Delhi District Court
State vs Asi Tooki Singh on 20 December, 2023
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000266-2021
CC No. 41/2021
FIR No. 13/2014
U/S: 7/13 of Prevention of Corruption Act
PS: Vigilance
State
Versus
ASI Tooki Singh,
S/o Sh. Harikesh Singh,
R/o B-75A, Gali No. 1,
Patel Vihar, Karawal Nagar,
Delhi.
Date of Institution : 18.08.2021
Date of Arguments : 07.12.2023
Date of Judgment : 20.12.2023
Appearance :
For the State : Sh. Mohd. Iqrar,
Ld. Chief Public Prosecutor.
For accused : Sh. Yogesh Kumar Verma,
Advocate.
JUDGMENT
1. Brief facts of the case are that on 10.08.2014 at about 9.10 am a video clipping containing a sting operation of a police official was received on Vigilance Helpline No. CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 1 of 53 9910641064 via whatsapp from mobile no. 8800754907. The said recording was marked to Insp. Mahabir Panwar for necessary action. Upon perusal of the said audio-video recording it was found that one police official of the rank of ASI was taking money from a public person in lieu of police verification. Next day i.e. 11.08.2014 complainant Ankush Gupta was called at PS Vigilance, who gave a complaint in writing against ASI Tooki Singh of police post Himmat Garh, PS Hauz Qazi. In his complaint the complainant stated that he used to work in private sector in DMRC and for the purpose of his job he had to get his police verification done. For the purpose of his police verification, on 19.06.2014 ASI Tooki Singh visited his house when he was not present there and thus ASI Tooki Singh called the complainant to Himmat Garh Chowki on 19.06.2014 where he reached at around 8.15 pm. He met ASI Tooki Singh, who sent him to a room in the Chowki and after some time ASI Tooki Singh came to that room and took his statement. After recording his statement, he asked for money and at that time the complainant had only Rs. 400/- which he gave to ASI Tooki Singh. At that time the complainant was constrained as he was apprehensive that ASI Tooki Singh would not send his incorrect police verification. He was thus constrained to give bribe to ASI Tooki Singh and at that time he made an audio-video recording of ASI Tooki Singh taking bribe money in his mobile phone make 'Motorola-E' and also deposited its CD/DVD alongwith the complaint. The complainant had seen an advertisement of Anti Corruption in the newspaper on 10.08.2014 in which mobile number 9910641064 was mentioned, on which he had sent the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 2 of 53 video recording qua ASI Tooki Singh on whatsapp. ASI Tooki Singh had demanded bribe from him and received it and the complainant was against it. He stated that legal action be taken against ASI Tooki Singh.
2. On the basis of the abovesaid complaint, video- recording and its transcription, FIR was registered against ASI Tooki Singh for offences u/s 7/13(1)(d) of Prevention of Corruption Act (hereinafter referred as P.C.Act).
3. Further investigation was conducted and on 14.08.2014 complainant Ankush Gupta came to Vigilance Office and produced the CD and DVD containing sting operation of ASI Tooki Singh made by him on 19.06.2014. The said CD and DVD were played in the office computer and thereafter they were given mark Q-1 and Q-2 and they were seized by the IO/Insp. Mahabir Panwar. The complainant also handed over one white colour mobile phone make 'Motorola-E, model EX1022, IMEI No. 359299051192412" having mobile phone no. 8800754907. The mobile phone was given mark Q-3 and the same was seized by the IO/Insp. Mahabir Panwar and the complainant confirmed that it was the same mobile phone though which the sting recording of ASI Tooki Singh was sent to Vigilance Mobile Helpline no. 9910641064 through whatsapp on 10.08.2014. On 14.08.2014 HC Pawan produced one DVD and one CD containing the recording of sting which was received at Vigilance Whatsapp Helpline on 10.08.2014. The said DVD and CD were marked Q-4 and Q-5 and seized by the IO. Before seizure, the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 3 of 53 said DVD and CD were played on office computer in the presence of complainant. The complainant watched the clips/ recording and confirmed that its contents were those as recorded by him on 19.06.2014 and sent to Vigilance Whatsapp Helpline no. 9910641064 on 10.08.2014. All the exhibits were deposited in the Malkhana of PS Vigilance. IO/Insp. Mahabir Panwar recorded statements of complainant Ankush Gupta and other police officials. IO also recorded statements of public witnesses Himanshu Sharma and Chirag Jain, who had accompanied the complainant Ankush gupta to Himmat Garh Police Chowki for getting the police verification of Ankush Gupta done by ASI Tooki Singh from whom ASI Tooki Singh had made inquiries regarding the police verification.
4. Subsequently on 02.12.2014 voice sample of complainant Ankush Gupta and accused Tooki Singh were recorded at FSL Rohini. The FSL Official handed over two audio cassettes containing voice sample of complainant Ankush Gupta, which were given Mark S-1 and S-2 and two audio cassettes containing voice sample of accused Tooki Singh which were given Mark S-3 and S-4. The said audio cassettes containing the voice samples were seized by the IO.
5. On 11.12.2014 all the exhibits were deposited at FSL Rohini through Const. Sikandar Mann. During investigation, certificate u/s 65B of Indian Evidence Act was obtained from ASI Revant Ram, Duty Officer, who had registered the FIR, Const. Mahesh Kumar, who had typed the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 4 of 53 FIR on 12.08.2014 on the direction of the Duty Officer, HC Pawan who had copied the audio-video recording received on Vigilance Whatsapp Helpline no. 9910641064 from Mobile No. 8800754907 on 10.08.2014 on DVD and CD and handed over the same to IO/Insp. Mahabir Panwar.
6. During investigation, IO received the FSL report no. FSL-2014/E-9046/PHY-407/2014 dated 27.11.2017. IO/Insp. Mahabir Panwar got transferred and the further investigation of the case was handed over to Insp. Sukhdev Singh. It was found that the complainant Ankush Gupta passed away on 16.10.2015 and his death was got verified. Sanction for prosecution was obtained u/s 19 of P.C.Act against accused ASI Tooki Singh from the office of Additional DCP, Central District.
7. After completion of investigation, charge-sheet was filed against the accused Tooki Singh u/s 7/13(1)(d) PC Act, 1988 and cognizance of offence was taken against the accused on 21.10.2021. Thereafter, accused was summoned and after hearing arguments, charge for the offence under Sections 7 & 13(1)(d) punishable under section 13 (2) of P.C. Act was framed on 28.03.2022, to which accused pleaded not guilty and claimed trial.
8. In order to prove its case, prosecution has examined 16 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW-1 Retd. SI Rewant Ram, duty officer, who CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 5 of 53 deposed that on 12.08.14, he was posted as Duty Officer at PS Vigilance and his duty hours were from 08:00 am to 08:00 pm. On that day, at around 02:40 PM, he received rukka from Insp.
