Delhi District Court
25 vs . on 10 October, 2022
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, Delhi
In re :
CNR No. DLCT11000072-2020
CC No. 11/2020
FIR No. 05/2014
P.S Vigilance
U/s 7 & 13(2) r/w Sec. 13(1)(d) of
POC Act, 1988
State
Vs.
HC Giriraj Meena
S/o Sh. Shankar Lal
R/o Village Gopal Pura,
PO Mirzapur Odabhimka
Rauli, Rajasthan
Date of institution : 24.01.2020
Date of arguments : 26.09.2022
Date of judgment : 10.10.2022
JUDGMENT
1. The above named sole accused faced trial in the present matter for offences U/s 7 & Sec. 13 (2) r/w Sec. 13(1)(d) of the POC Act, 1988.
2. Brief facts of the case are that on 04.02.2014, a program titled as "Operation Delhi Police" was aired on TV News Channel "Aaj Tak". In it, few sting operations conducted against Delhi Police officials were aired, in which various police officials were discretely video recorded accepting bribe from undercover agent for doing or refraining from doing official duties. One amongst those trapped police officers was the present accused, who at the relevant time was posted in Traffic Unit and he was seen accepting money from an undercover agent in lieu of not issuing a traffic challan against a CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 1 of 26 2 traffic violation by the undercover agent. After airing of the said program, the ACP of PS Vigilance, namely, L. C. Yadav gave a written complaint on 04.02.2014 itself directing registration of FIR and the present FIR was accordingly registered.
2.1. After registration of FIR, three unedited DVDs, which were stated to be containing raw footages of the sting operations, were obtained from one Satya Prakash, Assistant Manager, Legal Department of concerned news channel owning agency, namely, TV Today Network Limited (TVTN). From those DVDs, the sting operation relating to the present accused was copied in a separate DVD by the computer operator of Vigilance Branch. 2.2. During investigation, the undercover agent Akshay Singh was examined U/s 161 Cr.P.C, who stated that while doing sting operations against different Delhi Police officials, he parked his car in front of Press Club of India, on Raisina Road Delhi, in an unauthorised parking area. After few minutes, his car was towed away by the traffic police. He then met the accused who was posted as Traffic Head Constable at the area and, the accused told Akshay that his car was being taken to Jantar Mantar Road. When Akshay requested the accused to release his car, the accused asked Akshay to come and sit inside the traffic crane. At that time, Akshay started his spy camera and asked the accused as to what was the procedure of release of car. Upon it, the accused told Akshay that Akshay will have to go and pay for the traffic violation challan as well as crane charges at another place. Accused also told Akshay that the total charges would be Rs. 300/-. The accused then obtained Rs. 200/- from Akshay for not issuing traffic challan and the crane charges bill. This conversation was video recorded by Akshay on his I-phone. He also stated that after making the sting operations, the recording used to be deleted from the phone which had limited memory in order to enable the phone to CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 2 of 26 3 record other stings and in this case also the video in question was deleted from the I-phone. But he claimed that the original/ unedited footage had been supplied to the police in a CD. He also watched the contents of DVD before the investigating officer of this case and claimed that he recorded the video against the accused. After Akshay watched the contents of DVD in PS Vigilance during investigation, the DVD was sealed by the IO and was taken into possession vide a seizure memo.
2.3. During investigation, accused refused to give his voice sample, whereas Akshay supplied it. The voice sample of Akshay was got matched with the sting contained in the DVD and, the FSL result dated 22.01.2015 opined that it contained probable voice of Akshay and also that the video was in continuity. However, the FSL expert mentioned in the report that complete examination, for verification and authentication of the video, can be carried out only if the original recording device and the media is supplied. The original could never be obtained in this case and could never be supplied. 2.4. After obtaining Sanction under Sec. 19 of the POC Act, the accused was charge sheeted.
3. Accordingly, a charge U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of the POC Act was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 13 witnesses. 4.1. It may be mentioned here that Akshay Singh expired even before filing of charge sheet and besides him, there was no other primary direct evidence available with the investigating agency. The entire case of the prosecution therefore rested upon proving of copy of the video sting operation. Thus, it was incumbent on the prosecution to have proved certificate U/s 65B of Evidence Act. In that regard, one Punit Jain was examined as PW9 and his CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 3 of 26 4 testimony is being discussed hereinafter. The rest of the witnesses are more or less formal in nature.
4.2. PW1 Ct. Rajesh carried the exhibits from malkhana of PS Vigilance to CFSL, Lodhi Road on 11.06.2014, vide RC Ex.PW6/B. 4.3. PW2 HC Shobha Ram supplied the duty roster and DD entries regarding duty and departure/arrival of accused, who at the relevant time was posted in Parliament Circle of traffic police. Those entries are Ex.PW2/A1 to A7 & PW2/B, which were seized by the IO vide seizure memo Ex.PW2/C. The witness deposed that between 27.01.2014 to 29.01.2014 the accused was on duty at Raisina Hill area.
