Delhi District Court
State vs Shairf Ahmad on 31 January, 2024
IN THE COURT OF DEEPALI SHARMA :
SPECIAL JUDGE (PC ACT)(ACB-01):
ROUSE AVENUE DISTRICT COURT : NEW DELHI
CC No. 78/2020
CNR No. DLCT11-000356-2020
FIR No. 42/2009
U/S: 7/13 PC Act
PS: Anti Corruption Branch
State
Versus
Sharif Ahmad,
S/o Late Sh. Abdul Ali Khan,
R/o H.No. E-232/233,
New Seemapuri, Delhi.
Permanent Address:
H.No. 89, Sarai Murtaza Khurza,
Distt. Bulandshahar, UP.
Date of Institution : 24.11.2020
Date of Arguments : 29.01.2024
Date of Judgment : 31.01.2024
Appearance :
For the State : Sh. Salim Khan,
Ld. Chief Public Prosecutor.
For accused : Sh. Sanjay Gupta, Advocate.
JUDGMENT
1. Brief facts of the case are that on 04.12.2009 a complaint Ex. PW15/A was received at ACB Office and the same was marked to Insp. Santosh Kumar. Insp. Santosh Kumar called CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 1 of 73 the complainant Mohd. Irshad at his office and made enquiries from him regarding the complaint. He recorded the statement of complainant Mohd. Irshad in the presence of panch witness Jayant Majumdar. In his statement recorded by Insp. Santosh Kumar complainant Mohd. Irshad stated that he used to work at Jan Ujala, Delhi as a reporter / photographer. Investigation with regard to a rape case bearing FIR No. 91/2008 dated 16.04.2008, u/s 376/506/120B/34 IPC, registered at PS New Usmanpur, Delhi, was assigned to SI Sharif Ahmad. In the said FIR, victim had made allegations against Sikander s/o Haider and Liyakat Ali. Father of Sikander namely Haider Ali had told the complainant that IO SI Sharif Ahmad was calling him repeatedly and demanding bribe from him. He also told him that Sikander got anticipatory bail from court and despite the same SI Sharif Ahmad was demanding a bribe of Rs.15,000/- for bail and for weakening the said case by increasing the age of the victim from 13 years to 19 years in the hospital by which the case would automatically weaken. The complainant stated that Haider Ali, father of Sikander, was very scared and therefore Haider Ali gave Rs. 10,000/- to Liyakat and sent it to Sikander and he i.e. complainant also went alongwith them so that SI Sharif Ahmad could be recorded while demanding and receiving bribe.
2. It was further alleged by the complainant that on 04.05.2008 Sikander, Liyakat alongwith the complainant met SI Sharif Ahmad and the complainant made a recording where SI Sharif Ahmad demanded Rs. 15,000/- for getting bail in the matter and for weakening of the case and for changing the age of the victim from 13 years to 19 years, out of which Rs. 10,000/-
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 2 of 73were given by Liyakat and Rs. 5000/- were given by the complainant. Thereafter SI Sharif Ahmad also demanded Rs. 20,000/- to leave Liyakat, which was also recorded by the complainant. In this manner, the complainant made two recordings of SI Sharif Ahmad demanding and receiving bribe. The complainant further stated that he had given a complaint at ACB, however, later he went out of station and got busy in his work. He had come upon the asking of ACB. He wanted action to be taken against SI Sharif Ahmad. He also stated that he has no personal enmity against SI Sharif Ahmad nor he had any money dealing with him. The complainant also stated that he had made two copies of both the recordings and had made a total of four VCDs. He had also brought the transcripts of the conversation in total of six pages. The complaint was recorded in the presence of panch witness, who also signed the complaint. Liyakat Ali was also present alongwith the complainant.
3. IO seized transcript running into six pages Ex. PW11/B and four VCDs containing audio - video recordings vide seizure memo Ex. PW11/C. On the basis of complaint present FIR bearing no. 42/2009 was registered on 04.12.2009 u/s 7/13 Prevention of Corruption Act (hereinafter referred as POC Act).
4. During further investigation, IO collected copy of FIR No. 91/2008 PS Usmanpur, Delhi and MLC of the victim. The accused was called at ACB Office and he joined the investigation. The recorded VCDs were shown to Insp. Sushil CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 3 of 73 Sharma, SHO PS New Usmanpur in the presence of panch witness Jagjivan Ram and Insp. Sushil Sharma identified accused SI Sharif Ahmad, who was seen in the VCD, while demanding and accepting bribe. IO prepared an observation memo Ex. PW5/A dated 27.01.2010. IO arrested the accused SI Sharif Ahmad vide arrest memo Ex. PW7/A, his personal search memo is Ex PW7/B. On the next day i.e. 28.01.2010 the accused was interrogated in the presence of panch witness S.K.Bhuttan and he was asked to provide his voice sample with the questioned voice to which he consented vide consent memo Ex. PW9/A. The voice sample of accused was taken at FSL Rohini in the presence of panch witness S.K.Bhuttan in an audio cassette. The original voice sample and a copy of the same were taken in two cassetts and seized by the police vide seizure memo Ex. PW9/B. IO deposited the seal in the malkhana. On 24.02.2010 voice samples of complainant Irshad and witness Liyakat Ali were recorded at FSL Rohini in the presence of panch witness Roop Singh. The above voice samples were sent to FSL Rohini for examination and evaluation.
5. IO also sent a request for sanction u/s 19 of POC Act against the accused from DCP North/East and the same was received from the competent authority. Further investigation of the case was assigned to Insp. Kailash Chand.
6. Vide its report dated 04.03.2010 the FSL report was received vide FSL No. 2010/P-0945/PHY-42/10 dated 17.10.2010 as per which the sample voices of accused SI Sharif CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 4 of 73 Ahmad, complainant Irshad and witness Liyakat ali matched with their voices recorded in the sting VCDs. Further vide FSL No. 2018/P-10162/PHY-478/18 dated 21.01.2020 the expert opinion on video in frame by frame examination found that there was no indication of alteration.
7. Further investigation of the case was assigned to Insp. Rakesh Saini, who collected the certificate u/s 65B of Indian Evidence Act from the complainant vide Ex. PW11/D. As some part of recording was not transcripted, therefore, on 09.06.2015 IO called the complainant in the presence of Panch witness namely Rajesh Chopra and prepared a computerized transcript in their presence vide Ex. PW11/D1. Further investigation of the case was assigned to Insp. Rohitash Kumar. After obtaining the FSL result with regard to opinion on frame by frame analysis, he examined the complainant with regard to date and time of recording the sting VCDs, a fresh sanction for prosecution was sought from DCP North/East. IO tried to trace witness Sikander and his father Haider Ali, however they were not traceable and Sikander had been declared PO in the rape case and his father was found not to have any permanent address.
8. After completion of investigation, charge-sheet was filed against the accused Sharif Ahmad u/s 7/13 POC Act on 24.11.2020 and cognizance of offence was taken against the accused on 22.01.2021. Thereafter, accused was summoned and after hearing arguments, charge for the offence under Section 7 & 13 (1) (d) of POC Act punishable under Section 13 (2) of POC CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 5 of 73 Act was framed against the accused on 17.09.2021, to which accused 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) PW-1 HC Kuldeep Singh deposed that on 04.03.2010 on the instructions of IO, he went to Malkhana, PS Civil Lines alongwith FSL form and other documents and obtained three sealed parcels and one sealed envelope, which he took to FSL, Rohini vide RC No. 181/21/2010 dated 04.03.2010. He further deposed that after depositing the aforesaid case property at FSL, he obtained case acceptance receipt and copy of RC, which he handed over to MHC(M), PS Civil Lines on his return.
ii) PW-2 DCP Ved Prakash Surya deposed that in the year 2020 he was posted as DCP, NE-District, Delhi. A request from DCP, ACB, was received in the present case FIR alongwith entire documents including copy of FIR, seizure memos, statements of witnesses, FSL result, draft charge-sheet for according prosecution sanction against accused Retired SI Sharif Ahmad and after perusal of same, vide his detailed order dated 02.07.2020 Ex.PW2/A, he granted prosecution sanction U/s 19(1)(c) of PC Act against accused SI Sharif Ahmad.
iii) PW-3 Dr. C.P. Singh, Assistant Director, Physics, CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 6 of 73 FSL Rohini, Delhi, deposed that on 04.03.2010, three sealed parcels sealed with the seal of 'SKS' were received in FSL, Rohini through Ct. Kuldeep Singh, out of which one parcel was containing two audio-video CDs marked Exhibit-A1 and Exhibit- B1 and same were marked Exhibit-1 and Exhibit-2 in the laboratory. He further deposed that second parcel was containing one audio cassette marked Exhibit-A1 and same was marked Exhibit-3 in the laboratory and it was stated to be containing sample voice of accused Sharif Ahmad. Third parcel was containing two audio cassettes marked Exhibit-L1 and Exhibit- K1 and same were marked Exhibit-4 and Exhibit-5 in the laboratory and it was stated to be containing sample voice of Mohd. Irshad and Liyakat Ali. He further deposed that on auditory analysis by critical listening and subsequent waveform and spectrographic analysis of audio recordings, in CDs marked as Exhibit-1 and Exhibit-2, there were no indication of any form of alteration in audio recording/track.
PW3 further deposed that on auditory analysis of recorded speech samples of speakers mark Exhibit-Q1 & Exhibit-S1 and subsequent acoustic analysis of speech samples using CSL (computerize speech lab) revealed that the voice exhibits of speakers mark Exhibit-Q1 were similar to the voice exhibits of speaker mark Exhibit-S1 in respect of their acoustic cues and other linquistic and phonetic features. Voice exhibits of speakers mark Exhibit-Q1 and Exhibit-S1 are possible voice of same person i.e. Sharif Ahmad. Similarly on analysis of recorded speech samples of speakers mark Exhibit-Q2 and Exhibit-S2, it was revealed that the voice exhibits of speakers mark Exhibit-Q2 and Exhibit-S2 are possible voice of same CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 7 of 73 person i.e. Mohd. Irshad. Similarly on analysis of recorded speech samples of speakers mark Exhibit-Q3 and Exhibit-S3, it was revealed that the voice exhibits of speakers mark Exhibit-Q3 and Exhibit-S3 are possible voice of same person i.e. Liyakat Ali. PW3 gave his detailed report No. FSL 2010/P-0945/PHY-42/10 dated 17.08.2010 Ex. PW3/A. PW3 further deposed that on 30.10.2018 one sealed parcel was received in the office of FSL through HC Jitender and on opening the same it found containing two audio-video CDs and same were marked as Exhibit-1 and Exhibit-2. After examination of video track in Exhibit-1 and Exhibit-2, it was observed that each video file contains one identified video shot and there was no indication of alteration in the identified video shot on the basis of frame by frame examination using Video Analyst System. He gave his detailed report No. FSL-2018/P-10162/PHY-478/18 dated 21.01.2020 Ex. PW3/B.
vi) PW-4 Insp. B.K. Singh deposed that on 14.11.2013, he received the present case file from Insp. Kailash Chander and since he was busy in investigation of other case, the file could not be studied thoroughly by him and the same was transferred to Insp. Rakesh Saini.
v) PW-5 Retired ACP Sushil Chandra Sharma deposed that in the year 2008, he was posted as SHO, PS New Usmanpur and one CD was played by the IO in his presence as well as in the presence of one panch witness wherein PW-5 had identified accused SI Sharif Ahmad, who was also posted at PS New CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 8 of 73 Usmanpur at that time. One observation memo dated 27.01.2010 Ex.PW5/A was also prepared in this regard.
