Delhi District Court
State vs Om Prakash on 9 August, 2024
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000185-2019
CC No. 19/2019
FIR No. 301/2014
U/S: 7/13 of Prevention of Corruption Act r/w Section 506 IPC
PS: R.K.Puram
State
Versus
Om Prakash,
S/o Sh. Ram Das,
R/o H.No. D-128, Gali No. 17
Dashrath Puri, Sagarpur,
New Delhi.
Date of Institution : 08.12.2016
Date of Arguments : 29.07.2024
Date of Judgment : 09.08.2024
Appearance :
For the State : Sh. Masood Ahmad,
Ld. Chief Public Prosecutor.
For accused : Sh. Sanjay Gupta, advocate.
JUDGMENT
1. Brief facts of the case are that on 23.04.2014 a complaint of Smt. Pinki w/o Y.B.Kumar was received by ACP South District alleging that one M.Sethu s/o Muthu Swami was beaten by 4-5 persons namely Shyamu, Krishna, Sonu, Mukesh CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 1 of 60 and Shakti Vel on 13.01.2014. They had also beaten his wife Rani and other family members namely Rohini, Malthi and Manju. All got injured on their head and other parts of their body. On the complaint of M.Sethu a case FIR No. 24/14 was registered. IO of that case SI Om Prakash did not take proper action in their case. For the last few days SI Om Prakash had been harassing them and even threatened her by saying that Aarti, Sonia and Rukmani had given a complaint against them on which he will register a case against them. He also demanded money from them. At this she also informed the media persons. Pinki and M.Sethu both met SI Om Prakash on 22.04.2014 around 3.30 pm in front of police station near Axis Bank ATM where she gave Rs. 3,000/- (all in Rs. 100/- denomination) to SI Om Prakash and the complainant also recorded the entire incident through a hidden camera. The complainant stated that she would also provide the original/copy of the recording for investigation. She also apprehended threat to her life from the families of Shyamu, Krishna and others and requested for legal action to be taken in the matter and against SI Om Prakash.
2. On the basis of the aforesaid complaint of Ms.Pinki dated 23.04.2014, FIR bearing no. 301/204 was registered at PS R.K.Puram on 23.04.2014 u/s 7/13 Prevention of Corruption Act (hereinafter referred to as PC Act).
3. Investigation was handed over to IO/Insp. B.S.Jhakhar, the then ACP DIU. He prepared the site plan at the instance of the complainant. He served a notice u/s 91 Cr.P.C. to CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 2 of 60 the complainant to provide the original recording device and the transcript of the recording. He seized the transcript of the conversation, which was provided by the complainant. He also collected a PEN-drive provided by complainant at the time of making the complaint, from Sh. Surender Sharma, ACP Safdarjung Enclave, New Delhi, vide a seizure memo.
4. Further investigation was conducted and statement of Sh. M.Sethu was recorded u/s 161 Cr.P.C. Accused SI Om Prakash was interrogated and arrested and his personal search was also conducted. Section 506 IPC was added during course of investigation.
5. Thereafter investigation was transferred to Kulbhushan Sharma, ACP, DIU-SD and he issued notice to the complainant to furnish CD of the recording and the original device.
6. Thereafter investigation was transferred to ACP Diwan Chand Sharma, who issued notice to complainant to furnish CD of the recording and the original device. In reply thereto the complainant stated that she had already provided a Pen-drive containing recording of the incident and was not aware that the camera was also required in the court which had been sold by her children in scrap and since then the camera and CD was not traceable.
7. During investigation the accused refused to give his CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 3 of 60 voice sample. The Pen-drive was sent to RFSL Chanakya Puri, New Delhi, which provided its report alongwith a DVD containing the recordings. The said DVD was again sent to FSL Rohini to rule out any tampering. Sanction u/s 19 of PC Act was obtained.
8. After completion of investigation, charge-sheet was filed against the accused Om Prakash u/s 7/13 PC Act, 1988 and u/s 506 IPC and cognizance of offence was taken against the accused on 19.12.2016. Thereafter, accused was summoned and after hearing arguments, charge for the offences under Sections 7 & 13(1)(d) punishable under section 13 (2) of P.C. Act and under Section 506 IPC, was framed on 06.08.2018 against the accused, to which he pleaded not guilty and claimed trial.
9. In order to prove its case, prosecution has examined 16 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW1 Dr. C.P. Singh, Assistant Director (Physics), FSL Rohini, Delhi, deposed that report dt. 14.09.2016 bearing FSL reference No.2016/P-6653/PHY-226/2016 was reported by Sh. Geetesh Patel, Jr. Forensic/Assistant Chemical Examiner (Physics). He endorsed the report and his involvement in the examination was only to ensure completeness of the process. He made endorsement on the report of Sh. Geetesh Patel Ex.PW1/A. CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 4 of 60
ii) PW2 Geetesh Patel, Junior Forensic/Assistant Chemical Examiner (Physics Division), FSL Rohini, Delhi, deposed that he had received Exhibits of the case bearing FSL Ref. No.FSL-2016/P-6653/PHY-226/2016 in the form of one sealed parcel, which was sealed with the seal of MK at five places and seals were found intact when compared with the sample seals. It was found containing one DVD-R of 'Moserbaer PRO' make which was found containing eight video files. He had detailed the file numbers in his report. On laboratory examination of recordings in eight video files contained in Exhibit-1 DVD-R, he found there was no indication of alteration on the basis of Frame by Frame analysis using Video Analyst System, vide his detailed report Ex.PW1/A. PW2 produced the forwarding letter of investigating agency dated 01.09.2016, which had the specimen seal impression of M.K. Ex.PW2/A. PW2 identified the DVD Ex.PW2/Article-1 as the same which was received in his office for examination purpose and examined by him.
iii) PW3 ASI Ritesh Kumar was the Duty Officer, who proved the computerized print out of the FIR No. 301/2014 Ex. PW3/A and his endorsement on the complaint Ex.PW3/B. After registration of FIR, investigation was assigned to ACP B.S. Jhakhar.
iv) PW4 HC Sunil Kumar deposed that on 22.05.2014, he was posted at PS R.K. Puram as MHC(R). On that day, he gave the copy of FIR No.24/14 Ex.PW4/A to ACP B.S. Jhakar.CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 5 of 60
v) PW5 M.Sethu - eye witness. vi) PW6 ASI Sanjeev Kumar deposed that on
23.04.2014, he was posted at PS R.K. Puram as Head Constable.
On that day, he joined the investigation of the present case and in his presence IO/ACP B.S. Jakhar arrested accused Om Prakash vide arrest memo Ex.PW6/A and conducted his personal search vide memo Ex.PW6/B. IO prepared the site plan at the instance of complainant but PW6 was standing at a distance at that time. PW6 correctly identified accused Om Prakash before the court.
vii) PW7 Pinki - complainant. viii) PW8 SI (Ministerial) Sunil Dutt Sharma deposed
that on 11.01.2018 he was posted as Sub-Inspector, Head Assistant in Punishment Branch in the Office of DCP (South), Delhi. On that day, at about 11:00 AM, ACP Dewan Chand Sharma alongwith SI Neeraj Kumar had come to his office and asked him to check the punishment file pertaining to Ex-SI Om Prakash and to trace the pen drive, if any, in the said file. On checking the record, he found a file pertaining to year April 2014 in relation to preliminary inquiry conducted against Ex-SI Om Prakash. On checking the said file, it was found containing one pen drive of white and yellow colour. It was of make Kingston and was of 8 GB capacity. The said pen drive was run on the computer system installed in his office. There were three folders found in the said pen drive namely photo, desktop and D.P. R.K. CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 6 of 60 Puram Video. No visual content were found in photo and desktop folder, however, on checking the D.P. R. K. Puram folder, it was found containing a video in which one woman was seen counting currency notes and thereafter, handing over the same to Ex-SI Om Prakash. In the said video, Ex-SI Om Prakash was clearly visible accepting the currency notes from the said woman. Thereafter, ACP Diwan Chand Sharma kept the said pen drive in a khaki envelope and sealed the said envelope with the seal of 'VSS'. The said sealed envelope was seized by ACP Diwan Chand vide the seizure memo which is Ex.PW-8/A. PW8 further deposed that as he was posted in the Punishment Branch as Incharge in the month of June 2016 and was having supervision over the files maintained in the Head Assistant Punishment (HAP) Section, the said pen drive was lying in the same condition in the file of Ex-SI Om Prakash and it was not tampered with. PW8 correctly identified the pen drive is of make Kingston, Data Traveler 8 GB G3 Ex.PW-8/Article-I, which contained a video in which the incident in question was visible.