4.4. PW3 SI Dalip Singh, the duty officer, proved registration of FIR in question as Ex.PW3/B and endorsement on rukka Ex.PW3/A as well as certificate U/s 65B of Evidence Act regarding registration of FIR on computer CCTNS Portal System.
4.5. PW4 ASI Barmeshwar Goswami simply proved bio-data of the accused, which is not in dispute, along with certificate U/s 65B of Evidence Act in support of the print out of bio-data as Ex.PW4/A & B. 4.6. PW5 Jayesh Bhardwaj, the Lab Assistant (Physics) at CFSL / CBI, Lodhi Road, Delhi recorded voice sample of deceased Akshay on 09.05.2014 in a micro SD card Ex. S, which was seized by the police vide seizure memo Ex.PW5/A, after sealing it with his seal of RRK.
4.7. PW6 SI Shiv Kumar was the malkhana moharrar who deposed regarding deposition of case property by Inspector R. R. Khatana (PW13) on 25.03.2014 & 09.05.2014, vide entries in relevant register Ex.PW6/A & 6/D; sending of the case property to CFSL on 11.06.2014, vide entry Ex.PW6/B and acknowledgement receipt Ex.PW6/C and; receipt of CFSL result on 18.02.2015, vide entry Ex.PW6/E. CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 4 of 26 5 4.8. PW7 A. D. Tiwari, the Principal Scientific Officer of CFSL / CBI / New Delhi proved his report Ex.PW7/A, vide which he had frame by frame analysed the continuity of the video contained in the DVD Ex. Q-1. 4.9. PW8 ACP L. C. Yadav deposed about giving of complaint Ex.PW3/DA, upon which the present FIR was registered. He also gave complaints for six other cases of similar nature on 04.02.2014 against other policemen seen in the sting. He claimed to have seen the sting operation on TV before giving formal complaints. The witness also deposed that on 06.02.2014, he received a letter Ex.PW8/A from PW9 Dr. Punit Jain from TVTN along with 3 CDs, which were claimed to be containing unedited footages, one CD containing the telecasted footage and, transcripts. He also claimed that he handed over the said letter and enclosures to the investigating officer of FIR no. 01/2014. It may be mentioned here for the sake of clarity that on 04.02.2014, seven FIRs bearing numbers 1 to 7 of 2014, including the FIR of the present case, were registered on the complaint of this witness.
4.10. PW10 Dr. Rajender Singh, the CFSL expert from Physics Division deposed that on 11.06.2014, he compared the sample voice of Akshay with the questioned voice contained in DVD Ex. Q-1 and found that the voice of Akshay tallied. He proved his report Ex.PW10/A. The DVD is exhibited as Ex.DVD-1 and the voice sample in the micro SD card is Ex. S-1. 4.11. PW11 the then Inspector Magan Singh Shekhawat deposed that on 05.02.2014, he along with Inspector Virender Punia and Inspector Kapil Dev went to the office of TVTN; served a notice U/s 91 Cr.P.C upon Mr. Punit Jain (PW9). On 06.02.2014 they again went to the office of TVTN, met Punit Jain who gave his written reply Ex.PW8/A and asked the witness to meet Mr. Satya Prakash of TVTN. Thereafter, Mr. Satya Prakash gave three unedited DVDs, one edited DVD and transcripts which were taken into possession by CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 5 of 26 6 the witness vide seizure memo Ex.PW11/A. During deposition this witness identified the three DVDs, after they were summoned from the case record of FIR no. 01/2014 pending in another Court, as Ex. P5 to P7. A print out of the pictures of those three DVDs were obtained in this file for records and clarity. The witness deposed that after seizure of the above mentioned four DVDs and transcripts, he handed over the same along with the seizure memo to ACP L.C. Yadav who was the overall supervisory officer of all the seven FIRs.
4.12. PW12 Amrender Kumar Singh was the concerned competent authority who accorded Sanction U/s 19 of the POC Act Ex.PW12/A. 4.13. PW13 Inspector R. R. Khatana was the investigating officer of this case, who deposed that he received investigation of this case on 04.02.2014 itself and subsequently on 06.02.2014 PW11 handed him over copy of transcript of sting operation; copy of DVD containing sting operation which he had seized. But the witness could not point out any seizure memo about it on judicial record. The witness also deposed that pursuant to his notice Ex.PW9/A-1 dated 12.02.2014, PW9 sent a reply dated 17.02.2014 Ex.PW9/B1 along with a copy of CD and transcript. But the seizure memo of that transcript and CD, purportedly received on 23.02.2014, could also not be traced by the investigating officer. He deposed that on 25.03.2014 he examined Akshay Singh and on that day he formally seized the DVD which was handed over to him on 06.02.2014 by Inspector M. S. Shekhawat (PW11), vide seizure memo Ex.PW13/A, after he sealed the DVD with his seal of RRK. The witness also deposed about sending of various communications to Akshay Singh, Punit Jain and others of TVTN seeking original device; about collecting voice samples of Akshay Singh; about collecting bio-data of accused and; about collecting certificate U/s 65B of CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 6 of 26 7 Evidence Act and; getting the case property and voice sample examined from FSL. I need not go into the details of those communications and those exhibited documents being unnecessary. Wherever necessary, those exhibits shall be discussed hereinafter.
