Delhi District Court
Cbi vs (1) Vijay Kumar Meena on 28 January, 2019
IN THE COURT OF ANIL KUMAR SISODIA
SPECIAL JUDGE (PC ACT)(CBI)-04: TIS HAZARI COURTS:
DELHI
CNR No. DLCT01-012171-2016
New CC No. 532387/2016
RC No. 7 (A)/2014/CBI/ACB/ND
U/s 7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988
r/w Section 34 IPC or in the alternative
Section 11 of P.C. Act, 1988 r/w Section 34 IPC.
CBI Versus (1) Vijay Kumar Meena
S/o Sh. Nathu Meena
R/o Flat No. 211, Pocket-B,
Sector-14, Dwarka, New
Delhi.
(2) Govind Ram Meena
S/o Narain Singh
R/o RZT-65, Dayal Park,
West Sagar Pur, New Delhi.
Date of Institution : 07.09.2016
Judgment reserved on : 05.01.2019
Date of Judgment : 28.01.2019
Memo of Appearance:
Sh. A.K.Rao, Ld. Sr.PP for CBI,
Dr. Sushil Kumar Gupta, Ld. Counsel for accused Vijay Kumar
Meena(A-1)
Sh. Sandeep Sharma, Ld. Counsel for accused Govind Ram
Meena(A-2)
JUDGMENT
1. This is one of the six cases registered by CBI on the directions of Hon'ble High Court of Delhi vide order dated 14.02.2014 in Criminal C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 1 of 56 Writ Petition No. 1823/2012 filed by the complainant Chetan Prakash.
PROSECUTION VERSION
2. A sting operation was conducted by complainant Chetan Prakash Sharma on accused Vijay Kumar Meena and Govind Ram Meena with the help of his friend Swarandeep Shukla @ Sanuj Shukla. On the writ petition filed by the complainant, Hon'ble High Court directed CBI to investigate the complaint vide its order dated 14.02.2014.
3. Chetan Prakash has produced five hard disks and five memory cards before the Hon'ble High Court. These hard disks and memory cards were kept in sealed container in safe custody of Ms. Anita Malhotra, Assistant Registrar (Criminal), High Court of Delhi in compliance of the order dated 05.02.2013 of the court.
4. These hard disks and memory cards were taken by CBI from the Hon'ble High Court and were sent to CFSL, New Delhi with the request to opine as to whether any hard disks or memory card has been tampered with or not. On request of CBI, CFSL provided copies of data recovered from the five memory/micro SD cards in a compact disk to CBI and opined that the clippings are continuous and no form of tampering has been detected therein.
5. Investigation has revealed that folder "Ex.6/3 KINGSTON 2 GB"
= "MyRecord"='V0119001.AVI" pertaining to this case was played, seen and heard in the presence of Sh. Chetan Prakash and independent witness Sh. Dinesh Kumar, Assistant Administrative Officer, LIC of India, Connaught Place on 15.12.2014. Sh. Chetan C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 2 of 56 Prakash identified his voice, voice of Sh. Swarandeep Shukla @ Sanuj Shukla and voice of accused persons. He also confirmed that said audio-video has been prepared by him near his house i.e Plot No. G- 248, Vishwas Park, PS Dabri, New Delhi, which was under repair during December, 2010. He also identified accused in the audio video transcription of the recorded conversation.
6. Accused Govind Ram Meena accompanied with accused Vijay Kumar Meena is visible accepting Rs. 6,000/- as illegal gratification from Sh. Swarandeep Shukla, friend of complainant Sh. Chetan Prakash. Accused Govind Ram Meena is also visible in the said recording keeping Rs.6,000/- between seat of the car in which Vijay Kumar Meena was also sitting. The said bribe amount has been taken by accused persons for construction work/repair being carried out at H.No. G-248, Vishwas Park, New Delhi for complainant. Sh. Kulwant Singh, Head Clerk, Najafgarh Zone, SDMC has stated that both the accused were posted in SDMC, Najafgarh zone at the relevant time.
7. Investigation has revealed that photograph of both accused were obtained from their office and were sent to CFSL for comparison with the persons visible in the recorded video clipping. CFSL vide its report dated 12.05.2016 confirmed that persons visible in sample photographs S-15 & S-14 appears to be similar with the persons visible in the Ex.6/3. The specimen voices of both accused were recorded in two separate memory cards in the presence of independent witnesses Sh. Parmeet Kumar and Sh. Sunny Attri. Both memory cards were marked as S1 & S9 respectively and were kept in separate envelop and duly sealed with CBI seal. Vide letter dated 19.12.2014 these memory cards / SD cards containing specimen C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 3 of 56 voices of both the accused were sent to CFSL. CFSL vide its letter dated 17.04.2015 opined that voices contained in Ex.6/3 is the probable voices of both the accused persons whose specimen voices are Ex. S-1 & S-9.
8. Specimen voice of complainant Chetan Prakash was recorded in a memory card marked S-7 in presence of two independent witnesses namely Kishan Dutt and Raman Kumar Sharma. Memory card was kept in envelop and was sealed with the seal of CBI. It was sent to CFSL for comparison with memory card Ex.6/3. CFSL vide its letter dated 17.04.2015 opined that voice contained in Ex.6/3 is probable voice of Chetan Prakash whose specimen voice is Ex.S-7. Specimen voice of Swarandeep Shukla was recorded in memory card S-6 in the presence of two independent witnesses namely Kishan Dutt and Raman Kumar Sharma. Memory card was kept in envelop and was sealed with the seal of CBI. It was sent to CFSL for comparison with memory card Ex.6/3. CFSL vide its report dated 17.04.2015 opined that voice contained in Ex.6/3 is probable voice of Swarandeep Shukla whose specimen voice is Ex.S-6.
9. Complainant Chetan Prakash has also issued certificate under Section 65-B of Indian Evidence Act regarding the recording of audio- video. The disciplinary authority/competent authority Sh. Puneet Kumar Goel, Commissioner, SDMC granted sanction for prosecution against accused Vijay Kuma Meena, JE. Accused Govind Ram Meena was not a permanent employee of SDMC and was working as daily wager hence, no sanction for his prosecution was required.
10. After completion of investigation, charge-sheet was submitted C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 4 of 56 before the court on 07.09.2016.
COGNIZANCE AND CHARGES
11. Cognizance was taken by the court on 23.09.2016 and the accused persons were directed to be summoned.
12. Arguments on charge were heard and vide order dated 20.01.2017,charges for commission of offences under Sections 7 of Prevention of Corruption Act, 1988 and 13(1) (d) r/w Section 13(2) PC Act and further r/w Section 34 IPC or in alternative under Section 11 of PC Act r/w Section 34 IPC were framed against both the accused on 16.02.2017 to which they pleaded not guilty and claimed trial.
13. It will be also not out of place to mention here that both accused were also directed to admit or deny the documents relied upon by the prosecution and number of documents were admitted by both the accused on 16.02.2017.
14. Following documents were admitted by accused Vijay Kumar Meena (A-1) and Govind Ram Meena (A-2):-
S. No. Document Exhibit Number Brief Description of Document Number 1 D-2 Ex. AD-1 (colly) Forwarding letter dated 18.02.2014 along with certified copy of Hon'ble High Court order dated 14.02.2014 in Writ Petition (Criminal) 1823/2012.
2 D-3 Ex. AD-2 (colly) Certified copy of Writ Petition (Criminal) 1823/2012 3 D-4 Ex. AD-3 (colly) Certified copy of court orders dated:-
21.12.2012, 16.01.2013, 05.02.2013, 13.02.2013, 17.04.2013, 03.07.2013, 27.07.2013, 19.08.2013, 16.09.2013, 01.10.2013, 30.10.2013, 21.11.2013, 17.12.2013, 15.01.2014, 14.02.2014 C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 5 of 56 PROSECUTION EVIDENCE
15. Prosecution has examined 23 witnesses in support of its case. These witnesses can be broadly classified as under:-
(A) OFFICIALS FROM HIGH COURT OF DELHI 15.1 PW-1 Ms. Asha Mathew, Judicial Assistant, Copy (Appellant Branch) High Court of Delhi has deposed that she was posted in Copy (Appellate branch) and being Judicial Assistant she used to certify the copy prepared from original documents as "certified to be true copy" and copies prepared from the annexures/copies as "copies of the copies". She identified her signatures on each page of D-3 and deposed that Ms. Renu Bakshi, Admn. Officer (Judicial) Appellate had authenticated all the copies and D-3 was proved as Ex.PW-1/1 (colly).
She also identified the signatures of Sh. Rajesh Kumar, JJA on D-4 (page no. 181 to 214) and authenticated by Ms. Nisha Sharma, Admn. Officer (Judicial) and the same were proved as Ex.PW-1/2 (colly).
15.2 PW-2 Sh. Mahesh Kumar has deposed that he was posted as Sr. Judicial Assistant in the office of Criminal Writ Branch since August, 2012 in the High Court and was custodian of the files pertaining to Criminal Writ Petitions. He was shown page no. 206 of D-4 containing the details of hard disk and memory cards. He identified the signature of the then Registrar General Sh. V. P. Vaish (as his Lordship was then) at point 'A' and signature impression of Sh. Ramesh Chand, Registrar (Appellate) at point 'B' and the document was exhibited as Ex.PW-2/1.
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 6 of 5615.3 PW-3 Sh. Rajesh Kumar has deposed that in the year 2014 he was working as Examiner in Copy (Appellate) branch of the High Court. He was shown page no.181 to 214 of D-4 and he identified his signatures on each page at point 'A' and deposed that the same were authenticated by Ms. Nisha Sharma, Admn. Officer (Judicial) which were already exhibited as Ex.PW-1/2(colly).
(B) OFFICIALS FROM SDMC.