ix) PW-9 SI Neeraj Kumar deposed that on 11.01.2018, while he was posted as Sub- Inspector in the office of DIU, South District, he had joined investigation of the present case with IO / ACP Dewan Chand Sharma of DIU, South District. On that day, he along with IO went to DCP Office, Hauz Khaz at about 11:00 AM. They went to HAP Branch in the said office and met SI Sunil Dutt Sharma, Incharge of Punishment Branch. IO discussed about the case with SI Sunil Dutt Sharma.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 7 of 60Thereafter, SI Sunil Dutt Sharma traced and produced one pen drive of 8GB capacity, which was of white and yellow colour and when the same was run on the computer system installed in the said office, it found containing the incident pertaining to the case. IO kept the said pen drive inside brown ( khaki) coloured envelope and sealed it with the seal of VSS. The said sealed envelope was seized by the IO vide the seizure memo Ex.PW8/A. IO recorded statement of SI Sunil Dutt and thereafter they returned to the office of DIU, South District. PW9 further deposed that on the same day, IO directed him to take the said sealed envelope to RFSL, Chankyapuri. He took the said sealed envelope along with RFSL forwarding letter given to him by the IO to RFSL and got it deposited there vide the RFSL acknowledgment Ex.PW9/A which he handed over to IO. During the period the said sealed envelope remained in his possession, it was not tampered with. PW9 further deposed that on 15.02.2018, on the direction of IO, he went to RFSL, Chanakyapuri, to get the result from the Computer Forensic Unit. He was handed over two sealed parcels duly sealed with the seal of RFSL, Chanakyapuri from the RFSL and handed them over to the IO. The sealed parcel stated to be containing Ex.PD-1 was not opened by the IO. However, the other parcel was opened by the IO and was found containing the RFSL report dated 12.02.2018, Certificate under section 65B, Indian Evidence Act, Annexure A (two pages), one CD marked as Annexure CD-1 and forwarding letter with sample seal. IO seized the said documents with CD vide the seizure memo Ex.PW-9/B. PW9 further deposed that on 05.03.2018, on the direction of IO, he had visited CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 8 of 60 Truth Lab, Safdarjung Enclave for obtaining the result on the pen- drive already deposited in the Truth Lab. He was handed over report in sealed condition in the Truth Lab which he gave to IO. PW9 identified the PEN drive Ex PW8/Article-I alongwith its content as the same which was seized by the IO vide seizure memo Ex PW8/A.
x) PW10 SI Kailash Chand deposed that on 16.02.2018 he was posted at DIU (South District) as SI and on that day on the direction of IO/ ACP Diwan Chand Sharma, he had taken one sealed envelop stated to be containing PEN Drive pertaining to the present case, duly sealed with seal of RFSL, Chanakyapuri, New Delhi alongwith forwarding letter to Truth Lab, Safdarjung Enclave, New Delhi. After depositing the said exhibits in Truth Lab, he took the acknowledgment slip from the said lab and gave the same to the IO. During the period the said sealed envelop remained in his possession, it was not tampered with.
xi) PW11 ACP Premnath deposed that from September 2014 to April 2016 he was posted as DCP, South District, Delhi. In the month of February end, he received a request from ACP, DIU, South District in case FIR No.301/14, PS R.K. Puram to accord prosecution sanction U/s 19 of POC Act against SI Om Prakash of PS R.K. Puram. On the basis of case file having complaint, copy of FIR, seizure memos, statements of witnesses U/s 161 Cr.P.C. etc., he accorded the sanction for prosecution against SI Om Prakash being competent CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 9 of 60 to remove him from services, vide his order Ex.PW11/A, after due application of mind upon the material produced before him.
xii) PW12 Kailash Kumar, Junior Forensic/Assistant Chemical Examiner, Computer Forensic Unit, RFSL, Chanakyapuri, Delhi, proved the report Ex. PW12/A vide which the data of pen-drive make 'Sandisk' 4 GB was retrieved in DVD marked DVD-1.
PW12 further proved hard copies of hash report of record file (8 in number) Ex. PW12/B1 (colly) and his letter dated 31.08.2016 Ex.PW12/B. PW12 further proved the report dated 12.02.2018 Ex. PW12/C vide which the data was retrieved from pen-drive make 'Kingstone' 8 GB capacity and provided in a CD Marked CD-1. He had prepared hard copy of the detailed report (video file) in two pages marked as Annexure-A Ex.PW12/C2 (colly). He had also enclosed the certificate under section 65B(4)(C) Evidence Act Ex.PW12/C1 with his report. After seeing CD Ex.PW12/Article-1, bearing RFSL No. RFSL(CH.P.)-2018/CFU- 46 Annexure-CD1 and case particulars of this case, PW12 identified the same being the same which was supplied with his report and has identified his signatures on the CD. On being re- examined by Ld. Addl.P.P. for the State, PW12 affirmed that he had not ascertained whether there was any alteration or tampering in the recording as per file created dated 22.04.2014 20:22:22. The same was done by Physic Division, FSL Rohini.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 10 of 60He was cross-examined by ld. Defence counsel.
xiii) PW13 Ms. S. Neeru, Dy. Director, Truth Lab, Bangaluru, Karnatka, proved the Truth Lab Report Ex. PW13/A, which was prepared by Sh. Grynal Danthy, Senior Scientific Officer, Cyber and Audio/Video Forensics, Truth Lab, Bangaluru, under her supervision.
PW13 further deposed that in their opinion, the audio and video of the recording "Q" did not contain any sign of editing, tampering/morphing, hence, it was concluded that the recording 'Q' contained in the Pen-drive marked 'Item-1' was an authentic recording recorded in an event truly occurred. After seeing pen-drive Ex PW8/Article-1, PW13 correctly identified the same on the basis of Truth Lab reference number and signatures of Sh. Grynal Danthy at point A.
xiv) PW14 HC Ratan Lal deposed that he was posted as MHC(R) at PS R.K. Puram, Delhi and he proved printout of FIR No.24/14 of PS R.K. Puram, Ex.PW4/A.
xv) PW15 Retired ACP Diwan Chand was IO of the case. He deposed that on 30.10.2014, he was posted as ACP, DIU South District, Delhi. On that day, he had received the case file of this case for further investigation from the previous IO ACP Kulbhushan Sharma. He inspected the complete case file. The accused was already arrested and was on court bail. Perusal CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 11 of 60 of the file showed that there was a seizure memo of pen-drive prepared by ACP B.S. Jhakhar (Previous IO) and a pen-drive lying inside plastic envelope which was found stapled in the case file. He saw that previous IO had served notices U/s 91 Cr.P.C. on the complainant for producing the original recording device in which the incident was stated to be recorded. He served similar notices on the complainant Ms. Pinki U/s 91 Cr.P.C. for producing the original recording device from time to time. The said notices were Ex.PW15/A to Ex.PW15/D. On 12.12.2015, the complainant Ms. Pinki gave in writing Ex. PW15/E that the recording device i.e. spy camera containing the original recording was lost and could not be located by her.
PW15 further deposed that he served a notice Ex.PW15/F upon the accused Om Parkash for the purpose of taking his voice sample in the FSL which was received by wife of accused on 10.02.2016. On the same day, vide request letter is Ex.PW15/G he had requested the Director, FSL Rohini for fixing a date for taking voice sample of accused Om Parkash and 16.02.2016 was fixed by the FSL vide endorsement Mark- PW15/G1.
PW5 further deposed that accused Om Parkash did not produce himself before the FSL on 16.02.2016 for recording of his voice sample. On 22.02.2016, he served another notice Ex.PW15/H to the accused Om Parkash for recording of his sample voice, by hand and he replied on the said notice at portion X that he did not intend to give his voice sample to the FSL.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 12 of 60PW15 further deposed that on 17.02.2016, he wrote the request letter Ex.PW11/DA for prosecution sanction U/s 19 of POC Act against the accused to the DCP, South District in order to obtain the prosecution sanction against the accused and he granted sanction vide order Ex.PW11/A. PW15 further deposed that on 19.04.2016, he had sent the pen-drive of 4GB Sandisk, which was earlier taken into police possession by ACP B.S. Jhakar from the complainant, to RFSL, Chanakyapuri, Delhi. The above pen-drive was in unsealed condition in a polythene pouch lying in the file which he had received and before sending it to FSL, he had sealed the same with the seal of 'BS' as the laboratory was not accepting the unsealed exhibit. The said pen-drive was sent to RFSL, Chanakyapuri.
On 20.07.2016, he received the result from RFSL, Chanakyapuri regarding the aforesaid pendrive. The sealed exhibit which was received back from RFSL, Delhi was sent to FSL, Rohini for further examination. On 14.09.2016 a report was received from FSL, Rohini regarding the aforesaid exhibit. PW15 further deposed that on 02.12.2016, after receiving the sanction order, he prepared the charge-sheet and filed the same in the court.
PW15 further deposed that later on when it was revealed that the pen-drive Sandisk 4GB was not having the CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 13 of 60 recordings which were subject matter of the present case, he had moved an application in the court of Ld. Special Judge U/s 173(8) Cr.P.C. on 18.11.2017 Ex.PW15/I and the said application was allowed by the court on 03.01.2018.