5. On conclusion of the prosecution's evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The accused claimed that he has been implicated falsely in this case; the alleged video recording is fabricated; he never met Akshay; he never took any money from anyone; the certificate U/s 65B of Evidence Act Ex.PW9/C & D are invalid as PW9 was not competent to issue the certificates; the entries in the malkhana registers were ante timed; the FSL report Ex.PW7/A and Ex.PW10/A were false and unreasoned report and; the Sanction Ex.PW12/A was granted by a person who was not competent to grant such Sanction and also that the Sanction was accorded mechanically without application of mind. The accused did not opt to lead any evidence in his defence.
6. I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
7. It is also argued on behalf of the accused that the Sanction in the present case is defective as it was accorded without application of mind and the prosecution failed to prove as to what all documents and material were sent to the Sanctioning Authority or were considered by the Sanctioning Authority before according Sanction. It is also argued that PW12 was not the competent authority to accord sanction as the accused was promoted to Head Constable from Constable by an order of the Commissioner of Police, whereas PW12 was merely DCP at the time of granting Sanction. In this regard, the accused places reliance upon the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat JT 1997 (7) SC 695 and the case of K. C. Singh Vs. CBI, Crl. Appeal No. 976 of 2010, decided by Delhi High Court CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 7 of 26 8 on 10.08.2011.
7.1. Both those judgments are distinguishable. In the case of Mansukhlal (Supra), the Sanctioning Authority mechanically granted Sanction pursuant to direction under Mandamus issued by the High Court and therefore it was held to be void, whereas, in the case of K. C. Singh (Supra), the Sanction itself revealed that some other FSL result was mentioned in it instead of the FSL result of that case and also the Sanction Order was verbatim reproduction of the draft sanction sent by the CBI to the Sanctioning authority.
7.2. In the present case Sanction Ex.PW12/A reveals the material considered by the sanctioning authority and the sanctioning authority PW12 also deposed that he applied mind to the material supplied by the investigating agency before according Sanction. Merely because the office file of the Sanctioning authority could not be brought being not traceable in the office of DCP concerned as on the date of examination of PW12 would not mean that the material was not supplied to the sanctioning authority or that he did not consider it.
7.3. The argument of accused that since he was promoted under the orders of the Commissioner of Police, therefore, DCP was not competent to accord Sanction is fallacious as it is specifically deposed by PW12 that he was the removal authority of the accused and it is also so mentioned in Sanction Ex.PW12/A. The accused did not prove any document to the effect that he was appointed as Head Constable by the Commissioner of Police and merely on oral claim, he cannot term the Sanction Ex.PW12/A as invalid.
7.4. In the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88, it is observed by the Apex Court as follows;
CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 8 of 26 9"25. On the said aspect, the later decision of this Court in State of Maharashtra v. Mahesh G. Jain [State of Maharashtra v. Mahesh G. Jain, (2013) 8 SCC 119: (2014) 1 SCC (Cri) 515: (2014) 1 SCC (L&S) 85] has referred to several decisions to expound on the following principles of law governing the validity of sanction: (SCC pp. 126-27, para 14) "14.1. It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5. The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7. The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity."
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28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4 SCC 402: (2011) 2 SCC (Cri) 258: (2011) 2 SCC (L&S) 697] referring to the earlier precedents has observed that a defect or irregularity in investigation however serious, would have no direct bearing on the competence or procedure relating to cognizance or trial. Where the cognizance of the case has already been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. Similar is the position with regard to the validity of the sanction. A mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 9 of 26 10 been occasioned thereby. Section 19(1) of the Act is matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the court under the Code, it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance and for that matter the trial."
7.5. Thus the argument of accused as to invalidity of sanction and competence of the sanctioning authority, is rejected.
8. It is next argued by the accused that no site plan of the place of occurrence was prepared or proved by the prosecution and in this regard reliance is placed upon the case of State Vs. Sunil Kumar @ Sagar 2015 (3) LRC 380 (Delhi) (DB).
8.1. Indeed, no site plan was either prepared or has been proved by the prosecution in the present case and instead it is claimed that it was not necessary in the case of sting operations as the present case is. Undoubtedly, site plan becomes material and crucial in cases of particular criminal nature such as murder, or causing hurt etc. where the exact location of the injured, the witnesses and the accused is vital, still, in the case of the present nature, indeed, the site plan would have helped the prosecution to specify as to where exactly the offending vehicle was parked by Akshay, from where it was picked and where exactly the accused was present and demanded bribe, if any. However mere absence of site plan is not enough to throw away the case of prosecution.