Mahabir Panwar, for the registration of case. He handed over the rukka after making endorsement on the same Ex. PW1/B to Ct. Mahesh Kumar, who after recording the present FIR Ex. PW1/A, handed over the FIR alongwith original rukka to him. He made DD entry in this regard vide DD No.21 in the roznamcha. He had also issued certificate under Section 65B of I.E. Act Ex.PW1/C. He handed over the original rukka and FIR to Insp. Mahabir Panwar as the investigation was marked to him.
ii) PW-2 ASI Jagdev Singh, deposed that on 01.06.2018, he was posted at PS Hauz Quazi as Reader to SHO. On that day, he was summoned in Vigilance alongwith verification register of the year 2014 of PS Hauz Quazi. The register was checked by the concerned IO Insp. Mahabir and he handed over copy of the relevant entry at serial no. 175 dated 23.05.2014 Ex. PW2/A relating to Metro verification of Sh. Ankush Gupta to IO.
iii) PW3 HC Mahesh, deposed that on 12.08.2014, he was posted at PS Vigilance, VIU as constable and was looking after the work of Reader to SHO, PS Vigilance. The contents of the present FIR were typed by him and thereafter copies of the FIR were taken out under the instruction of Duty Officer ASI Revant Ram. In this regard, he had issued the certificate U/s 65B Indian Evidence Act Ex. PW3/A. CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 6 of 53
iv) PW-4 Sh. Rohit Meena, DCP, Crime Branch, deposed that on 07.01.2020, he was on duty as Additional DCP, Central District, Delhi Police, Delhi. Request letter dated 15.03.2018 Ex. PW4/A along with copy of draft charge-sheet, copy of FIR of present case, copy of transcript of conversation in audio/video recordings, copy seizure memos, result of examination of audio/video recordings of CFSL, Lodhi Road, copies of statements of witnesses recorded U/s 161 Cr.P.C. for sanction of prosecution U/s 19 of POC Act against ASI Tooki Singh was received in his office. On 07.01.2020, he was competent to remove ASI Tooki Singh from the service. After examining the entire record of the present case, he accorded sanction U/s 19(1)(c) of POC Act 1988 for the prosecution of ASI Tooki Singh vide his sanction order dated 07.01.2020 Ex.PW4/B. On 08.01.2020, he had sent the sanction order to the IO vide forwarding letter dated 08.01.2020 Ex.PW4/C.
v) PW-5 Sh. Himanshu Sharma - friend of the complainant Ankush Gupta, who accompanied him alongwith Chirag Jain to Chowki Himmat Garh for verification purpose.
vi) PW-6 Sh. Chirag Jain - friend of the complainant Ankush Gupta, who accompanied him alongwith Himanshu Sharma to Chowki Himmat Garh for verification purpose.
vii) PW-7 ASI Gurmeet Singh deposed that on 14.08.2014, one DVD and one CD were kept in a brown colour CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 7 of 53 envelope and one white colour mobile was also sealed by Insp. Mahabir Panwar and the same were handed over to him, which he deposited in the Malkhana.
On being cross-examined by Ld. Addl.P.P. for the State, PW7 admitted that the complainant Ankush Gupta was also present at the office of Vigilance Unit on 14.08.2014 and the IO had marked the DVD and the CD as Q-1 and Q-2 which were earlier produced by the complainant Ankush Gupta on 11.08.2014 containing sting operation of ASI Tooki Singh. He also affirmed that the DVD and CD were kept separately in two brown colour envelopes and the envelopes were sealed and taken into police possession vide seizure memo Ex.PW7/A. PW7 also affirmed that the mobile phone of the complainant Ankush Gupta make 'Motorola' white colour was also converted into a pulanda after marking the mobile phone as Q-3 with the help of white cloth and was sealed and taken into police possession vide seizure memo is now Ex.PW7/B. He also admitted that seal after use was handed over to him and the sealed exhibits were deposited in the Malkhana by the IO and later he had handed over the seal to the IO. PW7 also identified the DVD alongwith the DVD case as Ex.PW7/Article-1; CD alongwith the CD case as Ex.PW7/Article-2 and the mobile phone as Ex.PW7/Article-3.
At the request of Ld. Addl. PP for the State as the IO Insp. Mahabir Panwar as well as complainant Ankush Gupta had expired and as the witness had seen Insp. Mahabir Panwar while writing and signing in his ordinary course of duties, the memos prepared by Insp. Mahabir Panwar were allowed to put to PW7 CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 8 of 53 for the purpose of identification of his signature and handwriting. The documents i.e. rukka, seizure memo of the DVD and CD dated 14.08.2014, seizure memo of audio cassette dated 02.12.2014, transcription running into 3 pages were shown to PW7 on which he identified the signatures of Insp. Mahabir Panwar. Accordingly, documents rukka, seizure memo of the DVD and CD dated 14.08.2014, seizure memo of audio cassette dated 02.12.2014 and transcription running into 3 pages were exhibited as Ex.PW7/C, Ex.PW7/D, Ex.PW7/E and Ex.PW7/F (colly) respectively.
viii) PW8 ASI Pawan Kumar deposed that on 10.08.2014, he was posted at Vigilance Unit as Computer Operator, and a whatsapp message was received on Delhi Police Vigilance Helpline no. 9910641064 (mobile number). A video file was received regarding corruption in which a police personnel was seen accepting bribe. He prepared CD and DVD of the aforesaid video file and handed over the same to the help desk of Vigilance Branch. On 14.08.2014, complainant namely Ankush came at their office and the said DVD and CD were played on the computer of the IT Centre and shown to the complainant, who recognized the contents of the CD and DVD which was copied from the whatsapp video message forwarded by him on the helpline of the Vigilance. PW8 and the complainant had signed on the CD and DVD. The IO of the case put the CD and DVD in their respective covers Ex.PW8/Article-2 and Ex.PW8/Article-1 respectively, which IO put in the same envelope and after sealing taken the same into police possession CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 9 of 53 vide seizure memo Ex.PW7/D. On being cross-examined by Ld. Addl. PP for the State, PW8 admitted that DVD and CD were kept in two separate envelopes and then same were sealed by the IO. PW8 also admitted that he had issued certificate U/s 65B of the Indian Evidence Act Ex. PW8/A regarding the authenticity of the copying of the whatsapp video in the CD and DVD by him. He also affirmed that sting operation was of ASI Tooki Singh.
ix) PW-9 ASI Rakesh Kumar deposed that on 06.02.2018, he was deputed to bring result of FSL by the IO. Accordingly, he visited FSL after making departure entry from where he received one sealed envelope containing FSL result alongwith seven sealed pulandas pertaining to present case. He deposited all the sealed pulandas alongwith FSL result in sealed envelope with the MHC(M).
x) PW-10 HC Sikander Maan deposed that on 02.12.2014 he joined the investigation of the present case alongwith IO Insp. Mahabir Panwar, HC Joseph, Ankur Gupta and ASI Tooki Ram and they went to FSL, Rohini for getting recorded the voice samples of ASI Tooki Ram and Ankur Gupta. At FSL, Rohini the FSL officials recorded voice samples of ASI Tooki Ram and Ankur Gupta and four audio cassettes were prepared. The audio cassettes were handed over to the IO. The audio cassettes were sealed there and four pulandas were prepared. The pulandas were taken into police possession vide seizure memo. Audio cassette of complainant Ankush Gupta CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 10 of 53 were seized by IO vide seizure memo Ex.PW7/E and the audio cassette of ASI Tooki Singh was seized vide seizure memo Ex.A-
2. PW10 also identified signature of IO on both seizure memos.
PW10 further deposed that on 11.12.2014, on the instructions of the IO, he collected six sealed exhibits alongwith one sealed pulanda and other documents from the Malkhana of PS Vigilance and deposited the same at FSL, Rohini, Delhi in the present case and obtained acknowledgment of case acceptance from FSL, Rohini, which he handed over to the IO. PW10 identified his signature as well as of IO Insp. Mahabir Panwar and the complainant Ankush Gupta on the audio cassette original voice sample of Ankush Gupta as Ex.PW10/Article-2 and its CD mailer as Ex.PW10/Article-1; audio cassette original voice sample of ASI Tooki Singh as Ex.PW10/Article-4 and its mailer as Ex.PW10/Article-3; audio cassette copy voice sample of ASI Tooki Singh as Ex.PW10/Article-6 and its mailer as Ex.PW10/Article-5; audio cassette copy voice sample of Ankush Gupta as Ex.PW10/Article-8 and its mailer as Ex.PW10/Article7.
xi) PW11 Geetesh Patel, who proved the FSL report Ex. PW11/A. He also identified case property before court.
xii) PW-12 ACP Sukhdev Singh Maan, deposed that on 28.03.2019, he was entrusted investigation of the present case. During the course of investigation, he made efforts to obtain prosecution sanction from the office of DCP, Central District. On 19.09.2019, he sent copy of notice U/s 160 Cr.P.C. through Ct. Vijay at the residence of the complainant Ankush Gupta. Ct.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 11 of 53Vijay returned to office and informed him that Ankush Gupta had expired on 16.10.2015 as told by brother of the deceased and Ct. Vijay also brought one photocopy of the death certificate of the complainant Ankush Gupta. On 04.12.2019, he sent copy of the death certificate alongwith one request letter Ex.A5 to the office of Sub-Registrar, Birth and Death, Civil Lines, Delhi through Ct. Babu Lal for verification of the death certificate of Ankush Gupta. On 18.12.2019, Ct. Babu Lal provided him one copy of verified death certificate of Ankush Gupta Ex. A6 duly signed and stamped by the Sub-Registrar.