PW15 further deposed that on 11.01.2018, it was revealed to him that pen-drive related to sting operation of the present case was available in enquiry file of the accused at HAP Branch, South District. Accordingly, he alongwith SI Neeraj Kumar went to the office of HAP Branch, South District and met SI Sunil Dutt Sharma, Incharge. He traced and produced one pen-drive of 8GB capacity make Kingston. The said pen-drive was run on computer system installed in the said office and was found containing the sting operation of the present case. After satisfying himself, he seized the aforesaid pen-drive after keeping the same in Khakhi envelope and closed it with the staple pin and sealed with the seal of VSS and seized vide seizure memo already Ex.PW8/A. On the same day, the same sealed envelope was sent to RFSL, Chanakyapuri through SI Neeraj alongwith the forwarding letter Ex.PW15/J for extraction of data and authentication of data by hash function and thereafter SI Neeraj handed over acknowledgment Ex.PW9/A. PW15 further deposed that on 15.02.2018, on his direction, SI Neeraj collected the result Ex.PW12/C alongwith the sealed exhibits and certificate U/s 65B Indian Evidence Act Ex.PW12/C-1 from RFSL, Chanakyapuri and he seized the same vide seizure memo Ex.PW9/B. The hash value provided by CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 14 of 60 RFSL was Ex.PW12/C-2 (colly). PW15 further deposed that on 16.02.2018, the exhibits received from RFSL were forwarded to Truth Lab, Safdarjung Enclave, New Delhi through SI Kailash vide forwarding letter which is now Ex.PW15/K and SI Kailash handed over him the acknowledgment Ex.PW15/L. PW15 further deposed that on 05.03.2018, on his instructions SI Neeraj visited Truth Lab, Safdarjung and collected the result Ex.PW13/A alongwith sealed exhibits and the forwarding letter was Ex.PW15/M. PW15 further deposed that he prepared the supplementary charge-sheet and filed it in the court. Pen-drive Ex.PW8/Article-I was played on the court computer and PW15 identified the pen-drive and its contents which was seized by him on 11.01.2018 after seeing the same in the office of HAP Branch, South District.
xvi) PW16 SI Inderjeet deposed that on 15.02.2018, he was posted at DIU, South District, Delhi, and he was present in the office of DIU when SI Neeraj came back from RFSL, New Delhi and handed over two sealed parcels duly sealed with the seal of RFSL Chanakyapuri, New Delhi to IO/ACP Diwan Chand Sharma. One of the sealed parcel was stated to be containing pen-drive examined by RFSL whereas the other was stated to be containing the report of the RFSL. The parcel stated to be report of RFSL was opened by IO and was found containing examination report, 65B Certificate, one CD, Annexure-A and forwarding letter with sample seal. IO seized CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 15 of 60 the contents of the said parcel as well as the sealed parcel vide the seizure memo Ex.PW9/B. xvii) PW17 Retired ACP Surender Sharma deposed that on 23.04.2014, he was posted as ACP Safdarjung Enclave, and at about 09 am, a lady namely Pinky came to his office and stated that SI Om Prakash had demanded and accepted Rs.3000/- from her. She gave a written complaint Ex. PW-7/A, on which, he made an endorsement at point X and the said complaint was marked to SHO R. K. Puram for necessary action and registration of a case u/s 7/13 of POC Act. The complainant was also carrying a laptop and pen-drive. To satisfy himself, PW17 watched the pen-drive on her laptop and found her allegations to be true. The pen-drive make Sandisk produced by complainant Pinky was handed over to Sh. B. S. Jakhar, ACP DIU for necessary action and the said pen-drive was seized vide seizure memo which is Ex. PW-17/A. PW17 identified the video recording contained in the pen-drive Ex.PW8/Article-I as the one which he had seen on the laptop of the complainant and found her allegations to be true. Ld. Chief PP for State put a leading question to PW17 and he affirmed that he had not noticed the make and capacity of the pen-drive which was brought by the complainant on 23.04.2014.
xviii) PW18 Retired ACP Sh. B.S. Jakhar deposed that on 23.04.2014, he was posted as ACP, DIU, South District at Malviya Nagar police station and the investigation of the present case was assigned to him. On 23.04.2014 he reached at the office CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 16 of 60 of ACP Sh. Sharmaji in his office at R.K. Puram, who informed him that said complainant had given a pen-drive containing the footage of the alleged transaction of demand of bribe. PW18 seized the said pen-drive vide seizure memo Ex.PW17/A. PW18 also obtained copy of FIR and the original rukka from duty officer. PW18 saw the footage of the pen-drive and found that accused Om Parkash was demanding bribe from the complainant Pinki and she was seen giving Rs.3,000/- as bribe amount to Om Parkash. The said transaction was seen taking place in the footage near an ATM of Axis Bank. Thereafter, he called the complainant Pinki, who came alongwith one person namely Sethu. At the instance of complainant Pinki, PW18 prepared the site plan Ex.PW18/A of the place of incident. PW18 recorded statements of Pinki and Sethu U/s 161 Cr.P.C. SI Om Parkash was present in the PS and he interrogated him and arrested him in the case vide arrest memo Ex.PW6/A and conducted his personal search vide memo Ex.PW6/B. PW18 also served a notice Ex.PW18/B to complainant Pinki for producing the original recording device of the transaction. Thereafter, on 24.04.2014 accused Om Parkash was produced in the court and he was remanded to J/C by the Court. Since the complainant did not provide information as per his notice, PW18 again served her another notice on 04.05.2014 Ex.PW18/C and she gave her reply on the notice at portion B. PW18 further deposed that on 15.05.2014, he again served notice U/s 91 Cr.P.C. Ex. PW18/D to complainant and she gave her reply on 16.05.2014 on the notice at portion B. CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 17 of 60 PW18 further deposed that on 22.05.2014, he also obtained copy of FIR no. 24/14 of PS R.K. Puram Ex.PW4/A and copy of complaint filed in the court U/s 156(3) Cr.P.C. Thereafter, he got transferred from DIU to DAP, 7th Battalion and he handed over the case file to MHC(R), PS R.K. Puram. PW18 correctly identified accused Om Parkash in the court.
Ld. Chief PP for State put some leading questions to PW18 and he stated that on 23.04.2014 itself, he had seized the copy of transcript (five pages) Ex.PW5/B of the audio-video footage of the incident of demand of bribe vide seizure memo Ex.PW5/C. PW18 further deposed that the pendrive was kept in a plastic transparent envelopes and was not sealed and same was kept in open condition for the purpose of investigation.
PW18 identified the video recording contained in Pen-drive of make 'Kingston' 8GB Ex.PW8/Article-I as the footage of the incident when the complainant Pinki met the accused and gave him bribe amount. PW18 also identified complainant Pinki and accused Om Prakash in the footage. PW18 also correctly identified accused SI Om Prakash in the court.
Statement of accused :
10. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C wherein he denied the correctness of all the incriminating circumstances CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 18 of 60 appearing in evidence against him and stated that he is innocent and falsely implicated in this case. He further stated that he did not meet Pinki and Sethu on 22.04.2014 around 03.30 pm in front of police station near Axis Bank ATM. Accused further stated that Pinki never met ACP Surender Sharma on 23.04.2014 nor she told him about demand and acceptance of any money by him. Pinki did not give any complaint to ACP Surender Sharma.
Accused further stated that the entire case against him was instituted on the basis of false and fabricated evidence. The investigating agency has also not conducted the investigation in a fair and impartial manner. All the IOs have fabricated electronic evidence in this case. The complainant did not lodge any complaint against him nor any recordings were ever given by her to the police. He has fairly conducting investigation in case FIR No. 24/14 PS R.K.Puram. He did not demand any money from Pinki or Sethu for any purpose nor accepted any amount from them. Accused preferred to lead defence evidence.
11. Accused examined four defence witnesses in his defence. The brief summary of deposition of defence witnesses is as under:-
i) DW1 ASI Bir Singh produced the summoned record i.e. RTI reply No. (2nd Appeal) ID-08/(2021)/CIC1077/RTI Cell/SD, New Delhi, dated 13.05.2021. He proved the copy the same which was supplied to the applicant Om Prakash sent by RTI Cell, South District as Ex. DW1/B. He also proved his authority letter to appear in this case as Ex. DW1/A. CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 19 of 60
ii) DW2 SI Archana produced the summoned record i.e. office order no. 4447/SD(P-II)/New Delhi dated 22.04.2014 issued under the signature of Sh. P.S.Kushwaha, the then DCP, South District and order no. 4991-5080/HAP(P-II)/SD/New Delhi dated 05.05.2014 issued under the signature of Sh.