9. It is next argued by the accused that in the video in question the identity of the accused or Akshay Singh has not been established by any of the prosecution witnesses and the prosecution withheld material witnesses viz., Sapan Gupta and Umesh who were part of the team of Akshay Singh. In this regard, accused places reliance upon the case of Tomaso Bruno & anr. Vs. State of U.P. 2015 (2) JCC 884 and the case of Sri Rabindra Kumar Dey CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 10 of 26 11 Vs. State of Orissa 1976 SCC (Criminal) 566. It is also argued by the accused that the CFSL result Ex.PW10/A and Ex.PW7/A are inadmissible. It is also argued by the accused that the letter dated 06.02.2014 and the seizure memo dated 25.03.2014 are fabricated documents as is revealed from the testimonies of prosecution witnesses itself. It is also argued that the video recordings and the transcripts have not been proved. In this regard reliance has been placed by the accused upon the case of Ram Singh Vs. Col. Ram Singh AIR 1986 SC 3; Mahabir Prasad Verma Vs. Dr. Surinder Kaur AIR 1982 SC 1043; Anwar P. V. Vs. P. K. Basheer & Ors. (2014) 10 SCC 473; Achchey Lal Yadav Vs. State 2014 (8) LRC 236 (Delhi); Ashish Kumar Dubey Vs. State 2014 IV AD (Delhi) 473 and; Jahan Singh Vs. CBI 2020 (2) RCR (Criminal) 794. It is also argued on behalf of accused that there is no demand of bribe by the accused from Akshay proved by the prosecution, which is sine quo non for an offence U/s 7 & Sec. 13 of POC Act and in this regard, accused places reliance upon the cases of B. Jayaraj Vs. State of A. P. 2014(2) RCR (Criminal) page 410. It is also argued that even in a case under POC Act the onus is on the prosecution to prove the basic facts and only thereafter presumption U/s 20 of the POC Act can be invoked. In this regard, reliance is placed by the accused upon the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Criminal) page 217.
10. As mentioned above, there is no direct ocular evidence against the accused that he demanded or obtained any money from Akshay Singh or anyone else on any date. The entire case of the prosecution is based upon the copy of video recording sought to be proved. Law regarding proof of such video recordings is well established now. In the present case, in absence of Akshay Singh, no witness has been examined by the prosecution to prove that in the CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 11 of 26 12 video in question Akshay Singh appears. The maker of the video could not be examined as he was no more.
11. Whether the prosecution was able to prove the copy of video recording or not, makes the discussion of testimony of PW9 and others connected to that fact necessary here.
11.1. PW9 Dr. Punit Jain deposed that he was working as Group Chief, Law & Compliance Officer and also Group Chief, Corporate Affairs Officer in TVTN. He proved certain notices received from the investigating agency on different dates as Ex.PW9/A1 to A5 and his own seven replies of different dates as Ex.PW8/A and Ex.PW9/B1 to B6. This witness also exhibited certificates U/s 65B of Evidence Act, one of which Ex.PW9/C is undated, and the second one dated 20.12.2017 is Ex.PW9/D. During examination, the witness admitted that the original I-phones which were used as recording device for recording of the sting in question was never provided to the investigating agency. He claimed that it had been sent to U.P. Vidhan Sabha in connection with some inquiry relating to some other sting operation. He even admitted that for the first time, it was through letter Ex.PW9/B6 informed that the original devices were in the custody of U.P. Vidhan Sabha in connection with sting operations of Muzaffar Nagar riots. He claimed that the investigating agency was supplied with raw footage of the sting operation after copying it from the company's server. Meaning thereby that from the I- phones the recording were copied on the company's computer server system and from there it was copied in the DVDs supplied to the investigating agency. The witness also admitted in his cross examination that one Mr. Deepak Sharma was the In-charge of Special Investigating Team of TVTN and In-charge of the computers installed at SIT Department of TVTN. The witness also admitted that the concerned Incharges of SIT and library were CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 12 of 26 13 the custodians of the computers installed in their respective branches and that the entire set up of TVTN was divided in different department / branches which were headed by their respective functional heads. He admitted that he was not functional head of either the IT Department or the Library Department of TVTN in 2014 and he was fnctional head of the legal department. He claimed that there was a shift system of eight hours in TVTN and according to those shifts, even the functional heads / Incharges used to change. The witness even admitted that vide his letter Ex.PW9/B3, he had informed the investigating officer that the person In-charge of the computers of SIT was Deepak Sharma. When the witness was questioned as to the date on which the DVDs were prepared, which were supplied to the IO, the witness replied that he did not know it and he did not even remember the dates when the recordings were transferred from the original recording devices to the computers of library and thereafter the dates when the recordings were copied from the library computers to the computers of SIT. He did not remember whether the hash value of the recordings was ever provided to IO or not. He could not even recall whether he ever saw the recordings of the sting operations. He specifically admitted that the issues relating to sting operation used to be dealt with by the Editorial Section and the recording device belonged to TVTN only, but did not know as to which department of TVTN used to issue it to the team going for sting operation.
