then SIT Editor and that thereafter the DVDs were prepared by the library official and it is also mentioned that it was Sapan Gupta and Umesh Dang who supplied the footage to the library. Even this witness did not make any effort to get the accused police officials identified in the video in question from his colleagues or even by obtaining photographs of the accused persons to be compared by the FSL expert. The IO admitted that the DVD which was shown to Akshay and Sapan on 08.05.2014 vide memo Ex.PW11/B was in fact the DVD received on 06.02.2014 under seizure memo Ex.PW14/D1. The witness admitted that prior to 08.05.2014 the DVD remained unsealed. He admitted that he did not even care to get compared the contents of transcript with the actual contents of the video in question. Even this witness did not prepare any site plan of the place of occurrence.
5. On conclusion of the prosecution's evidence, all the incriminating evidence was put to the two accused in their statements U/s 313 Cr.P.C. The accused generally denied the evidence against them and claimed that they are not seen in the video in question; false complaint is made against them; the documents have been fabricated by the investigating agency; they have been implicated because of the malpractice of TV news channel who used to conduct fake sting operations for increasing their TRP and for gaining the popularity of their channel; the original recording and devices were never proved and collected by the investigating agency; the copy of video recording is also not proved and the person who issued certificate U/s 65B of the Evidence Act was incompetent and; that the Sanction was accorded against A1 without CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 14 of 30 15 application of mind. Neither of the accused opted to lead any evidence in their defence.
6. I have heard Ld. Prosecutor for the State and Ld. Counsels for the two accused.
7. It is argued on behalf of A1 that the Sanction in the present case is defective as it was accorded without application of mind and the prosecution failed to prove as to what all documents and material were sent to the Sanctioning Authority or were considered by the Sanctioning Authority before according Sanction. It is also argued that PW13 was not the competent authority to accord sanction as A1 was appointed by an order of the Commissioner of Police, whereas PW13 was merely DCP at the time of granting Sanction. In this regard, the A1 places reliance upon the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat JT 1997 (7) SC 695 and the case of K. C. Singh Vs. CBI, Crl. Appeal No. 976 of 2010, decided by Delhi High Court on 10.08.2011.
7.1. Both those judgments are distinguishable. In the case of Mansukhlal (Supra), the Sanctioning Authority mechanically granted Sanction pursuant to Mandamus issued by the High Court and therefore it was held to be void. Whereas, in the case of K. C. Singh (Supra), the Sanction itself revealed that some other FSL result was mentioned in it instead of the FSL result of that case and also the Sanction Order was verbatim reproduction of the draft sanction sent by the CBI to the Sanctioning authority.
7.2. In the present case Sanction Ex.PW13/A reveals the material considered by the sanctioning authority and the sanctioning authority also deposed that he applied mind to the material supplied by the investigating agency before according Sanction against A1.
7.3. The argument of A1 that he was appointed by the Commissioner of Police, is not substantiated by any documentary proof. PW13 specifically deposed that he was the competent authority against A1. A1 did not prove any CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 15 of 30 16 document to the effect that he was appointed by the Commissioner of Police and merely on oral claim, he cannot term the Sanction Ex.PW13/A as invalid.
7.4. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed by the Apex Court as follows;
"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution.
14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. 14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. 14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
...............
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 16 of 30 17 irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
7.5. Thus the argument of A1 as to invalidity of sanction and competence of the sanctioning authority, is rejected.
8. It is next argued by the accused persons that no site plan of the place of occurrence was prepared or proved by the prosecution and in this regard reliance is placed upon the case of State Vs. Sunil Kumar @ Sagar 2015 (3) LRC 380 (Delhi) (DB).
8.1. Indeed, no site plan was prepared or has been proved by the prosecution in the present case and instead it is claimed that it was not necessary in the case of sting operations as the present case is. Undoubtedly, site plan becomes material and crucial in cases of particular criminal nature such as murder, or causing hurt etc., where the exact location of the injured, the witnesses and the accused is vital, still, in the case of the present nature, indeed, the site plan would have helped the prosecution to specify as to where exactly the offence took place and where exactly the accused were present and demanded bribe, if any. However mere absence of site plan is not enough to throw away the case of prosecution.
