Delhi District Court
Cbi vs (1) Ajit Singh on 2 April, 2019
IN THE COURT OF ANIL KUMAR SISODIA
SPECIAL JUDGE (PC ACT)(CBI)-04: TIS HAZARI COURTS:
DELHI
CNR No. DLCT01-012172-2016
New CC No. 532388/2016
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) Ajit Singh
S/o Late Sheonath Singh
R/o House no. 165,
Bhawani Enclave, Gali no.
1, Near Sector-9, Gurgaon,
Haryana.
(2) Ajay Kumar
S/o Sh. Azad Singh
R/o House No. RZ-157,
New Roshan Pura, R-Block,
Najaf Garh, Delhi-110043.
Date of Institution : 07.09.2016
Judgment reserved on : 27.03.2019
Date of Judgment : 02.04.2019
Memo of Appearance:
Sh. A.K.Rao, Ld. Sr.PP for CBI,
Sh. Kunal Manav, Ld. counsel for accused no. 1.
Sh. Y. Kahol and Sh. Kunal Kahol, Ld. counsels for accused no. 2.
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 1 of 53
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 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 ASI Ajit Singh and Ct. (driver) Ajay Kumar 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 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 of the hard disks or memory cards has been tampered with or not. On request of CBI, CFSL has 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.
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 2 of 535. Investigation has revealed that folder "Ex. 6-2 KINGSTON 2 GB" = "MyRecord" = 'V0120003.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 Prakash identified his voice, voice of Sh. Swarandeep Shukla @ Sanuj Shukla and voice of both accused. He also confirmed that said audio-video has been prepared by him near Jharoda nala, opposite Mundka PVC Market on Main Najafgarh Road, PS Baba Hariraj Nagar, New Delhi. He also identified both accused in the audio video transcription of the recorded conversation.
6. Accused no. 2 accompanied with accused no. 1 is clearly visible accepting Rs. 1500/- as illegal gratification from Sh. Swarndeep Shukla and thereafter keeping the said money in his right side pant pocket and thereafter going towards the Gypsy wherein accused no. 1 was sitting and informing him. The said bribe amount was taken by accused persons for permitting sale of illegal liquor smuggled from neighbouring states in Delhi. Sh. Tara Singh SI, HC Raj Kumar, Sh. Swarandeep Shukla and Sh. Chetan Prakash Sharma have identified both the accused in the aforesaid video clipping.
7. Investigation has revealed that photographs of both the accused were obtained from their office and were sent to CFSL for comparison of the same with the persons visible in the recorded video clipping. CFSL vide its report dated 12.05.2016 confirmed that persons visible in sample photographs appears to be similar with the persons visible in the audio-video file "V0120003.AVI".
8. The specimen voice of accused persons could not be recorded CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 3 of 53 as they both refused to give their specimen voice for which a memo dated 01.12.2014 was prepared in the presence of independent witnesses Sh. Harjit Singh Budhiraja, UDC, Directorate of Health Services, Govt. of Delhi, Karkardooma. Specimen voices of complainant and his friend Swarandeep Shukla were recorded in memory cards S-7 & S-6 respectively in the presence of two independent witnesses and sent to CFSL for comparison with memory card Ex.6/2. CFSL vide its report dated 17.04.2015 opined that it contains probable voice of Swarandeep Shukla and Chetan Prakash.
9. Complainant Chetan Prakash also issued certificate under Section 65-B of Indian Evidence Act regarding the recording of audio-video. Sh. Raj Kumar Singh, DCP PCR Model Town-II, Delhi Police, being sanctioning authority of both the accused had granted sanction for prosecution in respect of both the accused persons. After completion of investigation, CBI filed chargesheet against both the accused persons for the commission of offence u/s 120-B IPC and Section 7, 13(2) r/w Section 13(1) (d) of PC Act.
After completion of investigation,chargesheet was submitted before the court on 07.09.2016.
COGNIZANCE AND CHARGES
10. Cognizance was taken by the court on 23.09.2016 and the accused was directed to be summoned.
11. Arguments on charge were heard and vide order dated 23.03.2017 charges were directed to be famed against both the accused persons. Formal charges u/s 7, 13(1)(d) r/w Section 13 (2) CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 4 of 53 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 against both the accused were framed on 29.03.2017 to which both accused pleaded not guilty and claimed trial.