12. When the entire case of the prosecution rested only on the video in question, it was imperative for the prosecution to have proved the same in accordance with law. Admittedly, the original recording device i.e. I-phone mobile phone through which the sting operation was recorded by the deceased Akshay are not proved as they were never provided by the news channel to the investigating agency. In the letter Ex.PW9/B2 sent by PW9 Punit Jain to the CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 13 of 26 14 IO, dated 06.06.2014, it is specifically mentioned that the I- phones used for conducting sting operation had limited memory and after the video was downloaded from the phone to the office computer, the videos were deleted from the I-phones. Similarly, in letter Ex.PW9/B3 dated 29.05.2015, it is mentioned that the original video footage was no longer available with the news channel as the I-phones were used for other recordings as well. Therefore, the entire case of the prosecution rested upon the copy of the sting operation.
12.1. For the following reasons, the prosecution failed to meet the requirements of Sec. 65B of the Evidence Act in proving the copy of the sting operation. 12.2. The sanctity of the DVDs, purportedly received from the news channel has not been maintained and is surrounded by doubts. PW8 L. C. Yadav, on whose complaint the FIR in question was registered, claimed in his examination in chief that on 06.02.2014 vide letter Ex.PW8/A of PW9 he had received three DVDs containing unedited footages and one DVD containing edited and telecasted footage along with the transcript, and that he had handed over the same to the investigating officer of FIR no. 01/2014. But then he was not even the investigating officer of any of the seven FIRs which were lodged on his complaint. Even if for the sake of argument, it is assumed that PW8 being senior officer still continued to keep a track of the cases or supervised the cases even without being the investigating officer, he did not clarify as to from whom he received letter Ex.PW8/A along with the four DVDs and the transcript. The investigating officer of FIR no. 01/2014 to whom he handed over the DVDs has not been examined in this case. Ex.PW8/A is indeed addressed to this witness. On the other hand PW-13, the IO of this case deposed that on 25.03.2014 after he examined Akshay Singh he formally seized the DVD which was handed over to him on 06.02.2014 CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 14 of 26 15 by Inspector M. S. Shekhawat (PW11), vide seizure memo Ex.PW13/A, after he sealed the DVD with his seal of RRK.
12.3. PW8 also claimed in his cross examination that he copied the recording contained in the DVD on the official computer through H. C. Mahesh as soon as it was received by him. H. C. Mahesh has neither been examined as a witness, nor cited as a witness in this case. PW8 also claimed in his cross examination that it was Ct. Mahesh who prepared copies of the DVDs received from TVTN, on 07.02.2014 on the instructions of this witness and that he had instructed Ct. Mahesh to deliver one set of each of the DVDs to all the seven IOs after preparation of copies.
12.4. The witness specifically said that the recordings of the four DVDs received from TVTN were transferred to the official computer of Vigilance on 06.02.2014 itself and thereafter the DVDs were handed over to the IO of case FIR No. 01/2014 and that the copies handed over to all the seven IOs were copied from the footages stored in the official computer of Vigilance which were copied on 06.02.2014.
12.5. PW8 in his cross examination even claimed that on 04.02.2014 night at 11.30 PM itself he had collected one DVD from the police headquarters which was containing the telecasted footage, and which he got collected through driver of Vigilance Branch. The said driver has not been examined or cited as a witness. Admittedly, PW8 did not prepare any seizure memo of the said DVD received by him on 04.02.2014.
12.6. PW8 claimed that even the DVD received from PHQ was handed over to the IO of case FIR no. 01/2014 in unsealed condition and that no covering letter along with the DVD was received from PHQ. As mentioned above, the IO of case FIR no. 01/2014 has not been examined. PW8 even admitted that IO of case FIR no. 01/2014 did not seal the said DVD and did not prepare any CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 15 of 26 16 seizure memo in that regard. PW8 even claimed that nothing was endorsed on the DVD when it was received by him and that even the investigating officer of FIR no. 01/2014 did not make any endorsement on the DVD in his presence.
12.7. PW8 also claimed that he did not receive any certificate U/s 65B of Evidence Act along with the DVD received from either the PHQ or with the letter of Punit Jain dated 06.02.2014.
12.8. Though, PW8 also claimed that he had sent a letter dated 05.02.2014 to Punit Jain through Inspector Shekhawat (PW11) seeking unedited video recording of the sting operation and that Inspector Shekhawat went along with Inspector Vinay who were the investigating officers of other cases, but the said letter was not even relied upon by the prosecution and is not filed with the charge sheet. On the other hand, Counsel for accused put that document to PW8 in his cross examination which was admitted by the witness as Ex.PW8/DA. This document reveals that vide this document original devices and the name of persons who conducted sting operations were asked. PW8 specifically deposed that he had deputed PW11 and Inspector Vinay on 05.02.2014 to go and collect the unedited recording from TVTN, but he volunteered that the recording was not provided by TVTN on 05.02.2014 and instead Assistant manager (Legal) of TVTN brought the four DVDs and transcripts with letter of Punit Jain to the Vigilance Branch. The witness however did not clarify as to on which date the Assistant Manager brought those DVDs.
