Delhi District Court
State vs . Krishna Kumari on 27 January, 2021
1
In the Court of Sh. Dig Vinay Singh: Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts, New Delhi.
CNR No. DLCT110006382019
CC No. 148/2019
State Vs. Krishna Kumari
FIR No. 713/2014
P. S. Jaitpur
U/s 7 & 13 of POC Act, 1988
State
Vs.
Krishna Kumari
D/o Sh. Dal Chand
R/o H.No. A-1/986, J. J. Colony
Madan Pur Khadar, New Delhi.
Date of Institution: 10.04.2018
Date of arguments: 13.01.2021
Date of judgment: 27.01.2021
JUDGMENT
1. The sole above named accused faced trial for offences U/s 7 & Sec. 13(1)(d) r/w Sec. 13(2) of POC Act, 1988.
1.1. Brief facts of the case are that the accused was posted as Sub Inspector in PS Jaitpur in the year 2014. She was assigned investigation of FIR No. 12/2014 U/s 376/385/506/34 of IPC, which was also lodged by Jyoti Gupta, who is also the complainant in the present case. In that FIR, husband of complainant Krishna Gupta and his friend Neeraj Parashar were accused.
1.2. Present FIR was lodged on 02.10.2014 on a written complaint by Ms. Jyoti Gupta in which she alleged that the present accused, being investigating officer of the earlier case, was pressurising the complainant to compromise the matter with her husband. She had demanded Rs. 10,000/- from the complainant, out of which Rs. 4000/- was paid to her and she was insisting Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 1 of 23 2 for the remaining Rs. 6000/- which the complainant was unable to pay. It is also alleged in the complaint that the complainant was being asked to compromise the matter and the accused promised the complainant that she would get Rs. 10 Lakh paid to her from her husband and another. When the complainant refused to compromise the earlier FIR, the present accused called the complainant at her house and threatened the complainant that her case would be spoiled. When the complainant did not budge, allegedly, the accused took money from her husband and another and got them bailed out. Complainant claimed that she audio recorded her telephonic conversation with the accused. The complainant also claimed that she was being threatened to be killed.
1.3. On this complaint, FIR was registered and matter was investigated, after enquiry of vigilance branch. The complainant was asked to provide her voice sample, which she refused to provide. The complainant provided memory card containing the audio recording, but did not provide the original mobile phone in which and through which the recording was made.
1.4. During investigation, voice sample of accused was obtained and it was sent for FSL examination. In the FSL report, no alteration was found in the audio recording. However, the FSL authorities reported that the voice sample of the accused contained 'insufficient acoustic cues and other linguistic and phonetic feature due to dissimilar text', hence, voice comparison was not possible. Thereafter, investigating officer again sought voice sample of accused through Court, but this time the accused refused to provide voice sample. Similarly, despite directions of Court the complainant also did not provide her voice sample.
1.5. The transcript of alleged audio recording was prepared through a private agency and a private person, and on completion of investigation charge sheet was filed. The charge sheet was filed after superannuation of the accused, therefore, no Sanction U/s 19 of POC Act was obtained.
2. Accordingly, a charge U/s 7 & Sec. 13(1)(d) r/w Sec. 13(2) of POC Act, 1988 was framed against accused, to which accused pleaded not guilty and Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 2 of 23 3 claimed trial.
3. In support of its case, prosecution examined 19 witnesses. Out of the 19 witnesses examined by the prosecution, besides the complainant PW13 and the IOs PW8, 15, 17 & 19, rest all the witnesses are formal in nature.
3.1. PW1 SI Laxman Prasad being duty officer on 02.10.2014 proved registration of the present FIR Ex.PW1/A and its endorsement Ex.PW1/B along with Certificate U/s 65 of the Evidence Act Ex.PW1/C. 3.2. PW2 WSI Sarika Sharma is a witness to obtaining of voice sample of accused in police station Jaitpur by the SHO Inspector S. K. Sharma (PW8) on 07.05.2015. She deposed that the Inspector recorded voice sample of the accused in a pen drive which was then sealed with the seal of SKS and taken into possession vide memo Ex.PW2/A. She also witnessed formal arrest of the accused and her release on bail, being on anticipatory bail.
The witness did not depose as to in which mode of recording or through which mode of recording the voice sample of accused was recorded in the police station, as for recording in a pen drive, a laptop or computer or any other audio recording instrument was required and there cannot be any direct recording on the pen drive. Entire evidence of the prosecution and investigation is silent as to through which mode this recording was done. Also, this witness claimed ignorance whether the ACP concerned, to whom the investigation of case was entrusted, was present in the police station at the time of recording of voice sample of accused by the Inspector on that day.