On 16.01.2020, he received the copy of the sanction letter/order Ex. PW4/C issued by Addl. DCP Sh. Rohit Meena of Central District. On 01.11.2020, he handed over the file to MHC(R), PS Vigilance as he was transferred from Vigilance.
xiii) PW-13 Insp. Afsar Raza deposed that in the month of November 2020 present case file was assigned to him for further investigation. He went through the file and the investigation had already been done by the previous IOs, hence, he prepared the chargesheet and filed it in the court.
xiv) PW-14 ASI Rajender Prasad proved the entry no. 175/23/5 Ex.PW14/A (OSR) of Metro Verification of Ankush Gupta in the verification register of the year 2014 of PS Hauz Qazi . As per the said entry, the verification was assigned to ICPP Himmat Garh.
xv) PW-15 Insp. Shiv Kumar deposed that on 14.08.14, CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 12 of 53 he was posted at PS Vigilance, Barakhamba Road and was working in the capacity of MSI (Moharrar Sub-Inspector). On that day, Insp. Mahabir Panwar deposited in malkhana sealed exhibits alongwith the copies of seizure memos and to said effect he made entry in the register no.19 at serial no.26, 16 and 27 Ex. PW-15/A, Ex. PW-15/B and Ex. PW-15/C. On 02.12.14, Insp. Mahabir Panwar deposited sealed exhibits in present case alongwith the copy of seizure memo and he made entry to the said effect in register no.19 at serial no.37 vide Ex. PW-15/D. On 11.12.14, on the instruction of IO, the sealed exhibits of present case were sent to FSL Rohini through Ct. Sikander vide RC no. 14/21/14 Ex. PW-15/E. After depositing the sealed exhibits at FSL Rohini, Ct. Sikander returned back and handed over the acknowledgment of case acceptance Ex. PW- 15/F to him. He made entry to the said effect which is at Point-X of entry no. 26 Ex. PW-15/A, Y of entry no.27 of Ex. PW-15/C and Z of entry no.37 Ex. PW-15/D. PW15 further deposed that the entry at point Y-1 of entry no.26 Ex. PW-15/A was in the handwriting of SI Sagar Singh and was exhibited as Ex. PW15/G. As per the said entry, the sealed exhibits of present case alongwith the result of the FSL in sealed cover were deposited in the malkhana of PS Vigilance on 06.02.18.
xvi) PW-16 Sh. Ajay Kumar Sharma, Sr. Scientific Officer (Documents), FSL, Rohini, Delhi, deposed that on 19.07.2016, he received one sealed parcel with the seal of FSL CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 13 of 53 GP DELHI which was forwarded by Physics Division and which contained one 'Motorola' make mobile phone model no. XT1022 bearing IMEI No. 359299051192412 & 359299051192420 and same was marked as MP1 which was having one memory card (Transcend) with the capacity of 8GB marked as MC1 alongwith its one SIM card made of Airtel. The suspect storage media marked "MC1" was forensically imaged on a sterile storage media and the relevant data which was retrieved from Exhibit marked MC1 i.e. memory card of the mobile phone was copied on DVD which was marked as "DVD1" with folder name "Data of MC1". He prepared his report Ex.PW16/A. The exhibits i.e. one mobile phone (MP1), memory card (MC1) and SIM card Airtel alongwith one copy of DVD1 alongwith his report were sealed with the seal of DOC.FSL and was forwarded to the Physics Division of FSL. One copy of the DVD1 was retained by him in the office file. PW16 identified the mobile phone make Motorola Ex.PW7/Article-3, its micro SD card Ex.PW16/Article- 1 and SIM card Ex.PW16/Article-2.
During examination of PW16, PW11 Geetesh Patel, Assistant Chemical Examiner (Physics), FSL Rohini, produced his office file alongwith the DVD-1, which was prepared by PW- 16 after examination of memory card alongwith two cloned copies of the DVD-1, which were prepared by Sh. Geetesh Patel pursuant to directions of the court dated 02.03.2023. Said DVD- 1 Ex.PW16/Article-3, produced by PW11, was shown to PW16, who identified his signature on the same. Said DVD-1 was played on the court computer and PW16 submitted that it was the same DVD, contents of which were prepared from the data CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 14 of 53 retrieved from Exhibit Mark-MC-1 i.e. memory card of the mobile phone MP1 forensically.
9. During recording of prosecution evidence, on 28.03.2022 ld. Counsel for the accused admitted documents i.e. memo voice sample dated 18.11.2014 of accused ASI Tooki Singh, Ex. A1; seizure memo dated 02.12.2014 of Audio Cassettes (S3 and S4) containing voice samples of accused ASI Tooki Singh recorded at FSL, Rohini, Ex. A2; Computerized Bio Data of accused ASI Tooki Singh, Ex. A3; Copy of order dated 23.06.2016 by which ASI Tooki Singh no. 5528/C (PIS No. 28820048) was dismissed from the service, Ex. A4; letter dated 04.12.2019 written to Registrar Death & Birth, Civil Lines, Delhi Ex. A5 and verified death certificate of Ankush Gupta, Ex. A6. Accordingly, on 28.03.2022, at the request of Ld. Addl.P.P. for the State, PW HC Joseph K.J. and Record Clerk of the Office of Sub Registrar Birth & Death, 7 Civil Lines Zone, North Delhi Municipal Corporation were dropped from the list of witnesses.
Statement of accused :
10. After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C wherein he denied the correctness of all the incriminating circumstances appearing in evidence against him and stated that he is innocent and falsely implicated in this case.
Accused further stated that the complainant and the IO of this case have not been examined. The complainant was CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 15 of 53 having criminal antecedents and was convicted in case FIR No. 179/02, PS Seemapuri, u/s 302 IPC. Accused also tendered the certified copy of the said judgment. Accused further stated that complainant was also involved in case FIR No. 479/2015, PS Roop Nagar, u/s 354/354D/341/506/509 IPC. Accused has also tendered copy of the said FIR. Accused further stated that he neither demanded nor accepted any money from anyone. He had prepared the verification report and submitted the same on the same day. Accused further stated that no incriminating evidence has come on record in the entire case and he is innocent.
11. Accused examined DW1 ASI Vivek Kaushik in his defence. DW1 proved the copy of order no. A/1/3(IV-
15)/2012/66708/CB-IV/PHQ regarding the promotion of HC Executive including accused HC Tooki Singh no. 200/DAP issued by DCP Ex. DW1/A. He also proved the attested copy of order no. A-1/3(IV-1)/2015/15786-852/CB-IV/PHQ dated 21.03.2016 issued by DCP in which the name of accused Tooki Singh is mentioned at serial no. 23. Thereafter accused closed defence evidence.