12. It will be also not out of place to mention here that the accused no. 1 and counsel for accused no. 2 vide their separate statements recorded on 11.01.2019 admitted number of documents.
13. Following documents were admitted by accused ASI Ajit Singh and Ct. Ajay Kumar:-
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, 24.07.2013, 19.08.2013, 16.09.2013, 01.10.2013, 30.10.2013, 21.11.2013, 17.12.2013, 15.01.2014, 14.02.2014 PROSECUTION EVIDENCE
14. Prosecution has examined 19 witnesses in support of its case. These witnesses can be broadly classified as under:-
(A). Witnesses from Delhi Police 14.1 PW-1 ASI Raj Kumar, DCP Office, Model Town, Delhi has deposed that in 2014 he was posted as Record Keep in DCP Office, CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 5 of 53 PCR Model Town, Delhi and he handed over the official letter of Addl.
DCP, PCR dated 02.12.2014 to CBI officials. He proved the letter as EX.PW-1/1. He further deposed that he had handed over the particulars of the accused persons, photographs which was signed by the then DCP, Sh. Rajender Singh to the CBI along with the aforesaid letter. He also identified the accused persons in the video clipping no. V0120003.AVI contained in memory card Ex.6/2 as the same persons whose photographs were handed over by him to CBI.
14.2 PW-2 Sh. Tara Singh, Retd. SI has deposed that he had conducted the inquiry in respect of the sting operation conducted by Chetan Prakash against the accused persons and during inquiry he had seen the video clipping of the sting operation and had also shown the same to both the accused. He further deposed that the complaint was forwarded to him for inquiry by Inspector (Vigilance) Sh. K.P. Singh vide forwarding letter Ex.PW2/A. He also identified both the accused and Swarandeep Shukla in the video clipping V0120003.AVI contained in memory card Ex.6/2 when it was played in the court. He also deposed that the spot of the clipping was Ganda Nala Najafgarh. He also identified the complaint filed by Chetan Prakash as the same was forwarded to him for conducting inquiry. He proved the copy of the inquiry report as Mark PW-2/1 and submitted that during the course of inquiry he collected CDR of mobile no. 9540524604 from Idea Cellular number w.e.f 31.12.2010 to 05.07.2011 of Swarandeep Shukla from ACP Office. He also identified both the accused persons in the court and the statements of complainant Chetan Prakash and Swarandeep Shukla recorded by him during inquiry were proved by him as Ex. PW- 2/B and Ex. PW-2/C. CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 6 of 53 14.3 PW-3 ASI Lehri Singh , CPS School, South-East, New Delhi has deposed that in October, 2015 he was posted in PCR, South-West Zone and his statement was recorded by the Departmental Inquiry Cell. He identified his statement recorded in Departmental Inquiry as Ex. PW-3/A. After seeing the Duty Roster on page no. 119 of D-21, he deposed that as per the duty roster, ASI Ajit Singh was on duty shift-C- day duty at Z-99 on 31.12.2010 and as per the duty roster on page no. 125 of D-21, Ct. Ajay Kumar (driver) was on duty shift-C-day duty at Z- 99 on 31.12.2010. The copies of the duty roster were marked as Mark PW-3/1 and Mark PW-3/2 respectively. He also identified video clipping file no. V0120003 contained in memory card Ex.6/2 as the same which was shown to him by the CBI officials and he identified the PCR vehicle no. DL 1CJ 7290 of South-West Zone in the video clipping when it was played in the court.