9. It is next argued by the accused persons that in the video in question the identity of the accused or Akshay Singh has not been established by any of the prosecution witnesses and the prosecution withheld material witnesses who were part of the team of Akshay Singh. In this regard, accused places reliance upon the case of Tomaso Bruno & anr. Vs. State of U.P. 2015 (2) JCC 884 and the case of Sri Rabindra Kumar Dey Vs. State of Orissa 1976 SCC (Criminal) 566. It is also argued by the accused that the CFSL result are inadmissible. It is also argued by the accused that the letter dated 06.02.2014 and the seizure memo dated 08.05.2014 are fabricated CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 17 of 30 18 documents as is revealed from the testimonies of prosecution witnesses itself. It is also argued that the video recordings and the transcripts have not been proved. In this regard reliance has been placed by the accused upon the case of Ram Singh Vs. Col. Ram Singh AIR 1986 SC 3; Mahabir Prasad Verma Vs. Dr. Surinder Kaur AIR 1982 SC 1043; Anwar P. V. Vs. P. K. Basheer & Ors. (2014) 10 SCC 473; Achchey Lal Yadav Vs. State 2014 (8) LRC 236 (Delhi); Ashish Kumar Dubey Vs. State 2014 IV AD (Delhi) 473 and; Jahan Singh Vs. CBI 2020 (2) RCR (Criminal) 794.
9.1. It is also argued on behalf of accused that there is no demand of bribe by the accused from Akshay proved by the prosecution, which is sine quo non for an offence U/s 7 & Sec. 13 of POC Act and in this regard, accused places reliance upon the cases of B. Jayaraj Vs. State of A. P. 2014(2) RCR (Criminal) page 410. It is also argued that even in a case under POC Act the onus is on the prosecution to prove the basic facts and only thereafter presumption U/s 20 of the POC Act can be invoked. In this regard, reliance is placed by the accused upon the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Criminal) page 217.
10. As mentioned above, there is no direct ocular evidence against the accused persons that they demanded or obtained any money from Akshay Singh or anyone on any date. Sapan Gupta the only available direct evidence, after death of Akshay, turned completely hostile to the case of prosecution and did not support the case of prosecution at all. Thus, the entire case of the prosecution is based upon the copy of video recording sought to be proved. Law regarding proof of such video recordings is well established now. In the present case, in absence of Akshay Singh, and Sapan turning hostile to the case of prosecution, no witness has been examined by the prosecution to prove that in the video in question Akshay Singh or the accused appears.
CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 18 of 30 19 The maker of the video could not be examined as he was no more. Sapan did not identify the video in question.
11. When the entire case of the prosecution rested only on the video in question, it was imperative for the prosecution to have proved the same in accordance with law. Admittedly, the original recording device i.e. I-phone mobile phone through which the sting operation was recorded by the deceased Akshay are not proved as they were never provided by the news channel to the investigating agency. In the letter Ex.PW10/B3 sent by PW10 Punit Jain to the IO, dated 06.06.2014, it is specifically mentioned that the I- phones used for conducting sting operation had limited memory and after the video was downloaded from the phone to the office computer, the videos were deleted from the I-phones. Similarly, in letter Ex.PW10/B4 dated 29.05.2015, it is mentioned that the original video footage was no longer available with the news channel as the I-phones were used for other recordings as well. Therefore, the entire case of the prosecution rested upon the copy of the sting operation.
12. For the following reasons, the prosecution failed to meet the requirements of Sec. 65B of the Evidence Act in proving the copy of the sting operation.
13. The sanctity of the DVDs, purportedly received from the news channel has not been maintained and is surrounded by doubts. PW7 L. C. Yadav, on whose complaint the FIR in question was registered, claimed in his examination in chief that on 06.02.2014 vide letter Ex.PW7/DA of PW10 he had received three DVDs containing unedited footages and one DVD containing edited and telecasted footage along with the transcript, which he had handed over to the investigating officer of FIR no. 01/2014. But then he was not even the investigating officer of any of the seven FIRs which were lodged on his complaint. Even if for the sake of argument, it is assumed that PW7 being senior officer still continued to keep a track of the cases or supervised the cases even without being the investigating officer, CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 19 of 30 20 he did not clarify as to from whom he received letter Ex.PW7/DA along with the four DVDs and the transcript. The investigating officer of FIR no. 01/2014 to whom he handed over the DVDs has not been examined in this case. Ex.PW7/DA is indeed addressed to this witness.