Arguments :
12. It is argued by Ld. Chief P.P. for the State that the complainant had recorded the entire transaction of demand and acceptance of bribe in audio-video recording. As per the FSL report Ex. PW11/A there was no indication of alteration in the video recording of the sting operation as contained in the mobile phone of the complainant make 'Motorola' and the video-CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 16 of 53
recording received on the Vigilance Whatsapp Helpline number which were downloaded on DVD and CD by PW8 as well as in the DVD and CD provided by the complainant to the IO during investigation. It is also stated that the voice of the speakers in the said video recordings have been identified to be that of the complainant and the accused. It is stated that from the said video recordings it is clear that the accused had demanded money from the complainant for his verification process and the same was also accepted by the accused and kept in right pocket of his shirt. It is also stated that PW5 Himanshu Sharma and PW6 Chirag Jain have also identified themselves and the complainant deceased Ankush Gupta in DVD Ex.Q-2 i.e. Ex. PW7/Article-2. PW5 has also identified the accused to be the same person, who is seen in the video recording as contained in Ex. Q-2 and also stated that he was the same police official who had met them on 19.06.2014 for verification of complainant Ankush Gupta. It is accordingly prayed that the accused is liable to be held guilty for the offences he has been charged with.
13. On the other hand, it is contended by ld. Counsel for the accused that the complainant has not been examined by the prosecution as he had expired. Both PW5 and PW6 have not deposed regarding demand and acceptance of bribe by the accused. It is stated that there is no mention of the fact that PW5 and PW6 had accompanied the complainant to the police chowki on the date of incident in the initial complaint and the said witnesses have been introduced by the IO to buttress the case against the accused. The video-recordings have not been proved CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 17 of 53 in accordance with law. It is argued that even IO/Insp. Mahabir Singh, who had seized the alleged mobile phone and the video recording from the complainant has not been examined to substantiate the investigation conducted by him or regarding seizure of any mobile phone or video recording from the complainant. Neither the complainant nor the IO have been examined in the present case to prove the allegations against the accused and hence, in absence of any cogent evidence against the accused, he is liable to be acquitted for the offences he is charged with.
14. I have heard ld. Counsel for the parties and perused the record.
15. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 18 of 53 gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt." (emphasis supplied)
16. The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
17. The Constitution Bench of Hon'ble Supreme Court CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 19 of 53 in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 20 of 53
(ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 21 of 53(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis supplied)
18. Accordingly, if a complainant has died as in the present case and was unavailable to let in his evidence during trial, the demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence.
19. Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused. It is the case of the prosecution that the accused ASI Tooki Singh demanded illegal gratification and obtained a bribe of Rs. 400/- from the complainant Ankush Gupta in lieu of police verification of the complainant and accordingly he committed offences punishable u/s 7/13(1)(d) of P.C. Act.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 22 of 5320. It is noteworthy that the complainant Ankush Gupta expired before filing of charge-sheet and therefore he could not be examined as a witness. The other public witnesses examined by the prosecution in support of its case are PW5 Himanshu Sharma and PW6 Chirag Jain.
21. In his testimony recorded before the court PW5 Himanshu Sharma deposed that Ankush Gupta was his friend and he had asked him to accompany him alongwith Chirag Jain to Chowki Himmat Garh for verification purpose as he needed witnesses for his job verification. On 19.06.2014, he alongwith Ankush Gupta and Chirag went to Himmat Garh Chowki for his verification. At the Chowki police officials took their IDs for their address proof. They did some writing work and after that they returned back. Police recorded his statement. He identified himself, deceased Ankush Gupta - complainant and Chirag in DVD Ex. Q-2 and stated that the footage was of the place where he had gone with his friends Ankush Gupta for verification in connection with his job. However, PW5 could not identify the said police official due to lapse of time. In his cross-examination by Ld. Addl.P.P. for the State he affirmed that he had gone with the complainant Ankush Gupta and Chirag Jain to Himmat Garh Chowki for verification on 19.06.2014. He also stated that accused present in court was the same person who was seen in the video footage Ex.Q2 and that he was the same police official, who had met them on 19.06.2014 for the verification of Ankush Gupta. He could not recollect the said facts due to lapse of time.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 23 of 5322. In his cross-examination by ld. Counsel for the accused, PW5 deposed that he was not shown any footage by the IO during the investigation at Vigilance office, Barakhamba Road. He affirmed that he had identified the accused when his attention was drawn by Ld. Addl. PP for the State towards the footage and the accused and otherwise he was unable to identify the accused.
23. In his testimony recorded before the court PW6 Chirag Jain deposed that on 14.06.2014, he alongwith his neighbour namely Ankush Gupta and Himanshu Sharma, who was also his neighour, went to Himmat Garh Chowki as Ankush Gupta came to his house and requested that he needed two guarantors for verification regarding his job in Metro. At that time, Himanshu Sharma was also with him and he convinced Himanshu Sharma to accompany Ankush Gupta to police station. Thereafter, all three of them went to Himmat Garh Chowki. The police official who was present there took their identity documents. He also enquired from him that if he was a neighbour of Ankush Gupta and PW6 confirmed that he knew him. Thereafter, the concerned police official got some papers signed from him as well as from Ankush Gupta and Himanshu Sharma. Police Official conducted verification and thereafter, they returned. After 2-3 months, Ankush Gupta told him that he had prepared one video regarding money transaction at Himmat Garh Chowki. PW6 identified himself, his friend Ankush Gupta, Himanshu Sharma and submitted that the footage was CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 24 of 53 regarding the verification process conducted at Himmat Garh Chowki. PW6 also stated that after seeing the video it appeared to him that the accused present in the court was the same person but he could not confirm that he was the same person.
24. On being cross-examined by the Ld. Addl. PP for the State, PW6 affirmed that the incident was of 19.06.2014 when they went to Himmat Garh Chowki. He stated that he was not sure if the police official, who was seen footage Ex.Q2, was the accused present in the court and also at the time of verification of documents of Ankush Gupta at police chowki. He denied that he was deliberately not identifying the accused from the footage as he had been won over by the accused.
25. In his cross-examination by accused, PW6 stated that he had not stated to the police in his statement that Ankush Gupta told him after 2-3 months that he had prepared one video at the time of verification. He denied that Ankush Gupta did not inform him about having recorded any video footage at the time of verification of his documents at Police Chowki Himmat Garh. He affirmed that verification proceedings were completed on the same day.
26. From perusal of the testimony of PW5 Himanshu Sharma and PW6 Chirag Jain it emerges that both of them were eye witnesses to the incident. They had accompanied the complainant Ankush Gupta to Himmat Garh Chowki on 19.06.2014 for his verification in connection with his job. As CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 25 of 53 per their testimony, the police official took their identity documents and some writing work was done. After verification they returned back. PW6 Chiraj Jain also deposed that after 2-3 months Ankush Gupta told him that he had prepared one video regarding money transaction at Himmat Garh Chowki.
27. Both PW5 and PW6 identified the three persons i.e. themselves and the deceased complainant Ankush Gupta in DVD Ex. Q-2 i.e. Ex. PW7/Article-2 and stated that the video footage was regarding the verification process conducted at Himmat Garh Chowki.
28. PW6 did not confirm the identity of the accused in the video and PW5 stated in his cross-examination that the accused present in the court was the same person who was seen in the footage and he was the same police official who met them on 19.06.2014 for verification purpose of Ankush Gupta.