14.4 PW-4 HC Mahabir Singh from DCP Office, South District deposed that he was called by CBI in connection with the investigation and also stated that his statement was recorded in the inquiry proceedings. He identified his statement as Ex. PW-4/A. He further deposed that he was shown the record related to the posting during the inquiry proceedings and on the basis of said record, Ct. Ajay Kumar remained posted in South-West Zone from 22.12.2009 to 19.07.2011 but he joined South-West Zone on 29.12.2009 and proved the copy of record as Mark PW-4/B. 14.5 PW-8 Raj Kumar Singh, IPS, DCP (Anti Corruption) Civil Lines, Delhi has deposed that on 29.07.2016 he was posted as DCP (PCR), Delhi and was competent authority to remove the officials upto the rank of Sub-Inspector posted in PCR. In the present case, he had CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 7 of 53 perused the material i.e FIR, memos, statement of witnesses, CFSL report, copy of transcription along with CD and other documents collected during the investigation and thereafter granted sanction for prosecution against ASI Ajit Singh and Ct. Ajay Kumar. He proved the copy of sanction order qua Ajit Singh as Ex. PW-8/A (D-24) and sanction order qua Ct. Ajay Kumar as Ex.PW-8/B (D-22). He also proved the forwarding letter by which the sanction orders were forwarded to CBI as Ex.PW-8/C. 14.6 PW-9 ASI Umed Singh, P&L Delhi has deposed that from 30.08.2011 till September, 2014 he was posted as Reader to Inspector Vigilance/PCR. As per the record of complaint register/Vigilance PCR, a complaint of Chetan Prakash Sharma along with CD against Ct. Sanjay Kumar and ASI deployed at MPV DL 1CJ 7290 was received in PCR Vigilance vide diary no. 122/AC-III/CA/PCR dated 25.07.2011 and it was lodged in complaint register/PCR diary no. 117/PCR Vig. Dated 26.07.2011 and was entrusted to SI Tara Singh for further inquiry. He produced original register and proved the copy of relevant page of the complaint register which was provided to the IO during the investigation as Ex. PW-9/A (OSR). He further deposed that during departmental inquiry, he was called by Inquiry Officer in DE Cell and his statement was recorded which was proved by him as Ex.PW-9/B and at that time also he had provided the copy of the complaint register which was further proved by him as Ex. PW-9/C. 14.7 PW-10 SI Vinod Kumar, PS Subhash Place has deposed that during 01.12.2011 to 22.07.2014 he remained posted as dealing assistant in HAE (Head Assistant Establishment) Branch. He further deposed that during the investigation of the case, he was inquired CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 8 of 53 about the posting details of ASI Ajit Singh and after going through the records he had informed that ASI Ajit Singh was posted in South-West Zone/PCR on 05.08.2009 and he was again posted to South-East Zone PCR on 17.03.2011. The record further reveals that ASI Ajit Singh remained posted from 05.08.2009 to 17.03.2011 in the South- West Zone.
(B). Complainant and other public witnesses 14.8 PW-5 Sh. Raman Kumar Sharma, Deputy Manager, Housing & Urban Development Corporation (HUDCO) has deposed that he reached CBI office on 25.11.2014 on the instructions of Vigilance Department. In the CBI office, specimen voice of two persons were taken in his possession and he recalled the name of one person as Chetan Prakash. He further deposed that separate memo was prepared in this regard. On seeing the original specimen voice memo (D-17) he recalled the name of other person as Swarandeep Shukla and identified his signature at point A on all the four pages and the memo was exhibited as Ex. PW-5/A. He identified the memory card Ex. PX containing the specimen voice of Swarandeep Shukla (S-6) and identified his signature at point A on the envelop, pouch and memory card packet.
He also identified the memory Card Ex. PY as containing the specimen voice of Chetan Prakash (S-7) and identified his signature at point A on the envelop, pouch and memory card packet.