B.S.Jaiswal, the then DCP, South District, New Delhi, and proved the same as Ex. DW2/A and Ex. DW2/B respectively.
iii) SI Kailash deposed that the record pertaining to RTI Reply No. 14035(ID-2330)/RTI Cell/(D-II)/SWD/New Delhi dated 19.12.2014 has been destroyed on behalf of the then DCP, South-West District, vide order dated 04.01.2023 Ex. DW3/B. An intimation in this regard alongwith copy of order dated 04.01.2023 was sent by Ms. Sangha Mitra, ACP/HQ-cum- Assistant Public Information Officer, vide letter dated Ex. DW3/A.
iv) DW4 Benita Mary Jaiker, IPS, deposed that in December 2018, she was posted as Additional DCP-I, South- West District and was looking after the work of Public Information Officer of the District. She admitted her signature on the RTI reply no. 14035(ID-2330)/RTI Cell (D-II)/SWD/New Delhi dated 19.12.2018 Ex. DW4/A. Thereafter defence evidence was closed by ld. Counsel for the accused.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 20 of 60Arguments :
12. It is argued by Ld. Chief P.P. for the State that the complainant had recorded the entire transaction of demand and acceptance of bribe in audio-video recording and as per the FSL report Ex. PW12/A and Ex.PW1/A, the data retrieved from the PEN-drive make "Sandisk" 4 GB Mark-PW18/DA was provided in a DVD vide FSL result Ex. PW12/A dated 20.07.2016. As per the FSL report Ex. PW1/A dated 14.09.2016, the video files did not indicate any alteration on the basis of frame-by-frame analysis. It is stated that subsequently even the PEN-drive make "Kingston" 8 GB Ex. PW8/Article-I was sent to FSL and its data was retrieved in a CD Annexure-CD1 vide RFSL Report Ex.
PW12/C dated 12.02.2018. The pen-drive make 'Kingston' 8 GB was sent to Truth Lab and as per the report of the Truth Lab Ex. PW13/A, the video recoding in issue did not contain any sign of tampering. It is stated that even though the complainant PW7 and Sh. M.Sethu have turned hostile, however, the cumulative effect of their testimonies recorded before the court coupled with the scientific evidence on record establishes the guilt of the accused. It is accordingly prayed that the accused is liable to be held guilty for the offences he has been charged with.
13. On the other hand, it is contended by ld. Counsel for the accused that the complainant PW7 and PW5 Sh. M.Sethu have not supported the prosecution case despite their detailed cross-examination by Ld. Chief P.P. for the State. It is further argued that both PW5 and PW7 have not deposed regarding demand and acceptance of bribe by the accused. It is contended CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 21 of 60 that the video-recordings have not been proved in accordance with law. Hence, in absence of any cogent evidence against the accused, he is liable to be acquitted for the offences he is charged with.
14. I have heard ld. Counsel for the parties and perused the record.
15. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 22 of 60 laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt." (emphasis supplied)
16. The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
17. The Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 23 of 60 non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 24 of 60 respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 25 of 60 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis supplied)
18. Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused. It is the case of the prosecution that the accused SI Om Parkash demanded illegal gratification and obtained a bribe of Rs.3,000/- from the complainant Ms. Pinki in lieu of not registering a false case against them and accordingly he committed offences punishable u/s 7/13(1)(d) of P.C. Act and since the accused threatened Sh. M. Sethu to pay bribe money to him, he committed offence U/s 506 IPC.
Testimony of Material Witnesses :
19. Ms. Pinki has been examined as PW-7 and she deposed that Sh. Sethu was her neighbour. She had visited PS Sector-12, R.K. Puram, in relation to work of Sh. Sethu. He had sustained injuries on his head. They were made to sit at the police station. Police officials had not taken appropriate action in the case of Sh. Sethu. They had visited police station several times.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 26 of 6020. During recording of her testimony, CD Annexure- CD1 make Moserbaer bearing particulars of the case and RFSL was played before the court. After seeing the recording, PW-7 stated that she was not visible in the recording and she could not identify the persons visible in the said recording and she could also not identify the place shown in the recording.
21. At that stage, an observation was made by the court that the accused was visible in the video recording with name plate "O.P .Bhardwaj, ASI". A lady wearing salwar kamiz with a reddish maroon dupatta was the witness i.e. PW-7 Ms. Pinki and she could be seen handing over some currency notes to the accused which were accepted by the accused. The Axis Bank ATM was also stated to be visible in the recording.
22. Since PW7 did not support the prosecution version, she was cross-examined by Ld. Addl. PP for State. In her cross- examination by Ld. Addl. PP for State, PW-7 admitted her signatures on the complaint Ex.PW7/A. However, she was unable to recollect the date or the place or the purpose for which she had put her signatures on the complaint Ex. PW7/A or whether she had put them voluntarily or on the asking of someone. She deposed that M. Sethu got registered a case against Shamu, Kutti, his son and one another person. However, she did not know who was the IO of the case and she had never met the IO of that case. PW7 failed to identify the accused before the court and stated that she had never met him. PW-7 denied the allegations of threat, harassment or demand and CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 27 of 60 acceptance of bribe by the accused SI Om Prakash. Accordingly, PW7 denied the allegations against the accused as contained in her complaint Ex. PW7/A when confronted therewith.
23. PW-7 identified her signatures on certificate under section 65B of Indian Evidence Act dated 18.04.2016, Ex.PW7/C. She denied that she had produced one pen-drive containing recording of the incident of taking bribe by the accused Om Prakash, to the police official.
24. PW7 also denied that she had shown the place of the incident to the IO and site plan was prepared at her instance.
25. PW7 was confronted with the relevant statements made to the IO in this regard. She denied the suggestion that she had been won over by the accused and therefore, was deposing falsely to save the accused. PW7 was not cross-examined by Ld. Counsel for the accused despite opportunity given.
26. Sh. M. Sethu was examined as PW-5 and he deposed that he was a driver by profession. He had sustained injury on his head. he had lodged an FIR bearing No.24/14 under Section 308/34 IPC at PS R.K. Puram which was investigated by SI Om Prakash. He correctly identified the accused in court. He deposed that the accused came to his house and told him that a complaint had been received by him against them. PW-5 met with senior officers and complained to them against the accused for not taking action against the culprits of case FIR No.24/14.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 28 of 60He stated that he did not know anything about the present case.
27. PW5 was cross-examined by Ld. Addl. PP for State as he was resiling from his earlier statement recorded under Section 161 Cr.P.C. In his cross-examination, PW-5 admitted that on 23.04.2014, his statement was recorded by ACP P.S. Jakhar under section 161 Cr.P.C. vide Ex.PW5/A. PW-5 denied that accused demanded money from him on the pretext of registration of case against him on the complaint moved by Arti, Sonia and Rukmani. PW5 also denied the allegations regarding any demand or acceptance of bribe by the accused or that on 22.04.2014 at about 03:30 PM, he alongwith Ms. Pinki met SI Om Prakash in front of Axis Bank ATM outside PS R.K. Puram where SI Om Prakash demanded and accepted initially Rs.2,000/- and later Rs.1,000/- (totalling to Rs.3,000/-) from them for preparing a favourable report which incident was recorded by Ms. Pinki in a hidden camera carried by her. He was confronted with relevant portion of his statement Ex. PW5/A. He stated that police official obtained his signatures on some blank papers.
28. During recording of his testimony, CD Annexure- CD1 make Moserbaer bearing particulars of the case and RFSL was sought to be played before the court, however, despite efforts the same could not be played on the court computer.
29. PW5 did not not remember the date, month and year on which the FIR u/s 308 IPC was registered on his CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 29 of 60 complaint. He had visited PS R. K. Puram in connection with the said case 5 to 6 times. He had visited the office of the ACP (South District) only once which was after the registration of the said FIR. Ms. Pinki had not accompanied him on that day to the office of ACP. He did not remember the date, month and year of the said visit to the office of ACP but it was in the month and year when the said FIR u/s 308 IPC was registered. On that day, he had not made any complaint to ACP against SI Om Prakash (IO of the case u/s 308 IPC) but he had made a complaint regarding non-arrest of the accused persons in his case.
30. He denied that he had visited the office of ACP (South District) on 23.04.2014 alongwith the complainant Ms. Pinki or that he had given his statement in writing to the ACP against SI Om Prakash.
31. The witness was shown one complaint addressed to ACP (South District) dated 23.04.2014 from the police file. PW-5 stated that the said document did not bear his signatures. The document was exhibited as Ex PW5/D. He denied that he had purposely not identified his signatures on Ex.PW5/D being won over by the accused. He also denied that he had visited the ACP office on 22.04.2014 as well as on 23.04.2014 for making complaint against SI Om Prakash.