During the cross-examination by Ld. Addl. PP for the State, PW-5 affirmed that on 27.01.2010, two CDs i.e. A-II and B-II were played before him and he had also identified the voice of accused in those recordings. PW5 correctly identified the voice and accused seen in CD Mark-A II and Mark-B II. During the cross-examination on behalf of accused, when the properties of the CDs were checked on court computer, PW5 deposed that the date appearing on the screen in CD A-II is 08.01.2097 and CD B-II is 08.05.2008.
vi) PW-6 SI K.L. Meena deposed that on 04.12.2009, he was posted as duty officer at PS ACB and on that day Insp. Santosh handed over him one rukka on the basis of which the present case FIR was registered, vide carbon copy of FIR Ex.PW6/A and he also made endorsement Ex.PW6/B on the rukka. After registration of the case, original rukka and copy of FIR were handed over to Insp. Santosh.
vii) PW-7 Jagjiwan Ram deposed that he was deputed for panch witness duty at ACB in the year 2010 while he was posted in Department of Industry. He further deposed that at ACB he met with the IO and one CD was played in his presence. He further deposed that one person had come to surrender in the office of ACB and in the evening he was allowed to leave the office. During the course of recording of his testimony in the court, he identified his signatures on documents i.e. Ex.PW5/A, CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 9 of 73 arrest memo Ex.PW7/A and personal search memo Ex.PW7/B. During the cross-examination on behalf of Ld. Addl. PP for the State, he affirmed that on 27.01.2010, he had joined the investigation of the present alongwith accused Sharif Ahmad, who was interrogated at the office of ACB. He further affirmed that two CDs were played on the computer in the ACB office, however he does not remember whether the CDs were marked as A-II and B-II. He denied that after seeing both the CDs, he had identified accused Sharif Ahmad demanding and accepting bribe. He affirmed that an observation memo Ex.PW5/A was prepared and accused Sharif Ahmad was arrested in his presence and his personal search was conducted vide memos Ex. PW7/A and Ex. PW7/B respectively. During the course of his testimony in the court, the CDs Mark-A-II and Mark-B-II were played in the court and PW5 deposed that these are the same CDs which were played on 27.01.2010 in his presence at ACB and he had identified the accused Sharif Ahmad as well as his voice in the video.
viii) PW-8 Roop Kishore Sharma deposed that in the year 2009 he was deputed as panch witness at ACB while he was posted as Extn. Officer, BDO Office, Najafgarh, Delhi. He further deposed that ACB officials took him to FSL, Rohini alongwith one policeman and one more person where proceedings related to recording of voice sample was done by FSL officials. He further deposed that the recording was of one Khan Sahab.
PW-8 was cross-examined by Ld. Addl. PP for State CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 10 of 73 and during his cross-examination by Ld. Addl. PP for the State, he affirmed that he had visited FSL, Rohini on 24.02.2010 with Mohd. Irshad and Liyakat Ali for recording of their voice samples. He further affirmed that recording of voice sample of Mohd. Irshad was done in an audio cassette make 'Sony HF-90' and recording of the same was also copied to another cassette of make 'Sony HF-90'. He further affirmed that the cassettes containing original voice sample of Mohd. Irshad was marked as L1 i.e. Ex.P4 and copy of the same cassette was marked as LII i.e. Ex.P6. He further affirmed that recording of voice sample of Liyakat Ali was done in an audio cassette make 'Sony HF-90' and the recording of same was also copied to another cassette make 'Sony HF-90' and the cassette containing original voice sample of Liyakat Ali was marked as K1 i.e. Ex.P5 and copy of the same was marked as KII i.e. Ex.P7. He further affirmed that cassettes marked as L1 and K1 were converted into cloth pulanda and sealed with the seal of SKS and had taken the same into police possession vide seizure memo Ex.PW8/A.
ix) PW-9 S.K. Bhuttan deposed that on 28.01.2010 while he was posted in Commissioner of Industries, Patparganj, Delhi, joined the investigation of present case as panch witness and in his presence accused Sharif Ahmad had given his consent at ACB office for recording of his voice sample, vide consent memo Ex.PW9/A. He further deposed that he alongwith officials of ACB and accused Sharif Ahmad went to FSL, Rohini where voice sample of accused Sharif Ahmad was recorded by FSL officials in an audio cassette make 'Sony' which was marked as A1 i.e. Ex.P3 and copy of same was also prepared in a cassette CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 11 of 73 make 'Sony' which was marked as A2 i.e. Ex.P8. He further deposed that both the aforesaid cassettes were signed by him and the same were converted into sealed pulanda and were sealed with the seal of SKS and sealed pullandas were taken into police possession through seizure memo Ex.PW9/B.
x) PW-10 Retired ACP Kailash Chandra deposed that on 26.03.2011, the investigation of present case was marked to him. He further deposed that on 20.02.2012, he called HC Anand Prakash, MHC(R) of PS New Usmanpur in his office and made enquiries from him regarding case FIR No. 91/08, PS New Usmanpur and recorded his statement U/s 161 Cr.P.C. He further deposed that he had also sent notices to accused of case FIR no. 91/08 and his father at their Bihar address which were received unserved. He further deposed that he had also called complainant Irshad in his office on 08.06.2012 and asked about the recording instrument by which the sting operation was recorded and also recorded his statement U/s 161 Cr.P.C. In the year 2013, he handed over the case file to SO Branch as he was transferred.
xi) PW-11 complainant Irshad Khan deposed that in the year 2009 accused SI Sharif Ahmad had demanded bribe of Rs.15,000/- from Sikander for his bail. He further deposed that Sikander and his father met him i.e. PW-11 and narrated the aforesaid facts to him in their office, where his father i.e. father of PW-11, was also present. PW11 further deposed that his father asked him to get recorded the conversation ( video CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 12 of 73 recording kara do) as he was publishing a newspaper Jan Ujala and PW-11 was working as cameraman with his father. PW11 further deposed that he had videographed the conversation. He further deposed that accused Sharif Ahmad had come to their office and offered to get the bail bond of Sikander filled and demanded Rs.15,000/- for the said work and stated "court mein nahi jana padega aur bahar se bahar jamanat ho jayegi". He further deposed that Sikander was an accused alongwith Liyakat in a rape case registered at PS Usmanpur which was being investigated by accused SI Sharif Ahmad. He further deposed that Sikander had paid Rs.15,000/- to accused SI Sharif Ahmad in presence of father of Sikander and Liyakat in their office and the said transaction was recorded by PW-11 through a spy camera. He further deposed that he alongwith Haider i.e. father of Sikander and Liyakat went to office of ACB and met with DCP of ACB and informed him about the recording and narrated about the incident and the case was assigned to IO to whom PW- 11 handed over the original memory card and one CD containing copy of the recording, which was played by the IO and verified. PW11 further deposed that they visited ACB after 5-6 days where they were apprised that the case has been registered and then his statement Ex. PW11/A was recorded. PW11 further deposed that his sample voice was recorded in an audio cassette at FSL, Rohini. During the course of his testimony in the court, PW-11 has identified accused Sharif Ahmad. During the course of his testimony in the court, CD Ex.P1 was played on court computer and PW-11 has identified accused Sharif Ahmad and Liyakat Ali. The CD Ex.P2 was also played on the court computer during the course of testimony of PW-11 and he has identified accused CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 13 of 73 Sharif Ahmad and his voice in the recording.
PW-11 was cross-examined by Ld. Addl. PP for the State as he has not disclosed the complete facts of the case and during the course of his cross-examination by Ld. Addl. PP for State, PW-11 affirmed that the case FIR No. 91/08 was registered at PS Usmanpur and the victim had named Sikander and Liyakat Ali as the accused persons. PW11 further affirmed that Haider Ali, father of Sikander, had told him that IO i.e. accused SI Sharif Ahmad was regularly calling him and demanding bribe of Rs.15,000/- for bail formalities and for weakening the aforesaid case. PW-11 further affirmed that accused SI Sharif Ahmad told Sh. Haider Ali that he would get the age of the prosecutrix increased from 13 years to 19 years in the hospital and thus case would be weakened. PW11 further affirmed that as Haider Ali was afraid of going before police, he gave Rs.10,000/- to Liyakat and sent Sikander to accused SI Sharif Ahmad and PW-11 had also accompanied with him where he made recording of bribe transaction. PW11 further affirmed that on 04.05.2008, he alongwith Sikander and Liyakat met with accused SI Sharif Ahmad and on his demand, Liyakat had paid bribe of Rs.10,000/- and PW-11 had paid bribe of Rs.5,000/- to accused SI Sharif Ahmad for weakening the case and getting the age of the prosecutrix increased from 13 years to 19 years, which was given to PW-11 by Haider Ali for paying bribe to accused SI Sharif Ahmad. PW-11 further affirmed that accused SI Sharif Ahmad had demanded bribe of Rs.20,000/- to absolve Liyakat and SI Sharif Ahmad had demanded bribe amount twice and both the times, PW-11 had recorded the transaction regarding payment of bribe. PW11 further deposed that he had given a written CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 14 of 73 complaint when he had visited the office of ACB and thereafter, he had gone outside for a considerable time and thereafter, he was called by ACB officials when his statement Ex.PW11/A was recorded. PW11 further deposed that he had given two CDs and one memory card to the IO of this case. He voluntarily deposed that he prepared one copy of each of the two CDs. He affirmed that he has supplied transcript of both the CDS Ex.PW11/B (colly) to the IO. He denied the suggestion that he had not given any memory card to the IO. PW-11 affirmed that on 04.12.2009, all the four CDs were played in the office of ACB in presence of panch witness Sh. Jayant Majumdar and Liyakat Ali and PW-11 had identified all the four CDs of the sting of accused SI Sharif Ahmad. PW-11 further affirmed that CD Mark-A1 and B1 were converted into pulanda and were sealed and remaining two CDs were kept open for the purpose of investigation as also seizure memo Ex.PW11/C regarding aforesaid proceedings was prepared. PW-11 further affirmed that on 24.02.2010, he alongwith Liyakat Ali and panch witness Roop Kishan Sharma accompanied IO to FSL, Rohini for getting his voice sample recorded where voice samples of PW-11 as well as of Liyakat Ali were recorded in two blank audio cassettes of make 'SONY' and copies of the same were also prepared and thereafter, the cassettes were sealed in cloth pullandas and seized through seizure memo Ex.PW8/A. The audio cassette containing the sample voice of PW-11 is Ex.P4. PW11 further affirmed that on 08.06.2012, he was called by the IO, who demanded original device and he informed the IO that his camera was snatched by somebody on 14.08.2011 and he had reported the matter to police of PS Dilshad Garden. He further affirmed that on 29.01.2015, he CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 15 of 73 visited ACB and handed over certificate U/s 65B of Indian Evidence Act Ex.PW11/D in respect of recordings of the sting operation conducted by him. He further affirmed that first sting operation was done on 04.05.2008 at 'Murge Wali Shop of Salim' at the corner of 3½ Pusta and the second recording was dated 08.05.2008.
xii) PW-12 Jayant Mozumdar deposed that he was deputed as panch witness at ACB while he was working in Education Department as UDC in 2009, and he was shown one video on computer at ACB office in the presence of SI Paliwal. During his testimony in the court, he identified the police official in the video as Sharif Ahmad. He further deposed that two CDs i.e. Ex.P1 and Ex.P2 were sealed in his presence.