13.1. This witness in his cross examination even claimed that on 04.02.2014 night at 11.30 PM itself he had collected one DVD from the police headquarters which was containing the telecasted footage, and which he got collected through driver of Vigilance Branch. The said driver has not been examined or cited as a witness. Admittedly, PW7 did not prepare any seizure memo of the said DVD received by him on 04.02.2014.
13.2. PW7 also claimed in his cross examination that he copied the recording contained in the DVD on the official computer through H. C. Mahesh as soon as it was received by him. Ct. Mahesh has been examined as PW1 and though Ct. Mahesh exhibited a certificate U/s 65B of the Evidence Act as Ex.PW1/A, but the said certificate Ex.PW1/A does not meet the requirements of the said provision. All that is written in the certificate Ex.PW1/A is that Ct. Mahesh certifies that he made copies of the three DVDs provided by Aaj Tak Channel containing eleven video clippings of different sting operations against some personnel of Delhi Police through the official computer of ACP / VIU, Vigilance and that in the present case FIR no. 7/14 he copied the concerned video clippings in a separate DVD in the presence of the IO and handed it over to the IO of the case and that the conditions of Sec. 65B regarding admissibility of computer output in relation to the information and computer in question are fully satisfied. The said certificate Ex.PW1/A is undated. Neither the date of issuance of certificate is contained in the certificate nor it is mentioned in the certificate as to on which date the copies were prepared. The DVD Ex. P2 sought to be proved in the present case contains only one video file. The properties of this video file reveals that it was accessed and modified on 05.02.2014, CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 20 of 30 21 as revealed in Ex. P-2B, whereas the certificate Ex.PW1/A claims that Ct. Mahesh segregated and copied videos from three DVDs provided by the news channel. The news channel claims to have provided it on 06.02.2014 vide letter Ex.PW7/DA. If the three DVDs containing so called raw footages were provided to the investigating agency on 06.02.2014, and which were claimed to have been copied by PW1, the copies could have been prepared only on 06.02.2014 or thereafter and not prior to it. Thus, the file creation date of 05.02.2014 in Ex. P2 demolishes the entire case of the prosecution that this DVD sought to be proved in the Court was copied from the three DVDs received from TVTN.
13.3. PW7 claimed that even the DVD received from PHQ was handed over to the IO of case FIR no. 01/2014 in unsealed condition and that no covering letter along with the DVD was received from PHQ. As mentioned above, the IO of case FIR no. 01/2014 has not been examined or cited as a witness. PW7 even admitted that IO of case FIR no. 01/2014 did not seal the said DVD and did not prepare any seizure memo in that regard. PW7 even claimed that nothing was endorsed on the DVD when it was received by him and that even the investigating officer of FIR no. 01/2014 did not make any endorsement on the DVD in his presence.
13.4. PW7 also claimed that he did not receive any certificate U/s 65B of Evidence Act along with the DVD received from either the PHQ or with the letter of Punit Jain dated 06.02.2014.
13.5. Though, PW7 also claimed that he had sent a letter dated 05.02.2014 to Punit Jain through Inspector Shekhawat and Inspector Vinay seeking unedited video recording of the sting operation and that Inspector Shekhawat went along with Inspector Vinay, who were the investigating officers of other cases, but the said letter was not even relied upon by the prosecution and is not filed with the charge sheet. On the other hand, Counsel for accused put that document to PW7 in his cross examination CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 21 of 30 22 which was admitted by the witness as Ex.PW7/DB. This document reveals that vide this document original devices and the name of persons who conducted sting operations were asked. PW7 specifically deposed that he had deputed Inspector Shekhawat and Inspector Vinay on 05.02.2014 to go and collect the unedited recording from TVTN, but he volunteered that the recording was not provided by TVTN on 05.02.2014 and instead Assistant manager (Legal) of TVTN brought the four DVDs and transcripts with letter of Punit Jain to the Vigilance Branch. The witness however did not clarify as to on which date the Assistant Manager brought those DVDs.