32. He also denied that he was aware of the complaint against SI Om Prakash as the complaint was filed by Ms. Pinki on his instructions and after discussion with him.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 30 of 6033. He affirmed that all the accused persons in case FIR u/s 308 IPC lodged on his complaint were granted anticipatory bail and that he was unhappy with that. He knew that the said culprits namely Arti, Sonia and Rukmani had lodged a court complaint against them after registration of the FIR against them on his complaint. PW-5 volunteered that SI Om Prakash had come to him and he had told him that he had received a complaint against them filed by those persons and had shown him the said complaint which was having signatures of many persons and when the said persons were called they stated that they had signed under impression that the said complaint was made for installation of water tap/connection in the locality. He denied that the said complaint was shown to him by accused Om Prakash or that he demanded money from him saying that on the said complaint a case may be registered against him. PW-5 stated that he could identify Ms. Pinki.
34. The Pen-drive Ex.PW8/Article-I was played before the court and PW-5 stated that the lady appearing in the audio-video recording was not Ms. Pinki.
35. PW5 further deposed that he did not know any person who was visible in the said audio-video recording. He denied that he had purposely not identified Ms. Pinki in the audio-video recording being won over by the accused.
36. PW-5 further affirmed that the accused present CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 31 of 60 before the court was visible in the said audio-video recording. He denied that the accused had demanded and accepted bribe from Ms. Pinki on his behalf in order to cause alarm to him. He denied that accused had threatened him to take action against them on the court complaint filed against him and his family members by Rukmani and others. He denied that he was deposing falsely being won over by the accused.
37. Despite opportunity being given, PW-5 was not cross-examined by Ld. Counsel for accused.
38. From the testimony of PW-5 and PW-7, it emerges that both of them have not supported the prosecution version on material points regarding any demand made by SI Om Parkash or acceptance of an amount of Rs.3,000/- by him. Both of them have specifically denied suggestions in that regard during their cross-examination by Ld. Addl.P.P. for the State. PW-7 Ms. Pinki was also confronted with the complaint Ex.PW7/A, however she denied the allegations against the accused mentioned in the complaint Ex.PW7/A and stated that she had signed the complaint without knowing its contents. Sh. M. Sethu who was examined as PW-5 also denied the contents of his statement Ex.PW5/A, with which he was confronted during his cross-examination. He also denied specific allegations of demand and acceptance of bribe by accused from Ms. Pinki on his behalf. Hence, despite their detailed cross-examination, both PW-5 and PW-7 did not change their version given in examination-in-chief and specifically denied the prosecution CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 32 of 60 allegations regarding demand of bribe by the accused and acceptance of Rs.3,000/- by the accused from Ms. Pinki.
39. PW5 correctly identified the accused before the court and stated that accused SI Om Parkash who was IO of FIR No. 24/2014 had informed him that a complaint had been received against them and that PW-7 had met with the senior officers and had complained against the accused for not taking any action against the culprits of FIR No. 24/2014 which he had lodged U/s 308/34 IPC at PS R.K. Puram.
40. PW7 Ms. Pinki did not identify the accused before the court. From the testimony of PW5 and PW7 it is manifest that there are no allegations of any demand or acceptance of bribe money and their testimony is completely silent on this aspect. Both PW5 and PW7 were cross-examined in detail regarding allegations of demand and acceptance of bribe money of Rs.3000/-, however nothing could be revealed in their cross- examination in support of the prosecution version. Accordingly, there is no oral evidence of demand and acceptance of bribe.
41. The prosecution has also relied upon the audio- video recording of the incident made by complainant Ms. Pinki PW-7. As per the prosecution version, the said audio-video recording was made on 22.04.2014 at about 03:30 pm when PW- 5 alongwith Ms. Pinki PW7 met SI Om Parkash in front of Axis Bank ATM outside PS R.K. Puram where SI Om Parkash demanded and accepted initially Rs.2,000/- and later Rs.1,000/-
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 33 of 60(totaling to Rs.3,000/-) from them and the said incident is stated to be recorded by Ms. Pinki in a hidden camera. The said video recording was handed over by Ms. Pinki to ACP Sh. Surender Sharma.
42. It would now be relevant to examine the law as regards the evidentiary value of the video recordings relied upon by the prosecution.
43. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, the Hon'ble Supreme Court held that the recorded conversations were "documents", as defined under Section 3 of the Evidence Act and made following observations:
"We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
44. In the case of Ram Singh v. Col. Ram Singh , 1985 Supp SCC 611, again the Hon'ble Supreme Court stated some of CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 34 of 60 the conditions necessary for admissibility of tape recorded statements, as follows:
"(1) 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.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
45. As regards admissibility of electronic evidence, in case titled as Anvar P. V. Vs P. K. Basheer (supra), the Hon'ble Supreme Court has observed as follows :
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 35 of 60 obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 36 of 60
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India." (emphasis supplied)
46. The judgment in the matter of Anvar P.V. (Supra) was duly considered with approval by the Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 37 of 60 decision dated 14.07.2020, on the issue of certificate under section 65B Indian Evidence Act, 1872 observed as under:
"............We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose...
84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled". (emphasis supplied)
47. Source and authenticity are thus the two hallmarks pertaining to electronic record which is sought to be used in evidence. For the admissibility of any secondary evidence in CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 38 of 60 digital form, a certificate under section 65B of Indian Evidence Act is a mandatory requirement. The requirement of certificate u/s 65-B of Indian Evidence Act is to rule out any tampering of the electronic record and it is the threshold to be crossed in order to render the secondary evidence of electronic record admissible in evidence.
48. Firstly, the source of the original electronic record has to be proved. In the present case, the original electronic record ie a video-recording is stated to be made by the complainant PW7, with the help of a hidden camera. At the time of recording of her testimony PW7 complainant Pinky denied that she had made any recording through a hidden camera. The original device was not produced by her during investigation. As per the prosecution version, the complainant PW7 had produced a pen-drive 'Sandisk' 4 GB, which was seized vide seizure memo Ex. PW17/A. However, she specifically denied that she had produced one pen-drive containing recording of the incident of taking bribe by the accused Om Prakash, to the police official.
49. ACP Surender Sharma was examined as PW-17 and as regards handing over of video recording, he deposed that on 23.04.2014 at about 09:00 am, Ms. Pinki came to his office and gave a written complaint Ex.PW7/A on the basis of which present FIR was registered. He further stated that she was also carrying a laptop and a pen-drive. PW-17 viewed the pen-drive on the laptop which the complainant was carrying and found the CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 39 of 60 allegations to be true. PW-17 handed over the pen-drive make Sandisk produced by the complainant Ms. Pinki PW7 to Sh. B.S. Jhakar, ACP, DIU, IO of the case for necessary action. The said pen-drive was seized by IO ACP B.S. Jhakar, vide seizure memo Ex.PW17/A.
50. Perusal of Ex.PW17/A reveals that the said seizure memo pertains to seizure of one pen-drive make Sandisk 4 GB which was handed over by Sh. Surender Kumar, ACP to IO ACP B.S. Jhakar. It is stated in the said seizure memo that the above pen-drive was produced by complainant Ms. Pinki and contained the recording of demand and acceptance by accused Om Prakash. The said seizure memo Ex.PW17/A bears the signature of PW-17 Sh. Surender Sharma and IO ACP B.S. Jhakhar, however it does not bear the signatures of the complainant Ms. Pinki.
51. During recording of the testimony of PW-17, the aforesaid pen-drive Sandisk 4 GB was played before the court and the same was found to not contain any video file.
52. In this regard, PW-18 ACP Sh. B.S. Jhakar deposed that he was informed by PW-17 that complainant had given a pen-drive containing the footage of the incident which was seized by him vide seizure memo Ex.PW17/A. In his cross- examination, PW-18 stated that PW-17 was present when the pen-drive was seized by him and seizure memo was also prepared in the presence of PW-17 who satisfied himself about the contents of the same. PW-18 further stated that he did not CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 40 of 60 replace 4GB Sandisk pen-drive given to him by ACP Surender Sharma till the time investigation remained with him.
53. During cross-examination of PW-18, the pen-drive make Sandisk 4 GB was played before the court and it was noted that no video file was found in it. The 4GB make Sandisk pen- drive was marked as Mark-PW18/DA.
54. Accordingly, it emerges from the testimony of PW- 17 and PW-18 that Ex.PW17/A was prepared in respect of a pen- drive 4GB make Sandisk which is stated to have contained the video recording of the incident. The said pen-drive was handed over by the complainant to PW-17, however there is no seizure memo regarding handing over of the pen-drive by the complainant to PW-17 and the seizure memo Ex.PW17/A is in respect of handing over of the pen-drive from PW-17 to PW-18 and it does not bear the signatures of the complainant. The said pen-drive 4GB make Sandisk when played before the court was found as not containing any video files. As regards preparation of seizure memo Ex.PW17/A, PW-17 and PW-18 have contradicted as regards the place of preparation of seizure memo which as per PW-17 was prepared by IO ACP B.S. Jhakar in his room and he brought the seizure memo Ex.PW17/A to the room of PW-17 to get his signatures, whereas PW-18 stated that Ex.PW17/A was prepared in the presence of PW-17 in the office of PW-17 himself. PW-17 also stated that he had not noticed the make and capacity of pen-drive when he saw the recording on the laptop of the complainant on 23.04.2014, however he stated that CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 41 of 60 he had signed the seizure memo Ex.PW17/A after satisfying himself with the contents thereof.