PW-12 Sh. Jayant Mozumdar was cross-examined by Ld. Addl. PP for the State and during his cross-examination, he deposed that he had visited the office of ACB on 04.12.2009. In his cross-examination, he affirmed that complainant Mohd. Irshad was also present at ACB and the video was played in his presence and the complainant produced four CDs containing original recordings in two CDs and two copies. During his cross- examination, transcript Ex.PW11/B was shown to him and he identified his signature at point B on all the pages of the transcript. PW12 further affirmed that a seizure memo was prepared by the IO regarding seizure of CDs and transcript, vide memo Ex.PW11/C. He further affirmed that one person namely Liyakat was also present there during the proceedings on 04.12.2009. He further deposed that he had seen the recordings CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 16 of 73 and there was some money transaction between two person. During his testimony, CD Ex.P1 was played on the computer of the court and after seeing the recording of Ex.P1, the witness states that this CD was not played in his presence on 04.12.2009. He denied the suggestion that CD Ex.P1 was played in his presence on 04.12.2009 in which SI Sharif Ahmad was identified by Mohd. Irshad.
During his testimony, CD Ex.P2 was played on the computer of the court and after seeing the recording of Ex.P2, he stated that this CD was played in his presence on 04.12.2009.
xiii) PW-13 ASI Jai Prakash deposed that on 04.12.2009, he was posted as MHC(M), PS Civil Lines and on that day Insp. Santosh Kumar of PS ACB deposited sealed exhibits, vide entry at serial no. 171/896 in Register no. 19, Ex.PW13/A. He further deposed that Insp. Santosh Kumar deposited personal search items of accused Sharif Ahmad on 27.01.2010 and he also deposited sealed exhibits on 28.01.2010, vide copies of entry Ex.PW13/B and Ex.PW13/C respectively in Register no. 19. PW13 further deposed that on 24.02.2010, Insp. Santosh Kumar also deposited four sealed pulandas vide entry Ex.PW13/D. PW13 further deposed that on 04.03.2010, five sealed exhibits in the present case were sent to FSL, Rohini through Ct. Kuldeep through RC no. 181/21/10 dated 04.03.2010, vide copy of RC Ex.PW13/E and copy of acknowledgement of case acceptance Ex.PW13/F and he made relevant entry in this regard in Ex.
PW13/A.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 17 of 73
xiv) PW-14 Sh. Rakesh Saini deposed that on
19.11.2013, investigation of present case was assigned to him while he was posted as Inspector at ACB and on 29.01.2015, he had collected certificate U/s 65B of Indian Evidence Act Ex.PW11/D from complainant Mohd. Irshad. He further deposed that on 09.06.2015, he called the complainant and prepared the computerized transcript Ex.PW11/D1 in the presence of panch witness Rajesh Chopra. He further deposed that on 09.05.2016, he was transferred from ACB and he handed over the case file to MHC(R).
xv) PW-15 retired ACP Santosh Kumar deposed that on 04.12.2009 while he was posted as Inspector in ACB, he received the complaint Ex.PW15/A of Mohd. Irshad from the office of ACB for enquiry. He further deposed that he called the complainant Mohd. Irshad at his office and made enquiries regarding the complaint and also recorded his statement Ex.PW11/A as per his version in the presence of Sh. Jayant Majumdar, panch witness. He further deposed that the complainant provided him four CDs of sting operation with transcript of the conversation in the CD. PW15 further deposed that the CD was recorded by complainant Mohd. Irshad while the accused was demanding money for giving relief to Sikander and Liyakat, who were accused in a rape case. He further deposed that all the four CDs having audio-video recording and same were played in the office computer in the presence of panch witness and complainant, and after verifying the contents of the aforesaid CDs by the complainant and the witnesses, these CDs were signed by complainant Mohd. Irshad, Liyakat Ali, panch CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 18 of 73 witness Jayant Majumdar and PW-15 Insp. Santosh Kumar. He further deposed that all the four CDs were marked as A-1, A-2, B1 and B2 and CDs marked A-1 and B-1 were seized after keeping them in a cloth pulanda and sealing them with the seal of SKS, vide seizure memo Ex.PW11/C. PW15 further deposed that transcription running into six pages Ex.PW11/B was also taken into police possession through memo Ex.PW11/C and the CDs marked A-2 and B2 were kept open for the purpose of investigation. He further deposed that he made endorsement Ex.PW15/B on the statement of the complainant and handed over the same to the Duty Officer at about 12:10 pm for registration of FIR and after registration of FIR, he deposited the sealed pulanda in the Malkhana of PS Civil Lines. PW15 further deposed that on 09.01.2010, he obtained copy of FIR no. 91/08, PS New Usmanpur, U/s 376/506/120B/34 IPC Ex.A-2 and placed the same on the file. He further deposed that on 27.01.2010, he called accused Sharif Ahmad and Insp. Sushil Sharma, the then SHO, PS New Usmanpur in whose presence and in presence of panch witness Sh. Jagjivan Ram, the CDs marked A-2 and B-2 were played on office computer and Insp. Sushil Sharma identified accused SI Sharif Ahmad who was seen in the CD while demanding and accepting bribe and in this regard observation memo Ex.PW5/A was prepared by PW-15 which was signed by Insp. Sushil Sharma, panch witness Sh. Jagjivan Ram as well as by accused Sharif Ahmad. He further deposed that thereafter, accused Sharif Ahmad was interrogated in detail and was arrested vide arrest memo Ex.PW7/A and his personal search was conducted vide personal search memo Ex.PW7/B and thereafter, accused was put in the lockup of PS Civil Lines.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 19 of 73PW15 further deposed that on 28.01.2010, accused was brought to ACB and interrogated in the presence of panch witness Sh. S.K. Bhuttan and consent memo Ex.PW9/A regarding providing his sample voice was prepared and thereafter, he was taken to FSL, Rohini where his voice sample was recorded in the presence of Sh. S.K. Bhuttan in audio cassette and copy of original voice sample of accused was also prepared and thereafter, both the cassettes were taken into police possession vide memo Ex.PW9/B. He further deposed that thereafter, the accused was produced before the court and he was remanded to judicial custody and the sealed exhibits were deposited in Malkhana by PW-15. He further deposed that on 22.02.2010, he received the bio-data and posting order of accused Sharif Ahmad Ex.A-4 and placed the same on file. PW15 further deposed that on 24.02.2010, he called Irshad and Liyakat Ali in ACB and they were taken to FSL, Rohini where their sample voices were obtained in audio cassettes with the help of FSL officials in the presence of panch witness Roop Singh and their copies were also got prepared and the cassettes were converted into pulandas separately and sealed with the seal of SKS and all the aforesaid cassettes were taken into police possession vide memo Ex.PW8/C and thereafter, he deposited the sealed pulandas at Malkhana of PS Civil Lines. He further deposed that on 04.03.2010, he called Ct. Kuldeep Singh and on his direction Ct. Kuldeep Singh collected the sealed pulandas from Malkhana of PS Civil Lines and deposited the same at FSL, vide RC no. 181/21/10. PW15 further deposed that on 17.06.2010, he met with Sh. R.D. Shukla, DCP of ACB, and requested him to send the request letter for obtaining prosecution sanction against the CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 20 of 73 accused under section 19 of PC Act and accordingly, the request was sent to DCP, North East and thereafter, on 08.07.2010, he received prosecution sanction from the competent authority, which was placed on record. PW15 further deposed that on 23.08.2010, HC Anand was called and directed to collect the FSL report from FSL, Rohini and accordingly HC Anand collected the report with exhibits from FSL, Rohini and deposited the same in the Malkhana and the report was handed over to PW15, which was placed on record. Thereafter on 25.03.2011, he handed over the investigation of the case to Insp. Kailash Chand.
During the course of testimony of PW-15, the CD Ex.P1 was played on court computer and he identified accused Sharif Ahmad and witness Liyakat Ali. The CD Ex.P2 was also played on the court computer and PW-15 identified accused Sharif Ahmad and his voice in the said recording. PW15 has also identified his signatures, during the course of his testimony in the court, on the audio cassette Ex.P4 containing sample voice of accused Mohd. Irshad as well as on the audio cassette Ex.P5 containing sample voice of Liyakat Ali as also on the audio cassette Ex.P3 containing the sample voice of accused Sharif Ahmad.
xvi) PW-16 ACP Rohitash Kumar deposed that on 16.08.2016 while he was posted as Inspector at ACB, he was entrusted with the further investigation of the present case. He further deposed that he sent the exhibits to FSL for expert opinion for frame by frame analysis and he also examined complainant Irshad under section 161 Cr.P.C. with regard to CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 21 of 73 clarification on date and time of recording of the sting VCDs. PW16 further deposed that since the prosecution sanction had already been taken but as further FSL opinion had been obtained and witness has been examined therefore, he sought fresh prosecution sanction from DCP, North-East District. He further deposed that witnesses Sikander and his father Haider Ali had not been examined as they were not available therefore, he made sincere efforts to trace them but they were not available as Sikander had been declared PO in a rape case and his father, who was not having permanent address, had gone to some other place and thereafter, on the basis of available evidence, he prepared the charge-sheet and filed the same in the court.
10. During recording of prosecution evidence, on 01.11.2021 ld. Counsel for the accused admitted document i.e. seizure memo dated 09.01.2010 Ex. A-1 in respect of copy of FIR No. 91/08 Ex. A-2; copy of medical report (MLC) GTB Hospital of Rukhsar, complaint in case FIR No. 91/08, PS Usmanpur Ex. A-3; bio-data and posting order of accused dated 16.02.2010 Ex. A-4; proclaimed offender order dated 26.02.2011 Ex. P-5; statement u/s 161 Cr.P.C. of PW HC Anand Prakash dated 23.08.2010 Ex. A-6 and dated 20.02.2012 Ex. A-7; statement u/s 161 Cr.P.C. of PW HC Ram Kumar dated 23.08.2020 Ex. A-8 and statement u/s 161 Cr.P.C. of PW HC Jitender dated 30.10.2018 Ex. A-9 and dated 29.01.2020 Ex. A-
10. Accordingly, PWs ACP Shish Ram, HC Manish Kumar, W/ASI Suman Rana, HC Anand Prakash, Ahlmad in the court of Smt. Nisha Saxena, HC Ram Kumar and HC Jitender were dropped from the list of witnesses.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 22 of 73Statement of accused :
11. 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 appearing in evidence against him and stated that he is innocent and has been falsely implicated in this case at the instance of complainant, who is a chronic complainant and is involved in conducting false sting operations of the police officials. Accused further stated that no such money was ever received by him from anybody. He further stated that Sikander and Liyakat have not been intentionally produced before the court by the prosecution. Accused further stated that Haider was also one of the material witness but was not cited as a witness. Accused further stated that recordings are morphed and fabricated and all the documents were fabricated. His sample voice was taken under pressure and the reports were falsely obtained. Accused further stated that recordings were planted upon him. Accused preferred to lead defence evidence.
Defence Evidence :
12. Accused has examined following four witnesses in his defence:
i) DW1 HC Vishwanath produced the copy of FIR No. 260/17, u/s 384/385/511/34/120B IPC, PS Preet Vihar, Ex.