12.9. On the other hand, PW11 Inspector Magan Singh Shekhawat deposed that he along with Inspector Kapil and Inspector Virender Punia went to the office of news channel on 05.02.2014 and handed over notice to PW9 Punit Jain and that again all three of them went to the office of TVTN on 06.02.2014 CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 16 of 26 17 where they met Punit Jain who gave his reply Ex.PW8/A and that Punit Jain asked this witness and others to meet one Mr. Satya Prakash and then Mr. Satya Prakash gave three unedited DVDs and the one edited DVD along with the transcript and that he seized the same vide seizure memo Ex.PW11/A. 12.10. Ex.PW11/A is a copy of seizure memo originally prepared in case FIR no.
01/2014, dated 06.02.2014. This document is witnessed by Inspector Kapil Dev and Inspector Virender Singh Punia. It is also witnessed by Satya Prakash, Assistant Manager, Legal Department of TVTN. It is mentioned in this seizure memo that Satya Prakash produced three unedited DVDs containing copies of sting operations of Delhi Police numbered 1, 2 & 3 and also one edited DVD along with the transcript.
12.11. Neither Satya Prakash was cited as a witness or examined by the prosecution nor Inspector Kapil Dev or Inspector Virender Singh Punia were cited or examined as witnesses by the prosecution, for reasons best known to the prosecution.
12.12. PW11 was shown the four DVDs which were seized by this witness on 06.02.2014, after summoning the said case property from another case FIR no. 01/2014 of PS Vigilance. PW11 identified those four DVDs in his examination in chief as Ex. P2, P5, P6 & P7. Interestingly, on the envelopes of the DVDs which were produced and identified by the witness, signature of Satya Prakash as well as Vinay Kumar existed, that too with a date of 05.06.2015 and not 06.02.2014. Also, in none of those envelopes containing DVDs, signature of PW11 or Inspector Kapil or Inspector Virender Singh Punia exists. It creates a strong suspicion as to whether these DVDs were seized or collected by the investigating agency on 06.02.2014 as claimed by the prosecution or it were seized on 05.06.2015.
12.13. No justification could be offered by the prosecution as to if these four DVDs CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 17 of 26 18 were collected on 06.02.2014 from the office of TVTN, why their envelopes containing signatures of Satya Prakash bear dates of 05.06.2015. It may be mentioned here that it is not a case where someone might have noted the date of 05.06.2015 on the envelope at a later stage. That date occurs below the signatures of both Mr. Satya Prakash and of Inspector Vinay Kumar. It clearly indicates that Satya Prakash and Inspector Vinay signed these four envelopes containing the DVDs on 05.06.2015. For the sake of clarity, a picture of the DVDs and the envelopes were obtained and have been retained on judicial record of this case.
12.14. The claim of PW11 that he collected the DVDs from Satya Prakash also gets belied from the statement U/s 161 Cr.P.C of this witness Ex.PW11/D1 where no such things are mentioned and the witness was confronted with that statement during his cross examination by the accused. DD entries of visiting TVTN either on 05.02.2014 or on 06.02.2014 are not proved. 12.15. If this witness seized the DVDs on 06.02.2014, he did not even care to seal them on that very day. But claimed that the DVDs were already inside sealed packet when they were supplied to him by Satya Prakash, but he could not recollect as to whose seal impression existed on the envelopes. In Ex.PW11/A i.e. the seizure memo prepared on 06.02.2014, there is no mention of any such seal. The witness also claimed in his cross examination that when he handed over those DVDs to ACP L. C. Yadav (PW8), L. C. Yadav watched the contents of those DVDs in the presence of this witness as well as in the presence of Inspector R. R. Khatana (PW13) who is the IO of the present case. If the DVDs were sealed with the seal of someone when it was received by PW11, it could not have seen by PW8 without opening of those seals and if those DVDs were watched by PW8, the obvious inference to be drawn is that the seals were broken and then the DVDs were watched CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 18 of 26 19 and then the contents of the DVDs were copied on the computer system of PS Vigilance. The witness specifically denied that no one from TVTN came to Vigilance to hand over the DVDs and transcripts. He claimed that neither L.C.Yadav nor R. R. Khatana prepared any seizure memo when he handed over the four DVDs to L. C. Yadav on 06.02.2014. The so-called transcript also seized by this witness vide Ex.PW11/A was not countersigned by this witness or the other two inspectors and as per the testimony of PW11, it was not signed by anyone else also.
12.16. PW13 Inspector R. R. Khatana on the other hand claimed that the investigation of this case was assigned to him on 04.02.2014 itself, and on 06.02.2014 PW11 handed over transcript and copy of DVD containing the sting operation to him regarding which he prepared a seizure memo. But then, no such seizure memo prepared by PW13 has been relied upon or proved in this case. The witness further claimed that on 23.02.2014 a letter dated 17.02.2014 signed by Punit Jain (PW9) Ex.PW9/B1 was received by him and along with that letter, a copy of CD and transcripts were also received, regarding which he prepared one seizure memo. But then, no such seizure memo prepared by PW13 has also been relied upon or proved in this case.