55. In light of aforesaid testimony of PW-17 and PW- 18, it is manifest that seizure memo Ex. PW17/A was prepared in respect of pen-drive 'Sandisk' 4 GB Mark PW18/DA which was found not to contain video recording of the alleged incident. The said seizure memo Ex. PW17/A does not bear the signatures of complainant PW7. Moreover, a pen-drive is a storage media, hence, a certificate u/s 65B of Indian Evidence Act was required to prove the contents of the said pen-drive. PW7 Pinki admitted her signatures on the certificate u/s 65B of I.E.Act Ex. PW7/C. The said certificate u/s 65B of I.E.Act Ex. PW7/C is stated to be in support of a pen-drive make 'Sandisk' 4 GB capacity. However, the complainant PW7 denied that she made video recording of the incident or that she had handed over the pen- drive containing the video recording of the incident to the IO; hence, it is not proved on record that the complainant had handed over the pen-drive make 'Sandisk' 4 GB capacity to the IO which is stated to be containing the video recording of the incident. Accordingly, the source of the video recording of the incident purportedly contained in pen-drive 4 GB ' Sandisk' Mark PW18/DA, is not proved on record.
56. In his testimony recorded before the court, PW-15 ACP, DIU Sh. Diwan Chand deposed that he was handed over the investigation of the present case on 30.10.2014 and he saw that there was a seizure memo of the pen-drive prepared by ACP CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 42 of 60 B.S. Jhakar. A pen-drive was also found lying in a plastic envelope in the case file in unsealed condition. On 19.04.2016, he sent the pen-drive 4GB Sandisk to RFSL, Chanakyapuri. Before sending it to FSL, he sealed the same with the seal of BS as the FSL was not accepting unsealed exhibits.
57. The FSL report dated 20.07.2016 as regards the pen- drive make Sandisk 4 GB is Ex.PW12/A. PW-12 Sh. Kailash Kumar, Junior Forensic Examiner, RFSL, Chanakyapuri, Delhi proved the FSL report Ex.PW12/A who deposed that on 19.04.2016, he received one sealed parcel in connection with case FIR No. 301/2014, PS R.K. Puram. The said parcel was found to contain one pen-drive make Sandisk 4 GB and the said pen-drive was forensically imaged on sterile storage media using Encase Software. The data of the pen-drive was retrieved and provided in a DVD marked as Annexure-"DVD1". The case exhibits were sealed with the seal of "RFSL KK Ch. Puri New Delhi". The said DVD Ex. PW2/Article-1 could not be played before the court during recording of testimony of PW2 as it had three cracks.
58. PW-12 further deposed that a letter was received on 31.08.2016 from the IO seeking hard copies of the hash report of the video recording files (8 in number), which were provided with letter dated 31.08.2016 Ex.PW12/B. The hard copies of the hash report of the said 8 files are Ex.PW12/B1 (colly).
59. It is deposed by PW-15 IO ACP Diwan Chand that CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 43 of 60 he received the result from RFSL, Chanakyapuri on 20.07.2016. The sealed exhibit which was received back from RFSL, Delhi was sent to FSL, Rohini for further examination and the result was received from FSL, Rohini on 14.09.2016.
60. The FSL report dated 14.09.2016 Ex. PW1/A was proved by PW-1 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi. As per the said report, one sealed parcel sealed with the seal of 'MK' was received containing one CD. On opening, one DVD-R was found of "Moserbaer Pro" make and it was found containing 8 video files. On examination, it was found that the recordings in the 8 video files contained in the said DVD-R did not indicate any alteration on the basis of frame by frame analysis using Video Analyst System. The exhibit was sealed with the seal of "FSLxG:PxDELHI".
61. As discussed, during court proceedings, it was revealed that pen-drive make Sandisk 4GB did not contain any recordings which were the subject matter of the present case. Thereafter, the IO PW-15 filed an application before the court U/s 173(8) Cr.P.C. Ex. PW15/I. As per the said application filed by the IO the pen-drive in issue got exchanged with another pen- drive containing the proceedings of HAP-HD inadvertently and the exchanged pen-drive was sent to RFSL and upon receipt of RFSL result it was discovered that the pen-drive containing the incident in issue was not sent inadvertently and hence the RFSL result thus obtained was of no evidentiary value. The said application was allowed by the court vide order dated CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 44 of 60 03.01.2018.
62. Hence, even though as per the FSL result, the DVD containing the data retrieved from the said pen-drive contained eight video files which did not indicate any alteration on the basis of frame by frame analysis. However, the said DVD (Ex. PW2/Article-1) could not be played before the court and even the pen-drive Mark PW18/DA when played before the court, was found not to contain the video recording in issue. Moreover, IO/PW15 himself disowned the RFSL result in respect of pen- drive make 'Sandisk' 4 GB Mark- PW18/DA. Even the complainant denied handing over of the pen-drive containing video recording to the police. In view of the foregoing, the said pen-drive 'Sandisk' 4 GB Mark-PW18/DA does not have any evidentiary value.
63. During recording of testimony of PW-17, the other pendrive was played before the court Ex.PW8/Article-1 and PW- 17 stated that it was the same video recording which he had seen on the laptop of the complainant and found her allegations to be true.
64. It is deposed by PW-15 that on 11.01.2018, it was revealed to him that pen-drive in issue was available in the enquiry file of the accused at HAP Branch, South District and PW-15 alongwith PW9 SI Neeraj Kumar went to the office of HAP Branch, South District and met SI Sunil Dutt Sharma, Incharge who traced and produced one pen-drive of 8GB CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 45 of 60 capacity make Kingston. The said pen-drive was run on the computer installed in the said office and was found to contain the video recording of the present case. PW-15 seized the said pen- drive vide seizure memo Ex.PW8/A in a sealed envelope.
65. It is noteworthy that Ex. PW8/A is regarding seizure of the pen-drive 8 GB make 'Kingston' by PW15 ACP Diwan Chand from PW8 SI Sunil Dutt Sharma, Head Assistant Punishment Branch, South District, New Delhi, and bears the signatures of PW8 SI Sunil Dutt Sharma, PW15 ACP Diwan Chand and PW9 SI Neeraj. Admittedly, the said pen-drive was not produced by the complainant.
66. The above-said 8 GB 'Kingston' pen-drive Ex. PW8/Article-1 was brought on court record and the same was played before the court during recording of the testimony of PW5-M.Sethu, PW8, PW9, PW15, PW17 and PW18 and was found to contain the video recording of the incident in issue.
67. On 11.01.2018, the sealed envelope was sent to RFSL, Chanakyapuri through PW9 SI Neeraj for extraction of data and authentication of data by hash function alongwith forwarding letter Ex.PW15/J. The acknowledgment of FSL is Ex. PW9/A. On 15.02.2018 PW9 SI Neeraj collected the FSL result alongwith sealed exhibits and certificate u/s 65-B Indian Evidence Act from RFSL, Chanakyapuri, which were seized by PW15 vide seizure memo Ex. PW9/B. CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 46 of 60
68. The exhibits sent to RFSL, Chanakyapuri, were examined by PW12 Kailash Kumar, Junior Forensic/Assistant Chemical Examiner, Computer Forensic Unit, RFSL, Chanakyapuri, Delhi, who deposed that on 11.01.2018, vide forwarding letter of ACP, DIU dated 11.01.2018, one sealed parcel duly sealed with the seal of VSS at four places was received in their office for examination alongwith the sample seal. The said parcel was found containing one pen-drive of make 'Kingston' of 8 GB capacity. The said pen-drive was marked as PD-1 and was forensically imaged on storage media. On analysis of the data by authorized hardware and software tool i.e. EnCase, the relevant data (video file) was retrieved and provided in a CD marked as Annexure-CD1. He prepared detailed report dated 12.02.2018 Ex.PW12/C. He prepared hard copy of the detailed report (video file) in two pages marked as Annexure-A Ex.PW12/C2 (colly). He also enclosed the certificate under section 65B(4)(C) Evidence Act Ex.PW12/C1 with his report. PW12 identified CD Ex.PW12/Article-1 as the same CD which was supplied with his report. Annexure-CD1 (Ex. PW12/Article-
1) containing video recording in issue was played during recording of testimony of PW7 Ms. Pinki.
69. In his cross-examination by ld. Counsel for the accused PW12 deposed that as per Annexure-A i.e. Ex. PW12/C- 2(colly), the data copied in the pen-drive was shown in his report as last accessed on 11.01.2018. Unless and until the audio-video file so transferred in a storage device was altered or tampered with through some other application software, the last access date CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 47 of 60 will not be changed.