DW1/A.
ii) DW2 HC Anil Kumar produced the summoned CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 23 of 73 record i.e. FIR No. 1/2015, FIR No. 2/2015, FIR No. 3/2015, FIR No. 4/2015, FIR No. 20/2015, FIR No. 21/2015, FIR No. 22/2014 and FIR No. 23/2014 all u/s 7/13 of PC Act of PS Vigilance, registered on the complaint of one Irshad Khan r/o H.No. 41, Gali No. 1, A-Block, Rajiv Colony, Ghaziabad, UP, Ex. DW2/A to DW2/H respectively.
iii) DW3 Const. Mohit produced the summoned record i.e. the FIR register containing FIR No. 52/2018, u/s 186/353/332/506, PS Gazipur, registered against one Irshad s/o Mohd. Umar, r/o D-51, D-1, Dilshad Colony, Delhi Ex. DW3/A.
iv) DW4 Amandeep Singh, Ahlmad in the court of Ld. Special Judge, brought the judicial file related to case FIR No. 03/2015 bearing C.C. No. 22/2021, PS Vigilance titled as State Vs HC Sahdev & Ors. The case was decided in acquittal on 23.02.2023, true copy of which was exhibited as Ex.DW4/A and attested copy of statement of Irshad Khan S/o Sh. Mohd. Umar, R/o A-41, Rajiv Colony, Bhopura, Shahibabad, Ghaziabad was exhibited as Ex.DW4/B. DW4 also brought the judicial file related to case FIR no. 03/2015 bearing C.C. No. 23/2021, PS Vigilance titled as State Vs HC Yogender etc. The case was decided in acquittal on 23.02.2023, true copy of which was exhibited as Ex.DW4/C and attested copy of statement of Irshad Khan S/o Sh. Mohd. Umar, R/o A-41, Rajiv Colony, Bhopura, Shahibabad, Ghaziabad, was exhibited as Ex.DW4/D. Arguments :
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 24 of 7313. It is contended on behalf of Ld. Counsel for the accused that the accused has been falsely implicated in this case.
It is urged that even as per the prosecution case the complainant had handed over two CDs containing the video recording to ACP as is manifest in the seizue memo Ex. PW11/C. Admittedly, the original device was not handed over by the complainant. Even the certificate u/s 65B of Indian Evidence Act Ex.PW11/D is not admissible in evidence as it has not been proved by the complainant in accordance with law. It is further stated that the certificate u/s 65B Indian Evidence Act, which has been proved by the complainant Ex. PW11/D is different from the certificate u/s 65 Indian Evidence Act, which was filed alongwith the charge-sheet supplied to the accused u/s 207 Cr.P.C. which is Ex. PW11/DA. It is stated that Ex. PW11/D contains certain overwritings which are not the part of Ex. PW11/DA. PW11 complainant has also admitted that he did not know how to write Hindi and that he could not read, write and understand English, then how could he vouch for the contents of certificate u/s 65B of the Indian Evience Act in absence of even an averment to the effect that its contents were read over and explained to him. It is stated that the original recording device was never sent to FSL to rule out any possibility or tampering or to prove the authenticity of the contents of the alleged recordings contained in the CDs. It is stated that in the absence of the original recording / device and a legally admissible certificate u/s 65B of Indian Evidence Act, the video recodings contained in the said CDs cannot be taken into consideration to hold the accused guilty of the alleged offence. It is also urged that as per the complainant, the video recording was made on 04.05.2008, however, no such date is CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 25 of 73 mentioned in the alleged video recordings produced by him. Moreoever, even though the recording were purportedly made on 04.05.2008 and 08.5.2008, however, the FIR was lodged on 04.12.2009 and there is no mention of the safe keeping of the original device or the recordings. Neither the device nor the recordings were handed over by the complainant immediately after the alleged recording. It is further argued that the transcript was made by one Shah Mohammad, brother of the complainat, who has not been examined as a witness. It is stated that none of the IOs have vouched for the authenticity of the transcript and they have just placed the same on record without verifying the contents of the transcript in a legally acceptable manner. The accused has contended that it is settled law that the person, who prepars the transcript, should be examined as a witness before the court to prove the same. The transcript was not sent to FSL to prove its authenticity. Moreover, the complainant had also given a complaint to the ACB on 20.02.2009 Ex. PW15/A in which he had sought action against SHO Sushil Kumar Sharma and the accused. The reason for demand of money as per the said complaint was to falsely implicate Sikander in a false rape case and to kill him in an encouter, whereas the complainant in his complaint Ex. PW11/A has mentioned the reason of demand of Rs. 15,000/- to be for the purpose of showing higher age of the victim and to get Sikander released on bail. It is stated that even the reason for demand in Ex. PW15/A and Ex. PW11/A are different. It is stated that strangely the enquiry as regards missing original device was made on 08.06.2012 despite the fact that the FIR was lodged on 04.12.2009 and hence there was unexplained delay in conducting any investigation in that regard.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 26 of 73It is also argued that even seizure of the CDs in the presence of the panch witness is questionable in as much as he deposed that CD Ex. P-1 was not played in his presence on 04.12.2009 and he even denied suggestion to the contrary putforth to him by Ld. Addl.P.P. for the State. It is further urged that the CDs Ex. P-1, Ex. P-2, Ex. P-3, Ex. P-4 & Ex. P-5 do not bear the FSL number nor are signed by PW3, who had purportedly examined those CDs and filed his reports Ex. PW3/A and Ex. PW3/B, thereby indicating that the said recordings were not examined by him. It is also urged that CFSL was not notified as on 17.08.2010 i.e. the date of preparation of Ex. PW3/A and hence it cannot be relied upon.
14. It is also contended that complainant Irshad Khan is a habitual stinger and he conducts false sting operations to extort money from the poice officials. It is stated that various criminal cases have been filed against the complainant Irshad Khan. In many cases after filing the complaint, Irshad Khan has turned hostile in cases. In support of his contentions, ld. Counsel has placed reliance on documents Ex. PW3/A, DW1/A, DW4/A to D, and DW2/A to H.
15. It is argued by ld. counsel for the accused that there is no evidence against the accused and he is liable to be acquitted of the charged offences. It is urged that the testimony of the complainant, who is a habitual stinger, is full of contradictions and improvements and is not reliable and is not corroborated by any other evidence and hence in absence of any evidence the accused is liable to be acquitted.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 27 of 7316. On the other hand, it is contended by the Ld. Chief P.P. for the State that merely because the IO has written the date on certificate u/s 65B of Indian Evidence Act filed in support of the CDs supplied by the complainant does not entail that the said certificate cannot be relied upon in as much as the complainant has signed the same after understanding its contents and the purpose for which it was given. It is urged that non-examination of PW Liyakat was owing to the fact that he was not traceable during trial, though his statement was recorded by the IO u/s 161 Cr.P.C. Sikander could not be examined as he was already a P.O. in the rape case. Haider Ali, father of Sikander, was also not traceable therefore his statement could not be recrded u/s 161 Cr.P.C. It is argued that it is the quality of evidence which has to been seen and not the quantity. It is stated that the fact that the IO did not prepare a site plan is a defect in the investigation and it is settled law that the prosecution case cannot be thrown away merely on the basis of any defect in investigation. It is contended that the FSL report clearly states that there was no tampering found in the VCDs. It is accordingly prayed that the testimony of the complainant PW11 alongwith other witnesses coupled with the electronic evidence in the from the CDs supported by certificate u/s 65B of the Indian Evidence Act clearly proves the culpability of the accused in the offence in issue. Hence, it is prayed that the accused is liable to be held guilty for the offences he is charged with.
17. I have heard ld. Counsel for the parties and perused the record.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 28 of 7318. 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 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."
19. In State of Punjab v. Madan Mohan Lal Verma , CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 29 of 73 (2013) 14 SCC 15 , the Hon'ble Supreme court made the following observations as regards the burden of proof upon the prosecution and the accused in light of presumption under section 20 PC Act.:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. 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. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] ,T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 :
(2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)" (emphasis supplied)
20. The Hon'ble Supreme Court in A. Subair v. State of CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 30 of 73 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.
21. 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 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 CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 31 of 73 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) 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.CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 32 of 73
(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 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)
22. 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 persons.
23. It is the case of the prosecution that accused Sharif Ahmad demanded illegal gratification other than legal remuneration for bail of accused Sikander and for weakening the case against accused Liyakat and Sikander in FIR bearing FIR No. 91/08 registered at PS New Usmanpur and also demanded Rs. 20,000/- from accused Liyakat and in pursuance thereof accused Sharif Ahmad obtained Rs. 15000/- from Sikander and complainant Irshad Khan as bribe money and accordingly he is liable to be held guilty for the offences he is charged with.
Testimony of the complainant :
24. The complainant Irshad Khan was examined as PW11. In his examination-in-chief he deposed that the incident occurred in the year 2009. SI Sharif Ahmad had demanded bribe CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 33 of 73 of Rs. 15000/- from Sikander for his bail. Sikander and his father met PW11 and narrated the said facts to him at his office where father of PW11 was also present. Father of PW11, who was publishing a newspaper "Jan Ujjala", asked PW11, who used to work as cameraman with him, to record the conversation (video recording kara do). PW11 videographed the conversation. PW11 deposed that Sharif Ahmad came to their office and offered to get bail bond of Sikander filed and demanded Rs. 15,000/- for that work and stated "Court mai nahi jana parega aur bahar se bahar jamanat ho jaigi". He further deposed that Sikander was an accused with Liyakat in a rape case registered at PS Usmanpur, which was investigated by SI Sharif Ahmad.
25. He also deposed that Sikander paid an amount of Rs. 15,000/- in the presence of his father and Liyakat to SI Sharif Ahmad at his office. He recorded the said transaction through a spy camera. PW11 alongwith Sikander, again said father of Sikander namely Haider, Liyakat went to the office of ACB where he met DCP of ACB and narrated the incident to him and informed him about the recording. The DCP assigned their case to an IO where he handed over the original memory card and one CD containing copy of the recording. Subsequently, the present case was registered and the statement of PW11, Liyakat Ali and father of Sikander were also recorded.
26. PW11 was shown the CD Ex. P-1 containing folder namely Irshad 713 containing file namely AVESEQ01.DAT in which PW11 identified accused Sharif Ahmad and Liyakat Ali and he stated that the said recording was done in the house of one CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 34 of 73 Saleem at Tishra Pushta, New Usmanpur, which was taken on rent by them i.e. PW11.
27. PW11 was also shown another CD Ex. P-2 containing file namely "AVESEQ01.DAT" which was played further, in which PW11 identified accused Sharif Ahmad and his voice in the recording and stated that the said recording was done at PS New Usmanpur.