12.17. Ex.PW9/B1 does find mention that a copy of CD and transcripts are enclosed with the letter, but then it is not proved by the prosecution as to which CD was received with this letter and where is the transcript which was received with this letter. In absence of any seizure memo dated 23.02.2014, a serious doubt occurs as to what happened to this CD and the transcript. Interestingly, PW13 claimed that it was only on 25.03.2014 he played the contents of DVD before Akshay Singh and then he sealed the DVD with his seal and took it into possession vide memo Ex.PW13/A. Ex.PW13/A is witnessed only by CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 19 of 26 20 Akshay Singh. During evidence, PW13 identified DVD-1 as the DVD which he had received from PW11 Inspector M. S. Shekhawat. This DVD was sent to the FSL for comparison with the voice sample of Akshay Singh. In his cross examination, PW13 admitted that he never called any official from TVTN even after death of Akshay Singh for identification of Akshay Singh in the DVD or his signatures on the documents. He admittedly did not examine Satya Prakash in the present case and claimed that he did not even see the four DVDs collected by PW11 M. S. Shekhawat. He admitted that he did not seal the copy of DVD which was received by him along with the FIR even though it was the first vital piece of evidence and he also did not deposit the DVD in the malkhana. He admitted that the two certificates U/s 65B of the Evidence Act Ex.PW9/C & D were in support of the recordings provided on 06.02.2014 and that Punit Jain was communicated that he was not competent person to execute the certificate U/s 65B of Evidence Act and that it was only the library In-charge who could have issued such a certificate. The witness even admitted that he did not even care to check the properties of DVD received by him from the duty officer to check the properties of the video file. He even claimed that he did not analyse the DD entries regarding duties of the accused on the date and time in question.
12.18. Thus, not only material witnesses were withheld, but also a grave suspicion arises as to where, when and who produced the copies of DVDs to the investigating agency and how and in what manner further copies were prepared.
12.19. The above mentioned facts, makes it clear that after the sting operations were recorded by Akshay Singh and / or others on his mobile phone, the same were first copied by someone on the computer system of either the library section or the IT Section of TVTN. Who copied the same and when was it CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 20 of 26 21 copied or exactly on which system it was copied has not been proved. The person who copied the videos from the I-phones on the computer systems is neither identified nor his certificate U/s 65B of the Evidence Act in support of that copy from the I-phone to the computer system has been proved or even obtained.
12.20. It is thereafter from the computer system, certain DVDs were copied and then supplied to the investigating agency. Again, who copied the videos from the computer system to the DVDs, and when they were copied, is not established or proved and neither that person has been identified nor his certificate U/s 65B of the Evidence Act in support of that copy from computer system to the DVD is proved.
12.21. Though two certificates U/s 65B of the Evidence Act signed by Punit Jain (PW9) are exhibited in this case as Ex.PW9/C & D, but the same are not in consonance with the requirements of law under Sub Section (2) & (4) of Sec. 65B.
12.22. Admittedly, Punit Jain was neither In-charge of the library section of TVTN nor he was In-charge of the IT section. One Mr. Deepak Sharma was the In- charge of IT Section. No certificate from either the In-charge of library section or the In-charge of IT Section of TVTN has been obtained or proved. Indeed, efforts were made by the investigating agency to obtain certificate from Deepak Sharma, but they could not succeed, for whatever reason. 12.23. The certificate Ex.PW9/C is an undated certificate and the certificate Ex.PW9/B is dated 20.12.2017. Both those certificates are claimed to be in support of the DVDs supplied to the investigating agency on 06.02.2014. But then, the fact as to which are those DVDs which were supplied to the investigating agency on 06.02.2014, itself has not been proved and as discussed above there is lot of confusion as to which DVD was received from CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 21 of 26 22 whom, by whom and when & where. A complete mess has been created by the investigating officers as to the procurement of the DVDs and proving the same in this case.
12.24. In any case, after the DVDs were collected from TVTN, admittedly the same were copied on the computer system of PS Vigilance by Ct. Mahesh on 06th or 07th February, 2014, as claimed by the witnesses and then from the copy of the video on the computer system of PS Vigilance, further copies were prepared for the seven cases. There is no certificate U/s 65B of Evidence Act qua copying of the DVD on the computer system by Ct. Mahesh and thereafter further copies prepared from the computer system to the DVDs.
13. Thus, the video has not been proved in accordance with law; complete chain of certificates U/s 65B of Evidence Act qua the copy of the sting operation from I phone till the copy of DVD produced in court has not been proved by the prosecution and; the certificates proved by PW 9 is not from competent person in accordance with law and it does not meet the requirements of sub section 2 & 4 of the provision.