70. On being re-examined by Ld. Addl.P.P. for the State, PW12 affirmed that he had not ascertained whether there was any alteration or tampering in the recording as per file created on 22.04.2014 at 20:22:22 and the same is done by Physic Division, FSL Rohini.
71. At the request of Ld. Defence counsel, PW12 was recalled for further cross-examination and he deposed that as last accessed date was 11.01.2018 at 00:00:00, therefore, he could say that the file was copied/transferred in the pen drive on 11.01.2018. However, the date of creation of the file was 22.04.2014 at 20:22:22.
72. Thereafter PW12 was re-examined by Ld. Addl.P.P. for the State and he deposed that no facility was available in the lab to count the number of times the file was accessed prior to 11.01.2018. On being asked as to what he meant by time mentioned as 00:00:00 at point X on Ex.PW12/C2, PW12 replied that in memory card/pendrive/CD, when any file transferred or copied, it will take default time 00:00:00, whatever may be the system time but the date will be reflected as on the system/computer with the help of which CD was prepared/last accessed. PW12 further deposed that he had not mentioned in report the time of transfer of data in the pen- drive because no such query was asked by the investigating agency. PW12 stated that in memory card/pendrive/CD, when CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 48 of 60 any file is transferred or copied, it will take default time 00:00:00, whatever may be the system time but the date will be reflected as on the system/computer with the help of which CD was prepared/last accessed).
73. The aforesaid testimony of PW12 thus demonstrates that the file i.e. video recording in issue was transferred in the pen-drive Ex. PW8/Article 1 on 11.01.2018, even though the date of creation of file was indicated to be 22.04.14. Thus pen-drive Ex. PW8/Article 1 contained file i.e. video recording which was copied to it on 11.01.2018.
74. It is deposed by PW15 IO/ACP Diwan Chand that on 16.02.2018 the exhibits received from RFSL Chanakyapuri, were forwarded to Truth Lab, Safdurjung Enclave, New Delhi, through PW10 SI Kailash vide forwarding letter Ex. PW15/K. SI Kailash - PW10 handed over the acknowledgment of Truth Lab Ex. PW15/L. SI Neeraj - PW9 upon instructions of IO/PW15 collected the FSL result alongwith sealed exhibits from the Truth Lab, which were placed by him on record. The Truth Lab report is Ex. PW13/A. It is deposed by PW13 Ms. S. Neeru that vide letter dated 15.02.2018, the IO had forwarded a sealed parcel containing a pen-drive of 'Kingston' make 8 GB capacity which was marked as 'Item-1' by Truth Lab, for authentication of video-recording contained therein and the same was received in Truth Lab, Delhi, on 16.02.2018. As per the report Ex. PW13/A the audio and video of recording "Q" did not contain any sign of editing, tampering/morphing, hence, it was concluded that the CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 49 of 60 recording "Q" contained in the pen-drive Marked - 'Item 1' was an authentic recording recorded in an event truly occurred. She identified the pen-drive Ex. PW8/Article-1.
75. Accordingly, the pen-drive examined by the Truth Lab Ex. PW8/Article-1 was found to contain video-recording, the audio and video of which was found to be not tampered with.
76. From the aforesaid discussion, it is manifest that the pen-drive 'Kingston' 8 GB capacity Ex. PW8/Article-1 was not produced by the complainant. As discussed, even the original device was not produced by the complainant during investigation. Pen-drive Ex. PW8/Article-1 was found in the inquiry file of the accused at HAP Branch, South District, in unsealed condition and was seized by PW15 from PW8 SI Sunil Dutt Sharma on 11.01.2018. As per the FSL report Ex. PW12/C2 the video file in issue was copied /transferred in the pen-drive Ex. PW8/Article-1 on 11.01.2018 and the date of creation of file was 22.04.2014. It is thus manifest that the pen- drive Ex. PW8/Article-1 did not contain the original data and the data was transferred to the said pen-drive on 11.01.2018 and was thus a copy. Since the pen-drive Ex. PW8/Article-1 contained copy of the data and was thus secondary evidence, therefore, as per the mandate of Section 65B of Indian Evidence Act the same ought to be supported by certificate u/s 65B of I.E.Act as a condition precedent to the admissibility of the said pen-drive as evidence before the court. The pen-drive Ex. PW8/Article-1 being secondary evidence is not supported by any Certificate u/s CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 50 of 60 65B of I.E.Act. There is no evidence on record that the said pen- drive was handed over by the complainant Pinki to the police. PW7 Pinki has denied making any video-recording of the incident. Neither the device nor the video recording contained in pen-drive Ex. PW8/Article-1 have been proved on record in accordance with the mandate of Section 65B of I.E.Act. These factors render the pen-drive Ex. PW8/Article1 inadmissible in evidence. Despite the fact that as per report Ex. PW13/A, the audio-video recording contained in Ex. PW8/Article-1 was not tampered with, however, the source of video-recording is not proved on record. It is also pertinent to note that the said pen- drive was found in unsealed condition in the inquiry file of the accused at HAP Branch, South District, and the same was not handed over by the complainant to the IO raising doubt about the integrity of the video-recording contained therein. Hence, the FSL result based on such video-recording cannot be relied upon to base the conviction of the accused thereupon.
77. Additionally, the voices of accused Om Prakash and the complainant in the video-recording have not been identified. The voice sample of accused Om Prakash could not be taken as he had refused to give the same despite warning and no voice sample of the complainant has been taken during investigation and as such the voice of the complainant PW7 has also not been identified in the video-recording of the incident in issue. In these circumstances, since the voice of the complainant remained unidentified, one of the essential conditions to render the recording admissible in evidence has not been met.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 51 of 6078. The complainant PW7 and PW5 M.Sethu denied that they had provided the transcription Ex. PW5/B to the IO. The complainant Pinki - PW7 admitted her signatures on each page of the transcription, however, she stated that the said signatures were obtained from her on the said document on the pretext of taking action against the boys involved in M.Sethu case and denied suggestion to the contrary. PW5 M.Sethu also admitted his signatures on the transcription, however, he stated that he had no idea what was written on them. He stated that he had not read it as he could not read Hindi and English language and that he had studied upto 5th standard and could write only in Tamil language, however, he had signed in English language. He signed the documents at the asking of the police officials and the documents of the present case were not read over to him before taking his signatures. He has put his signatures on the documents under the impression that they were related to his case.
79. Accordingly, both PW5 and PW7 have denied handing over of the transcript Ex. PW5/B to the IO or the contents thereof. There is no panch witness of the preparation of the transcript. Hence, the same is not proved on record.
80. During recording of the testimony of PW7 complainant Pinki, the CD Annexure-CD1, which contained the data retrieved from pen-drive Ex. PW8/Article-1 was played before the court. After seeing the recording PW7 stated that she was not visible in the recording and she could not identify the CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 52 of 60 persons or the place visible in the recording. At this a court observation was made that in the video-recording the accused was visible with name plate 'O.P.Bhardwaj ASI', a lady wearing salwar-kamiz with a reddish mahroon dupata was the witness i.e. PW7 Pinki and she could be seen handing over some currency notes to the accused which were accepted by the accused. The Axis Bank ATM was also visible in the recording.
81. During her cross-examination PW7 Pinki deposed that she had never met the accused present before the court.
82. During recording of the testimony of PW5, CD Annexure-CD1 that was played during recording of testimony of PW7, could not be played and the pen-drive Ex. PW8/Article-1 was played before the court and PW7 stated that the lady appearing in the audio-video recording was not Ms. Pinki and that the accused present before the court was visible in the said audio-video recording.
83. Indeed there is court observation regarding the presence of the accused and PW7 Pinki in the audio-video recording in CD Annexure-CD1 played during recording of testimony of PW7, however, it is to be noted that the said audio- video recording contained in Ex. PW8/Article-1 and Annexure- CD1 (containing data retrieved from Ex. PW8/Article-1) cannot be relied upon to convict the accused in view of the discussion hereinabove and as the said pen-drive Ex. PW8/Article-1, from which Annexure-CD1 was prepared, is inadmissible in evidence.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 53 of 6084. It is argued by ld. Counsel for the accused that the complainant never made any video-recording and the same was purportedly made by the media reporters and thereby the evidence has been fabricated by showing the alleged video recording to have been made by the complainant, who has denied making any video-recording and thus was stating the truth before the court. It is urged that PW17 has made a false statement before the court that he did not conduct any preliminary enquiry and the fact that he did so is manifest in Ex. DW2/B (also Ex. PW17/DX). It is stated that from the contents of Ex. DW2/B it is manifest that the alleged video recording was provided by the reporters. It is also urged that as per the prosecution version, the alleged video-recording was made by the complainant, however, if the said video recording had been made by the complainant PW7, then she would not be visible in the video-recording in which she is allegedly seen handing over money to SI Om Prakash. It is accordingly urged that the video-recording in issue cannot be relied upon being a concocted piece of evidence.