29. The complainant had expired before filing of the charge-sheet and from the testimony of PW5 and PW6 it is manifest that there are no allegations of any demand or acceptance of bribe money and their testimony is completely silent on this aspect. Both PW5 and PW6 neither deposed regarding those allegations in their examination-in-chief nor were they cross-examined by the prosecution on that aspect. Accordingly, there is no oral evidence of demand and acceptance of bribe.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 26 of 5330. The prosecution has also relied upon the audio- video recordings of the sting operation conducted by the complainant Ankush Gupta and handed over by the complainant to the IO in DVD and CD Ex. PW7/Article-1 and Ex. PW7/Article-2 respectively. The said video recordings were recorded in the mobile phone of the complainant PW7/Article-3 alongwith SIM card Ex. PW16/Article-2 and Micro SD Card Ex. PW16/Article-1. The said video recordings were also received as a whatsapp message on Delhi Police Vigilance Helpline by PW8, who downloaded the same on a DVD and CD i.e. Ex. PW8/Article-1 and Ex. PW8/Article-2 respectively.
31. The audio-video recording as contained in the mobile phone of the complainant Ankush Gupta of make 'Motorola-E' model EX-1022, IMEI No. 359299051192412 was given Mark Q-3 during investigation by the IO and was seized by the IO vide seizure memo PW7/B. PW7 ASI Gurmeet Singh deposed that the mobile phone produced by the complainant Ankush Gupta was taken into police possession after keeping it in a sealed pullanda. PW7 identified the signatures of the complainant and IO/Insp. Mahabir Panwar on Ex. PW7/B. PW7 identified the signature of Insp. Mahabir Panwar on the cloth pullanda of the mobile phone. He identified the mobile phone as the same which was produced by the complainant and seized by the IO. The mobile phone is Ex. PW7/Article-3. PW11, Sh. Geetesh Patel, FSL Expert, also identified the said mobile phone containing one SIM card and one micro SD card placed in the relevant slots of the mobile phone and also stated that the data of CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 27 of 53 the memory card was extracted by the Computer Forensic Unit of the laboratory and was examined by him and thereafter a detailed report was prepared. PW16 FSL expert Sh. Ajay Kumar Sharma identified the mobile phone and its memory card from which the data was retrieved in the DVD. He proved the micro SD card as Ex. PW16/Article-1 and the SIM card of the mobile phone as Ex. PW16/Article2 and the DVD in which the data was downloaded from the micro SD card as Ex. PW16/Article-3.
32. The seizure memo of the DVD i.e. Ex. PW7/Article- 1 (Marked as Ex. Q1 during investigation) and the CD i.e. Ex. PW7/Article-2 (Marked as Ex. Q2 during investigation) handed over by the complainant Ankush Gupta to the IO is Ex. PW7/A . PW7 identified the signatures of Ankush Gupta, IO/Insp. Mahabir Panwar on the same. PW7 identified the signature of the IO on DVD and CD which were exhibited as Ex. PW7/Article-1 and Ex. PW7/Article-2 respectively.
33. PW8 proved the video file received at the Vigilance Unit by way of whatsapp message on Delhi Police Vigilance Helpline containing a video regarding a corruption wherein a police official was seen accepting bribe. PW8 prepared CD (Marked as exhibit Q-4 during investigation) and DVD (Marked as exhibit Q-5 during investigation) of the said video file. The DVD is Ex. PW8/Article-1 and the CD is Ex.PW8/Article-2. PW8 also issued certificate u/s 65B of the Indian Evidence Act regarding the video recording contained in CD and DVD vide Ex. PW8/A. CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 28 of 53
34. All the above exhibits i.e. Ex. PW7/Article-1, Ex. PW7/Article-2, mobile phone make 'Motorola-E" model no. ST1022 bearing IMEI no. 359299051192412 and IMEI no. 359299051192410 Ex. PW7/Article-3, Ex. PW8/Article-1 and Ex. PW8/Article-2 were deposited in the malkhana by the IO. Subsequently, voice samples of the complainant and accused Tooki Singh were recorded at FSL Rohini, Physics Division.
35. In this regard PW10 HC Sikandar Maan stated that the voice samples of ASI Tooki Ram and Ankur Gupta were got recorded at FSL Rohini by FSL officials and four audio cassettes were prepared, which were handed over to the IO. PW10 identified the signature of IO/Insp. Mahabir Panwar and his own signatures on the seizure memo of the said audio cassettes Ex. PW7/E. PW7 identified the signature of the complainant and the IO as well as his own signatures on Ex. PW7/E.
36. PW10 identified his signature as well as of IO Insp. Mahabir Panwar and the complainant Ankush Gupta on the audio cassette containing original voice sample of Ankush Gupta as Ex.PW10/Article-2 and its CD mailer as Ex.PW10/Article-1; audio cassette containing original voice sample of ASI Tooki Singh as Ex.PW10/Article-4 and its mailer as Ex.PW10/Article- 3; audio cassette containing copy of voice sample of ASI Tooki Singh as Ex.PW10/Article-6 and its mailer as Ex.PW10/Article- 5; audio cassette containing copy of voice sample of Ankush Gupta as Ex.PW10/Article-8 and its mailer as Ex.PW10/Article7.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 29 of 5337. The aforesaid exhibits were sent to FSL Rohini vide RC 14/21/14 Ex. PW15/E and the acknowledgement in this regard is Ex. PW15/F.
38. In his report Ex. PW16/A, PW16 Ajay Sharma, Senior Scientific Officer, FSL Rohini, mentioned that the display of the mobile phone was not in working condition as such it was returned unexamined as data could not be extracted from the same. The data contained in the mobile phone was retrieved from the memory card of the mobile phone and was copied on DVD, which was marked as DVD-I by PW16. PW16 proved the memory card of capacity of 8 GB as Ex. PW16/Article-I alongwith the Airtel SIM card Ex. PW16/Article-2 and the mobile phone Ex. PW7/Article-3. In his cross-examination PW16 deposed that he had not given certificate u/s 65B of Indian Evidence Act in support of DVD-I. He however stated that as the mobile phone was not in working condition the data was retrieved from micro SD card, which was inserted in the phone. DVD-I is article PW16/Article-3. Accordingly, the data contained in the micro SD Card of the mobile phone was copied in DVD-I i.e. PW16/Article-3.
39. The FSL result is Ex. PW11/A. The result of the examination/opinion as per FSL report Ex. PW11/A is as follows :
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 30 of 53Articles examined:
Exhibit-1 - One DVD-R found marked "Q-1" of "Moserbaer Pro" make, containing a recording in video file namely "VID_20140619_202954276.mp4".
Exhibit-2 - One CD-R found Marked "Q-2" of "Moserbaer Pro" make, containing a recording in video file namely "VID_20140810_WA0004.mp4". Exhibit-3 - One mobile phone of "Motorola" make, containing a recording in relevant video file "VID_20140619_202954276.MP4" in which speaker Marked "Q1" starts with "haan ji, kagaz laya hun..." and speaker Marked "Q2" starts with "laya, kuch kagaz laya hai....".
Exhibit-4 - One DVD-R found Marked "Q-4" of "Moserbaer Pro" make, containing a recording in video file namely "VID_20140619_202954276.mp4" .