14.9 PW-11 Harjeet Kumar Budhiraja, Assistant Section Officer, Department of Tourism, Government of NCT of Delhi has deposed that on 01.12.2014 he had gone to CBI Office where he was told about the CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 9 of 53 procedure of recording of specimen voice sample, however, two persons i.e., Ajit Singh and Ajay Kumar refused to give their specimen voice and CBI had prepared separate memos showing their denial to participate in the proceedings and he had also signed such memo as witness. He proved the memos as Ex. PW-11/A (D-16) and Ex. PW- 11/B (D-17) and identified his signature at point A. 14.10 PW-12 Dinesh Kumar, Assistant Branch Manager (Sales) LIC, Shimla has deposed that on 15.12.2014 he was posted in Zonal Office, Jeewan Bharati Building, LIC, New Delhi as AAO. He reached CBI office, in compliance to office order given to him on 14.12.2014. In CBI Office one compact disk was played and matched with the transcription of the video file. He verified the transcription and transcription-cum- voice identification memo was prepared. He identified his signature at point A on transcription-cum-voice identification memo already exhibited as Ex.PW-6/C. He also identified his signature at point A on the transcription of the video file which was exhibited as Ex. PW-6/D. 14.11 PW-7 Swarandeep Shukla @ Sanuj Shukla is the friend of complainant who had participated with the complainant in the sting operation conducted on the accused person. He deposed that on 30.12.2010 he received the phone call from accused Ajay. Accused Ajay had met him earlier also on many occasions and had told him that he (accused Ajay) was posted in PCR of Jharoda Kalan and asked PW-7 to meet and give money as during those days PW-7 used to bring liquor from Haryana to Delhi. PW-7 further deposed that he had acquaintance with Chetan and told him about the aforesaid demand and Chetan told him that on the next morning they would capture the video about the same. PW-7 further deposed that he went to Jharoda CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 10 of 53 on his scooter on 31.12.2010 at about 08.30 AM and Chetan came there in his car and the car was parked near the tube well of the fields. Thereafter PW-7 talked with accused Ajay on phone and asked about his location while telling him that he had reached Jharoda. Accused Ajay told PW-7 that he was at PS and would reach near Jharoda drain after sometime. After about half an hour, PW-7 and Chetan saw PCR vehicle coming towards the drain and they also started for that place which was visible from the place where they were sitting on the scooter. They parked their scooter at short distance from PCR vehicle. Accused Ajay came out of the vehicle from the driver seat and PW-7 introduced Chetan claiming that he would also work with PW-7 for transportation of liquor. Thereafter, PW-7 gave Rs. 1500/- to Ct. Ajay. Chetan and accused Ajay also had conversation and thereafter they went towards PCR where one more official was sitting on the front left side seat. PW-7 identified accused Ajit Singh as the said police official and deposed that he also talked with accused Ajit and requested him that there should not be any trouble in the future and accused Ajit assured them that no one will trouble them and in case anyone troubles PW-7, then PW-7 should contact him immediately. Chetan also talked to accused Ajit and thereafter they returned back to the place on the scooter where car of Chetan was parked. There they checked the video footage and found it was properly recorded.
PW-7 further deposed that he had gone to CBI Office where his statement was recorded and he had also given his specimen voice to CBI which was contained in Ex.PW-5/A (D-23). PW-7 also identified the video footage and the accused persons therein when file V0120003.AVI contained in memory card Ex.6/2 was played in the court.
PW-7 was cross examined by Ld. Sr. PP for CBI as PW-7 had CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 11 of 53 not disclosed complete facts. In the cross examination PW-7 admitted that when he went to CBI Office, video footage was played and he identified the same. He denied that on 31.12.2010 accused Ajay had called him on his cell phone in the morning and had directed him to reach at Jharoda drain. He admitted that accused Ajay had demanded Rs. 1500/- from him on 25.12.2010. He further stated that on 31.12.2010 he had initially given note of Rs. 500/- to the accused Ajay and on his demand he gave him a sum of Rs. 900/- more and then in the last gave him Rs. 100/-. Thus, he gave Rs. 1500/- in all.
14.12 PW-6 Chetan Prakash is the complainant in the case. He has deposed that on 31.12.2010 he had done a sting operation with his friend Swarandeep Shukla (PW-7). He further deposed that about 10- 15 days prior to the sting operation, Swarandeep Shukla had told him that some police officials were demanding money from him for allowing him to sell illegal liquor and he had told PW-7 that a sting would be conducted and they would videograph the same so that later on such officials do not disown the demand made by them.