28. PW11 also identified the audio cassette in which his voice was recorded as Ex. P-4.
29. PW11 was cross-examined by Ld. Addl.P.P. for the State since PW11 was not disclosing complete facts of the case and his statement Ex. PW11/A was read out to him. PW11 stated that it was correct that case FIR No. 91/2008 was registered at PS Usmanpur and the victim had named Sikander and Liyakat as the accused persons. He also stated as correct that Haider Ali, father of Sikander, told him that IO Sharif Ahmad was regularly calling him and demanding bribe from him. PW11 did not know whether Sikander had obtained anticipatory bail in the said case as he was apprehending arrest. PW11 stated that it was correct that SI Sharif Ahmad was demanding bribe of Rs. 15,000/- for bail formalities and for weakening the aforesaid case. He also stated that it was correct that SI Sharif Ahmad told Haider Ali that he would get the age of the prosecutrix increased from 13 years to 19 years in the hospital and thus case would be weakened. He further stated as correct that as Haider Ali was CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 35 of 73 afraid of going before police, he gave Rs.10,000/- to Liyakat and sent Sikander to accused SI Sharif Ahmad and PW-11 had also accompanied with him where he made recording of bribe transaction. He further stated as correct that on 04.05.2008, PW11 alongwith Sikander and Liyakat met with accused SI Sharif Ahmad and on his demand, Liyakat had paid bribe of Rs.10,000/- and PW-11 had paid bribe of Rs.5,000/- to accused SI Sharif Ahmad for weakening the case and getting the age of the prosecutrix increased from 13 years to 19 years which was given to PW-11 by Haider Ali for paying bribe to accused SI Sharif Ahmad. He further stated that it was correct that accused SI Sharif Ahmad had demanded bribe of Rs.20,000/- to absolve Liyakat and SI Sharif Ahmad had demanded bribe amount twice and on both the times, PW-11 had recorded the transaction regarding payment of bribe.
30. PW11 further deposed that he had given a written complaint when he had visited the office of ACB and thereafter, he had gone outside for a considerable time and thereafter, he was called by ACB officials when his statement Ex.PW11/A was recorded. He further deposed that he had given two CDs and one memory card to the IO of this case. He voluntarily deposed that he had prepared one copy of each of the two CDs. He denied the suggestion that he had not given any memory card to the IO. He stated that it was correct that he had supplied transcript Ex.PW11/B (colly) of both the CDs to the IO.
31. PW11 stated as correct that on 04.12.2009, all the four CDs were played in the office of ACB in presence of panch CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 36 of 73 witness Sh. Jayant Majumdar and Liyakat Ali and he had identified all the four CDs of the sting of accused SI Sharif Ahmad. He further stated as correct that CD Mark-A1 and B1 were converted into pulanda and were sealed and remaining two CDs were kept open for the purpose of investigation as also seizure memo Ex.PW11/C regarding aforesaid proceedings was prepared. He further stated as correct that on 24.02.2010, he alongwith Liyakat Ali and panch witness Roop Kishan Sharma accompanied IO to FSL, Rohini for getting his voice sample recorded where voice samples of PW-11 as well as of Liyakat Ali were recorded in two blank audio cassettes of make SONY and copies of the same were also prepared and thereafter, the cassettes were seized through seizure memo Ex.PW8/A. The audio cassette containing the sample voice of PW-11 is Ex.P4. He further stated as correct that on 08.06.2012, he was called by the IO who demanded original device and he informed the IO that his camera was snatched by somebody on 14.08.2011 and he had reported the matter to police of PS Dilshad Garden. He further stated that it was correct that on 29.01.2015, he visited ACB and handed over certificate U/s 65B of Indian Evidence Act Ex.PW11/D in respect of recordings of the sting operation conducted by him. He further stated as correct that first sting operation was done on 04.05.2008 at 'Murge Wali Shop of Salim' at the corner of 3½ Pusta and the second recording was dated 08.05.2008.
32. Accordingly from the examination-in-chief of PW11 and his cross-examination by Ld. Addl.P.P. for the State it emerges that in his examination-in-chief PW11 stated that CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 37 of 73 Sikander had paid Rs. 15,000/- to the accused in the presence of his father and Liyakat whereas when he was cross-examined by ld. Addl.P.P. for the State he affirmed the suggestion that PW11 alongwith Sikander and Liyakat met with SI Sharif Ahmad and Liyakat paid bribe of Rs. 10,000/- to the accused and PW11 paid bribe amount of Rs. 5000/- to the accused, which was given to him by Haider. Hence, there is a contradiction as regards the person/persons who paid the bribe amount and what amount was paid by whom to the accused and in whose presence the same was paid. No explanation has been furnished regarding the said contradiction.
33. Additionally, PW11 stated in his examination-in- chief that the incident had occurred in 2009, whereas in his cross- examination by ld. Addl. P.P. for the State he affirmed the suggestion that the bribe amount of Rs. 15,000/- was given on 04.05.2008.
34. PW11 also affirmed in his cross-examination by Ld. Addl.P.P. for the State that the first sting operation was done on 04.05.2008 and the second recording was dated 08.05.2008. There is no mention of second recording in the examination-in- chief of PW11.
35. In the initial examination-in-chief PW11 did not mention about any second demand made by the accused whereas in his cross-examination by Ld. Addl.P.P. for the State he affirmed the suggestion that the accused had demanded bribe CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 38 of 73 amount twice and on both the times he had recorded the transaction regarding payment of bribe. He also affirmed that the accused had demanded bribe of Rs. 20,000/- to absolve Liyakat. However, no details of the demand from Liyakat or payment of bribe amount of Rs. 20,000/- are mentioned in the examination- in-chief of PW11.
36. Further-more in his examination-in-chief, PW11 stated that he had videographed the conversation and the accused had come to their (PW11) office and Sikander had paid the amount of Rs. 15,000/- in the presence of his father and Liyakat to the accused. On the other hand, in his cross-examination by the Ld. Addl.P.P. for the State PW11 affirmed the suggestion that the first sting operation was conducted on 04.05.2008 at "Murge Wali Shop of Salim" at the corner of 3½ pushta. There is no site plan or any other evidence on record to show that the office of PW11 was situated at Murge Wali Shop of Salim at the corner of 3½ pushta. Hence, there is an inconsistency regarding place of incident in the initial examination-in-chief vis a vis his cross- examination by Ld. Addl.P.P. for the State.
37. Additionally, in his examination-in-chief PW11 stated that the accused had demanded Rs. 15,000/- to get bail bond of Sikander filed whereas in his cross-examination by Ld. Addl.P.P. for the State he affirmed the suggestion that the accused was demanding Rs. 15,000/- for bail formalities and for weakening the case and that he would get the age of the prosecutrix increased from 13 years to 19 years in the hospital. Hence, even the motive of demand of Rs. 15,000/- has not been CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 39 of 73 deposed in a consistent manner.
38. Accordingly, there is variance in his examination-in- chief as deposed by PW11 vis-a-vis in his cross-examination conducted by ld. Addl.P.P. for the State where he had merely affirmed the suggestions put to him by ld. Addl.P.P. for the State. There are variations/ improvements/inconsistencies as regards the whole sequence of events including the year of incident, place of incident, the reason for which bribe amount was given, who paid the bribe amount and who all were present at that time and hence, there was a complete improvement/inconsistencies in the case as deposed by PW11 in his examination-in-chief in contrast with his cross-examination conducted by ld. Addl.P.P. for the State. Moreover, PW11 was not declared hostile by the Ld. Addl.P.P. for the State as he was essentially supporting the bribe transaction and he was cross-examined as he was not disclosing complete facts. It is noteworthy that the entire testimony of PW11 as given in his cross-examination by ld. Addl.P.P. for the State contained inconsistencies and improvements over the initial statement given by PW11 in his examination-in-chief. The entire detailed cross-examination conducted by Ld. Adl.P.P. for the State was in the nature of suggestions which were merely affirmed by PW11 and was not an independent narrative. The whole case of PW11 is thus based upon the suggestions admitted by him in his cross-examination by the Ld. Addl.P.P. for the State, which contains contradictions/improvements over his initial examination-in- chief. Such wavering testimony of PW11 therefore does not fall in the category of 'wholly reliable'.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 40 of 7339. In Vadivelu Thevar v. State of Madras, AIR 1957 Supreme Court 614, the Hon'ble Supreme Court classified oral testimony into three categories (i) wholly reliable, (ii) wholly unreliable, (iii) neither wholly reliable nor wholly unreliable and held as under :
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 41 of 73 accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses.
Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable."
40. Accordingly, it has been held that if the testimony of a sole witness is found to be wholly reliable, conviction can be CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 42 of 73 based on such testimony and law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. In case of testimony of a single witness the court may clasify oral testimony into three categories i.e. (1) Wholly reliable, (2) Wholly unreliable and (3) Neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. However, in case of third category, the court has to be circumspect and has to look for corroboration in material particulars in form of a reliable testimony, direct or circumstantial evidence before acting upon the testimony of a single witness. The view taken in the aforesaid judgment has also been followed in Lalu Manjhi v. State of Jharkhand, 2003 (2) SCC 401 and Prithipal Singh v. State of Punjab, 2012 (1) SCC 10 and others.
41. It is also contended by ld. Counsel for the accused that PW11 Irshad Khan is a habitual stinger and his testimony has to be read with caution. He has placed on record copy of FIR No. 260/17 u/s 384/385/511/34/120B IPC PS Preet Vihar, vide Ex. DW1/A. In this regard PW1 deposed that the said FIR was registered against him at PS Preet Vihar, however, at the time of that incident he was admitted at St. Stephens Hospital and he was made an accused with the aid of Section 120B IPC. He also stated that FIR No. 52/18 u/s 186/353/332/506 IPC Ex. DW3/A was also registered against him at PS Gazipur. PW11 denied that he was a habitual extortionist and that he had been extorting money from Delhi Police Officials after fabricating their sting operations. He denied that he referred the cases of those police CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 43 of 73 officials, who did not bow down before him, to ACB. He further denied that his father was not running any newspaper namely 'Jan Ujjala' or that he was not working as a photo journalist with any newspaper. He also stated that he had conducted 10-12 other sting operations against Delhi police officials and that cases had been registered on those sting operations. The counsel for accused placed on record copy of FIR No. 01/15, FIR No. 02/15, FIR No. 03/15, FIR No. 04/15, FIR No. 20/14, FIR No. 21/14, FIR No.22/14, FIR No.23/14, Ex. DW2/A to Ex. DW2/H respectively, all u/s 7/13 PC Act of PS Vigilance registered on the complaint of complainant Irshad Khan.
42. Ld. Counsel for the accused has further argued that the complainant Irshad files false cases against police officials and in the event the public official succumbs to his demands, he turns hostile in those cases. Ld. counsel for the accused has placed on record judgment in the matter of State v. HC Sahdev & Others, FIR No. 3/15 bearing CC No. 22/21, PS Vigilance, whereby the accused was acquitted vide judgment dated 23.02.2023 Ex. DW4/A. The testimony of Irshad Khan s/o Mohd. Umar in the said case is Ex. DW4/B.
43. Ld. counsel for the accused has also placed on record judgment in the matter of State v. HC Yogender etc., FIR No. 3/15 bearing CC No. 23/21, PS Vigilance, whereby the accused was acquitted vide judgment dated 23.02.2023 Ex. DW4/C. The testimony of Irshad Khan s/o Mohd. Umar in the said case is Ex. DW4/D. CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 44 of 73
44. Perusal of the aforesaid judgments passed in FIR No. 3/15 reveals that complainant Irshad Khan had not supported the case of the prosecution and had turned hostile.
45. Be that as it may, merely because the complainant has conducted other sting operations or has turned hostile in other cases, is not alone sufficient to discard his testimony. However, the present case is not the one in which a trap was laid by any law enforcement agency following legal procedures in terms of pre-trap proceedings, independent witnesses, panch witnesses etc.