Exhibit-5 - one CD-R found Marked "Q-5" of "AMKETTE" make, containing a recording in video file namely "VID_20140810_WA0004.mp4". Exhibit-6 - One audio cassette of "T-Series" make found marked "S-1", containing recording specimen speech sample of the speaker, namely "Ankush Gupta". The speaker was marked as "Exhibit-S1" in the laboratory. Exhibit-7 - One audio cassette of "T-Series" make found marked "S-3", containing recording specimen speech sample of the speaker, namely "ASI Tooki Singh". The speaker was marked as "Exhibit-S2" in the laboratory.CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 31 of 53
Results of examination/opinion :
"a. On the basis of content analysis and comparison of Hash alpha numeric algorithm of relevant recording in video files confined in "Exhibit-1" and "Exhibit-4" are found to be same and these were also contained in "Exhibit-3".
b. On the basis of content analysis of relevant recording in video files confined in "Exhibit-2" and "Exhibit-5" are found to be same and these were also contained in "Exhibit-3".
c. The laboratory examination of video
recordings confined in "Exhibit-1", "Exhibit-2",
"Exhibit-3", "Exhibit-4" and "Exhibit-5" there is no indication of alteration; on the basis of Frame-by-frame analysis using Video Analyst System. d. The auditory analysis of recorded speech sample of speakers marked "Exhibit-Q1" & "Exhibit-S1" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-S1" are similar to the voice exhibits of speaker marked "Exhibit-Q1" in respect of their acoustic cues and other linguistic and phonetic features.
e. The auditory analysis of recorded speech sample of speakers marked "Exhibit-Q2" & "Exhibit-S2" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 32 of 53 voice exhibits of speaker marked "Exhibit-S2" are similar to the voice exhibits of speaker marked "Exhibit-Q2" in respect of their acoustic cues and other linguistic and phonetic features.
f. MD5 Hash alpha numeric algorithm for exhibits are given in second column of the table below : Exhibit MD5 hash algorithm marked Exhibit-1 b7ce9c320bd3efcd9e6be55bc2cb0cc Exhibit-2 4e249bbab277413b67e69e9b28d76f59 Exhibit-4 b7ce9c320bd3efcd9e6be55bc2cb0cc Exhibit-5 4e249bbab277413b67e69e9b28d76f59 Opinion :
d. The voice exhibits of speakers marked "Exhibit-Q1" and "Exhibit-S1" are voice of same person (i.e. Ankush Gupta).
e. The voice exhibits of speakers marked "Exhibit-Q2" and "Exhibit-S2" are voice of same person (i.e. ASI Tooki Singh)."
40. Accordingly, as per the FSL result Ex. PW11/A the video files contained in DVD marked 'Q1' (Ex. PW7/Article-1) i.e. the DVD handed over by the complainant Ankush Gupta to the IO during investigation as well as the video files contained in DVD Marked 'Q4' (Ex. PW8/Article-1) i.e. the DVD containing the recording of sting, which was received at Vigilance Whatsapp Helpline were found to be the same and the said files were also contained in the mobile phone of 'Motorola' make Ex.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 33 of 53PW7/Article-3 alongwith SIM card Ex. PW16/Article-2 and micro SD card Ex. PW16/Article-1.
41. Similarly, the video files contained in CD marked 'Q2' (Ex. PW7/Article-2) i.e. the CD handed over by the complainant Ankush Gupta to the IO during investigation as well as the video files contained in CD Marked 'Q5' (Ex. PW8/Article-2) i.e. the CD containing the recording of sting, which was received at Vigilance Whatsapp Helpline were found to be the same and the said files were also contained in the mobile phone of 'Motorola' make Ex. PW7/Article-3 alongwith SIM card Ex. PW16/Article-2 and micro SD card Ex. PW16/Article-1.
42. The aforesaid video recordings did not indicate any alteration on the basis of their frame by frame analysis. Upon examination it was also revealed that the voice of the speaker in DVD Marked 'Q1' i.e. Ex. PW7/Article-1 tallied with the sample voice of the complainant Ankush Gupta. It was further opined that the voice of the speakers in the DVD and CD provided by the complainant to the IO tallied with the sample voice of the accused ASI Tooki Singh.
43. Accordingly, as per the FSL result the video recording contained in the mobile phone of the complainant seized by the IO was found to be not tampered with. There was no alteration detected in the video recording and the voice of the speakers in the video recording was found to be the same as the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 34 of 53 sample voices of the complainant and the accused.
44. There are two video recordings in issue, (a) which are contained in DVDs Ex. PW7/Article-1 and Ex.PW8/Article-2 and another (b) contained in CD Ex.PW7/Articles-2 and Ex.PW8/Article-1,which were handed over by the complainant to the IO and those which were downloaded from whatsapp message received on Vigilance Helpline. The video recordings are hereinafter referred to as (a) and (b) for the sake of convenience. Both the video recordings (a) & (b) are also contained in DVD-1 containing the data retrieved by FSL expert PW16 from the memory card of the mobile phone of the complainant Ex. PW16/Article-3. Both the video recordings (a) & (b) have been viewed by the court. The video recording (a) is of the duration of 20 minutes 17 seconds and video recording (b) is of duration of 1 minute 35 seconds. As per the prosecution, the first video recording (a) shows the proceedings regarding verification process and demand by the accused and the second video recording (b) shows that some money is kept on the table of the accused by the complainant and then it is kept by the accused in his pocket.
45. It would now be relevant to examine the law as regards the evidentiary value of the audio video recordings relied upon by the prosecution.
46. In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, the Hon'ble CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 35 of 53 Supreme Court held that the recorded conversations were "documents", as defined under Section 3 of the Evidence Act and made following observations:
"We think that the High Court was quite right in holding that the tape-records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."
47. In the case of Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611, again the Hon'ble Supreme Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or erasure of CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 36 of 53 a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
48. In the case of Mahabir Prasad Verma v. Dr. Surinder Kaur, (1982) 2 SCC 258, the Hon'ble Supreme Court has laid down that tape recorded evidence can only be used as corroborative evidence and in paragraph 22, it is observed as follows:
"22. ......Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidence of any such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence." (emphasis supplied)
49. The Hon'ble Supreme Court in Shri N.Sri Rama Reddy v. Shri V.V.Giri 1970 2 SCC 340, held that a previous statement made by a person and recorded on tape can be used not only to corroborate the evidence given by the witness in court but also to contradict the evidence given before the court as well as to test the veracity of the witness and also to impeach his impartiality. The Hon'ble Supreme Court also referred to the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 37 of 53 decision of the Hon'ble Punjab High Court in "Rup Chand v. Prasad" wherein it was held that a tape-recorded conversation is admissible in evidence and that if it contains previous statement made by the witness, it can be used to contradict the evidence given before the court. The earlier decision in S.Pratap Singh v. State of Punjab, 1964 (4) SCR 733, was also referred to, wherein it was held that tape recorded conversation is admissible in evidence and it can be legal evidence by way of corroborating the statement of a person, who deposes that the other speaker and he carried on the conversation and for corroborating the statement of a person who may depose that he over-heard the conversation between the two persons and that what they actually stated had been tape-recorded.
50. The judgment in Yusufalli v. State of Maharashtra, 1967 (3) SCR 720, was also adverted to, in which the court held that the evidence of the complainant was sufficiently corroborated by the tape-recorded conversation and observed that a contemporaneous tape-record of the relevant conversation formed part of res gestae and is relevant and admissible u/s 8 of the Indian Evidence Act. After discussing in detail the law on the subject the Hon'ble Supreme Court in Shri N.Sri Rama Reddy made the following observations in para 24 of the judgment, which is as follows :
"Having due regard to the decisions referred to above, it is clear that a previous statement, made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 38 of 53 witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three last- mentioned matters, under s. 146 ( 1), Exception 2 to s. 153 and s. 153(3) of the Evidence Act. Therefore it is not possible for us to accept the contention of Mr. Daphtary that the previous statement can be used only for purposes of corroboration but not for the purpose of contradicting the evidence given before the Court. If a previous statement made by a person can be used to corroborate his evidence given before the Court, on principle, we do not see any reason why such previous statement cannot be used to contradict and also for the other purposes referred to above. In particular the fact that the decisions of the Punjab and Calcutta High Courts Rup Chand's Case(1) and Manindra Nath's Case(2) where the previous statements have been used to contradict the evidence given before the Court has been approved by this Court in Yusuffalli's Case(,) clearly establishes that the contention of Mr. Daphtary that the previous statement cannot be used to contradict the evidence given before the Court cannot be accepted. As pointed out already, Mr. Daphtary has not challenged the correctness of the decision in Yusuffali's Case (3). Therefore the first ground of objection raised by Mr. Daphtary will have to be overruled. (emphasis supplied)
51. Pertinently, the Hon'ble Supreme Court in Shri N.Sri Rama Reddy also observed that:
"We once again emphasize that this order relates only to the admissibility in evidence of the conversation recorded on tape and has not dealt with the weight to be attached to that evidence."