3.3. PW3 Pawan Singh was the Nodal Officer from the mobile service provider who proved Customer Application Form and location ID chart of the mobile phone of the complainant no. 8750719740 and that of accused no. 9899362969. He however deposed that the CDR of those two mobile numbers were not available in the server of the service provider since it was sought beyond one year from the relevant time.
3.4. PW5 HC Pawan proved the fact of superannuation of the accused vide Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 3 of 23 4 documents Ex.PW5/A. 3.5. PW16 ASI Hari Singh was posted as Malkhana Moharrar in PS Jaitpur on 20.01.2015 & 07.05.2015. He deposed that on 20.01.2015 SHO Inspector S. K. Sharma deposited one sealed parcel containing one memory card in the malkhana vide entry Ex.PW16/A and, on 07.05.2015 the same SHO deposited another sealed parcel vide entry Ex.PW16/B purportedly containing pen drive containing voice sample of the accused.
3.6. PW11 ASI Umesh Kumar also worked as Malkhana Moharrar in PS Jaitpur.
He deposed that on 03.11.2016 he handed over the sealed parcel to Ct. Dharmender (PW10) under RC No. 193/21/16 for depositing the same in the FSL. The witness also deposed that in the month of February 2018 he also handed over two more parcels sealed with the seal of SKS to Ct. Suresh Chand (PW6) to be taken and deposited in FSL, Rohini vide RC No. 27/21/18.
It may be mentioned here that there is an unexplained delay in sending the audio recording / sample voice to the FSL. The questioned audio recording was sent to the FSL on 03.11.2016 whereas the complainant had handed it over to the IO on 20.01.2015, i.e., after a delay of almost two years. Similarly, the sample voice of accused was sent in February 2018 whereas it was collected in May 2015 i.e., after a delay of almost three years.
3.7. PW10 Ct. Dharmender carried and deposited one sealed parcel in the FSL Rohini on 03.11.2016 vide RC No. 193/21/16. Under this road certificate, the memory card containing questioned audio recording sealed with the seal of SK was carried by this witness from the malkhana of this police station to the FSL and after depositing the same in the FSL the witness obtained the receipt which he deposited back in the malkhana of PS Jaitpur.
3.8. PW6 ASI Suresh Chand carried and deposited one sealed parcel vide RC No. 27/21/18 in FSL Rohini and obtained its receipt which was handed over to the MHCM of the PS. Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 4 of 23 5 3.9. PW9 Ajay Kumar Sharma was the SSO (Document) in FSL, Rohini. He deposed that on 03.11.2016 he examined one Samsung Memory Card of 2 GB capacity pertaining to the present case which was marked by him as MC1 and then he copied the said data of the memory card into one DVD which was marked as DVD1 and the folder was named as DATA OF MC1. This DVD1 was then sealed by him with the seal of "DOC.FSL" and was sent to the Physics Division for further examination under his report dated 28.08.2017 Ex.PW9/A. The witness identified the memory card in the Court as Ex. P3, the DVD prepared by him Ex. P4 and three other DVDs prepared by him as Ex. P4.
3.10. PW4 Dr. Bharti Bhardwaj, the Scientific Officer, FSL, Rohini deposed that she examined one DVD containing data of the memory card MC1 which was received in sealed condition in her department from computer forensic unit of FSL. The exhibit DVD1 contained three folders namely, "2014-01-20"; "2014- 01-25" and; "2014-01-27". The folders contained three audio files as follows:
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1. "Call_20-03-34_OUT_+919899362969"
2. "Call_09-14-49_OUT_+919899362969"
3. "Call_16-06-19_IN_+919899362969"
After examining the audio files, she reported that there was no indication of any form of alteration in the audio files, vide her report Ex.PW4/A dated 29.09.2017. She identified the DVD in the Court as Ex. P2.
3.11. PW7 Sh. Geetesh Patel was Assistant Chemical Examiner, Physics in FSL, Rohini. He deposed that on 21.02.2018 two sealed parcels were received in FSL which were assigned to him for examination. Parcel 1 was containing one DVD make 'Writex' and it was found to be containing one folder namely "Data of MC1" having sub folder namely "2014-01-07". The sub folder was containing audio file "Call_16-06- 19_IN_+919899362969.AMR". The speaker of this audio file commenced with the words "Hello Jyoti Kahan par ho................." it was marked as Ex. Q1 Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 5 of 23 6 as Questioned Sample in the laboratory. The second parcel sealed with the seal of SKS was containing one pen drive of make San Disk with audio file namely "voice 001.m4a". The speaker in this audio file commences with the text "Sir aap kah do na ..................". It was marked as Ex. S1 in the laboratory as sample 1. The witness deposed that he examined the sample voice as well as the questioned audio recording and found that there was no alteration in the sample voice Ex.2. However, the acoustic cues and other linguistic and phonetic features were insufficient in specimen S1, therefore, further comparison with the questioned audio recording could not be done. He proved his report Ex.PW7/A and identified the pen drive and DVD as Ex. P1 & P2, respectively.