13.6. PW7 also claimed in his cross examination that it was Ct. Mahesh (PW1) who prepared copies of the DVDs received from TVTN, on 07.02.2014 on the instructions of this witness and that he had instructed Ct. Mahesh to deliver one set each of the DVDs to all the seven IOs after preparation of copies. But as discussed above the fact of copying of the contents of the DVD on 07.02.2014 by PW1 in the DVD Ex. P2 is belied from the properties of the video file contained in the DVD which mentions that the said video file was created and modified on 05.02.2014. When the three DVDs were not even supplied to the investigating agency on 05.02.2014 and were supplied on 06.02.2014, it is anybody's guess as to from which DVD the DVD Ex. P2 was copied and created. Once the creation of copy by PW1 itself is surrounded by doubt, no reliance can be placed upon the certificate Ex.PW1/A. 13.7. The witness specifically said that the recordings of the four DVDs received from TVTN were transferred to the official computer of Vigilance on 06.02.2014 itself and thereafter the DVDs were handed over to the IO of case FIR No. 01/2014 and that the copies handed over to all the seven IOs were copied from the footages stored in the official computer of Vigilance which were copied on 06.02.2014.
CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 22 of 30 23 13.8. Neither Inspector Magan Singh Shekhawat nor Inspector Kapil and Inspector Virender Punia who went to the office of news channel on 05.02.2014 and handed over notice to PW10 Punit Jain and who again went to the office of TVTN on 06.02.2014 where they met Punit Jain who gave his reply Ex.PW7/DA and then Punit Jain asked this witness and others to meet one Mr. Satya Prakash and then Mr. Satya Prakash gave three unedited DVDs and the one edited DVD along with the transcript and that he seized the same vide seizure memo Ex.PW14/D1, are examined in this case. Inspector Vinay (PW14) did not depose that he accompanied Inspector M. S. Shekhawat to TVTN on 05.02.2014 or 06.02.2014.
13.9. Ex.PW14/D1 is a copy of seizure memo originally prepared in case FIR no.
01/2014, dated 06.02.2014. This document is witnessed by Inspector Kapil Dev and Inspector Virender Singh Punia. It is also witnessed by Satya Prakash, Assistant Manager, Legal Department of TVTN. It is mentioned in this seizure memo that Satya Prakash produced three unedited DVDs containing copies of sting operations of Delhi Police numbered 1, 2 & 3 and also one edited DVD along with the transcript.
13.10. Neither Satya Prakash was cited as a witness or examined by the prosecution nor Inspector M. S. Shekhawat, Inspector Kapil Dev or Inspector Virender Singh Punia were cited or examined as witnesses by the prosecution, for reasons best known to the prosecution.
13.11. Thus, not only material witnesses were withheld, but also a grave suspicion arises as to where, when and who produced the DVDs to the investigating agency and how and in what manner further copies were prepared.
13.12. Though in this case, the said DVDs which were supplied by TVTN to investigating agency on 06.02.2014 to Inspector M. S. Shekhawat were not produced or proved by the prosecution, but in one of the connected matters under FIR no. 5/2014, which is also pending in this very Court, Inspector M. S. Shekhawat was examined and during his testimony the four DVDs CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 23 of 30 24 were shown to Inspector M. S. Shekhawat, after summoning the said case property from another case FIR no. 01/2014 of PS Vigilance. Inspector Shekhawat had identified those four DVDs in his examination in chief as Ex. P2, P5, P6 & P7 as exhibited in that case FIR no. 05/2014. Interestingly, on the envelopes of the DVDs which were produced and identified by the witness, signature of Satya Prakash as well as Vinay Kumar existed, that too with a date of 05.06.2015 and not 06.02.2014. Also, in none of those envelopes containing DVDs, signature of Inspector Shekhawat or Inspector Kapil or Inspector Virender Singh Punia exists. It creates a strong suspicion as to whether these DVDs were seized or collected by the investigating agency on 06.02.2014 as claimed by the prosecution or it were seized on 05.06.2015.
13.13. No justification is offered by the prosecution as to if these four DVDs were collected on 06.02.2014 from the office of TVTN, why their envelopes containing signatures of Satya Prakash and Inspector Vinay bear dates of 05.06.2015. It may be mentioned here that it is not a case where someone might have noted the date of 05.06.2015 on the envelope at a later stage. That date occurs under the signatures of both Mr. Satya Prakash and of Inspector Vinay Kumar. It clearly indicates that Satya Prakash and Inspector Vinay signed these four envelopes containing the DVDs on 05.06.2015. For the sake of clarity, a picture of the DVDs and the envelopes were obtained and have been retained on judicial record of that case FIR number 05/2014, which is also being disposed of separately today. Thus, the very claim of receiving the DVDs from TVTN on 06.02.2014 becomes highly suspicious.