15.4 PW-4 Sh. Ashok Kumar has deposed that in May, 2016 he was posted in MCD office, Mangla Puri, Najafgarh Zone as beldar in Ward No.131 and he was posted in the said ward since 2000. He identified the signatures of Sh. B.S.Yadav, Executive Engineer on letter dated 9.10.2014 which was exhibited as Ex.PW-4/1. He also deposed that he knew both the accused and identified them correctly in the court. He also identified the photograph of accused Vijay Kumar Meena at page no.2 of D-19 but refused to identify the photograph of Govind Ram affixed on page no.3 of D-19, i.e. the personal bio-data of accused Govind Ram. He also identified the signatures of Sh. B.S.Yadav, E.E. on the letter dated 11.12.2014 at point 'A' and the same was exhibited as Ex.PW-4/2. He further deposed that accused no.1 Vijay Kumar Meena is posted as JE in the office of Executive Engineer, Mangla Puri but he was not aware about the posting of accused no.2 Govind Ram. He also deposed that he was not shown any video clipping by CBI for the purpose of identification of accused persons. He was cross-examined by Ld. Sr.PP for CBI as he was resiling from his previous statement. In the cross-examination by Ld. Sr. PP, PW-4 has deposed that IO had enquired from him regarding both the accused. He denied the suggestion that he was shown personal bio-data of accused Govind Ram bearing his photograph by C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 7 of 56 CBI and he had identified the photograph. He also denied the suggestion that he had identified both the accused persons in the video clippings at CBI office. The witness was shown video file V0119001.AVI contained in memory card Ex.6/3 in the court and after seeing the same, he identified A-1 Vijay Kumar Meena and did not identify A-2 Govind Ram despite the video file being played again. He denied the suggestion that this video clipping was shown to him by the IO and there he had identified both the accused. He also denied the suggestion that accused Govind Ram was working on daily wages in his department.
15.5 PW-7 Vijender Singh has deposed that he has been working in the office of EE-M-II, Maintenance Department Najafgarh Zone since 1999 and he got permanent in the said department in the year 2006 and in 2016 he was posted in the aforesaid office and knew Sh. B.S. Yadav, who was their Executive Engineer. He further deposed that he does not know since when Vijay Kumar Meena (A-1) was posted in the Najafgarh Zone, SDMC. He also deposed that he does not know Govind Ram Meena, however, he had heard his name but he has never worked with him. He further deposed that he does not know Vijay Kumar Meena and never visited CBI office for getting his statement recorded. He also could not identify the signatures of Sh. B.S.Yadav on D-19 and D-20. This witness was also cross-examined by Ld. Sr. PP for CBI as he was resiling from his previous statement. In his cross-examination, PW-7 deposed that his date of birth was 16.11.1970 and his mobile number of 9868446513. He never gave any statement to CBI. He denied the suggestion that he has deposed falsely as he has been won over by the accused persons.
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 8 of 5615.6 PW-8 Om Prakash has deposed that he was posted as beldar at Mangla Puri SDMC Zone-II, Ward No.130. Prior to it, in the year 2016 he was posted in Nazafgarh Zone in the office of AE as permanent beldar. However, he could not identify the signatures of Sh. B.S.Yadav, EE on D-19. He was cross-examined by Ld. PP for CBI as he was resiling from his previous statement. In his cross-examination, he denied the suggestion that in 2015-16, he was working under Shri B.S.Yadav, EE. He admitted that in 2016, he was posted in M-II, Maintenance Department, Najafgarh Zone but stated that he does not know accused Vijay Kumar Meena, JE and Govind Ram daily wager nala beldar. He was also not aware if these two persons were also posted in M-II, Maintenance Department, Najafgarh Zone. He denied the suggestion that he used to submit leave application during that period to Sh. B.S.Yadav and he used to sanction the leave. He deposed that Sh. D.R.Singh, AE used to sanction his E.L. He also stated that CBI had not recorded his statement. He denied the suggestions that on 11.05.2016, CBI had enquired from him by calling him in the office of Executive Engineer or that statement of Vijender was recorded in his presence or that letters D-19 and D-20 along with annexures were handed over by Sh. B.S.Yadav, EE to CBI in his presence.
15.7 PW-10 Deepak Kumar has also deposed that in May, 2016, he was posted as beldar in the store at Dabri Ward No. 129. Executive Engineer used to sit in Manglapuri. He further deposed that he knew Sh. B.S.Yadav as he was Executive Engineer. He did not recognize the signatures of Sh. B.S.Yadav on D-19 and D-20. He also stated that he did not know accused Vijay Kumar Meena and Govind Ram Meena. He was cross-examined by Ld. Sr.PP for CBI as he was resiling from C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 9 of 56 his previous statement. In the cross-examination by Ld. Sr.PP the witness stated that he was not shown any video clip by CBI. He also denied the suggestion that CBI had recorded his statement and had shown him video clip Ex.6/3 V0119001.AVI or that he had identified both the accused persons in the video clip or the signatures of Sh. B.S.Yadav. He also denied that he has worked with the accused.
15.8 PW-11 Sh. Ranbir Singh has deposed that he was posted as Executive Engineer at M-IV, Central Zone, Lajpat Nagar. He identified his signature at point 'A' on the letter written by him to Inspector Kailash Sahu and the said letter was exhibited as Ex.PW-11/A. He deposed that the documents mentioned in Ex.PW-11/A were provided by him to CBI. He was also shown page 2 and 3 of D-18 of the tenure of accused Vijay Kumar Meena and after seeing page 3, he identified the signatures of Sh. Kulwant Singh, the then Office In charge (Building) at point 'A' and the same was exhibited as Ex.PW-11/B. He also identified accused Vijay Kumar Meena in the court. He deposed that from May, 2013 to October, 2015, Ward No.148 used to come under Najafgarh Zone and thereafter reshuffling of wards had taken place. He also deposed that area of Ward No.148 used to be of Madhu Vihar. He further deposed that he was shown a video clipping by CBI. He was shown the video clipping V0119001 contained in Ex.6/3 and after seeing the video he was asked to identify the person sitting on the driving seat of the car but he was unable to identify. He identified accused Vijay Kumar Meena, who was seen talking on telephone.
15.9 PW-12 Prem Singh has deposed that he was posted as beldar in the office of MCD, Manglapuri, Najafgarh Zone, M-II, SDMC since 1999. He could not recall the name of Executive Engineer in M-
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 10 of 56II, Najafgarh Zone in the year 2014. He also failed to identify the signatures of Sh. B.S.Yadav on D-19 (Ex.PW-4/1) when the same was shown to him. He admitted that he had heard the name of Executive Engineer Sh. B.S.Yadav but had not worked under him. He was also not aware who was the JE (Building) in Najafgarh Zone in 2010-11. In reply to a leading question, PW-12 replied that beldar Govind Ram @ Govinda was not posted with him in the office of Executive Engineer M- II, Maintenance Department. This witness was declared hostile and was cross-examined by Ld. PP for CBI. In the cross-examination by the Ld. PP, he deposed that CBI had not questioned him in this case and volunteered that he was called in the office of Executive Engineer Sh. B.S.Yadav and the person sitting there asked his name, father's name and address. He denied that suggestion that in the office of Executive Engineer he was shown the letter Ex.PW-4/1 along with personal bio- data of Vijay Kumar Meena and Govind Ram and he had identified their photographs on the bio-data and signature of Sh. B.S.Yadav, Executive Engineer on the letter. In the court he was shown video file no. V0119001.AVI contained in Ex.6/3 and after seeing the video clip he stated that accused Vijay Kumar Meena is visible sitting in the car but accused Govind Ram is not visible in the video clip. He also deposed that he does not know if both the accused have worked in the office of Executive Engineer M-II, Najafgarh Zone along with him and denied the suggestion that he was deposing falsely to save the accused persons as they were his colleagues.
15.10 PW-13 Sh. Puneet Kumar Goel has deposed that he was Commissioner, South Delhi Municipal Corporation(SDMC) in December, 2014 and was competent authority to remove the officials in the rank of Junior Engineer. He proved the sanction order Ex.PW-13/A C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 11 of 56 vide which he had accorded sanction for prosecution of accused Vijay Kumar Meena JE, after going through the material placed before him by CBI and after applying his mind on those documents. He also proved the letter dated 17.08.2016 as Ex.PW-13/B through which the sanction was sent to SP CBI through vigilance department.
15.11 PW-15 Sh. Kulwant Singh has deposed that he knew accused Vijay Kumar Meena, who had worked under him as JE. He also correctly identified the accused present in the court. He deposed that he was called in CBI office in the investigation of this case. He also deposed that letter Ex.PW-11/A dated 12.12.2014 along with annexures was prepared by him on the basis of record and was signed by Sh. Ranvir Singh, Executive Engineer at point 'A' and was given to CBI. He also identified his initials on the letter at point 'C'. He identified his initials on the annexures Ex.PW-11/B at point 'A' vide which posting details of accused Vijay Kumar Meena for the year 2010 and 2011 was provided to CBI. He deposed that accused Vijay Kumar Meena was posted as JE (Building Department), Najafgarh in the year 2010-11. He also deposed that he was shown video clip by the CBI officials in CBI office. The witness was also shown video files V0119001.AVI contained in Ex.6/3 and after seeing the file he deposed that accused Vijay Kumar Meena is seen sitting in the car and talking on the mobile phone in the video clipping. However, he could not identify the other person sitting in his car. The witness identified the bio-data of Vijay Kumar Meena containing his photograph as Ex.PW-4/1. PW15 also identified the original bio-data of Vijay Kumar Meena along with his photograph at portion S-14 and the same was taken on record as Ex.PW-15/A. 15.12 PW-16 Sh. D.R. Singh has deposed that he was working as C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 12 of 56 Assistant Engineer (Maintenance), Najafgarh Zone for the last 4 years. He identified the signatures of Sh. B.S.Yadav on letter dated 9.10.2014 already exhibited as Ex.PW-4/1 vide which bio-data of both the accused was sent to CBI. He also deposed that these bio-datas were prepared by their department on the basis of available official record. He identified his signature at point 'A' on personal bio-data of accused Vijay Kumar Meena already exhibited as Ex.PW-15/A and stated that photograph of Vijay Kumar Meena appears at portion S-14 and the photograph was attested by him at point 'B'. He also identified his signature at point 'A' on personal bio-data of accused Sh. Govind Ram which was exhibited as Ex.PW-16/A and stated that photograph of Govind Ram appears at portion S-15 and the photograph was attested by him at point 'B'. He identified both the accused in the court as they had worked under him. He also deposed that he was called by CBI in connection with investigation of this case and he told the CBI about the aforesaid bio-datas and nothing else. PW-16 was also shown video files V0119001.AVI contained in Ex.6/3 and after seeing the file he deposed that he had never seen such clip earlier and stated that the persons sitting on the front left side seat seems to be accused Vijay Kumar Meena who is seen talking on the mobile phone but he was not able to identify the other person sitting on the driving seat. He was cross-examined by Ld. Sr. PP for the CBI. In his cross-examination he denied the suggestion that the video clip was also played at CBI office and he had identified both the accused when such clip was played in CBI office. He denied the suggestion that he was deliberately not identifying accused Govind Ram.