3.12. PW12 Manoj Kumar was the Ahlmad in the Court of concerned MM and he proved order sheets dated 07.12.2018 & 14.12.2018 as Ex.PW12/A, pertaining to the application filed by the investigating agency for the sample voice of the complainant and the accused and the consequent orders passed by the Ld. Magistrate. It may be mentioned here that on 14.12.2018 vide a statement the accused refused to give her voice sample.
3.13. PW14 HC Tahir Hussain proved the original register pertaining to the earlier FIR no. 12/14 which was being investigated by the present accused, and a copy of that FIR as Ex.PW14/A. 3.14. PW18 Subhash Rai was Chief Finance Officer in a private company namely Crystal Hues Limited. He deposed that one Komal Sharma worked in his office as Project Coordinator and she left the company without supplying her whereabouts. She had worked from 30.03.2017 to November 2019. Having seen the copy of certificate of transcript from the judicial record dated 30.01.2018, the witness deposed that the certificate was bearing signatures of Komal but the other pages of transcript did not bear signature of Komal and were only bearing stamp of the company. Since, the original of both these documents were not supplied during trial by the prosecution at any stage, and only photocopies were supplied, these two documents were not proved in accordance with law and were only marked as P- 18/1 and P-18/2. The witness in his cross examination admitted that Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 6 of 23 7 neither of these two documents were prepared in his presence and even transcript was not prepared in his presence and he did not hear any audio recording, therefore, he cannot state whether the transcript Mark P-18/2 contained true account of the audio recording or not. He also admitted that he was not in possession of originals of those two documents.
3.15. PW8 ACP Sunil Kumar Sharma was SHO of PS Jaitpur on the date of registration of present FIR. He deposed that after the complaint of the present case was received from Vigilance branch in the police station Jaitpur, he made endorsement Ex.PW8/A and got the FIR in question registered. After registration of case, the investigation was assigned to ACP, Sarita Vihar on the date of registration of FIR itself i.e., 02.10.2014. However, on the very next day the file was received by him on the directions of the then ACP Nidhin Valson, who was the IO, for the purposes of further investigation. Thereafter, on 20.01.2015 complainant produced original SD memory card make Samsung 2 GB allegedly containing conversation between the complainant and the accused. The memory card was kept in a plastic vial and was sealed with the seal of SK and was seized vide memo Ex.PW8/B. Thereafter on 07.05.2015 sample voice of the accused was recorded in the police station in a pen drive make San Disk which was also kept in a transparent box, sealed with the seal of SKS and taken into possession vide memo Ex.PW2/A. The witness identified the memory card and pen drive as Ex. P3 & P1, respectively.
In the cross examination of this witness by the accused, the witness claimed that prior to the present complaint, no other complaint was received from the complainant in the police station and that the voice sample of the accused was recorded by him during the course of investigation and he did not take permission from senior police officers or the Court for obtaining the sample.
In the entire testimony of this witness, the witness does not even claim that he conducted investigation of this case in the presence of ACP. All that he claims is that on the next day of registration of FIR, file Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 7 of 23 8 was received by him on the direction of ACP for further investigation and then he collected the memory card and obtained the voice sample. In a case under POC Act, SHO of a police station under Delhi Police is not competent to investigate the matter and the officer competent was the ACP concerned. The witness also did not depose as to what was the mode of recording the voice sample of the accused and through which mode the sample voice was recorded in the pen drive. It is not in dispute that till 07.05.2015 when sample voice of accused was obtained, there was no permission taken by the investigating officer from any Court of law and he collected the voice sample all by himself even not in the presence of IO ACP concerned.
3.16. ACP Nidhin Valson as PW16 deposed that on receipt of investigation of this case he directed the SHO (PW8) to assist him in the investigation and thereafter in his presence complainant handed over memory card on 20.01.2015 in police station Jaitpur which was seized by the SHO vide memo Ex.PW8/B. Ex.PW8/B would reveal that besides the signature of complainant and the SHO, it does not contain signatures of IO ACP Nidhin Valson. It does not contain signatures of even PW2 W/SI Sarika. This fact goes to show that ACP was not even present when this seizure of memory card took place and the seizure memo was prepared and it is for that reason that PW2 & PW8 are both silent as to presence of ACP at that time.