46. The video recording in the present case was made by the complainant Irshad Khan from whom no demand of money had been made and he was not the beneficiary of any favour from the accused. He had simply conducted the sting operation and was interested in the success of the sting as he had himself deposed that he had also given bribe of Rs. 5000/- to the accused at the time of incident on 04.05.2008 and it is not deposed by him if that money was given to him by Sikander for whose benefit the bribe was given. Thus, the evidence of Irshad Khan is that of a witness who is interested in the success of his sting operation and hence the court has to be circumspect while dealing with his evidence. As discussed, the testimony of PW11 contains inconsistencies and improvements in his cross- examination by Ld. Addl.P.P. for the State which was essentially in the nature of suggestions and PW11 being an interested witness merely affirmed those suggestions. His testimony is not CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 45 of 73 of the quality that conviction can solely be based upon it.
47. Accordingly, in the present case the testimony of PW11 cannot be stated to be wholly reliable as it contains improvements and inconsistencies as discussed hereinabove. Therefore, his testimony would fall in the category of neither wholly reliable nor wholly unreliable and hence, it would require corroboration.
48. It is also relevant to note that PW15/IO deposed that on 04.12.2009 the complaint of one Mohd. Irshad was marked to him for inquiry and the same is Ex PW15/A. The said complaint Ex. PW15/A is against SHO Sushil Kumar Sharma, PS New Usmanpur, and SI Sharif Ahmad for false implication of Sikander s/o Haider in a rape case and that they were threatening him to get an encounter done and police was demanding Rs. 15,000/- in return. It is also mentioned in the said complaint Ex. PW15/A that the said police officials were coercing him to take pictures of wrong things. The said complaint Ex. PW15/A is dated 20.02.2009 and it also purportedly bears the signatures of Irshad.
49. In his cross-examination by the accused, PW11 Irshad was directed to produce the copy of initial complaint. He deposed that he had not brought the copy of initial complaint which was lodged by him against the SHO and accused Sharif Ahmad as the same got destroyed in a fire incident at his house. The aforesaid complaint dated 20.02.2009 Ex. PW15/A was shown to him, however, he denied his signatures on the said CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 46 of 73 complaint. He also denied the suggestion that he was intentionally not identifying his signatures on the said complaint.
50. In his cross-examination PW15/IO Insp. Santosh Kumar and PW16 IO/ACP Rohitash Kumar deposed that the complainant never dis-owned his signatures on the complaint Ex. PW15/A which was also against SHO Sushil Kumar Sharma. PW15 affirmed that no case was recommended by him on the complaint Ex. PW15/A. PW15 denied that no complaint was ever marked to him on 04.12.2009 and he volunteered that on 04.12.2009 he had called the complainant to ACB and after recording his statement, the present case was registered. He deposed that he did not receive copy of any recording with the complaint Ex. PW15/A as mentioned in the complaint. PW15 denied the suggestion of the accused that the recordings were filed alongwith the complaint Ex. PW15/A or that they were concealed by him intentionally.
51. Accordingly, a complaint dated 20.02.2009 was initially marked to PW15 Insp. Santosh Kumar on 04.12.2009 which purportedly bears the signatures of the complainant Irshad. However, PW11 Irshad denied that Ex. PW15/A bears his signatures. The said complaint dated 20.02.2009 pertained to demand of Rs. 15,000/- by the police in lieu of false implication of Sikander s/o Haider Ali in a rape case and threatening to get his encounter done. The complainant PW11 stated that he had given a complaint to ACB, however, in his cross- examination he was unable to produce the complaint despite being given time to produce it and he stated that the initial complaint which was CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 47 of 73 lodged by him against the SHO and the present accused was got destroyed in fire at his house which took place in 2012. Hence, the complainant has not supported the complaint Ex. PW15/A and has stated that the same was not signed by him, however, he could not produce the initial complaint filed by him against the SHO and the accused herein. The contents of the complaint Ex. PW15/A are not in consonance with the testimony of the complainant.
52. It is pertinent to note that Sikander, who was stated to be an eye witness and who was the beneficiary of the bribe transaction, and his father Haider Ali from whom also initial demands were made, were not arrayed as witnesses in the charge- sheet. PW11/complainant deposed that he had taken Haider Ali and Sikander to ACB on various occasions whenever notices were received. However, despite the same their statements u/s 161 Cr.P.C. were not recorded. In this regard, PW16 ACP Rohitash Kumar deposed that sincere efforts were made to trace Haider Ali and Sikander but they were not available as Sikander had been declared Proclaimed Offender in a rape case and his father Haider Ali, who was not having any permanent address, had gone to some other place. The date when Sikander was declared proclaimed offender has not been proved on record and as regards his father Haider Ali, it is simply stated that he had gone to some other place, which would not be sufficient explanation for even their statements u/s 161 Cr.P.C. not being recorded when PW11/complainant has specifically deposed that he had taken Haider Ali and Sikander to ACB on various occasions whenever notices were received. Hence, a mere bald CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 48 of 73 statement that despite sincere efforts to trace, they were not available would not be sufficient to show that the said witnesses were not available at any stage of investigation. Liyakat, who had handed over the bribe and was thus an eye witness, was arrayed as a witness in the charge-sheet, however, he was not examined as he was not traceable despite being summoned through DCP. Accordingly, the other three material witnesses of the incident have not been examined by the prosecution.
53. No site plan has been filed alongwith the charge- sheet. As discussed hereinabove, in his examination-in-chief, PW11 stated that he had videographed the conversation at their office and in his cross-examination by the Ld. Addl.P.P. for the State PW11 affirmed the suggestion that the first sting operation was conducted on 04.05.2008 at "Murge Wali Shop of Salim" at the corner of 3½ pushta. Neither PW15 nor PW16 have deposed about visiting the spot during their investigation nor can the place of incident be stated to be "Murge Wali Shop of Salim" at the corner of 3½ pushta, upon viewing the CD Ex. P-1, stated to be containing the first video recording of the incident dated 04.05.2008. In absence of the site plan it cannot be stated as to whether the office of PW11 and Murge Wali Shop of Salim at the corner of 3½ pushta are one and the same place and there is no explanation on record in this regard. In these circumstances the place of incident dated 04.05.2008 cannot be conclusively ascertained from the record to be Murge Wali Shop of Salim at the corner of 3½ pushta.
54. Accordingly, the place of incident cannot be CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 49 of 73 ascertained in absence of site plan. No other material eye witnesses of the incident have been examined by the prosecution. Thus there is no corroborative oral evidence of the testimony of PW11.
55. As regards demand, PW11 deposed that the initial demand of Rs. 15,000/- was made from Sikander. Sikander and his father had met PW11 and narrated the said facts to him at his office where father of PW11 was also present and he asked PW11 to get a video recording done. Thereafter PW11 videographed the conversation when Sharif Ahmad came to their office and offered to get bail bond of Sikander filed and demanded Rs. 15,000/- for the said work and stated that "Court Mai Nahi Jana Parega, Aur Bahar Se Bahar Jamanat Ho Jaigi" . PW11 further stated that Sikander had paid the amount of Rs. 15,000/- in presence of his father and Liyakat to SI Sharif Ahmad and he had recorded the said transaction through a spy camera. It is noteworthy that the transcription of the incident Ex. PW11/B does not mention that accused had stated that "Court Mai Nahi Jana Parega, Aur Bahar Se Bahar Jamanat Ho Jaigi" and infact there is no mention of any conversation regarding bail formalities of Sikander.
56. In his cross-examination by Ld. Addl.P.P. for the State PW11 affirmed that Haider Ali, father of Sikander, told him that IO SI Sharif Ahmad was regularly calling him and demanding bribe. He affirmed that SI Sharif Ahmad was demanding bribe of Rs. 15,000/- for bail formalities and for weakening the case by getting the age of prosecutrix increase CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 50 of 73 from 13 to 19 years. He also affirmed that Haider Ali was afraid of going to police and he gave Rs. 10,000/- to Liyakat and sent Sikander to SI Sharif Ahmad PW11 also accompanied him and he recorded the bribe transaction. He further affirmed that on 04.05.2008 PW11 alongwith Sikander and Liyakat met SI Sharif Ahmad and on demand of SI Sharif Ahmad, Liyakat paid a bribe of Rs. 10,000/- and PW11 paid a bribe of Rs. 5,000/- to SI Sharif Ahmad for weakening the case and getting the age of the prosecutrix increased from 13 to 19 years. He deposed that SI Sharif Ahmad demanded a bribe of Rs. 20,000/- to absolve Liyakat.
57. It is urged by ld. Counsel for the accused that since accused Sikander had already been granted anticipatory bail, therefore, there was no occasion to give Rs. 15,000/- for getting accused Sikander released on bail which has been described as the motive for payment of bribe. He has further relied upon the judgement of the Hon'ble Delhi High Court in State v. Netrapal Singh, Crl. Appeal No. 217/2017, date of decision 09.01.2024 to contend that the version of the complainant, who had himself recorded videos of police personnels and other govt. officials would be in the nature of hearsay evidence.
58. The prosecution has also relied upon the audio- video recording made by PW11 to corroborate his version while stating that the said video recording shows the accused making demands and accepting bribe amount of Rs. 15,000/-.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 51 of 7359. CD Ex. P-1 wherein the transaction of bribe was recorded begins with accused receiving an amount of Rs. 10,000/- from one person i.e. deposed by PW11 to be Liyakat and Rs. 5,000/- from the complainant. The complainant is not visible in the video recording. Liyakat has been identified by the complainant PW11. Sikander has not been identified by the complainant in CD Ex. P-1. There is no conversation of the accused regarding demand of Rs. 15,000/- prior to acceptance of Rs. 15,000/- in the said video recording. It is also relevant to note that the sound/voice in CD Ex. P-1 is not clear. The conversation that takes place thereafter is in the context of increasing the age of the victim and subsequently towards the end of the conversation in CD Ex. P-1, there is a demand of Rs. 20,000/- in context of Liyakat, which finds mention in the transcript Ex. PW11/B. Even as per the version of PW11 the initial demand of Rs. 15,000/- was made from Sikander. Sikander and his father had met him and narrated the facts to him and thereafter it was decided by father of PW11 to get a video recording done and hence the initial demand of Rs. 15,000/- was not made by the accused in the presence of the complainant and hence to that extent the version of the complainant as regards the initial demand of Rs. 15,000/- is hearsay.
60. As stated hereinabove, the CD Ex. P-1 and Ex. P-2 containing the audio-video recording have been relied upon by the prosecution to corroborate the version of the complainant. The law laid down by the Hon'ble Supreme court in its decisions may be referred to, in order to test the evidentiary value of the CDs Ex. P-1 and Ex. P-2 containing the video recordings dated CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 52 of 73 04.05.2008 and 08.05.2008.
61. 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 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.CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 53 of 73
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;
(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."
62. The judgment in the matter of Anvar P.V. (Supra) was duly considered with approval by the Hon'ble Supreme CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 54 of 73 Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its 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".
63. 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 digital form, a certificate under section 65B of Indian Evidence Act is a mandatory requirement. The requirement of certificate CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 55 of 73 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.
64. 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 PW11 with the help of a spy camera with which he conducted the sting operation. Admittedly, the spy camera/ memory card containing the original recording has not been brought on record. It is therefore to be seen as to whether it is proved that the CDs Ex. P- 1 and Ex. P-2 are the secondary evidence of the original electronic record as contained in the spy cam.