85. Ld. Counsel for the accused proved the summoned record i.e. an order dated 22.04.2014 passed by Sh. P.S.Kushwaha, the then Dy. Commissioner of Police, South Distt., New Delhi, Ex. DW2/A which reads as under :
"On 22.04.2014, Media reports namely Sh. Rakesh Soni from Real News and Sh. Mukesh Singh from India News carried out a sting operation where in they have covered an episode showing SI Om Parkash of P.S. R.K.Puram accepting Rs. 3000/- from one Ms. Pinky for extending favours to one M.Sethu and others CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 54 of 60 in a court complaint case u/s 156(3) Cr.P.C. This is a serious and grave misconduct on the part of SI Omparkash No. 4012-D. Therefore I, P.S.Kushwaha, Dy. Commissioner of Police, South Distt., New Delhi, hereby order that a Preliminary Enquiry under rule 15(i) of Delhi Police (Punishment & Appeal) Rules, 1980 be conducted (i) to establish the nature of default and identity of defaulter(s), (ii) to collect the prosecution evidence,
(iii) to judge quantum of default, and (iv) to bring relevant document on record to facilitate a regular departmental enquiry, by Shri Surender Sharma, ACP/S.J.Enclave/South Distt., who will submit his report expeditiously." (emphasis supplied)
86. Ex. PW15/DB i.e. DW2/A was put to PW15 IO/ACP Diwan Chand, who deposed that it did not come to his notice that any pen-drive of the sting operation was provided by reporters of News Channel to the police at any point of time. He denied that he was intentionally showing his ignorance about the order dated 22.04.2014 Ex. PW15/DB.
87. In this regard, PW17 IO/ACP Surender Sharma deposed that no order was received by him from the office of DCP whereby he was instructed to conduct preliminary enquiry. He stated that he did not conduct any preliminary enquiry.
88. From a bare perusal of Ex. DW2/A, it is revealed that a sting operation was carried out by media reporters namely Sh. Rakesh Soni from Real News and Sh. Mukesh Singh from India News, on 22.04.2014. As per the said order of DCP, South District, New Delhi, the said sting operation pertained to accused SI Om Prakash accepting Rs. 3000/- from Ms. Pinki for extending favours to M.Sethu i.e. the incident in issue. It is also CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 55 of 60 noteworthy that though as per the prosecution case, the pen-drive make 'Sandisk' 4 GB was produced by Ms. Pinki during investigation, however, as discussed herein-above there is no document on record to show that the aforesaid pen-drive or the pen-drive make 'Kingston' 8 GB was produced by Ms. Pinki or was seized from her. Ms. Pinki - PW7 has also denied making any video recording or handing over the same to the IO. A bare perusal of the aforesaid order of DCP South District, New Delhi, Ex. DW2/A reveals that a sting operation of the incident in issue was carried out by media reporters.
89. The order dated 05.05.2014 of Sh. B.S.Jaiswal, DCP South District, New Delhi, Ex. DW2/B passed in the Departmental Enquiry conduced against the accused mentions as follows :
" On 22.04.2014 at about 6.00 P.M., Media reporters namely Sh. Rakesh Soni from Real News and Sh. Mukesh Singh from India News met the undersigned in the office and told hat they have recorded a sting operation wherein they have covered an episode showing SI Om Parkash of P.S. R.K.Puram accepting Rs. 3000/- from one Ms. Pinky for showing favour to Mr. M.Sethu and others in a court complaint case. The reporters also provided a copy of the said recordings in a Pen Drive.
On viewing the said recording it is revealed that SI Om Parkash is having conversation with one female and one male identified to be Ms. Pinky (A Social worker of K.D.Colony, r.k.pURAM) AND Mr. M.Sethu R/o K.D.Colony, R.K.Puram, New Delhi.
The undersigned ordered a Preliminary Enquiry to be conducted into the matter by Shri Surender Sharma, ACP/S.J.E./SD under Rule - 15(1) of Delhi Police (Punishment & Appeal) Rules, 1980, vide order No. 4447/HAP/SD(P-II), dated 22.04.2004. Shri Surender Sharma, conducted the CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 56 of 60 Preliminary Enquiry and submitted his enquiry report on 23.04.2014, which concludes that statement of witnesses and perusal of the video recording of the said sting operation reveals that SI Om Parkash is seen having conversation with one Ms. Pinky (A Social Worker of K.D. Colony, R.K.Puram) and Mr. M.Sethu R/o K.D. Colony, R.K.Puram, New Delhi and accepted a bribe of Rs. 3,000/- (three thousand) for showing favour to Sh. M.Sethu in court complaints u/s 156(3) Cr.P.C. ........"
90. PW17 identified the signature of Sh. B.S.Jaiswal, DCP South, on copy of the order dated 05.05.2014 passed by Sh. B.S.Jaiswal, DCP, South District, New Delhi i.e. Mark PW15/X, which was exhibited as Ex. PW17/DX and Ex. DW2/B.
91. As regards the said order dated 05.05.2014 Mark - PW15/X (also Ex. PW15/DX and Ex. DW2/B), PW15 IO/ACP Diwan Chand deposed that he had no idea whether the order dated 05.05.2014 was issued from the office of DCP South under the signatures of Sh. B.S.Jaiswal. He stated that he could not admit or deny the copy of the said order. He denied that he was intentionally showing ignorance of the aforesaid order.
92. In this regard PW18 IO/ACP B.S.Jhakhar deposed that it was not revealed to him that two reporters from a news channel were involved in the sting operation of the present case or not. He had never come across copies of orders Ex. PW15/DB and Ex. PW17/DX during his tenure of investigation.
93. The above order dated 05.05.2014 Ex. DW2/B (also CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 57 of 60 Ex. PW17/DX), categorically notes that a sting operation was carried out by media reporters namely Sh. Rakesh Soni and Sh. Mukesh Singh regarding the incident in issue in the present case. It is also mentioned in the said order that the reporters also provided a copy of the said recordings in a pen-drive. It is however relevant to note that the said order mentions that three persons i.e. the accused having conversation with Ms. Pinki and Mr. Sethu, were visible in the said recording. The recording played before the court in CD Annexure-CD1 regarding which court observation has been made reveals that the accused and Ms. Pinki were visible in the said video. It thus appears that the video recording referred to in the Departmental Enquiry proceedings is different from the video recording of the same incident which is placed on court record by way of Ex. PW8/Article-I and CD Annexure-CD1 containing the data retrieved from Ex. PW8/Article-I.
94. In view of the foregoing discussion it is evident on record that there is no oral evidence of demand and acceptance as both PW5 and PW7 have not supported the prosecution version despite being cross-examined in detail by Ld. APP for the State. Moreover, since neither the contents of pen-drive Mark PW18/DA nor the video-recording contained in pen-drive Ex. PW8/Article-1 have been proved on record, therefore, they cannot be used either to corroborate or contradict the oral testimony of the witnesses i.e. PW5 and PW7, who have otherwise also not supported the prosecution version regarding the allegations of demand of bribe by the accused. As discussed CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 58 of 60 herein-above, it is a settled principle of law that a recorded conversation can only be relied upon as a corroborative piece of evidence of the conversation deposed by any of the parties to it. The evidence given before the court can also be used to contradict the evidence given before the court as well as to test the varacity of the witness and to impeach his impartiality. In the present case both PW5 and PW7 have not supported the allegations of demand of bribe by the accused and in their oral testimony they have denied the said allegations. In these circumstances, the contents of the video-recording have neither been corroborated by any other evidence on record nor was anything revealed by confronting the said witnesses i.e. PW5 or PW7 with the contents thereof. In these circumstances, the purported video-recording contained in pen-drive Mark PW18/DA and the video-recording contained in Ex. PW8/Article-1, which though have been proved to be not tampered with vide the FSL result Ex. PW1/A and Ex. PW13/A respectively, have not been corroborated by evidence of any witness.
95. Moreover, from the aforesaid discussion, it emerges that even though the video-recording has been proved to be un- tampered as per the FSL results Ex. PW1/A and Ex. PW13/A, however, the prosecution has failed to prove the source and admissibility of the video-recordings in accordance with law and hence, it cannot be relied upon as the sole basis to convict the accused.
CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 59 of 6096. In view of foregoing discussion, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Om Prakash is given benefit of doubt and he is acquitted of the charged offences. His bail bond stands cancelled and surety stands discharged.
97. File be consigned to Record Room after due compliance.
Digitally signedDEEPALI by DEEPALI SHARMA SHARMA Date: 2024.08.09 04:13:44 +0530 Announced in the open Court on 9th August, 2024 ( Deepali Sharma ) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No. 19/2019 FIR No. 301/2014, PS R.K.Puram, State vs. Om Prakash Page 60 of 60