15.13 PW-20 Sh. B.S. Yadav has deposed that he remained posted as Executive Engineer (M-II), Najfgarh Zone in the year 2014 C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 13 of 56 and as per the request received from CBI, he had forwarded the posting details of accused Govind Ram Meena vide his letter Ex.PW- 4/2 which bears his signature at point 'A'. He also deposed that details of Govind Ram were mentioned in Annexure-1 of his letter which were correct as per the office record. He also deposed that he has forwarded the personal bio-data of accused Vijay Kumar Meena and accused Govind Ram vide letter Ex.PW-4/1 and such bio-datas were already exhibited as Ex.PW-15/A and Ex.PW-16/A respectively and were correct as per record. He further deposed that vide letter Ex.PW- 20/A, he had forwarded further details regarding appointment letter of accused Vijay Kumar Meena and his posting details as well as order regarding regularization on muster roll of accused Govind Ram and his termination from the service on 30.07.2014 along with copy of termination letter.
(C) COMPLAINANT/PUBLIC WITNESSES 15.14 PW-5 Sh. Parmeet Kumar Junior Court Assistant at Supreme Court of India has deposed that pursuant to orders from his office, he along with his colleague Sunny Attri had reached the office of CBI on 20.11.2014. Inspector Kailash Sahu briefed them for the purpose of calling and informed that sample voice of Mr. Meena who was also present had to be taken. He further deposed that the sample voice of accused Vijay Kumar Meena was taken and thereafter memory card was taken out from the voice recorder and sealed and seal after use was handed over to him. On 21.11.2014 he along with Sunny Attri again reached CBI office where sample voice of four beldars were taken. He also deposed that accused Vijay Kumar Meena signed at point 'B' on Ex.PW-5/A in his presence. The witness also identified his signatures on the sealed envelope Ex.S-1 at point 'A' C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 14 of 56 and the envelope was exhibited as Ex.PW-5/B. He also identified his signatures on the red plastic cover containing the memory card. He further identified his signatures on the memory card at point 'A' and the red plastic cover and memory card were exhibited as Ex.PW-5/C (colly.). PW-5 also identified his voice, voice of Sunny Attri and voice of Vijay Kumar Meena in the memory card when it was played in the court.
15.15 PW-6 Sh. Dinesh Kumar has deposed that on the directions from his office, he reached CBI office, CGO Complex on 15.12.2014. Inspector Sahu showed a CD containing video clips having conversations and the contents of conversation were written on the paper and he was directed to verify the contents written on the paper with conversation in CD. He further deposed that he had matched conversation with the writings of the paper and the same was found correct and thereafter a memo was prepared. He signed the same along with Inspector Sahu and Chetan Prakash. PW-6 identified his signatures at point 'A' on transcription-cum-voice identification memo which was exhibited as Ex.PW-6/A. He also identified his signatures on the transcript at points 'A' and transcript was exhibited as Ex.PW-6/B. 15.16 PW-9 Sh. Raman Kumar Sharma, has deposed that on the instructions of his vigilance department, he along with his colleague Kishan Dutt reached CBI office on 25.11.2014. In the CBI office sample voice recordings of Chetan Prakash and Swarandeep Shukla were recorded in their presence and the voice recording was subsequently sealed and seal after use was given to him. Witness identified his signatures at point 'A' on brown colour envelope which C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 15 of 56 was already exhibited as Ex.PW-3/E in connected case. He also identified his voice, voice of Kishan Dutt, Swarandeep Shukla and his own voice recorded in memory card Ex. PW-3/G (S-6) contained in the said memory card. He further identified his signatures at point 'A' on the brown envelope Ex.PW-3/B. He further identified his voice, voice of Kishan Dutt and Chetan Prakash in the memory card already exhibit Ex.PW-3/D (S-7) when it was played in the court. PW9 was cross- examined by Ld. Sr. PP for CBI as he was resiling from his previous statement. In the cross-examination, he admitted that device used for recording was digital voice recorder make Sony. He also admitted that specimen voices of Swarandeep Shukla and Chetan Prakash were recorded by using DVR of Sony make. He also admitted that voice was recorded in memory card make SanDisk and he further admitted that memory cards were fresh in sealed pack and were opened in his presence and the blankness of memory cards was also demonstrated. He also admitted that data in the memory card was copied in a CD with the help of official laptop. He also admitted that after sealing of the memory card he had signed the same and the brass seal was handed over to him after use.
15.17 PW-14 Sh. Swarandeep Shukla @ Sanuj Shukla (wrongly mentioned as Anuj Shukla) has deposed that complainant Chetan Prakash (PW-17) was his friend and he was getting some construction done at Raja Puri. He was informed by PW-17 that some officials of MCD were troubling PW-17 by demanding money with respect to such construction and PW-17 had told those officials to come again as construction was being done by some acquaintance of PW-17 and the money would also be paid by the said acquaintance only. He further deposed that on 31.12.2010 in the morning time, he was present with C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 16 of 56 PW-17 at the Tea stall near the site of construction and both the accused came there. PW-17 indicated towards them by gesture that they both were same MCD officials who were demanding money. The accused had come in a vehicle and he reached near their vehicle. PW- 17 also came there and introduced him to both the accused claiming that construction was being done at the premises of PW-14. PW-14 also deposed that he sat on the rear seat in the vehicle of the accused and accused Vijay was on the driving seat and accused Govind was on the rear seat. PW-14 further deposed that he asked for some leniency on which accused Govind threatened that they could even get the construction stopped on which PW-14 told them that he was ready to give money and the accused demanded money. PW-14 handed over a sum of Rs. 5000/- to accused Govind and requested them not to cause any future hindrance in the construction. Accused Govind told PW-14 not to worry claiming that if anyone from MCD comes in future then PW-14 should tell the name of accused Govind. Thereafter, PW-14 alighted down from the vehicle. PW-14 has further deposed that Chetan was shooting whatever was happening inside the vehicle of the accused through a button camera fitted on his shirt and he had also shown the recorded clip on the next day. PW-14 further deposed that he had gone to CBI office where his statement was recorded and he was also shown the clipping of the incident and he had told CBI that it was the same clipping in which he had given money to the accused inside the vehicle for aforesaid construction. PW-14 further deposed that his voice sample was taken by CBI and identified his signature at point 'A' on the copy of memo of taking voice sample Ex.PW-14/A. Witness was shown the video file V0119001 contained in memory card Ex.6/3 and after seeing the video clip, PW- 14 stated that it was the same recording in which he had given money C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 17 of 56 to the accused in the vehicle and he himself was also visible in the clip. He stated that accused Vijay is found sitting on the steering and accused Govind is also seen in the clip. The memory card containing the video clipping was exhibited as Ex.PW-14/B. The memory card Ex.PX containing sample voice of PW-14 was played in the court and PW-14 identified his voice which was recorded in the CBI office. The witness was cross-examined by Ld. Sr.PP for CBI as he was not giving complete and correct facts. In the cross- examination by Ld. Sr.PP, PW-14 admitted that CBI had recorded his statement. He also admitted that initially he had given bribe amount of Rs. 5000/- and then immediately thereafter he had paid further bribe of Rs.1000/- which was accepted by accused Govind Ram.