This witness PW16 goes on to depose that complainant was requested to give her voice sample, but she did not. Subsequently, on 07.05.2015, accused was formally arrested and released on bail and he directed the SHO (PW8) to obtain voice sample of the accused which were obtained by PW8. Again, perusal of seizure memo Ex.PW2/A, pertaining to the voice sample of accused, would reveal that it does not bear signature of ACP Nidhin Valson and perhaps for the same reason, PW2 & PW8 were both silent as to presence of ACP at that time.
The witness Nidhin Valson also deposed that in September 2015, Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 8 of 23 9 Court was approached for voice sample of the complainant and the accused, but both of them refused and thereafter this witness was transferred.
3.17. PW15 ACP Om Prakash received further investigation of this case. He deposed that he perused the file and noticed that the memory card was kept in the malkhana and then he got it sent to the FSL on 03.11.2016 through Ct. Dharmender. The witness also deposed that at that time one application for voice sample of accused was pending before Ld. Magistrate which was disposed of as that Ld. Magistrate had no jurisdiction to entertain that application and thereafter on the advice of the concerned Prosecutor, this witness waited for the FSL result before moving application for voice sample in the Special Court. Subsequently, this witness retired in May 2017.
3.18. PW19 ACP Suresh Pal received further investigation of this case in July 2017. This witness found that pen drive containing voice sample of accused (obtained on 07.05.2015) was pending in the malkhana and he got it sent to the FSL in January 2018 and subsequently the FSL result was received to the effect that the voice sample did not match. The witness also deposed that subsequently he tried to obtain afresh voice samples of both the complainant and the accused but both of them refused. Thereafter, he got prepared the transcript of the audio recording in question by sending the CD to the company Crystal Hues which is a private institute for preparation of transcript of conversation and on completion of investigation, he filed the charge sheet.
3.19. PW13 the complainant Jyoti Gupta stepped into the witness box on 5.12.2019 and immediately on stepping into the witness box, she expressed desire to refresh her memory, which was allowed for about half an hour and thereafter she was examined. She deposed that she had lodged an FIR against her husband and his friend and that FIR was being investigated by the present accused. She used to contact the accused to know the progress of her case. One day she came to know that the accused persons had been released on bail in that case and thereafter her husband started threatening her telephonically to withdraw the case. Sometime, in the month of February- March 2014, when she was going to some place, at Badarpur her husband met her on the way and inflicted one danda blow on her scooty but she Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 9 of 23 10 escaped and reported the matter to PS Badarpur. She claimed that at that time she came to know that her husband has obtained bail. Thereafter, she called the accused telephonically but the accused did not respond. When she contacted the accused, the accused told her "some expenses are required and she was having no money to do the said case". The witness deposed that she had earlier given Rs. 4000/- to the accused in instalments on different dates. However, the amount given on different dates, the dates on which it was given and the place or the denomination is not forthcoming in the evidence of this witness or even in her complaint. The witness deposed that then she enquired from her husband as to how he obtained bail and came to know from him that the accused had helped her husband in getting bail from the concerned Court. When this witness confronted the present accused as to why the present accused did not inform the complainant at the time of hearing of bail application, the accused avoided her calls. Thereafter, she made a complaint on 30.01.2014 to the Chief Minister of Delhi. The witness deposed that she made a complaint against the accused as she was very upset that the accused had not informed her about the bail application moved by her husband and his friend despite the fact that she had given Rs 4000/- to the present accused as expenses of the case. Thereafter, the examination in chief of this witness had to be deferred on 05.12.2019 because of non-availability of the original complaint given by the complainant and she was recalled on 30.01.2020. On entering the witness box, the second time, the complainant deposed that after she had given Rs. 4000/- as expenses to the accused, the present accused was demanding Rs. 6000/- more which she was not in position to give. The witness also deposed that the present accused had been advising her to settle the case with her husband and his friend and assured her to get Rs. 10 Lakh paid to her but she did not agree. When the complainant did not agree in January 2014, the present accused called her at her residence and threatened her there that she would spoil her case against her husband and his friend. Witness deposes that thereafter the accused took bribe from her husband and his friend and helped them in securing bail. She also deposed that she came to know about bail of her husband and his friend only on 30.01.2014 and then she lodged the complaint. She also deposed that she had recorded mobile Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 10 of 23 11 conversation between her and the accused and she supplied memory card to the IO on 20.01.2015 which was seized by the IO. She deposed that she could not provide her mobile to the IO as by the time the mobile was demanded from her, it was damaged and broken. She also claims that she gave a certificate U/s 65B of the Evidence Act regarding memory card to the IO on 07.03.2018 Ex.PW13/A. She also deposed that she refused to give her voice sample in this case as later on she did not want to take any action against the accused. She identified her memory card as Ex. P3. The memory card was played in the Court and the witness identified her voice and voice of accused in the three audio files dated 20.01.2014, 25.01.2014 & 27.01.2014. She also admitted her mobile number and the mobile number of the accused, in the leading question asked by the Prosecutor, after she failed to recollect those mobile numbers in her examination in chief.