13.1. In the case of Ram Singh (Supra) in para 32 and 113, it was held as follows.
"32. Thus, so far as this Court is concerned the conditions for admissibility of a recorded statement may be stated as follows :
1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
4) The statement must be relevant according to the rules of Evidence Act.
CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 22 of 26 235) The recorded cassette must be carefully sealed and kept in safe or official custody.
6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
13.2. In the case of Mahabir Prasad Verma (Supra), it was observed that the tape recorded conversation can only be relied upon as corroborative evidence of conversation contained in the recording by parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is no proper evidence and cannot be relied upon. 13.3. In the case of Achchey Lal Yadav (Supra), the necessity of proving the conditions in Sub Section (1) & (2) of Sec. 65B of the Evidence Act was emphasised.
13.4. In the case of Jahan Singh (Supra), it was observed as follows in para 28.
"28. It has come in the deposition of Insp. Amit Vikram Bhardwaj that the transcription Marked-X (D-14) was prepared by SI Sandipini Garg who was not examined in the trial. It was exhibited as Ex. PW-15/D. The I.O. had only identified handwriting of SI Sandipini Garg on the transcription but did not depose about the contents of the same. In such circumstances, the contents of the transcription cannot be said to be proved. It is also relevant to note that although a copy of the transcription was sent to the CFSL but no opinion was sought either on the contents of the transcription or its correctness and authenticity."
13.5. The accused has also placed reliance upon the case of Mehant Ram Prakash Dass Vs. Ramesh Chandra 2000 (1) RCR (Civil) page 314, wherein, in a case regarding some irregularity in the counting of votes, Hon'ble Supreme Court did not place reliance upon the video cassette produced before the High Court in as much as no evidence was adduced as to who recorded the cassette, nor any witness spoke as to the veracity of the recoding or whether any editing was done to that video.
14. Once the prosecution fails to prove the video of the sting operation in CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 23 of 26 24 question in accordance with law, nothing survives in the matter as there is no ocular direct evidence, as mentioned above.
14.1. In any case, even if the prosecution had succeeded in proving the sting operation of this case through copies contained in the DVD, it would have been at the most corroborative and not primary evidence. Also, the prosecution did not make any attempt to prove that it was recorded by whom, where and when. The identification of Akshay Singh or the accused in the video has not been proved. The obtaining of voice sample of Akshay Singh was also not in accordance with law and therefore the FSL result stating that the questioned video contains voice of Akshay is useless. 14.2. Also, there is no definite evidence lead by the prosecution that at the particular time when the video was recorded the accused was posted and present at the place of occurrence.
15. In Sudhir Chaudhary Etc. Vs. State (NCT of Delhi) AIR 2016 SC 3772 it was observed that in order to ensure fairness and reasonableness in drawing voice samples a passage of a written text which the accused / witnesses should be required to read out for the purposes of giving their voice samples must contain words but not the sentences from the inculpatory / disputed conversation and words appearing in the disputed conversation as may be necessary may be included in the passage.
16. In Ashish Kumar Dubey (Supra) the cassette recorder which was used by a witness to record the conversation was not sent to CFSL and only cassette was sent. After discussing the case of Ram Singh Vs. Karnal Ram Singh, 1985 Supp SCC 611; Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was held in Ashish's case that the cassette was an inadmissible piece of evidence. It was held in Ashish Kumar's case that where the recorder used to record conversation was not submitted to CFSL CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 24 of 26 25 and without the device being examined for ruling out the possibility of tampering, one of the important requirements was not satisfied.
17. In Ram Singh's case it was held that the voice of speaker must be duly identified by the maker of the record or by others who recognise his voice which is first condition for admissibility and where voice is denied by the maker, it would require very strict proof to determine whether or not it was really the voice of the speaker. It was also held that accuracy of tape-recorded statement has to be proved by the maker of the record satisfactorily and every possibility of tampering with or eraser of a part of tape-recorded statement must be ruled out; the recorded cassette must be carefully sealed and kept in safe or official custody. It was also held that voice of speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
18. In Nilesh's case (supra) it was held that it is all the more necessary since tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. In Nilesh's case (supra), it was also held that the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. It was also held that in that case the voice identification by the witness was otherwise unreliable because the voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It was also noted in that case that PW18 & 19 were informed in advance that he had to identify the voices of appellant and others CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 25 of 26 26 and no attempt was made even to mix the voices with some other unidentified voices and in such circumstances the identification evidence would have little value.
19. Prosecution thus fails to prove the charges against the accused Giriraj Meena, and he is acquitted of the charges.
Announced in the Open Court
on 10th October 2022. DIG Digitally signed by
DIG VINAY SINGH
VINAY Date: 2022.10.10
SINGH 10:35:49 +0530
(Dig Vinay Singh)
Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi
(r)
CNR No. DLCT11000072-2020; CC No. 11/2020; State Vs. HC Giriraj Meena; FIR No. 05/2014; P.S Vigilance; Judgment dated 10.10.2022; Page 26 of 26