15.18 PW-17 Sh. Chetan Prakash is the complainant in the case. He has deposed that he was in the business of property dealing for the last 20 years and he knew Swarandeep Shukla (PW-14) since 2006 and had done many sting operations on behalf of PW-14. PW-17 further deposed that he was repairing his house situated at G-248, Vishwas Park, Uttam Nagar, Delhi in the year 2010-11 and many MCD officials visited the site during that period to demand money for the construction of the house. He further deposed that prior to the date of sting operation, accused Govind Ram and Vijay Kumar Meena, JE visited his house in a car and accused Govind Ram demanded money and he told them to come later. Accused Govind Ram also gave his telephone number of Tata Company to PW-17 but he could not recall the number. After seeing from his own mobile phone, PW-17 stated that the number was 9266513606. He further stated that accused Vijay Kumar Meena and Govind Ram again came on 30.12.2010 and demanded money. PW-17 further deposed that on that day he had C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 18 of 56 already called Sanuj Shukla @ Swarandeep Shukla for handing over the money and he wanted to record the sting from button camera as when the video is recorded through button camera, the face and hands of the person recording the same are not visible in the video. He further stated that Govind Ram Meena demanded money and Swarandeep Shukla handed near about Rs. 6000/- to accused Govind Ram Meena. He stated that bribe was paid on two occasions. On the first occasion, it was inside the vehicle and on the second occasion, same time but outside the vehicle. PW-17 also deposed that the vehicle was of accused Vijay Kumar Meena and though total bribe given was Rs. 6000/-, yet there was more demand from the accused. However, accused Govind Ram asked them to come later for giving more bribe. The witness was shown video file V0119001 contained in Ex.6/3 and after seeing the video the witness identified his own house and PW-14 Swarandeep Shukla. He also identified accused Govind Ram sitting on the driving seat and accused Vijay Meena was also seen sitting in the car. He further deposed that they both, i.e. PW-17 and PW-14 Swarandeep also sat in the rear seat of the car at the asking of accused Govind Ram and accused Govind Ram demanded a sum of Rs. 15,000/- as bribe by flashing the figure typed in his mobile to which he claimed was a reasonable amount. Govind Ram also made reference to accused Vijay Kumar Meena during conversation and flashed his mobile again reducing the bribe amount to Rs. 10,000/-. Thereafter, a sum of Rs. 3,000/- (in the denomination of Rs. 100/-) had been given to accused Govind Ram. After paying Rs. 3000/- inside the vehicle, accused Govind Ram claimed that balance amount was of Rs. 5,000/- and thereafter accused Govind Ram and Swarandeep came out of the car and another sum of Rs. 3000/- was given which was taken by accused Govind Ram. PW-17 also deposed C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 19 of 56 that i-10 car was of accused Vijay Meena and thereafter i-10 left and he along with Swarandeep went towards the place of construction where their Santro Car was also parked. PW-17 further deposed that a certificate under Section 65-B of Evidence Act Ex.PW-17/A (D-13) was given by him to CBI which was seized vide seizure memo Ex.PW- 17/B(D-12). PW-17 further deposed that he had also given his specimen voice sample to CBI vide recording memo Ex.PW-14/A which bears his signature at point 'X'. He further deposed that he was also called at CBI office for the purpose of transcription and the video footage was played and he had identified the video as well as audio and then transcription was prepared. The transcription-cum-voice identification memo was proved as Ex.PW-17/C(D-17) and the transcription was exhibited as Ex.PW-17/D. He further deposed that the video was made in the first week of January, 2011 but when his statement was recorded by CBI he told them that video was made in December, 2010 and he did not tell them about the date as he did not recall the same at that time. PW-17 further deposed that the case was registered on the directions of High Court after he had filed a writ petition and he handed over the memory cards to Ld. Registrar General. He further deposed that on 30.12.2010, he had met accused Govind Ram for the first time who had come to his house for demanding the money but the bribe was eventually paid in the first week of January, 2011.
(D) EXPERT WITNESSES 15.19 PW-18 Sh. P.K. Gottam, Sr. Scientific Officer-I (Photo) CFSL, CBI, New Delhi has compared the photograph of accused Vijay Kumar Meena (S-14) (Ex.PW-15/A) and Govind Ram (S-15) (Ex.PW- 16/A) with the video file no.V0119001.AVI as contained in the folder C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 20 of 56 Ex.6/3 and came to the conclusion that the persons appearing in the sample photograph S-14 and S-15 appeared to be similar with the persons visible in the aforesaid video file. He also proved his report dated 12.05.2016 as Ex.PW-18/A(D-11).
15.20 PW-22 Dr. Subrat Kumar Choudhry, Sr. Scientific Officer Gr-II (Physics) CFSL, New Delhi has proved his report as Ex.PW- 21/B whereby he had examined the voices of accused Vijay Kumar Meena and Govind Ram Meena in the video clipping found in Ex.6/3 and had compared the same with the specimen voice sample and has observed that the voices in the video clipping were found similar to the specimen voices of these persons.
15.21 PW-23 Sh. Gautam Roy Retd. Sr. Scientific Officer and Head of the Department in the computer forensic and head of the department in the computer Forensic Division & Photo Division in CFSL CBI New Delhi examined the memory cards and micro SD cards Ex.6/1 to Ex.6/5 and came to the conclusion that there was continuous flow of video and there was no stoppage, pause etc. and, therefore, there was no tampering on the aforesaid five memory cards. He proved his report as Ex.PW-23/A. (E) OFFICIALS OF CBI 15.22 PW-19 Inspector Kailash Sahu is the first IO of the case. He has deposed that in the year 2014, he was posted as Inspector CBI, ACB Delhi. In April 2014, FIR of this case was marked to him for investigation. He proved the copy of FIR as Ex.PW-19/A. He deposed that he was also handed over copy of order dated 14.02.2014 passed by Hon'ble High Court of Delhi in WP(Crl.) No.1823/12 along with C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 21 of 56 covering letter dated 18.02.2014 already exhibited as Ex.AD-1. He also obtained certified copy of the writ petition as well as orders passed in the said writ petition which were already exhibited as Ex.AD-2 and Ex.AD-3 respectively. He also received a sealed packet from Ms. Anita Malhotra, AR (Crl.), Delhi High Court containing hard disks and memory cards as well as specimen seal impression vide receipt memo Ex.PW-19/B. The sealed packet containing hard disks and memory cards was sent to CFSL vide letter dated 01.05.2014 Ex.PW-19/C along with the seal impression of Ms. Anita Malhotra. He further deposed that the data retrieved from the exhibits by CFSL were received in CD for investigation purposes vide letter dated 24.07.2014 Ex.PW-19/D. He further deposed that during the course of investigation he took specimen voice samples of both the accused contained in D- 14 already exhibited as Ex.PW-5/A and D-15 already exhibited as Ex.PW-19/E. He prepared the transcription of the voices appearing in the CD in relation to all the stings with the assistance of complainant Chetan Prakash and the transcription was already exhibited as Ex.PW- 17/D which was signed by him, complainant and independent witness Dinesh Kumar. Transcription-cum-voice identification memo Ex.PW- 17/C was also prepared which was signed by him, complainant and Dinesh Kumar. He also took sample voice of complainant Chetan Prakash as well as Swarandeep Shkula @ Sanuj Shukla vide memo Ex. PW-19/F. He also collected the documents from concerned department of MCD vide letter Ex.PW-11/A and tenure of accused Vijay Meena was mentioned in Ex.PW-11/B. The details of postings of accused Govind Ram Meena were received vide letter Ex.PW-4/2 and personal data-sheet of both the accused were received vide letter Ex.PW-4/1. The bio-datas of the accused persons are already exhibited as Ex.PW-15/A and Ex.PW-16/A respectively. He recorded C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 22 of 56 the statements of some of the witnesses and thereafter the investigation of the case was entrusted to Sh. Sanjay Upadhyay. The witness identified the memory card Ex.PW-5/C(S-1) containing the specimen voice of accused Vijay Kumar Meena and memory card Ex.PX-1(S-9) containing the specimen voice of accused Govind Ram Meena. He also identified the memory card containing the specimen voice of Swarandeep Shukla as Ex.PX/S-6(S-6) and the memory card containing the specimen voice of Chetan Prakash as Ex.PX/S-7(S-7).
15.23 PW-21 Inspector Sanjay Upadhyay is the second IO of the case. He has deposed that after the transfer of Inspector Kailash Sahu, he was entrusted with the investigation of the case. He recorded supplementary statements of some witnesses and statements of few more witnesses. He further deposed that during investigation 11 photographs Mark S-1 to S-20 were sent to CFSL for the purpose of comparison with the persons visible in the video files of sting operation in question, SD cards of which had already been sent to CFSL. He proved the copy of forwarding letter along with annexures as Ex.PW- 21/A (D-8)(Colly.). He testified that the consolidated report of Sh. P. K. Gautam, Ex.PW-18/A was received. The photograph of both the accused as contained in S-14 and S-15 are affixed in the bio-data sheets Ex.PW-15/A and Ex.PW-16/A respectively. He also collected certificate under Section 65-B of Evidence Act Ex.PW-17/A from Chetan Prakash which was seized vide seizure memo already exhibited as Ex.PW-17/B. He further deposed that posting details of both the accused were collected and the report of Sh. Subrat Kumar Choudhary, voice expert was received from CFSL and the same is Ex.PW-21/B. He also deposed that request was sent to the sanctioning authority to accord sanction for prosecution qua accused C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 23 of 56 Vijay Kumar Meena and the said sanction is already exhibited as Ex.PW-13/A and it was received vide letter Ex.PW-13/B. Seizure memo D-23 is Ex.PW-21/C which bears his signature at point 'A'. He also deposed that after analysis of entire material on record and after collecting the reports from CFSL and sanction qua the accused Vijay Kumar Meena, charge sheet was prepared and submitted in the court. He also deposed that there was no requirement for obtaining sanction against Govind Ram Meena, who was a daily wager only.
Thereafter, PE was closed.
Statements of accused & Defence evidence
16. Accused Vijay Kumar Meena pleaded false implication when he was examined u/s 313 Cr.P.C. He denied the entire incident and stated that he was not present at the spot as alleged by the prosecution and the video was false and fabricated. He further stated that voice speci- men was given by him under threat of arrest extended by the IO and he was also made to sign some blank paper and no other person had signed on any document in his presence. He also stated that the mem- ory card played in the court was manipulated. He also denied the re- ports of CFSL experts and stated that the report is fabricated and in- complete report without any scientific basis and the person giving the report was not an expert as per the provisions of Section 45 and 45-A of the Indian Evidence Act. He also stated that no reasons have been given on the basis of which the report has been prepared. He further stated that there was no application of mind while granting the sanction and documents sent to and examined by the sanctioning authority were incomplete and some material information was concealed from the C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 24 of 56 sanctioning authority. He stated that the complainant and other wit- nesses wanted to falsely implicate him in this case and no such inci- dent had happened and entire case is based on forged, manipulated, morphed and edited video recording. The accused did not prefer to lead any evidence in his defence.
In the supplementary statement under Section 313 Cr.P.C., ac- cused denied the report prepared by PW-23 and stated that it was false and inadmissible and it does not contain any reason and the re- port was prepared without examining of memory cards.