In her cross examination by the accused, the witness admitted that she did not support the case of prosecution against her husband and his friend and turned hostile in the trial of that earlier case. She admitted that she did not give any complaint to any authority against the accused about her matter not being investigated properly. She claimed that she filed an application in the Court for further investigation, but did not elaborate or supply the date or copy or order on any such application. She even did not recollect whether in that application she mentioned anything to the effect that the accused of this case did not investigate the matter properly or took money from her or took money from her husband. The witness claimed that she turned hostile in the trial of that earlier case as she was frustrated and used to remain ill and on legal advice. She also claimed that police never recorded her complaints regarding the threats extended to her and even regarding the incident of Badarpur she did not lodge FIR, though she lodged complaint, and she also did not write to any senior police officer about non-lodging of her complaints qua threats. She did not come up with any copy of any such earlier complaint. The witness admitted her testimony given in the earlier case as Ex.PW13/D1. In her cross examination of this case, the witness admitted that she knew one Komal and in the audio recording played in Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 11 of 23 12 the Court, there was a reference that Rs. 1000/- was given to Komal by this witness. She claimed that Komal knew her lawyer and the accused SI Krishna Kumari and she came to know her later. She claims to have paid Rs. 1000/- to Komal on the asking of accused. She claims to have met Komal in PS Jaitpur, and claims that Komal came to her parlour to take money, but she has no proof of giving money to Komal. This amount of Rs. 1000/- was given to Komal prior to bail of her husband and his friend. On being questioned, the witness claimed that there was no independent witness present when she allegedly paid money to the accused. The witness also deposed that she told the IO of the present case to not to proceed further and claimed that since she was frustrated and she was told that a lot of misfortune occurred with the accused, therefore, she told the IO not to take action against the present accused.
4. On completion of prosecution evidence, all the incriminating evidence was put to the accused in her statement U/s 313 Cr.P.C. The accused admitted that she was investigating the said earlier FIR when posted as SI in PS Jaitpur, but claimed that neither she telephonically spoke to the complainant nor ever demanded any money from her or accepted any money from her. She claimed that husband of the complainant and his friend got bail from the Court on the merits of the case and the bail order does not reflect any shortcomings in the investigation. She specifically denied her voice in the questioned audio recording. The accused claimed that she investigated the earlier matter fairly and sincerely but the complainant was never satisfied and she always used to express her dissatisfaction. She always met the complainant in presence of one SI and one lady constable of PS Jaitpur and no fault of the accused can be presumed merely because the earlier Court gave bail to the husband of the complainant & his friend on the merits of the case. Accused denied having spoken to the complainant on phone ever. The accused did not opt to lead any evidence in her defence.
5. Ld. Prosecutor for the State argues that the case of prosecution stood proved from the testimony of complainant PW13 as well as the audio recording and its transcript.
Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 12 of 23 136. On the other hand, Ld. Counsel for the accused argued that due to non-
compliance of Sec. 140 of D.P. Act, the case is liable to be thrown away. He also argues that ACP did not investigate the matter and instead SHO investigated the matter, therefore, there is noncompliance of mandatory provisions of POC Act. He also argues that assuming the first two arguments failing against him, the testimony of sole complainant is absolutely unreliable and unworthy of credence, particularly in view of the fact that she turned hostile in an earlier trial also.
7. The first argument of the accused that the present trial against the accused is hit by Sec. 140 of Delhi Police Act, has to be rejected outrightly for the reasons to follow. Counsel for accused submitted that admittedly the accused was a serving Delhi Police SI at the time of incident and the charge sheet was filed several years after the incident, therefore, the case is liable to be thrown out.