52. The Hon'ble Delhi High court in Ram Singh v. State of NCT of Delhi, 2013 (135) DRJ 119, relied upon the decision of Gujarat High Court in State of Gujarat v Shailendra Kamal Kishor Pande, decided on 29.06.2007, 2008 CriLJ 953 wherein it CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 39 of 53 was observed that the weight to be given to such an evidence is to be seen during trial, the Court allowed the use of video CD to confront the witness subject to proving its relevancy and authenticity.
53. In Shailendra Kamal Kishor Pande (Supra), the Hon'ble Gujarat High Court after discussing the law on the subject held that the weight to be given to such evidence is however distinct and separate from the question of its admissibility. The Hon'ble Court in the context of recording contained in a video CD made the following observations :
"7.2 CD itself is primary and direct evidence admissible as to what has been said and picked-up by the recorder. A previous statement made by a witness and recorded on tape, can be used not only to corroborate the evidence given by the witness in the Court but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality. Thus, apart from being used for corroboration, the evidence is admissible in respect to other three matters i.e. under Section 146(1) of the Evidence Act which provides questions lawful in cross- examination. The said section provides that when a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend to test his veracity. Section 153 provides exclusion of evidence to contradict answers to questions testing veracity. In that behalf Section 153 is relevant and Exception 2 of said section is also relevant which provides that if a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
..........
7.4 The weight to be given to such evidence is however distinct and separate from the question of its admissibility. Assuming for the moment that the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 40 of 53 trial Court admits some evidence contrary to the rules of evidence or the provisions of the Evidence Act by merely exhibiting the same or by merely admitting the same no final conclusion is drawn or decision is taken on such evidence. The defence is ultimately obliged to establish by cogent evidence as regards the genuineness of the CD, as to how the CD was prepared, by examining the person who prepared the CD and who authenticates the same as regards the true nature of the same. It is only after the defence discharges this obligation that the trial Court would be in a position to consider it as a piece of evidence. Therefore, at this stage when the question is as regards to admissibility of a document in the form of a CD by the defence, there should not be any serious objection because the trial Court will consider the relevancy of the same and the authenticity of the same at the final stage while appreciating the entire evidence on record."
(emphasis supplied)
54. The Hon'ble High Court relied upon the judgment of the Hon'ble Supreme Court in the case of State of Bihar v. Sri Radha Krishna Singh, 983 AIR 684, 1983 SCR (2) 808 wherein the Hon'ble Supreme Court had held that admissibility of a document is one thing and its probative value quite another and that these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and the weight of its probative value may be nil.
55. Hence, it is settled law that admissibility of a document is different from its probative value and that these two aspects cannot be combined. As held, a document may be admissible and yet its probative value may be nil.
56. In view of the aforesaid discussion it emerges that a recorded conversation is admissible in evidence to corroborate as well as to contradict the evidence given before the court as well CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 41 of 53 as to test the veracity of witness and to impeach his impartiality. It is also settled law that admissibility of a document is different from the probative value to be attached to it.
57. As regards admissibility of electronic evidence, in case titled as Anvar P. V. Vs P. K. Basheer (supra), the Hon'ble Supreme Court has observed as follows :
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 42 of 53 information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 43 of 53 transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India." (emphasis supplied)
58. The judgment in the matter of Anvar P.V. (Supra) was duly considered with approval by the Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its decision dated 14.07.2020, on the issue of certificate under section 65B Indian Evidence Act, 1872 observed as under:
"............We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.
Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose...
84. But Section 65-B(1) starts with a non obstante clause excluding the application of the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 44 of 53 other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled". (emphasis supplied)
59. Source and authenticity are thus the two hallmarks pertaining to electronic record which is sought to be used in evidence. For the admissibility of any secondary evidence in digital form, a certificate under section 65B of Indian Evidence Act is a mandatory requirement. The requirement of certificate u/s 65-B of Indian Evidence Act is to rule out any tampering of the electronic record and it is the threshold to be crossed in order to render the secondary evidence of electronic record admissible in evidence.
60. Firstly, the source of the original electronic record has to be proved. In the present case, the original electronic record i.e. an audio video-recording is stated to be made by the complainant with the help of his mobile phone Ex. PW7/Article-
3. Since the original device itself i.e. the mobile phone make ' Motorola' Ex. PW7/Article-3 alongwith SIM card Ex. PW16/Article-2 and micro SD card Ex. PW16/Article-1 had been seized and examined by the FSL, therefore, there was no requirement of certificate u/s 65B of the Indian Evidence Act qua CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 45 of 53 the mobile phone make ' Motorola' Ex. PW7/Article-3 and micro SD card Ex. PW16/Article-1 as they were the original recording medium. In Arjun Pandit Rao(Supra) the Hon'ble Supreme Court has held that a certificate u/s 65B of Indian Evidence Act is unnecessary if the original document itself is produced and that this can be done by the owner of a laptop, computer, computer tablet or even a mobile phone by stepping into the witness box and proving the concerned device on which the original information is first stored, is owned and/or operated by him.
61. It is however, relevant to note that the complainant has not himself entered the witness box as he had expired. The IO/Insp. Mahabir Panwar to whom the mobile phone containing the video recording as well as the CD and DVD of the incident were handed over by the complainant during investigation also expired and therefore his testimony could also not be recorded.
62. The original device ie the mobile phone has been tendered in evidence by PW7 ASI Gurmeet Singh, who was a witness to seizure memo of the mobile phone Ex. PW7/B. The seizure memo has not been proved by either the complainant or the IO, who have expired. Hence, the maker of the video recording i.e. the complainant, who was the owner of the mobile phone with which the video recording was made, did not enter the witness box to prove the said recording or the fact that the said recording had been made with the mobile phone Ex. PW7/Article-3, in terms of the judgement of the Hon'ble Supreme Court in Arjun Panditrao (supra). The said device i.e. the mobile phone and the micro SD card in which the video CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 46 of 53 recording was made have thus not been proved by the complainant as he had expired. The Customer Application Form (CAF) of the mobile phone has also not been placed on record to show that the complainant was the owner of the said mobile phone. Even the IO by whom the mobile phone was seized has expired and hence both could not be examined. Additionally, the mobile phone of the complainant was not got identified by PW5 and PW6, who had accompanied the complainant to the place of incident. Accordingly, the device ie the mobile phone Ex. PW7/Article-3, memory card Ex. PW16/Article-1 and its Airtel SIM card Ex. PW16/Article-2 are not proved on record.
63. In his report Ex. PW16/A, PW16 Ajay Sharma, Senior Scientific Officer, FSL Rohini, mentioned that the display of the mobile phone was not in working condition as such it was returned unexamined as data could not be extracted from the same. The data contained in the mobile phone was retrieved from the memory card of the mobile phone and was copied on DVD, which was marked as DVD-I by PW16. In his cross- examination PW16 deposed that he had not given certificate u/s 65B of Indian Evidence Act in support of DVD-I. He however stated that as the mobile phone was not in working condition the data was retrieved from micro SD card, which was inserted in the phone. DVD-I is article PW16/Article-3. Accordingly, the data contained in the micro SD Card of the mobile phone was copied in DVD-I. The said DVD-I Ex. PW16/Article-3 contains two video recordings which have not been put to any witness including PW5 and PW6 by the prosecution.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 47 of 5364. The two video recordings, one contained in DVD Ex. PW7/Article-I and another contained in CD Ex.PW7/Articles-2 were handed over by the complainant to the IO during investigation vide Seizure Memo E. PW7/A. There is no affidavit under section 65B on record in support of the said DVD and CD, hence they are not proved on record.