17. Accused Govind Ram Meena also pleaded innocence in his statement recorded under Section 313 Cr.P.C. He also denied his photograph S-15 on his bio-data. He stated that he never met the complainant and Swarandeep Shukla and never demanded any money from them. He further stated that the alleged video footage is manufactured and doctored. He also stated that he never volunteered to give his voice sample and CBI gave him a paper and he was beaten and asked to speak whatever was written on it. He also stated that the reports were prepared by CBI and were merely signed by FSL experts. The complainant falsely identified him to establish his case. He further stated that the present case was falsely registered by Chetan Prakash and Swarandeep Shukla against him and other MCD officials in order to carry out their illegal construction and illegal work smoothly. The accused did not prefer to lead evidence in his defence.
In the supplementary statement under Section 313 Cr.P.C., accused denied the report prepared by PW-23 and stated that it was false and inadmissible and it does not contain any reason and the report was prepared without examining of memory cards.
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 25 of 56RIVAL CONTENTIONS
18. Ld. Sr. PP CBI has argued that the prosecution has proved its case against both the accused beyond reasonable doubts. He has argued that the present case was registered on the directions of Hon'ble High Court of Delhi in Criminal Writ Petition filed by the complainant Chetan Prakash. It was further submitted that the complainant had deposited five memory cards and five hard disks with the High Court registry which were received by the IO and the same were sent to CFSL. The memory card relevant to the present case is Ex.6/3 which contains the video footage of the offence involved in this case. He has argued that in the video footage accused persons are visible demanding and accepting bribe of Rs.6000/- from PW-14 Sh. Swarandeep Shukla @ Sanuj Shukla. It has been argued that the experts from the CFSL, i.e. PW-18, PW-22 and PW-23 have examined the video footage and have given their reports which clearly indicates that the accused persons were involved in the offence.
19. He has also argued that during the course of investigation IO had collected the posting details of the accused from their office and their specimen voice was also recorded. The photographs on the bio- data of the accused have matched with the persons seen in the video footage and similarly specimen voices of accused persons have matched with the voices in the video footage. It was also argued that the complainant Chetan Prakash was examined as PW-17 and Swarandeep Shukla was examined as PW-14 and they have narrated the incident which stands corroborated by the video footage contained in memory card Ex.6/3. Not only this, officials from MCD, i.e. PW-4 Ashok Kumar, PW-11 Ranbir Singh, PW-12 Prem Singh, PW-15 C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 26 of 56 Kulwant Singh and PW-16 D.R. Singh, AE have also identified accused Vijay Kumar in the video footage when it was played in the court. He has argued that CBI has taken all the precautions during investigation and have also obtained sanction for prosecution against accused no.1 which has been proved by PW-13 Puneet Kumar Goel as Ex.PW-13/A. He further submitted that no sanction for prosecution was required against accused no.2 Govind Ram Meena as he was a daily wager beldar and was not a permanent employee.
20. Ld. Sr. PP for CBI also relied upon the judgment of Anirudh Behal Vs. State in Crl. M.C. 2793/2009 decided on 24.9.2010 by High Court of Delhi to argue that sting operation conducted by a citizen of India to expose corruption is fundamental duty of a citizen under Article 51-A (h) and (j) of the Constitution of India and the same cannot be outrightly rejected.
21. Ld. Counsel for accused no.1 has vehemently argued that the main defence of accused no.1 is that no such incident as depicted in the video footage had happened and the memory cards containing the so called video sting operation is doctored, manipulated, tampered with and edited, rendering the same as inadmissible. Secondly, there had been no identification of voice of accused no.1 in the video file. Thirdly, the reports of the experts are incomplete as they do not contain proper reasoning and the experts are not notified under Section 79-A of Information Technology Act, 2000. Fourthly, the transcription-cum- voice identification memo is not admissible as the same is excluded by the provision of Section 162 Cr.P.C. Fifthly, the statements of PW-14 and PW-17 are contradictory to each other and do not reconcile with each other. Rather, the statement of PW-14 proves that he was not C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 27 of 56 present at the scene of crime and the statement of PW-17 is not reliable as there is no independent corroboration of the same and he falls in the category of accomplice. Sixthly, the conduct of PW-17 is suspicious and he has concealed number of facts from the Hon'ble High Court while filing the writ petition and his statement ought to be disregarded.
22. Ld. Counsel for accused no.1 has further argued that PW-17 was carrying out unauthorized construction in his house and not merely repairs and had paid illegal gratification. It was argued that complainant had reconstructed two storied house with basement on half of the plot in the year 2010 and he has not filed any approved plan by the MCD or receipt regarding payment of development charges, cess charges, levy charges etc. to show that he had obtained proper sanction from the MCD for construction of the house. It was also argued that the complainant was a history sheeter of the area and this fact is reflected from the status report filed along with the writ petition.
23. Ld. Counsel for accused no.1 also argued that the video footage consists of two components, i.e. audio part and video part and hence they must be tested on the ground of admissibility as per the guidelines laid down in the case of Ram Singh Vs. Col. Ram Singh [AIR 1986 SC 3]. He further argued that the transcription-cum-voice identification memo dated 15.12.2014 is hit by Section 162 Cr.P.C. being a statement made by a witness to a police officer and cannot be relied upon in view of the judgments of Ram Kishan Mithan Lal Sharma Vs. State of Bombay [AIR 1955 SC104]; Tori Singh Vs. State of UP [AIR 1962 SC 104] and Jagdish Narain Vs. State of UP [1996 (8) SCC 199].
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 28 of 5624. Ld. Counsel for accused no.1 also argued that there is no evidence on record to prove that the alleged words were in the voice of accused no.1. None of the witnesses including PW-14 and PW-17 examined by the prosecution have identified the voice in the video footage as that of accused no.1 Vijay Kumar Meena. He further argued that evidence of PW-22 Subrat Kumar Choudhary cannot be relied upon for the reason that he has not been notified under Section 79-A of I.T.Act 2000. The report submitted by him neither contains the work sheet nor the spectrogram and hence, the same is incomplete. PW-22 has admitted in his cross examination that CBI had provided him transcription-cum-voice identification memo including transcription along with the exhibits itself which formed the basis of his report. It was argued that in Nilesh Dinkar Paradkar Vs. State of Maharshtra [2011 Vol.3 Scale 473] and Mahavir Prasad Verma Vs Dr. Surender Kaur, AIR 1982 Supreme Court 1043, Hon'ble Supreme Court had held that tape recorded evidence can only be used as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of any such conversation, tape recorded conversation is indeed no proper evidence and cannot be relied upon.
25. Ld. Counsel for accused no.1 also argued that the court was not bound by the evidence of expert which is to a large extent advisory in nature and the court must derive its own conclusion upon considering the opinion of the expert which may be adduced cautiously. Reliance was placed in this regard on the judgment of Malay Kumar Ganguli Vs. Sukumar Mukherjee [(2009) 9 SCC 221], Ramesh Chand Aggarwal Vs. Regency Hospital & Ors, [(2009) 9 SCC 709]; Mohd. Hanif Shaikh Vs State of Gujarat, [1995 (1) Crimes 274] and State C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 29 of 56 of Himachal Pradesh Vs. Jai Lal [(1999) 7 SCC 280].
26. He also argued that the three CFSL experts, i.e. PW-18, PW-22 and PW-23 have not shown that they were specially skilled in their field neither they have shown that they have acquired specialized knowledge or degree in the said field and, hence, they cannot be called as an expert. In the present case, reports of all the three experts are incomplete and do not show any reasoning on the basis of which the conclusions have been derived. He has argued that where the expert during cross-examination has admitted that prior to comparison, he was already provided the material on the basis of which he came to the conclusion that the questioned voice is of the accused and what he did was just the comparison between the questioned and specimen voice, the same was inadmissible. He has relied on the judgment in Devender Singh Vs. CBI in Crl. Appeal No. 339/2009 decided on 26.3.2014 by Delhi High Court on this aspect.
27. It is also argued that the testimony of PW-23 is also contrary to the report. PW-23 has deposed that he had seen time stamp and date stamp at the bottom of the right corner of the video but video available in the memory card does not contain any time stamp and date stamp. Hence, either the video examined by the expert and that available in the court are not same or the expert has not examined the video file and has given the report without examining the video and is thus deposing falsely. It has also been argued that oral evidence of PW-17, PW-19 and PW-21 is also important and relevant in this regard. The original device by which the alleged video recording was made was not seized by the IO nor has been produced in the court. Apart from it, it has come on record that complainant has got number of copies C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 30 of 56 prepared from Pal Studio as well as the computer available with him at his residence and no investigation has been done in respect of the same and there is strong possibility that the alleged video recording relied by the prosecution has been tampered with. Reliance in this regard was also placed on the judgment of Ashish Kumar Dubey Vs. CBI in Crl. Appeal No. 124/2008 decided on 4.4.2014 by the Hon'ble High Court of Delhi. It is also argued that the certificate under Section 65-B of Indian Evidence Act was given by PW-17 to CBI and the certificate is required only in case of producing secondary electronic evidence. On the one hand complainant is saying that the memory card was original and if it was so, there was no requirement of any such certificate. Ld. Counsel for accused no.1 has also argued that as per Ex.PW-11/A the house of the complainant was under the jurisdiction of Najafgarh Zone (SDMC) and as per the posting details of accused no.1 he was not posted in Madhu Vihar at the relevant time, i.e. between December, 2010 to January, 2011 and accused no.2 was never deputed to assist accused no.1 at any point of time during the year 2010 and 2011 which clearly shows that accused no.1 was never posted along with accused no.2. Ld. Counsel for accused no.1 has also placed on record written synopsis of arguments advanced by him and I have perused the same. A prayer was made for acquittal of accused no.1.