7.1. Sec. 140 of Delhi Police Act, 1978 provides a bar to suits and prosecution. It provides that where a police officer commits an offence by any act done under colour of duty or authority or in excess thereof, or where it appears to the Court that the offence or wrong committed was of the character as such, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted more than three months after the date of the act complained of. It also provides that any such prosecution may be entertained by the Court if it is instituted with the previous sanction of the Administrator within one year from the date of offence.
7.2. Thus, pre-condition to applicability of bar U/s 140 of DP Act is that the offending act must have been committed under colour of duty or authority or in excess of any such duty or authority. Demanding or obtaining bribe can never be under the colour of duty or authority or in excess thereof, under any circumstances. Therefore, this argument is rejected outrightly and I need not waste any further time on it.
8. Section 17 of POC Act 1988, provides for investigation by a person authorised in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officers of the ranks specified therein to Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 13 of 23 14 be imperative in character. U/s 17 no police officer below the rank of DSP or equivalent is authorised to investigate any offence under the Act without the order of a Magistrate of first class except where by the order of State Government an officer below the rank of Inspector of Police is so authorised in the case of Delhi Special Police Establishment. In the present case, the matter is investigated by Delhi Police, but not under Delhi Special Police Establishment Act and therefore the competent person to investigate was ACP and not the Inspector.
9. Before appreciating evidence in this case, let it be mentioned that even in a case under Prevention of Corruption Act, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused should be proved beyond all reasonable doubts. In this regard reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (criminal) 217, and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution. It was also held that even while invoking the provision of 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. In the case of Dnyaneshwar (Supra) it was also held that the demand of illegal gratification is sine qua non for constitution of an offence under PC Act. In the case of Madan Mohan (Supra) it was observed that mere receipt of the amount by the accused is not sufficient to fasten guilt in absence of any evidence with regard to any demand and acceptance of the amount as illegal gratification.
10. It may also be mentioned here that it is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence.
Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 14 of 23 15Presumption of innocence is recognised as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384.
11. Law is also well settled that for Section 7 of the Prevention of Corruption Act, 1988, demand and acceptance of bribe has to be proved beyond reasonable doubt. Demand is sine quo non for a charge U/s 7 of PC Act.
11.1. In State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242, it is held as follows:
"8. It is well settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. In B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55: (2014) 5 SCC (Cri) 543], it was held as under: (SCC p. 58, para 7) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1: (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1]."
12. As is evident from the above discussion, the entire case of the prosecution in this case is based on ocular testimony of the complainant PW13 Jyoti Gupta. The only corroborative piece of evidence in this case could have been the Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 15 of 23 16 alleged audio recording. However, admittedly the original mobile phone was not supplied to the investigating agency by the complainant and it was not seized. The complainant may have a valid ground for not supplying the original mobile instrument i.e., delay by the investigating agency in asking for it, but the fact of the matter is that the original device on which recording was made is not available in this case. A micro-SD memory card, as is the case before this Court, is although an original memory device but no memory card can directly record audio conversation. In a mobile phone there is always an internal memory and a micro-SD card is in the nature of additional memory. There is an option available in the mobile phone to store an audio conversation either in the internal memory of the phone or in the SD card directly. An original audio conversation may be recorded in the internal memory of the phone and then it can be transferred from the main internal memory to the SD card. The complainant in her entire testimony remained absolutely silent as to what was the case in the present facts as to the recording. She never claimed that though conversation took place through mobile but it was stored directly on the micro-SD card and was not transferred from the original internal memory of the phone to the memory card. Thus, the original recording device is unavailable in this case.
13. Even otherwise, even if the memory card may be treated as original recording device and primary evidence, yet the said audio recording does not help the case of prosecution for the following reasons.
13.1. First of all, the complainant never gave her voice sample in this case which could have been scientifically examined in the FSL to match with the audio recording in question. Whatever may have been the reason for the complainant to not to give her voice sample but the point is that the voice sample of the complainant could not be matched with the questioned audio recording.
13.2. Also, the voice sample of the accused did not match with the questioned audio recording and the voice sample obtained by the investigating agency was insufficient to be compared with the questioned audio recording.
Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 16 of 23 1713.3. It may also be mentioned here that the voice sample of accused, was obtained by the SHO Inspector Sunil Kumar Sharma and at that time the IO i.e., ACP concerned was not even present. Though the concerned ACP Nidhin Valson when appeared as PW17 tried to improve upon the case of prosecution by claiming that he was present at the time of recording of voice sample of the accused, but it is belied from the testimony of Inspector Sunil Kumar Sharma PW8 as well as PW2 W/SI Sarika and the document prepared at that time which does not contain signature or name of the ACP. A witness's memory may fail, but the documents doesn't lie.