65. Additionally, PW8, who was posted as Computer Operator at Vigilance Unit received video file on and a whatsapp message on Delhi Police Vigilance Helpline no. 9910641064 (mobile number). He prepared CD and DVD of the aforesaid video file. PW8 also deposed that on 14.08.2014, complainant Ankush came at their office and the said DVD and CD were played on the computer of the IT Centre and shown to the complainant, who recognized its contents of the CD and DVD and the same were seized by the IO vide Seizure Memo Ex. PW7/D and the same are Ex.PW8/Article-2 and Ex.PW8/Article- 1 respectively. PW8 also admitted that he had issued certificate U/s 65B of the Indian Evidence Act Ex. PW8/A regarding the downloading/copying of the whatsapp video in the CD and DVD by him. Hence PW8 was a witness to downloading of the whatsapp video received by him as a whatsapp message on Delhi Police Vigilance Helpline no. 9910641064, on the CD and DVD. His certificate is limited to downloading of a whatsapp video received by him as a whatsapp message on Delhi Police Vigilance Helpline and does not identify the source of the video recordings. The source of the original recording cannot be ascertained on the basis of a video downloaded from a whatsapp CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 48 of 53 forward. Accordingly CD and DVD, Ex.PW8/Article-2 and Ex.PW8/Article-1 respectively are not proved in accordance with section 65B of Indian Evidence Act.
66. Accordingly, the source of video-recordings relied upon by the prosecution have not been proved in accordance with law, however as discussed hereinabove, the aforesaid video recordings contained in the mobile phone as well as the CDs and VCDs have been proved to be untampered and containing the voice of the accused and the complainant as per the FSL result Ex. PW11/A.
67. Be that as it may, as discussed there are two audio video recordings in issue, (a) which are contained in DVDs Ex. PW7/Article-1 and Ex.PW8/Article-2 and another (b) contained in CD Ex.PW7/Articles-2 and Ex.PW8/Article-1. The video recordings are hereinafter referred to as (a) and (b) for the sake of convenience. Both the video recordings (a) & (b) are also contained in DVD-1, containing the data retrieved by FSL expert PW16 from the memory card of the mobile phone of the complainant Ex. PW16/Article-3. Both the video recordings (a) & (b) have been viewed by the court. The video recording (a) is of the duration of 20 minutes 17 seconds and video recording (b) is of duration of 1 minute 35 seconds. As per the prosecution, the first video recording (a) shows the proceedings regarding verification process and demand by the accused and the second video recording (b) shows that some money is kept on the table of the accused by the complainant and then it is kept by the accused in his right pocket.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 49 of 5368. Accordingly, the audio video recording of the incident is not continuous and the second video (b) only records that the complainant kept some money on the table of the accused and that the accused is taking money and keeping it in the right pocket of his shirt. As per the prosecution version the entire transaction of demand and acceptance was a part of same transaction that occurred on 19.06.2014. The context in which the money is given to the accused is missing in the second video. It has not been explained by the prosecution that the money given to the accused as shown in the second video (b) was in the context of getting verification proceedings of the complainant conducted and not in any other context. It has further not been clarified by the prosecution that the second video was to be viewed in context of the first video nor it has been explained that the second video was recorded immediately after the first video and as to why the video recording was not continuous.
69. The complainant not being available, having expired, in his absence, the voice of the complainant in the video-recordings or sample voice was not got identified by PW5 & PW6, who were present at the time of entire transaction and who could have identified the voice of the complainant and hence, one of the essential conditions to render the recording admissible in evidence was not met.
70. Moreover, the transcript of the conversation Ex. PW7/F only bears the signatures of the IO/Insp. Mahabir Singh, which were identified by PW7. The transcript is not signed by the CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 50 of 53 complainant and there is no panch witness of the transcript. Hence, the same cannot be relied upon.
71. In the present case the complainant did not enter the witness box as he had expired. PW5 and PW6, who had accompanied the complainant to police chowki Himmat Garh confirmed that they had accompanied the complainant to the police chowki for the purpose of verification. As discussed, PW5 and PW6, who were eye witnesses to the incident, did not make any assertion regarding demand or acceptance of any bribe money by the accused. They have not deposed that an audio video recording of the incident was made by the complainant to their knowledge. PW6 in that regard deposed that after 2-3 months of the incident, the complainant told him that he had prepared one video regarding money transaction at Himmat Garh Chowki. His evidence to that extent is here-say. Both PW5 and PW6 identified themselves and the complainant in the video footage contained in CD Marked 'Q2' (Ex. PW7/Article-2) i.e. the CD handed over by the complainant Ankush Gupta to the IO during investigation. Thus during their examination PW5 and PW6 were shown only the second video recording (b) as contained in CD Ex. PW7/Article-2. They were not shown the first video recording (a) at the time of recording of their testimony. Neither PW5 nor PW6, who had accompanied the complainant for verification purpose to Himmat Garh Police Post have deposed regarding demand and acceptance of bribe money by the accused and their testimony is completely silent on that aspect.
CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 51 of 5372. As discussed, it is a settled principle of law that the recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation. The evidence given by a witness in court can also be used to contradict the evidence given before the court as well as to test the veracity of the witness and also to impeach his impartiality. In the present case, evidence of any such conversation is absent in the testimony of PW5 or PW6 or any other prosecution witness. Moreover, despite the allegations regarding demand and acceptance of bribe being not deposed by the said witnesses, both PW5 and PW6 were not cross-examined on that aspect by ld. Addl.P.P. for the State and such allegations were even missing in their statements recorded u/s 161 Cr.P.C. during investigation. In these circumstances, the contents of the video recording have neither been corroborated by any other evidence on record nor has any witness been confronted with the contents thereof and hence no opportunity was granted to the accused to cross-examine the witnesses on the contents of the video recording. In these circumstances, the video recording,which though proved to be not tampered by FSL Result Ex. PW11/A, has neither been corroborated by evidence of any witness nor has been tested on the anvil of cross-examination by the accused. Even if it is assumed that the audio video recordings contained in the mobile phone being a primary piece of evidence, is admissible, even then it would have a weak probative value as the same were not put to the witnesses during their examination to test the veracity of their contents and hence CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 52 of 53 the said video recordings cannot be relied upon. (State of Bihar v. Sri Radha Krishna Singh (Supra) referred too.)
73. Accordingly, from the aforesaid discussion it emerges that even though the video-recordings have been proved to be untampered as per the FSL result Ex. PW11/A, however, the prosecution has failed to prove the admissibility of the video recordings in accordance with law and their probative value, which in the circumstances of the case, is weak owing to the fact that they were not tested during recording of testimony of the witnesses and hence cannot be relied upon as the sole basis to convict the accused.
74. In view of foregoing discussion, the prosecution has failed to prove its case against the accused beyond reasonable doubt. Accordingly, accused Tooki Singh is given benefit of doubt and he is acquitted of the charged offences. His bail bond stands cancelled and surety stands discharged.
75. File be consigned to Record Room after due compliance. DEEPALI DEEPALI Digitally signed by SHARMA Announced in the open Court SHARMA Date: 2023.12.20 15:05:47 +0530 th on 20 December, 2023 ( Deepali Sharma ) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No. 41/2021 FIR No. 13/2014, PS Vigilance, State vs. ASI Tooki Singh Page 53 of 53