28. Ld. Counsel for accused no.2 adopted the arguments advanced by the counsel for accused no.1 and further argued that except PW-14 and PW-17 none of the official witnesses from MCD had identified accused no.2 in the video clipping. Even PW-14 wrongly identified the accused in the car. He also argued that accused no.2 never remained posted with accused no.1 and he was not even posted in Ward No. 148 C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 31 of 56 at any point of time and, thus, there was no question of accused no.2 demanding or receiving bribe from the complainant and PW-14.
29. In rebuttal, Ld. Sr. PP for CBI has argued that the past conduct, character or motive of the complainant is not relevant in criminal trial and the court is only required to look into the evidence available on record. He also placed reliance on the judgment of Shiv Nandan Paswan Vs State of Bihar (AIR 1987 SC 877).
It was further argued that so far as the notification of expert under Section 79-A of I.T. Act is concerned, no individual expert was notified by the Central Government till date and only 4-5 labs have been notified after March, 2018. He also argued that Hon'ble Madras High Court in K. Ramajayam @ Appu Vs. Inspector of Police, Chennai [2016 Crl.L.J. 1542] has held that the opinion of an expert, which is relevant under Section 45 of Indian Evidence Act, when accepted by the court graduates into opinion of the court. It was also observed that Central Government has not yet issued notification under Section 79-A of I.T.Act 2000 on account of which Section 45-A of Indian Evidence Act, 1872 remains mute. Therefore, the matter evolved by the Scientific Officers of Tamil Nadu Forensic Science Department to analysis and give their evidence on electronic data are correct and cannot be faulted. He also argued that the transcription-cum-voice identification memo prepared by the IO during the course of investigation is contemporaneous proceedings and is not hit by Section 162 Cr.P.C. It was further argued that even the officials from the department of the accused no.1 and 2 have identified accused no. 1 in the video footage. He also argued that the judgment of S.K. Saini Vs CBI, [2015 3 JCC 2169] relied by accused is distinguishable on facts. In the present case memory cards were sent to CFSL where CDs were C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 32 of 56 prepared and one CD was returned to IO for investigation and only thereafter specimen voice was recorded by the IO. He also argued that the judgment relied upon by the counsel for accused for discarding the memory cards are not applicable to the present case as all those judgments related to tape recorded conversation where only one sensory organ, i.e. ears were involved whereas in the present case the memory cards contain audio-video footage and the data is perceived by the ears as well as eyes. He also argued that as far as the contradictions in the narration of incident is concerned, the capability of human mind to give its own interpretation to what the eyes saw and what the ears heard while narrating cannot be discounted. Universally the courts have recognized the fact that there are bound to be exaggeration and embellishments in oral account and if five people are asked to see an event and given an account of it individually, there will be no unanimity in their version.
APPRECIATION OF EVIDENCE
30. At the outset, it is pertinent to note that accused Vijay Kumar Meena and accused Govind Ram Meena have not disputed the fact that they were employed in SDMC as Junior Engineer (JE) and beldar respectively. It is also not in dispute that the property under construc- tion/repairs i.e. plot no. G-248, Vishwas Park, PS Dabri, New Delhi be- longs to complainant Chetan Prakash and it falls under the jurisdiction of Ward no.148, Madhu Vihar of Najafgarh Zone. PW-11 Sh. Ranbir Singh, Executive Engineer has also proved his letter Ex.PW-11/A sub- mitted to CBI wherein it has been mentioned that the area of plot no. G-248, Vishwas Park (Ward no.148) falls under the jurisdiction of Na- jafgarh Zone (SDMC). There is no cross examination of the witness by C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 33 of 56 the counsels for the accused persons on this aspect. Hence, his testi- mony on this aspect remains unrebutted.
SANCTION FOR PROSECUTION OF ACCUSED
31. In the instant case, after completion of investigation CBI sent a request letter dated 28.06.2016 for prosecuting the accused Vijay Ku- mar Meena and the sanction granted by the Competent Authority has been proved as Ex.PW-13/A. Prosecution also examined PW-13 Puneet Kumar Goel, Commissioner, SDMC who has proved the sanc- tion order Ex.PW-13/A and the letter dated 17.08.2016 vide which aforesaid sanction was sent to CBI as Ex.PW-13/B. Ld. Addl. PP for CBI has submitted that sanction for prosecution qua accused no.2 Govind Ram Meena was not received as he was a daily wager, nala beldar and as per the letter Ex.PW-20/A received from SDMC, accused no.2 was removed from the service vide office order dated 30.07.2014 and hence no sanction was required for his prosecution.
32. Ld. Counsel for accused no.1 Vijay Kumar Meena has argued that the sanction has been given by the competent authority in a me- chanical manner without the application of mind. It was argued that PW-13 in his cross examination has admitted that he had received draft sanction order from CBI and the competent authority accorded the sanction in mechanical manner on the basis of the draft sanction order received from CBI.
33. As regards application of mind by sanctioning authority in State of Maharashtra through CBI Vs Mahesh Jain, 2013 (8) SCC 119 fol- lowing principles were culled out :-
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 34 of 56"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 prime 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 pre-requisite 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."
It was further held that :
"True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 35 of 56
34. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy 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 and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused. In view of the above discussion, it cannot be said that the order of sanction for prosecution of accused is not valid or illegal.
35. In the present case, the prosecution has proved the original sanction order Ex.PW-13/A by examining the competent authority i.e., PW-13 Puneet Kumar Goel, Commissioner SDMC. A bare perusal of his testimony would show that he had granted the sanction after going through the documents and applying his mind. He has denied the sug- gestion given by counsel for accused no.1 that he had accorded the sanction in a mechanical manner on the basis of draft sanction order received from CBI. A bare perusal of sanction order Ex.PW-13/A would reveal that PW-13 has mentioned in the order that he has fully and carefully examined the statement of witnesses and documents placed before him with regard to the allegations and circumstances of the case and after due application of mind, he considered it fit that Sh. Vi- jay Kumar Meena (A-1) should be prosecuted in the court of law for the offences under PC Act. Thus, reading of sanction order with the evi- dence of PW-13 i.e. sanctioning authority clearly establishes that the sanction was properly accorded after due application of mind and is valid.
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 36 of 5636. Now coming to the merits of the case, prosecution in the present case has relied upon two sets of evidence i.e., the video file V0119001.AVI contained in memory card Ex.6/3 [Ex.PW-14/B] recorded by PW-17 Chetan Prakash at the time of the incident and oral testimonies of the witnesses PW-17 Chetan Prakash and PW-14 Swarandeep Shukla @ Sanuj Shukla who were the main witnesses of the prosecution. Firstly, I shall discuss the electronic evidence pro- duced by the prosecution and thereafter the oral testimonies of the wit- nesses.
ELECTRONIC EVIDENCE
37. As per the case of prosecution, PW-17 Chetan Prakash con- ducted a sting operation along with PW-14 Swarandeep Shukla and made a video recording of the accused accepting the bribe money of Rs. 6000/- from PW-14 Swarandeep Shukla. As per the case of prose- cution, the sting operation was recorded with the help of a DVR PV500. It is further the case of the prosecution that on the directions of Hon'ble High Court PW-17 deposited five hard disks and five memory cards in the registry of Hon'ble High Court and the same were sent to CFSL for forensic examination. Three reports were received from the CFSL.
In the first report Ex.PW-18/A given by PW-18 Sh. P.K. Gautam, it was observed that the person in the sample photograph S-14 on the bio-data of accused Vijay Kumar Meena which is Ex.PW-15/A appears to be similar with a person visible in the audio/video file V0119001.AVI (Ex.6/3) and the person in sample photograph S-15 on the bio-data of accused Govind Ram which is Ex.PW-16/A appears to be similar with a person visible in the audio/video file V0119001.AVI (Ex.6/3).
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 37 of 56In the second report Ex.PW-21/B given by PW-22 Dr. Subrat Ku- mar Choudhary it was observed that the questioned voice marked ex- hibit 6/3(V) is the probable voice of the person Vijay Kumar Meena whose specimen voice is marked Ex.S-1(3)(V). It was further observed that questioned voice marked Ex.6/3(G) is the probable voice of the person Govind Ram Meena whose specimen voice is marked as Ex.S- 9(2)(G). The questioned voice marked Ex.6-3(C) was the probable voice of Chetan Prakash Sharma whose specimen voice was marked Ex.S-7(4)(C). The questioned voice marked Ex.6-3(K) was the proba- ble voice of the person Swarandeep Shukla whose specimen voice was marked Ex.S-6(3)(K).
In the third report Ex.PW-23/A given by PW-23 Sh. Gautam Roy, it was observed that the memory cards Ex.6/1 to Ex.6/5 are not being tampered.
38. Ld. Sr. PP for CBI has submitted that the aforesaid reports clearly show that there was no tampering, editing or morphing in the video footage contained in memory card Ex.6/3 [Ex.PW-14/B] and PW- 17 Chetan Prakash has also given his certificate u/s 65-B of Evidence Act already Ex.PW-17/A (D-13) in this regard and the same can be safely relied upon.
39. Ld. Counsels for accused have vehemently argued that the video footage in memory card Ex.6/3 [Ex.PW-14/B] is doctored, edited, morphed and is full of suspicion. PW-17 did not produce the original recording device for examination by CFSL. It was also argued that the recording remained with PW17 for almost two years in unsealed condi- tion and therefore, the chances of tampering cannot be ruled out. It was also argued that DVR was having internal memory and it has not C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 38 of 56 been proved by the prosecution whether the recording was originally done on the internal memory of the DVR and thereafter transferred to the memory card or it was done directly on the memory card. It was ar- gued that the electronic record produced by the prosecution does not inspire confidence and cannot be safely relied upon.
40. When a party produces a documentary evidence in support of its case, two questions are required to be determined before it can be relied upon:- (i)Whether it is admissible in evidence?; (ii)If answer to question (i) is in affirmative, whether the document is genuine and au- thentic and is without any blemish. Hence, first of all I shall look into the question of admissibility of the memory cards produced by the prose- cution.
41. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015 SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e.,electronic record which is called as computer C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 39 of 56 output, depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 40 of 56
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A Opinion of examiner of electronic evidence. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
42. The above judgment was again discussed in the case Shafi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :
"We may, however, also refer to judgment of this Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgment in para 24 it was observed that : "Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible.C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 41 of 56
However, for the secondary evidence, procedure of Section65 B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu(supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act. Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Section 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section65B(4). Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 42 of 56 proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(4) is not always mandatory.
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
43. Thus, the Hon'ble Supreme Court in the above case of Shafi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies. Though, one of the situation where requirement of can be as discussed by the Hon'ble Supreme Court in the above judgment is where electronic evidence is produced by a party who is not in possession of original device, then in such case applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. However, the Hon'ble Supreme Court has not stated that it is only in case where a party is not in possession of original device that the requirement of certificate under section 65B(4) can be dispensed with and thus, person producing electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65B Evidence Act is not always mandatory and the applicability of the requirement of C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 43 of 56 certificate under section 65B can be relaxed whenever interest of justice so justifies.
44. In the present case, although the original recording device has not been produced by the prosecution but it has been claimed that the memory card produced by PW-17 Chetan Prakash is original and contain original recordings of the sting operations conducted by him. However, this fact has been disputed by counsels for the accused. In any case, prosecution has also proved on record certificate u/s 65-B of Indian Evidence Act filed by PW-17 Chetan Prakash as Ex.PW-17/A and the same was seized vide production-cum-seizure memo dated 30.04.2016 Ex.PW-17/B. Therefore, memory card produced by the prosecution cannot be rejected merely on the ground that the same is inadmissible in evidence for the want of certificate u/s 65-B of Evidence Act.
45. Now, the next question which requires determination is whether the aforesaid memory card (electronic record) so produced by the prosecution is genuine and authentic and whether the same can be safely relied upon or not.
46. Ld. Sr. PP for CBI has argued that PW-17 Chetan Prakash has given certificate u/s 65-B Evidence Act Ex.PW-17/A that there is no tampering in the memory cards produced by him. Experts from CFSL have also certified that the memory card Ex.6/3 [Ex.PW-14/B] is not tampered and is genuine. Ld. Counsels for the accused have disputed this fact and have argued that the possibility of tampering of the memory card cannot be ruled out as it remained in unsealed condition in the custody of complainant PW-17 for almost two years before it was C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 44 of 56 produced and sealed before the Ld. Registrar General in compliance of the orders of Hon'ble High Court. It was also argued that PW-17 himself has admitted in his cross examination that the memory card remained in his possession till it was deposited in the Hon'ble High Court. He has also admitted that he does not recall as to how many copies of such memory cards were prepared and deposed that some CDs were also prepared of such recording from Pal Video. He further deposed that CDs were got prepared for backup purpose so that the same are supplied to police for investigation purpose. It was argued that from the testimony of PW-17, it is clear that possibility of tampering, manipulating or morphing of the recording in the memory card cannot be ruled out.
47. I have given by thoughtful consideration to the arguments advanced at the Bar.
48. It is pertinent to note that in the present case sting operation was carried out in Dec.2010/Jan.2011 whereas writ petition no. 1823/12 [Ex.AD-2 (colly)] was filed before the Hon'ble High Court in December, 2012 and PW-17 submitted five memory cards and five hard disks with the office of Registrar General in compliance of order dated 05.02.2013 and till then the memory card remained with him in unsealed condition. PW-17 Chetan Prakash also admitted in his cross examination that he got some memory cards and CDs prepared from Pal Video. However, no such additional Memory Cards or CDs containing the data of the sting operation has been produced by PW-17 either before the IO or before the Hon'ble High Court which raises serious question regarding contents of the said Memory Cards and CDs. The mere fact that the memory card remained in unsealed C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 45 of 56 condition in the custody of complainant for almost two years is sufficient to give rise to a suspicion that possibility of tampering of the memory card cannot be totally ruled out and thus a doubt is created regarding genuineness of the memory card. Even though PW-17 has claimed that the memory card Ex.6/3 [Ex.PW-14/B] was original and contained original recordings but except for his bald statement there is no other material to prove it.
49. Secondly, PW-17 has admitted in his cross examination that he had taken the memory card to M/s Pal Videos for preparing the CD. This fact was also mentioned by him in para 5 of his certificate u/s 65-B of Evidence Act Ex.PW-17/A. However, during the course of investigation none of the IOs have made any attempt to examine the owner of the aforesaid studio as well as the complainant regarding the fate of the copies of the memory cards/CDs prepared at the studio and no attempts were made to recover those copies. The manner in which investigation was conducted on this aspect by both the IOs, raises serious doubts. Had they examined the owner of the Pal Videos and recovered the copies of the CDs, it could have been ascertained as to what actually transpired in the studio between Chetan Prakash and the owner of the studio.
50. Non production of the original recording device i.e. button camera, DVR PV500 during the trial is another important factor which creates doubt about the genuineness of the memory card Ex.6/3 [Ex.PW-14/B]. In para 4 of his certificate u/s 65-B Ex.PW-17/A, PW-17 Chetan Prakash has mentioned that the sting operation clippings in the memory cards were prepared by using button camera PV500DVR which was purchased by him from the open market. In para 9 of his C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 46 of 56 certificate Ex.PW-17/A, he has further mentioned that the electronic device i.e button camera PV500DVR was regularly used by him to make sting operation clippings and their copies thereof. IO of the case PW-21 in his cross examination admitted that he had not seized the DVR PV500 which was used by the complainant for carrying on the sting operation nor did he take the button camera into his possession.
51. It is surprising as to why the original recording device i.e button camera DVR PV500 used for recording the sting operation was not seized by any of the IOs of the case and why it was not sent to CFSL to ascertain whether it was in working order or not and whether it was compatible with SD card/Micro SD Card for recording the video clippings. In the absence of the original recording device i.e DVR PV500, it cannot be said with certainty that the video files available in the memory card Ex.6/3 [Ex.PW-14/B] were recorded directly or they had been copied from some other source.
52. Ld. Sr. PP has argued that in CFSL report Ex. PW-23/A it has been observed that the memory cards are not being tampered. Hence, it would not be proper to raise doubt on the report of CFSL. Counsels for the accused have argued that the report Ex. PW-23/A is bereft of any details and does not give any reasoning for arriving at such conclusion.
53. It is well settled that the opinion given by the experts in a case is not binding on the court. The court has to apply its own mind and only when the court concurs with the opinion of the experts, the same graduates into the opinion of the court. In the present case, prosecution has relied upon the three reports of CFSL. The report C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 47 of 56 regarding non- tampering of the memory card has been given by PW- 23 Sh. Gautam Roy in his report Ex.PW-23/A. He appeared in the witness box to prove his report and deposed that there was continuous flow of video and there was no stoppage, pause, etc and therefore, there was no tampering in the five memory cards examined by him.
54. However, in his cross examination conducted by Ld. counsel for accused no.1, PW-23 admitted that he has not mentioned about the tools/software used by him in his report. He also did not mention the technology used for detecting the tampering in the memory card. He also did not mention the process/procedure followed by him for detecting the tampering in the memory cards. PW-23 further admitted that his report does not contain any experimental details regarding the detection of tampering and there is no description or observation or finding in his report with regard to detection of tampering. He further admitted that he has not mentioned the properties of memory cards like date of modification, date of creation, date of access in the report. He also deposed that file in the memory card was original but he has not mentioned in the report. He also deposed that he had not extracted and segregated the audio part and video part of the file while analyzing the detection of tampering and deposed that he had not analyzed the audio part as it was dealt by Physics Division. He further deposed that he cannot say anything about the tampering in the audio part of the video file. He further deposed that he had not mentioned in the report regarding the frame width, frame height, data rate, total BIT rate, frame rate. He further deposed that he does not remember if there was any unnatural activity in the form of flash, pop, click or pip. He further deposed that he had not mentioned in his report regarding track continuity, time stamp, unnatural activity, date stamp, camera stamp.
C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 48 of 56He deposed that he had seen the time stamp and date stamp from the bottom right corner of the video but he did not remember the font size of the date stamp and time stamp.( However, when the video clipping was seen in the court, there was no date stamp and time stamp in the entire video clipping). He further deposed that he has not mentioned the number of frames per second in his report and he also did not mention about the shadow images in the video, formation of pixel, patches of pixel or the movement of pixel.
55. Thus, a bare perusal of cross examination of PW-23 and his report Ex. PW-23/A shows that there is no reasoning given in the report as to how he had arrived at a conclusion that there was no tampering with the memory cards. Further, PW-23 has mentioned the hash value of hard disks sent to him in his report Ex.PW-23/A but he has not mentioned the hash value of any of the files of the memory cards examined by him. He has also not given any reason for not mentioning the hash value of the digital files contained in the memory cards Ex.6/1 to Ex.6/5 examined by him. PW-23 has not even mentioned the date and time of creation and modification of the files in his report. He deposed in his cross examination about the date stamp and time stamp in the video clipping but there is no such date and time stamp in the video clipping Ex6/3 which raises serious doubts on the testimony of PW-23. Therefore, the report Ex.PW-23/A is absolutely bereft of any reasoning and the same cannot be relied upon.
56. Keeping in mind aforesaid inconsistencies and infirmities in the report Ex.PW-23/A, I am of the considered opinion that the possibility of tampering or manipulation in the memory card Ex.6/3 [Ex.PW-14/B] cannot be absolutely ruled out as the memory card had remained in C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 49 of 56 unsealed condition for almost two years in possession of the complainant Chetan Prakash and the prosecution has also failed to produce the recording device i.e., DVR PV500 showing that it was in proper working condition at the time of sting operation and the device was compatible with the memory card produced by the complainant. Hence, no reliance can be placed upon the memory card Ex.6/3 [Ex.PW-14/B] produced by the prosecution and the same is rejected.