13.14. Ex.PW7/DA does find mention that a copy of CD and transcripts are enclosed with the letter, but then it is not proved by the prosecution as to which CD was received with this letter and where is the transcript which CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 24 of 30 25 was received with this letter. DD entries of visiting TVTN either on 05.02.2014 or on 06.02.2014 are not proved.
13.15. Interestingly, it is claimed that it was only on 08.05.2014 the contents of DVD were played before Akshay Singh and Sapan and then PW17 sealed the DVD with his seal and took it into possession vide memo Ex.PW11/B. The investigating officers admitted that they never called any official from TVTN even after death of Akshay Singh for identification of Akshay Singh in the DVD or his signatures on the documents. IOs admittedly did not examine Satya Prakash in the present case.
13.16. The communications sent by Punit Jain to the investigating agency Ex.PW10/B3 to B7 clearly reveal that after the sting operations were recorded by Akshay Singh and / or others on his mobile phone, the same were first copied by someone on the computer system of either the SIT Section or IT Section and thereafter it was copied to the computer of library section of TVTN. Who copied the same and when was it copied or exactly on which system it was copied has not been proved. The person who copied the videos from the I-phones on the computer systems is neither identified nor his certificate U/s 65B of the Evidence Act in support of that copy from the I-phone to the computer system has been proved or even obtained.
13.17. It is thereafter from the computer system, certain DVDs were copied and then supplied to the investigating agency. Again, who copied the videos from the computer system to the DVDs, and when they were copied, is not established or proved and neither that person has been identified nor his certificate U/s 65B of the Evidence Act in support of that copy from computer system to the DVD is proved.
13.18. Though two certificates U/s 65B of the Evidence Act signed by Punit Jain (PW10) are exhibited in this case as Ex.PW10/C & D, but the same are not in consonance with the requirements of law under Sub Section (2) & (4) of Sec. 65B.
CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 25 of 30 26 13.19. Admittedly, Punit Jain was neither In-charge of the library section of TVTN nor he was In-charge of the SIT / IT section. One Mr. Deepak Sharma was the In-charge of SIT / IT Section. No certificate from either the In-charge of library section or the In-charge of SIT / IT Section of TVTN has been obtained or proved.
13.20. The certificate Ex.PW10/C is an undated certificate and the certificate Ex.PW10/D is dated 20.12.2017. Both those certificates are claimed to be in support of the DVDs supplied to the investigating agency on 06.02.2014. But then, the fact as to which are those DVDs which were supplied to the investigating agency on 06.02.2014, itself has not been proved and as discussed above there is lot of confusion as to which DVD was received from whom, by whom and when & where. A complete mess has been created by the investigating officers as to the procurement of the DVDs and proving the same in this case.
13.21. In any case, after the DVDs were collected from TVTN, admittedly the same were copied on the computer system of PS Vigilance by Ct. Mahesh on 06th or 07th February, 2014, as claimed by the witnesses and then from the copy of the video on the computer system of PS Vigilance, further copies were prepared for the seven cases. As mentioned above, the certificate issued by Ct. Mahesh (PW1) is itself shrouded in doubt and cannot be relied upon for the reasons mentioned as above. The certificate Ex.PW1/A purportedly executed by PW1 on an unknown date is also highly suspicious for the reason that the last portion of this certificate is verbatim same to the last portion of certificate given by Punit Jain dated 20.12.2017 Ex.PW10/D. The last portion of the certificate seems to have been copied in Ex.PW1/A from Ex.PW10/D. 13.22. Thus, the complete chain of certificates U/s 65B of Evidence Act qua the copy of the sting operation from I phone till the copy of DVD produced in court has not been proved by the prosecution and; the certificates proved CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 26 of 30 27 by PW10 is not from competent person in accordance with law and it does not meet the requirements of sub section 2 & 4 of the provision, consequently the video has not been proved in accordance with law.
14. In the case of Ram Singh (Supra) in para 32 and 113, it was held as follows.
"32. Thus, so far as this Court is concerned the conditions for admissibility of a recorded statement may be stated as follows:
The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. 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.
The statement must be relevant according to the rules of Evidence Act. The recorded cassette must be carefully sealed and kept in safe or official custody.
The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
15. In the case of Mahabir Prasad Verma (Supra), it was observed that the tape recorded conversation can only be relied upon as corroborative evidence of conversation contained in the recording by parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is no proper evidence and cannot be relied upon.