65. As regards the audio-video recording, PW11 deposed that he had made the audio-video recording with the help of a spy camera. He also stated that on 08.06.2012 he was called by the IO, who demanded the original device from him and he informed the IO that his camera was snatched by someone on 14.08.2011 and that he had reported the matter at PS Dilshad Garden.
66. In his cross-examination, PW11 stated that he did not know the make and configuration of the spy camera used by him for the sting operation in the present case. He had not handed over the copy of snatching report of his spy camera on14.08.2011 to the IO. He volunteered that the report was CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 56 of 73 lodged by him a PS GTB Enclave. He denied that no such report was ever lodged by him regarding snatching of his camera either at PS Dilshad Garden or PS GTB Enclave or that for this reason he did not hand over the copy of the report to the IO. He further stated that he did not hand over the original recording device to the IO nor was the same demanded by any IO between 04.12.2009 till 08.06.2012. He denied that he was not in possession of any such device at any point of time prior to 08.05.2009 or thereafter or that he had concocted the false story about snatching of spy camera from him by unknown persons.
67. Accordingly, the spy camera i.e. the original device in which the recording was made by the complainant PW11 has not been brought on record. The complainant has claimed that the said spy camera had been snatched from him on 14.08.2011 and that he had reported the matter at PS Dilshad Garden and in his cross-examination he stated that he had reported the matter at PS GTB Enclave, however, the said report has not been placed on record.
68. It is also pertinent to note that the complainant PW11 in his examination-in-chief stated that he had handed over the original memory card and one CD containing copy of the recording to the IO, which was played by the IO and verified. In his cross-examination by ld. Addl.P.P. for the State he again reiterated that he had given one memory card alongwith CDs to the IO. In a suggestion put by ld. Addl.P.P. for the State, PW11 denied that he had not given any memory card to the IO. In his cross-examination by the accused, PW11 stated that the copies of CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 57 of 73 CDs which were handed over to him by the IO were prepared by him from the memory card.
69. Accordingly, the only fact consistently deposed by PW11 in his testimony was that he had also handed over a memory card to the IO alongwith the CD, however, no such memory card has been placed on record nor is mentioned in seizure memo Ex. PW11/C. The said fact of handing over of memory card to the IO has been stated by PW11 in his examination-in-chief and he reiterated the same in his cross- examination by ld. Addl.P.P. for the State and he also denied the suggestion to the contrary put-forth by Ld. Addl.P.P. for the State. Hence the prosecution has not been able to prove, without doubt, that the memory card i.e. the original recording was not available nor has the prosecution claimed that the memory card was lost or destroyed.
70. In the event the memory card containing the original recording was produced by the complainant before the ACB, then it is intriguing as to why the said memory card was not brought on record by the IO, who has chosen to rely upon the CDs Ex. P- 1 and Ex. P-2 containing copy of the recordings which are only secondary evidence.
71. Accordingly, it is manifest that the original device i.e. spy camera through which the sting operation was recorded has not been produced by the complainant and even the memory card containing original recording has not been placed on record. Hence, the prosecution has not been able to cross the threshold to CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 58 of 73 prove non-availability of the primary recording before placing reliance upon secondary evidence in the form of CDs.
72. Be that as it may, the prosecution is relying upon the CDs Ex.P1 and Ex.P2 in support of its case. Now it has to be examined as to whether the prosecution has proved the two CDs as secondary evidence, to prove the fact that the accused demanded or obtained any bribe from Sikander and the complainant Irshad Khan which was recorded by the complainant through his spy camera and to prove the further demand of Rs. 20,000/-.
73. As per case of prosecution, on 04.12.2009, complainant Irshad produced four CDs kept in a cover alongwith six pages of transcription of the recordings. The complainant informed that two CDs contained the recordings done by him and the other two CDs were copies of the same and the transcriptions were of the video recordings produced by him. The said CDs and transcription were seized by the IO vide seizure memo Ex. PW11/C. The complainant affirmed the suggestion that on 29.01.2015, he handed over Certificate u/s 65(B) of Indian Evidence Act Ex. PW11/D in respect of the CD containing the video recording relating to the sting operation and handed over to IO. Therefore, the CDs Ex.P1 and ExP2 being secondary evidence are required to be proved as per Section 65-B of Indian Evidence Act.
74. As regards the CDs seized during investigation by the IO vide seizure memo Ex. PW11/C, the complainant PW11 CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 59 of 73 deposed that he had handed over the original memory card and one CD containing copy of the recording to the IO. The complainant identified the CD Ex. P-1 containing a folder namely "Irshad-713" which contained file namely "AVESEQ01.DAT" and he identified accused Sharif Ahmad and Liyakat Ali in the same and stated that the said recording was done at the house of one Saleem at Tisra Pushta, New Usmanpur, which was taken on rent by them.
75. It is relevant to note that in cross-examination by Ld. Addl.P.P. for the State, PW11 had stated that he alongwith Sikander and Liyakat met the accused on 04.05.2008 and on demand of the accused, Liyakat paid the bribe of Rs. 10,000/- and PW11 paid a bribe of Rs. 5,000/-. The complainant has not identified Sikander in the said recording despite the fact that Sikander had also accompanied them at the time of incident on 04.05.2008 and the amount of Rs. 15,000/- was given as a bribe qua accused Sikander. There is no mention about presence of Sikander in CD Ex. P-1 regarding the incident of 04.05.2008.
76. The complainant also identified accused Sharif Ahmad and his voice in CD Ex. P-2 containing file "AVESEQ01.DAT". In his cross-examination by Ld. Addl.P.P. for the State he stated that he had given two CDs and one memory card to the IO, who prepared one copy each of the two CDs. He also affirmed that he had supplied transcript of both the CDs to the IO and that on 04.12.2009 all the four CDs were played in the office of ACB in the presence of panch witness Jayant Majumdar and that he had identified all the four CDs of CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 60 of 73 the sting of SI Sharif Ahmad.
77. In this regard, PW12 Jayant Majumdar, panch witness, in whose presence the CDs were seized by the IO vide Ex. PW11/C deposed that he was shown one video on the computer. The video was of an office like licensing office. Two CDs were sealed in his presence and his signatures were obtained on the CDs before sealing. PW12 identified his signatures on both the CDs Ex. P-1 and P-2. PW12 was cross-examined by Ld. Addl.P.P. for the State and he affirmed that the complainant had produced four CDs containing original recordings in two CDs and two copies. He however denied that all four CDs were played in his presence. He volunteered that only two CDs were played and voice was not clear in one of the CD and thereafter second CD was played. He had watched part contents of both the CDs. He did not remember whether the transcript of the recording was also produced by the complainant, however, he identified his signatures on each page of the transcript as well as on the seizure memo Ex. PW11/C. He stated that he had seen the recordings and there was some money transaction between two persons and volunteered that the voice was not clear and it was distorted. When CD Ex. P-1 was played in court and shown to the witness PW12, he stated that the said CD was not played in his presence on 04.12.2009 and he also denied the suggestion to the contrary. He also denied that the accused was identified by complainant Mohd. Irshad in Ex.P-1. PW12 stated that CD Ex. P-2 which was played before him in court was played in his presence on 04.12.2009.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 61 of 7378. Accordingly, from the testimony of PW12 it emerges that since the voice was not clear in the first CD, the second CD was played and he had watched part contents of both the CDs. He also stated that there was some money transaction between two persons, however, the voice was not clear and was distorted. He finally stated that CD Ex. P-1 was not played in his presence, however, he admitted his signatures on CDs and the fact that 4 CDs were seized, however, he had viewed only part contents of two CDs. at the time of seizure and stated that CD Ex P1 was not played in his presence. Hence he did not entirely support the prosecution version as regards seizure of the CDs.
79. It is however, pertinent to note that in his cross- examination by ld. Counsel for the accused, PW11 stated that the copies of CDs which were handed over by him to the IO were prepared by him from the memory card. He did not remember the make and capacity of the memory card handed over by him to the IO. He also stated that Ex. P-1 and P-2 were the CDs, which were given by him to ACB.
80. As discussed, the said memory card had not been produced on record. The complainant PW11 in his cross- examination by ld. Addl.P.P. for the State also affirmed that on 29.01.2015 he visited the office of ACB and handed over a certificate u/s 65B of Indian Evidence Act Ex. PW11/D regarding the recordings of the sting operation conducted by him.
81. It is contended by ld. Counsel for the accused that the certificate u/s 65B of Indian Evidence Act filed alongwith the CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 62 of 73 charge-sheet Ex. PW11/D is at variance from the certificate u/s 65B supplied to the accused Ex. PW11/DA at the time of compliance of Section 207 Cr.P.C. It is stated that Ex. PW11/D contains the signatures of the accused at three points where there are corrections on Ex. PW11/D and the said corrections/signatures are absent in the copy of the same supplied to accused vide Ex. PW11/DA.
82. Perusal of Ex. PW11/D reveals that there are corrections at three points on certificate u/s 65B of the Indian Evidence Act. The said corrections are the mention of word 'was' at Point-X2, section '7/13' at Point-X3 and the year '1908' after the words POC Act at Point-X4 on Ex. PW11/D. The essential difference between Ex. PW11/DA and Ex. PW11/D is the presence of the signatures of complainant Irshad at these three points which is missing in Ex. PW11/DA. However, ld. Counsel for the accused has failed to show, what if any, prejudice was caused to the accused by the said corrections not being initialed by the complainant in the copy given to him vide Ex. PW11/DA. Hence, the said argument of ld. Counsel for the accused holds no substance.
83. The contention of ld. Counsel for the accused that as the complainant has deposed that he could not read, write or understand English language and that the date 29.01.2015 appearing at Point-X on Ex. PW11/D is not in his handwriting, hence, certificate u/s 65B which is in English language cannot be relied upon in support of the CDs Ex. P-1 and P-2 produced by the complainant to the IO. It is also stated that Ex. PW11/D was CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 63 of 73 signed by the complainant in a mechanical manner and the same was not issued by him on 29.01.2015. In this regard the complainant has deposed that Ex. PW11/D was not taken by him to the IO and it was lying typed with the IO and he had simply put his signatures on it. It is also relevant to note that the complainant also deposed that the said certificate was issued by him regarding preparation of CD by him and regarding no tampering in the recording. Accordingly, the complainant was well aware of the purpose for which he had signed the certificate u/s 65B Ex. PW11/D and had appended the signatures thereon after fully understanding its contents. Hence, there is no merit in the argument of ld. Counsel for the accused that Ex. PW11/D has been signed in a mechanical manner.
84. It is relevant to note that the said certificate u/s 65B of Indian Evidence Act Ex. PW11/D reads as under :
"It is hereby certified that the CD containing the video recording relating to the sting operation carried out on Sh. Sharif Ahmad, S.I on 04.05.2008 by me which was provided by me to the Anti Corruption Branch was in the original mode as recorded by me. The same was obtained on the basis of information fed into the camera. It is further certified that nothing adverse happened to the original footage at the time when the recording was made which could cause error in the information so fed in the camera.