ORAL EVIDENCE OF THE WITNESSES
57. Once the memory card Ex.6/3 [Ex.PW-14/B] is excluded from consideration, the only material evidence left with the prosecution is the testimonies of PW-14 Swarandeep Shukla and PW-17 Chetan Prakash who were the material witnesses for the prosecution. The remaining witnesses are either MCD officials who had handed over the documents relating to posting, sanction etc. of both the accused to CBI or had joined the investigation in recording of the specimen voices of complainant and accused persons and preparation of transcript of the videos file of memory cards. Hence, there is no need to discuss their testimonies in details.
58. At the outset, it may be mentioned that there is a delay of almost two years in filing the writ petition by PW-17 Chetan Prakash before the Hon'ble High Court. It is also pertinent to note that no complaint was filed against the accused persons by complainant or PW-14 Swarandeep Shukla either with the police or with the senior officials of the MCD. It is also pertinent to note herein that PW-17 has himself admitted in his writ petition Ex.AD-2(colly) that he had conducted number of sting operations and had filed number of writ C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 50 of 56 petitions against different public servants including Delhi Police and MCD officials in the Hon'ble High Court of Delhi. However, non filing of any complaint immediately after the sting operation with the police or higher officers of the MCD raises serious doubts on the real motives of the complainant.
59. Another important aspect of the matter is that the names of the accused are not mentioned in the writ petition Ex. AD-2 (colly) filed by the complainant Chetan Prakash despite the fact that he came to know about the names of both the accused when they had initially visited him. Not only this, the writ petition is totally silent about the fact that he had conducted sting operation against the MCD officials also. PW-14 Swarandeep Shukla in his cross examination has deposed that the construction at the plot of complainant was of basement and two floors which clearly shows that he was not merely carrying out the repairs of his house in the year 2010-11, but was carrying out construction. There is no rebuttal to this fact by the complainant and he has also not placed on record any approval or permission obtained from SDMC to carry out the construction. Complainant also concealed this material fact in his writ petition before Hon'ble High Court which creates serious dent in the claim of the complainant that he had no personal interest in the said writ petition.
60. Perusal of the testimonies of PW-14 Swarandeep Shukla and PW-17 Chetan Prakash shows that there are material contradictions in their depositions which makes their testimonies doubtful and unworthy of reliance. At the outset, it may be mentioned that PW-14 and PW-17 have contradicted each other as to when the sting operation was carried out. PW-14 in his examination-in-chief has deposed that the C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 51 of 56 sting operation was carried out on 31.12.2010 in the morning time. However, in his cross examination by counsel for accused no.1, he deposed that sting operation dated 31.12.2010 pertained to PCR officials and no sting of MCD officials was carried out on 31.12.2010. He could not recall the exact date but stated that the sting related to MCD officials including the present accused was carried out two-three days here or there of 31.12.2010. On the other hand, PW-17 has deposed that on 30.12.2010 accused Vijay Kumar Meena and Govind Ram Meena came and demanded money and on that day he had already called PW-14 Swarandeep Shukla for handing over the money and he wanted to record the sting from button camera. However, towards the end of his examination-in-chief, he deposed that the video was made in the first week of July, 2011. However, when his statement was recorded by CBI, he told them that the video was made in December, 2010 and he did not tell CBI about the date as he did not recall the same at that time. He further deposed that on 30.12.2010 he had met accused Govind Ram for the first time who had come to his house demanding money. However, bribe was eventually paid in the first week of January, 2011. In the cross examination also he deposed that the sting was of first week of January, 2011. In the cross examination by counsel for accused no.1, he also deposed that he did not recall whether he told CBI that the recording was made in the year 2010. He also did not recall whether he told CBI that accused Govind came to his house on 30.12.2010 and demanded the money for the first time. He was confronted with his statement Ex.PW-17/DA and Ex.PW-17/DB where such facts were not mentioned.
61. There are contradictions in the testimony of PW-14 and PW-17 regarding the amount paid as bribe and the manner in which bribe was C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 52 of 56 paid. PW-17 has deposed that bribe was paid on two occasions at the same time. On the first occasion, it was inside the vehicle and on the second occasion, outside the vehicle. He further deposed that though, the total bribe was given of Rs. 6000/- yet there was more demand from the accused. He also deposed that a sum of Rs. 3000/- had been given to accused Govind Ram inside the vehicle and thereafter when accused Govind claimed that balance amount was of Rs. 5000/-, both accused Govind and PW-14 Swarandeep came out of the car and another sum of Rs. 3000/- was given which was taken by accused Govind Ram and thereafter the vehicle of the accused left the spot. In contrast, PW-14 does not give any such details. He simply states that he had handed over a sum of Rs. 5000/- to accused Govind and requested him not to cause any future hindrance in the construction and thereafter he alighted from the vehicle. In cross examination by the Ld. Sr. PP for CBI, PW-14 admitted that initially he had given the bribe amount of Rs. 5000/- and thereafter he paid further bribe of Rs. 1000/- which was accepted by accused Govind Ram.
Thus, from the perusal of testimonies of both these witnesses, it is clear that they have contradicted each other on this material aspect of the case.
62. Apart from this, PW-14 Swarandeep Shukla deposed that accused Vijay Kumar Meena was sitting on the driver seat and accused Govind was on the rear seat. He further stated that he also sat on the rear seat to have conversation with them and handed over Rs. 5000/ to accused Govind. He does not depose that complainant Chetan Prakash also sat along with him in the car on the rear seat. PW-17 Chetan Prakash contradicted PW-14 and deposed that accused Govind was sitting on the driver seat and accused Vijay Meena was C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 53 of 56 sitting on the front seat and they both sat on the rear seat of the car. Further, when PW-14 was shown the video clipping in the court, he deposed that accused Vijay is found sitting on the steering and accused Govind was also seen in the clip which is contrary even to the case of the prosecution. Thus, PW-14 wrongly identified accused Govind as accused Vijay in the video clipping shown to him in the court which creates serious doubt about the truthfulness of his testimony.
63. PW-17 in his cross examination has admitted that he had not taken any permission from MCD regarding the construction and had not deposited the corresponding charges. He also admitted that he did not mention the fact regarding the acts of the MCD officials in his writ petition and further admitted that he was facing trial in six to seven matters when he filed the writ petition Ex.AD-2(colly). He further deposed that he was declared history sheeter/BC by PS Dabri but he did not mention such fact in his writ petition. He further deposed that he had mentioned in the writ petition that hard disk and memory cards in original were with him but after seeing the writ petition, he stated that such fact was not specifically mentioned. PW-17 also admitted in his cross examination that he had told CBI in his statement u/s 161 Cr.P.C that they also used to delete the recording if the recording was not proper or that the sting was not captured properly. He further volunteered that sting file was also prepared for testing purpose in order to check whether the recording was there or not and such file used to be deleted if required and the same memory card was being used for subsequent sting. He also admitted that he was having computer at his house and he had seen the recording of the present sting prior to filing of the writ petition. He also admitted that he never gave any bill to CBI with respect to the purchase of memory card and C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 54 of 56 hard disk and he had not brought any such bill in the court on the date of his deposition. Thus, the cross examination of PW-17 reveals that his testimony is full of material concealments, improvements and variations.
64. Hence, in view of the aforesaid discussion, I am of the considered opinion that the testimony of PW-14 and PW-17 are contradictory to each other in material particulars besides being full of improvements, concealments and variations and there is no independent corroboration to their testimonies. It is also not in dispute that PW-14 and PW-17 were having criminal background and therefore, it would be unsafe to rely upon their testimonies without independent corroboration. Although Ld. Sr. PP for CBI has argued that the character of the complainant is not relevant in criminal cases. However, I am unable to accept the submission made by Ld. Sr. PP in view of the judgment of our own High Court in Sat Paul Vs Delhi Administration, AIR 1976 SC 294 wherein it was held that where the witnesses have poor moral fabric and have to their discredit a load of bad antecedents which indicate their having a possible motive to harm the accused who was an obstacle in their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources. I also find support in my views from the judgment of Hon'ble Bombay High Court dated 09.10.2015 in the case of Ravinder Mahadev Kothamkar Vs State of Maharashtra, Crl. Appeal No. 1152/2004 wherein it was held that in appreciating evidence in trap cases, the character of complainant assumes importance and where the complainant himself was a law breaker, his evidence needs to be scrutinized with due care. The facts of this case were identical to the present case as the complainant in that case was C.C. No. 532387/2016 CBI Vs. Vijay Kumar Meena & anr. Page 55 of 56 also carrying out unauthorized construction.
65. In the present case PW-14 and PW-17 had a criminal background and a possibility cannot be ruled out that they might have conducted the sting operation to implicate the accused persons who may have been creating hurdle in running of their illegal activities. It is beyond comprehension that despite being aware about the existence of the specialized agencies like Anti Corruption Branch of Delhi Police and CBI which deal with the offences of corruption by public servants, complainant chose to conduct the sting operation himself without informing any of such agencies, which also raises doubts about his real motives behind such sting operations.
CONCLUSION
66. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubts and accused are entitled for benefit of doubt. Accordingly, the accused Vijay Kumar Meena and Govind Ram Meena are acquitted for the charged offences u/sec.7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988 r/w Section 34 IPC or in the alternative Section 11 of P.C. Act, 1988 r/w Section 34 IPC. The accused are directed to furnish bail bonds u/s 437A Cr.P.C.
File be consigned to Record Room after due compliance.
Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA
SISODIA Date: 2019.01.28 15:38:01
+0530
Announced in the open court (ANIL KUMAR SISODIA)
On 28th day of January, 2019 Special Judge (PC Act) (CBI)-04
Central Distt: Tis Hazari Courts
Delhi
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