13.4. The transcript of the audio conversation was not got prepared from FSL or in presence of independent witnesses. It was allegedly prepared by an employee of a private company and it does not even bear signatures of that employee namely Ms. Komal. Only the certificate was signed by her and not the transcript. The original transcript has not seen the light of day till today and only photocopy has been placed on record.
13.5. In any case, in absence of voice match of accused and absence of voice sample of complainant, no reliance on the questioned audio recording can be placed, particularly in absence of original recording device.
13.6. There was a possibility of corroboration of this voice recording and the version of complainant, i.e., through the call detail records of the phone of the accused and the complainant for that particular date and time. However, in this case even the call detail records were not collected timely by the investigating agency. The call detail records were sought more than one year after the date of occurrence and therefore it was not available with the service provider and therefore it could not be collected. Thus, even that corroborative piece of evidence was also lost.
13.7. It is also admitted case of the prosecution that the investigating agency did not prepare independent sentences after picking up crucial words from the questioned recording and then the voice sample of the concerned could have been taken on those sentences so framed. The appropriate course in such matters would have been that the voice samples of the concerned persons Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 17 of 23 18 are taken after making them read certain sentences, which contained common words with the questioned audio recordings and then without revealing the identity of the voice sample giver or the questioned recordings, the expert could have been asked to identify which of the portions was spoken to by which of the persons who gave voice samples.
13.8. 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.
13.9. In Ashish Kumar Dubey Vs. State Thr. CBI 2014 IV AD (Delhi) 473 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. 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. In Nilesh's case 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 Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 18 of 23 19 detection and even elude it on examination by technical experts. It was held in Ashish Kumar's case that where the recorder used to record conversation was not submitted to CFSL and without the device being examined for ruling out the possibility of tampering, one of the important requirements was not satisfied.
13.10. In Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was 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 was informed in advance that he had to identify the voices of appellant and others and no attempt was made even to mix the voices with some other unidentified voices and in such circumstances the identification evidence would have little value. It may be mentioned here that PW18 & 19 in that case were police officials who identified the boys.
13.11. In this case also, the original device on which the audio recording was done has therefore not been produced and therefore material evidence has been concealed by the Prosecution. What has been proved is memory card and the DVD. Admittedly, the DVD were prepared after copying the recording from the memory card at FSL. In absence of the original device, that is the mobile, the memory card and the DVD cannot be believed without suspicion as to its tampering or maintaining the original records. The transcript was prepared after a delay of almost 4 years after the alleged recording and almost three years after the registration of case and there is no reasonable explanation offered as to it. The person who made the Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 19 of 23 20 transcript has not been examined and that person did not even sign the transcript. Original transcript is also missing.
13.12. In such circumstances, reliance placed by the prosecution on the audio recording is not of any help to the case of prosecution. Accordingly, the questioned audio recording has to be ignored in this case.
14. Once the questioned audio recording is held to be unreliable in this case, the only evidence left is uncorroborated ocular testimony of the complainant. In her complaint Mark PW13/A the complainant alleged that the accused was pressurising her to bring Rs. 10,000/- and out of it the complainant had paid Rs. 4000/- to the accused and the accused was demanding balance Rs. 6000/-. There is no date forthcoming in the complaint or in the evidence as to on which date(s) the demand was made by the accused from the complainant, where it was made, the time when it was made and whether it was made directly or indirectly. Similarly, no date is forthcoming in the complaint or in the evidence as to when the complainant paid Rs. 4000/- to the accused, the date and time of payment, the place of payment, the mode of payment and the denomination. It is also not forthcoming whether payment was made directly or indirectly. In her examination in chief which took place for the first time on 05.12.2019 no sooner the complainant stepped into the witness box she wanted to refresh her memory which was allowed for half an hour, yet she faltered in recollecting facts. During evidence of the present case recorded on 05.12.2019, at one place the complainant claimed that it was only in the month of February-March 2014 when her husband attempted to assault her at Badarpur, she came to know that he secured bail in the said case. This period is mentioned by the complainant, after refreshing her memory, after she entered the witness box. At another place, in the same testimony dated 30.01.2020 the complainant claimed that she came to know on 30.01.2014 that her husband and his friend got bail from the Court and then she telephonically called PS Jaitpur and then gave her complaint to the Chief Minister. The complaint to the Chief Minister is dated 30.01.2014 itself i.e., on the same date when she came to know about bail. Perusal of admitted documents i.e., the bail order in the Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 20 of 23 21 earlier FIR reveals that husband of complainant got bail on 28.01.2014, whereas friend of husband got bail on 13.02.2014. In the bail order of friend of husband of complainant dated 13.02.2014 it is mentioned that the complainant was present at the time of hearing of bail application with her counsel. Therefore, her claim that she came to know about bail of friend of husband also in February/March, is absolute lie. Regarding demand and payment, complainant as PW13 deposed that when she came to know one day that her husband had got bail and when she contacted the accused being investigating officer of that case, the accused told as follows; "that in doing the case, some expenses are required and she was having no money to do the said case. I had given Rs. 4000/- to accused in installments on different dates ......"