Further, the recording of the sting operation provided to the Anti Corruption Branch was captured by Spy camera and as a process the said footage was transferred from the spy camera to the computer. The CDs handed over to the Anti corruption Branch vide seizure memo dated 04.12.2009 in case FIR No. 42/09, u/s 7/13, Irshad POC Act 1988 Irshad AC Branch, GNCT of Delhi was created from the said computer and satisfies the following conditions :-
1. The CD containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 64 of 73 carried on over that period by the person having lawful control over the use of the computer.
2. During the said period, information of the kind containing in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities.
3. Throughout the material part of the said period, the computer was operating properly.
4. The information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities."
85. It is noteworthy that complainant PW11 has specifically deposed that he had prepared the CDs, which he had handed over to the IO from the memory card which has not been placed on record. Perusal of certificate u/s 65B of Indian Evidence Act Ex. PW11/D however indicates that there is no mention of memory card in the said certificate even though the CDs Ex. P-1 and Ex. P-2 are deposed by PW11 to have been made from the memory card. In fact certificate u/s 65B of Indian Evidence Act specifically states that the footage was transferred from spy camera to the computer. The details and particulars of the spy cam or the memory card are also not mentioned in the certificate u/s 65B of the Indian Evidence Act.
86. In order to prove the genuineness of the electronic record as contained in the two CDs, the IO PW15 sent CD i.e. Exhibit A-1 and CD exhibit B-1 handed over to IO during investigation to FSL Rohini for evaluation and analysis along with the voice sample of accused Sharif Ahmad contained in audio cassette marked exhibit A-1 and voice sample of complainant Mohd. Irshad and Liyakat Ali as contained in audio cassette marked exhibit L-1 and exhibit K-1. The transcription CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 65 of 73 running into six pages was also sent to FSL. The CDs containing the audio-video recording and the audio cassettes containing the voice samples were examined by the FSL expert and the finding of the FSL expert in this regard as contained in the FSL report Ex. PW3/A are as follows :
"3.RESULTS OF EXAMINATION/OPINION:
On auditory analysis by critical listening and subsequent waveform and spectrographic analysis of the audio recording in audio files, namely "AVSEQ01.DAT" in CD marked "Exhibit-I" & "Exhibit-2", there are no indication of any form of alteration in audio recording.
The auditory analysis of recorded speech samples of speakers marked "Exhibit-Q1" & "Exhibit- S1" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-Q1" are similar to the voice exhibits of speaker marked "Exhibit-S1" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibit of speakers marked "Exhibit-Q1" and "Exhibit-S1" are the voice of same person (i.e. Sh. Sharif Ahamad).
The auditory analysis of recorded speech samples of speakers marked "Exhibit-Q2" & "Exhibit- S2" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-Q2" are similar to the voice exhibits of speaker marked "Exhibit-S2" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibit of speakers marked "Exhibit-Q2" and "Exhibit-S2" are the voice of same person (i.e. Sh. Mohd. Irshad).
The auditory analysis of recorded speech samples of speakers marked "Exhibit-Q3" & "Exhibit- S3" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-Q3" are similar to the voice exhibits of speaker marked "Exhibit-S3" in respect of their CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 66 of 73 acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibit of speakers marked "Exhibit-Q3" and "Exhibit-S3" are the voice of same person (i.e. Sh. Liyakat Ali)."
87. It is deposed by PW16 IO/Insp. Rohitash Kumar that after the investigation was assigned to him on 16.08.2016 he found that further opinion on video recording and clarification from complainant Irshad was required. Accordingly, he sent the exhibits to FSL to get opinion on frame by frame analysis. He also examined the complainant u/s 161 Cr.P.C. with regard to clarification on date and time of recording of the sting operation. He deposed that the prosecution sanction had already been obtained but after obtaining further FSL opinion, a fresh prosecution sanction was sought. In his cross-examination by ld. Counsel for the accused, he deposed that the case property was taken by HC Jitender to FSL. The statement of HC Jitenderu/s 161 Cr.P.C. dated 30.10.2018 and 29.01.2020 stands admitted by ld. Counsel for the accused vide Ex.A-9 and A-10 respectively. In this regard PW16 Insp. Rohitash Kumar also deposed that he did not record the statement of MHC(M) regarding movement of case property when it was sent to FSL again. No explanation was furnished as to why the statement of MHC(M) was not recorded regarding departure of case property, the second time. PW16 denied the suggestion that no such case property was sent to FSL and that the FSL report was obtained by him fraudulently.
88. The FSL report dated 21.01.2020, Ex. PW3/B, mentions that one sealed parcel in connection with case FIR No. CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 67 of 73 42/2009 dated 04.12.2009 was received on 30.10.2018 through HC Jitender and also described the articles contained in the sealed parcel to be two CDs which were marked as Exhibit-1 and Exhibit-2 in the lab. The finding of the FSL expert in this regard as contained in Ex. PW3/B is as follows :
"3.RESULTS OF EXAMINATION/ OPINION :
On laboratory examination of audio-video files in CD marked "Exhibit-1" and "Exhibit-2", it was observed that each video file contains one identified video shot. There is no indication of alteration in the identified video shot on the basis of frame by frame examination using Video Analyst System."
89. Hence, the FSL report Ex. PW3/B, opined that there was no indication of any form of alteration in the audio-video files contained in CD Ex. P-1 (which was marked as exhibit '1' at the FSL) and Ex. P-2 (which was marked as exhibit '2' at the FSL). Additionally, as per the FSL report Ex. PW3/A, the voice sample of accused Sharif Ahmad, complainant Mohd. Irshad and Liyakat Ali were the voice of the speakers in CDs. It was also found that there was no indication of any alteration in the video on the basis of frame to frame examination using Video Analyst System.
90. In his cross-examination it was deposed by PW3 Dr. C.P.Singh that he did not demand the recording device from IO from which the video recording was made. He stated that the recording devices are sought when same play-back facility of the primary recording media is not available in the laboratory and also to compare the recorded signal being the same as the CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 68 of 73 primary recording. He stated that in the present case the recording was given in secondary media. CD/DVDs are storage devices which are used as secondary media. Hence, as per the FSL result Ex. PW3/B, the audio-video files in the CDs sent to FSL for examination were not tampered with, however, there was no comparison done to check if the recorded signal was same as the primary recording as only the recording in secondary medium was sent to FSL.
91. It is relevant to note that in his cross-examination by the accused, PW11 deposed that the recording of CD Ex. P-1 was accessed on 28.11.2009 and modified on 28.11.2009. Pertinently, the date of recording is deposed to be 2097.01.08 in Ex. P-1. The recording of Ex. P-2 is deposed to be accessed on 28.11.2009 and modified on 28.11.2009. The date of recording is stated to be 2008.05.08. Hence, it is manifest that the date of recording as appearing in Ex. P-1 is not 04.05.2008 as is stated by the prosecution. Additionally, the complainant in his examination- in-chief has only stated that the recording was conducted in the year 2009, though in his cross-examination by ld. Addl.P.P. for the State he stated that the first recording was done on 04.05.2008. In his cross-examination by ld. Counsel for the accused, the complainant PW11 deposed that the date and time of recording would appear in the recording if done through digital camera. He also admitted that none of the recordings showed the date as 04.05.2008. No explanation was furnished by the complainant as to why the date of recording in Ex. P-1 was appearing as 2097.01.08 despite the said dates being specifically put to him during cross-examination. In view of the fact that CD CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 69 of 73 Ex. P-1 does not show the date as 04.05.2008, which is purportedly the date when the first sting operation was done and there being no explanation in this regard by the prosection as well as the fact that the complainant in his examination-in-chief stated that the recording was conducted in the year 2009, the prosecution has failed to prove the date of the first recording to be 04.05.2008. In these circumstances the authenticity of video recording remains questionable.
92. As per the contents of CD Ex. P-1 and the transcript Ex. PW11/B pertaining to CD Ex. P-1, the transaction of handing over of Rs. 15,000/- and further demand of Rs. 20,000/- for bail of Liyakat are shown in the said CD Ex. P-1. Since the authenticity of CD Ex. P-1 is questionable as discussed herein- above, hence, the said video recording cannot be relied upon to corroborate the version of the complainant.
93. As per the prosecution version there were two sting operations conducted by the complainant on 04.05.2008 and 08.05.2008. However, there is a delay of about 1½ years in registration of the FIR. No satisfactory explanation has been forthcoming from the complainant regarding delay in registration of the FIR except a bald statement that he was away for the long time. The complainant has deposed that initially he had given a written complaint when he had visited the office of ACB and thereafter he had gone out for a considerable time and thereafter he was called by ACB officials when his statement Ex. PW11/A dated 04.12.2009 was recorded. In his cross-examination he deposed that he had not brought copy of the initial complaint CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 70 of 73 which was lodged by him against the SHO and the accused immediately after the sting operation and volunteered that it had been destroyed due to a fire incident at his house, which took place in the year 2012. He had not lodged any formal complaint regarding the fire incident. He denied that he was not producing copy of the complaint as it was against SHO Sushil Kumar only. PW11 was also confronted with one complaint dated 20.02.2009 Ex. PW15/A, however, he denied his signatures on the same.
94. Accordingly, even as per the prosecution version the earliest complaint was purportedly given by the complainant on 20.02.2009 and eventually the FIR was registered after recording the statement of the complaint vide Ex. PW11/A on 04.12.2009. No satisfactory explanation has been given as to why no complaint was made by the complainant immediately after conducting the sting operation specially when the complainant had conducted many other sting operations . Even though the complainant has claimed that he had made a complaint, however, no such complaint was produced by him. As discussed hereinabove the complainant had also conducted other sting operations and lodged other FIRs also and hence, he was aware about the manner of proceeding with such cases, the worth/value of the video recordings of the transaction and despite the same he chose to remain silent on the sting operation conducted by him for such a long time which raises doubts on the real motives of the complainant.
95. Additionally, the complainant has chosen not to produce the original device before the investigating officer and CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 71 of 73 has also claimed ignorance of the make and configuration of the said device i.e. spy camera and even the memory card. Strangely, the complainant, who has conducted other sting operations also, did not hand over the recordings to the IO till 04.12.2009 and there is nothing on record to show that the integrity of the recording was maintained by the complainant, during that period. In these circumstances, CD Ex. P-1 and Ex. P-2 cannot be relied upon by the prosecution to corroborate the version of the complainant PW11. Since the CDs Ex. P-1 and Ex. P-2 have been held to be inadmissible in evidence, therefore, the transcripts Ex. PW11/B and Ex. PW11/D1, which are based on the conversations contained in the said CDs, cannot be relied upon.
96. As discussed, PW11 has been held to be a witness who is neither wholly reliable nor wholly unreliable. In absence of due corroboration of testimony of complainant PW11 Mohd. Irshad, his testimony cannot be relied upon to convict accused Sharif Ahmad.
97. In view of the aforesaid discussion, the prosecution has thus, failed to prove its case against the accused for the offences he is charged with and to bring home the guilt of the accused beyond reasonable doubt. The accused Sharif Ahmad is thus entitled to benefit of doubt and therefore, acquitted of the charged offences.
98. Bail bond of accused stands cancelled and surety stands discharged.
CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 72 of 7399. File be consigned to record room after due compliance. DEEPALI Digitally signed by DEEPALI SHARMA Announced in the open court SHARMA 16:28:58 +0530 Date: 2024.02.02 on 31st January, 2024 ( Deepali Sharma) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No. 78/2020 FIR No. 42/2009, PS ACB State v. Sharif Ahmad Page 73 of 73