16. In the case of Achchey Lal Yadav (Supra), the necessity of proving the conditions in Sub Section (1) & (2) of Sec. 65B of the Evidence Act was emphasised.
17. In the case of Jahan Singh (Supra), it was observed as follows in para 28.
"28. It has come in the deposition of Insp. Amit Vikram Bhardwaj that the transcription Marked-X (D-14) was prepared by SI Sandipini Garg who was not examined in the trial. It was exhibited as Ex. PW-15/D. The I.O. had only identified handwriting of SI Sandipini Garg on the transcription but did not depose about the contents of the same. In such circumstances, the contents of the transcription cannot be said to be proved. It is also relevant to note that although a copy of the CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 27 of 30 28 transcription was sent to the CFSL but no opinion was sought either on the contents of the transcription or its correctness and authenticity."
18. The accused has also placed reliance upon the case of Mehant Ram Prakash Dass Vs. Ramesh Chandra 2000 (1) RCR (Civil) page 314, wherein, in a case regarding some irregularity in the counting of votes, Hon'ble Supreme Court did not place reliance upon the video cassette produced before the High Court in as much as no evidence was adduced as to who recorded the cassette, nor any witness spoke as to the veracity of the recoding or whether any editing was done to that video.
19. Once the prosecution fails to prove the video of the sting operation in question in accordance with law, nothing survives in the matter as there is no ocular direct evidence, as mentioned above.
20. In any case, even if the prosecution had succeeded in proving the sting operation of this case through copies contained in the DVD, it would have been at the most corroborative and not primary evidence. Also, the prosecution did not make any attempt to prove that it was recorded by whom, where and when. The identification of Akshay Singh or the accused in the video has not been proved. The obtaining of voice sample of Akshay Singh was also not in accordance with law and therefore the FSL result stating that the questioned video contains voice of Akshay is useless.
21. In Sudhir Chaudhary Etc. Vs. State (NCT of Delhi) AIR 2016 SC 3772 it was observed that in order to ensure fairness and reasonableness in drawing voice samples a passage of a written text which the accused / witnesses should be required to read out for the purposes of giving their voice samples must contain words but not the sentences from the inculpatory / disputed conversation and words appearing in the disputed conversation as may be necessary may be included in the passage.
22. In Ashish Kumar Dubey (Supra) the cassette recorder which was used by a witness to record the conversation was not sent to CFSL and only cassette CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 28 of 30 29 was sent. After discussing the case of Ram Singh Vs. Karnal Ram Singh, 1985 Supp SCC 611; Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was held in Ashish's case that the cassette was an inadmissible piece of evidence. It was held in Ashish Kumar's case that where the recorder used to record conversation was not submitted to CFSL and without the device being examined for ruling out the possibility of tampering, one of the important requirements was not satisfied.
23. In Ram Singh's case it was held that the voice of speaker must be duly identified by the maker of the record or by others who recognise his voice which is first condition for admissibility and where voice is denied by the maker, it would require very strict proof to determine whether or not it was really the voice of the speaker. It was also held that accuracy of tape- recorded statement has to be proved by the maker of the record satisfactorily and every possibility of tampering with or eraser of a part of tape-recorded statement must be ruled out; the recorded cassette must be carefully sealed and kept in safe or official custody. It was also held that voice of speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
24. In Nilesh's case (supra) it was held that it is all the more necessary since tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. In Nilesh's case (supra), it was also held that the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. It was also held that in that case the voice identification by the witness was otherwise CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 29 of 30 30 unreliable because the voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It was also noted in that case that PW18 & 19 were informed in advance that he had to identify the voices of appellant and others and no attempt was made even to mix the voices with some other unidentified voices and in such circumstances the identification evidence would have little value.
25. Prosecution thus fails to prove the charges against the both the accused and both the accused are accordingly acquitted of the charges.
Announced in the Open Court
on 10th October 2022. DIG Digitally signed
by DIG VINAY
VINAY SINGH
Date: 2022.10.10
SINGH 10:31:23 +0530
(Dig Vinay Singh)
Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts,
New Delhi (r)
CNR No. DLCT11-001973-2019; CC No. 350/2019; State Vs. Ct. Dharamvir Singh & anr.; FIR No. 07/2014; P.S Vigilance; judgment dated 10.10.2022; Page 30 of 30