14.1. Towards the end of her evidence recorded on 05.12.2019 the complainant claims that she had moved the complaint against the accused as she was very upset that the accused had not informed her about the bail application moved by her husband and his friend despite the fact that she had given Rs.4000/- to the accused as expenses of the case. Thereafter, on that day further examination of the complainant had to be deferred because of non- availability of original complaint, which could not be found even subsequently.
14.2. What is noteworthy is even in the examination in chief, the complainant remained silent as to when, where and how the demand was made and when, where and how payment was made. Whether the demand and payment both occurred directly or indirectly is also not mentioned.
14.3. When the complainant again entered the witness box on 30.01.2020 she deposed that after she had given Rs. 4000/- as expenses to the accused, the accused demanded Rs. 6000/- more from her and she was not in position to pay that amount. She also deposed that she came to know on 30.01.2014 only that her husband and his friend got bail and thereafter she telephonically enquired from the police station and came to know that they have secured bail and when no further progress took place in the matter and they did not take any action against accused (of this case), she lodged complaint in the Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 21 of 23 22 office of Chief Minister. In the deposition of complainant in the Court also, material particulars as to demand and payment were lacking.
14.4. In the cross examination, the complainant admitted that the audio recording played in the Court, contained a portion that Rs. 1000/- was given by her to Komal and then she volunteered that the amount was given to Komal as per direction of accused and Komal was not police official and this amount was collected by Komal from her parlour. She never mentioned about it in her complaint or in the examination in chief that she paid money or part of it to Komal.
14.5. Admittedly, there is no independent witness, either of demand of money by the accused or payment of money by the complainant to the accused or to so-called Komal. The complainant did not specify in her complaint or even in her examination in chief about any part payment made to Komal, as is mentioned in the audio recording and as admitted by the complainant in her cross examination. It is not clear whether this Komal to whom payment was made is the same Komal who certified the transcript and prepared the transcript or they were two different persons. Komal has not been examined as a witness. The complainant never gave her complete particulars and therefore, Komal could not be called. Complainant conspicuously remained silent in her complaint and her examination in chief as to payment made to Komal or to accused through Komal.
14.6. Therefore, important question is whether on such uncorroborated testimony of sole complainant, a conviction can be based or not? As is evident from the above discussion, this complainant is the same lady who after lodging the earlier FIR and after being so aggrieved as to release of her husband and his friend on bail in the said trial, turned hostile in the said trial. In the considered opinion of this Court, it would not be safe to rely on such a witness and she is unworthy of credence.
14.7. The contents of the said bail order dated 13.02.2014 also reflects upon the credibility of this witness including the fact that her claim in a statement U/s 164 Cr.P.C made by her in that case was apparently false as she had Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 22 of 23 23 claimed that the friend of her husband impregnated her whereas as per AIIMS hospital, there was no sign of pregnancy.
14.8. All these facts impeach creditworthiness of this witness and it would be highly unsafe to base conviction in a serious offence like the present one on such testimony. I, therefore do not deem it appropriate to base conviction without any corroboration on the testimony of the complainant, particularly when material details as to demand, payment and acceptance are lacking in this case.
14.9. So far as allegations of the complainant that accused took money from her husband and his friend and then helped them in securing bail, is concerned, the same is barred by the principles of hearsay as there is no direct evidence and I need not deal with the said question any further.
15. The accused is therefore given benefit of doubt and is acquitted of the charges.
Digitally
DIG signed by DIG
VINAY SINGH
VINAY Date:
2021.01.27
SINGH 14:29:49
Announced in the open Court +0530
on 27th day of January 2021. Dig Vinay Singh
Special Judge (PC Act) (ACB)-02
Rouse Avenue Courts
New Delhi.
Judgment; 27-01-2021; CNR No. DLCT110006382019; CC No.148/2019; State Vs. Krishna Kumari; Page 23 of 23