PW-6 further deposed that on 31.12.2010 he had received the call from Swarandeep that PCR were making repeated calls to him in connection of the demand of money. He then reached near the drain flowing near Jharoda Kalan in his car and parked the car along side the road. Swarandeep was already present there and he had come on a scooter which was already parked there. Swarandeep told that those police officials called him in the nearby fields. They both rode on the scooter and at a very short distance they parked the scooter on Bahadurgarh Road and started waiting for their call. Call was received by Swarandeep Shukla who informed PW-6 that the police officials were calling them near the drain and thereafter they both went towards CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 12 of 53 the drain and saw PCR vehicle near the drain. PW-6 further deposed that he was carrying a button camera with DVR PV500 and he was wearing the button camera on his shirt. On receiving the call, he had switched on the button camera. Accused Ct. Ajay was already standing near the PCR vehicle and he demanded money from Swarandeep. He captured the demand as well as payment of money to the accused by Swarandeep through his button camera. Upon asking accused assured them that there will be no problem in the future and claimed that thanedar is already sitting in the PCR vehicle. PW-6 also made inquiries from such police officials sitting on the front left side seat of the PCR vehicle and he also told that there would be no problem. PW- 6 identified the said police official as accused ASI Ajit Singh in the court.
PW-6 further deposed that he had filed a writ petition in the Hon'ble High Court in Delhi and submitted the original memory card containing the aforesaid video besides others in the Hon'ble High Court. He also deposed that before such filing writ petition, he had also filed a complaint along with CD containing the sting operation in PS Bawa Haridas Nagar and some departmental inquiry was conducted against accused in which his statement was recorded. He could not recall the exact amount paid to accused Ct. Ajay but stated that notes were in the denomination of Rs. 100/- and further volunteered that it would be visible in the sting.
PW-6 also deposed that in connection with this investigation of this case, he had gone to CBI Office where his statement was recorded and he had taken the IO to the spot. He also deposed that video footage of the sting was played and transcription was prepared and he identified the images and voices. His specimen voice was taken by CBI vide memo already Ex. PW-5/A. He had also given his certificate CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 13 of 53 u/s 65-B Evidence Act which was exhibited as Ex. PW-6/A and was seized by CBI vide seizure memo Ex. PW-6/B. He proved the transcription-cum-voice identification memo as Ex. PW-6/C and the transcription of the sting contained in video file Ex. 6/2 as Ex. PW-6/D. PW-6 identified Swarandeep, Ct. Ajay and ASI Ajit Singh in the video file V0120003.AVI contained in memory card Ex.6/2 when it was played in the court.
(C) Expert witnesses 14.13 PW-13 Dr. Subrat Kumar Choudhry, Sr. Scientific Officer Gr- II (Physics) CFSL, New Delhi has proved his report No. CFSL- 2014/P1779 dated 17.4.2015 as Ex.PW-13/B whereby he had examined the voices of Chetan Prakash, Swarandeep Shukla in the video clippings and had compared with the specimen voices and has observed that the voices in the video clippings are similar to the specimen voices of these persons.
14.14 PW14 Sh. P.K. Gottam, Sr. Scientific Officer-I (Photo) CFSL, CBI, New Delhi has compared the photograph of accused Ajit Singh (S-12) and Ct. Ajay Kumar (S-13) with the video file no. V0120003.AVI as available in the memory card Ex.6/2 and came to the conclusion that the persons appearing in the sample photographs S-12 and S-13 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-14/C (D-
11).
14.15 PW-17 Sh. Gautam Roy Retd. Sr. Scientific Officer and Head of the Department in the computer Forensic Division & Photo Division CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 14 of 53 in CFSL CBI New Delhi examined the memory cards and micro SD card Ex. 6/1 to 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-17/A. (D)Officials from Telecom Companies 14.16 PW-16 Sh.R.S. Yadav, Assistant Manager (CDR) from MTNL has deposed that during 2012 he was posted as JTO in Tis Hazari Telephone Exchange Delhi. He deposed that the letter dated 16.02.2012 was sent by him to Sh. Baljeet Singh, Inquiry Officer, ACP, Delhi. Through this letter, he had sent Customer Application Form of mobile no. 9968203180 along with copy of driving license of customer Ajay Kumar. He proved the letter as Ex.PW-16/A (colly) and deposed that as per the record, customer application form was submitted on 30.12.2006.
14.17 PW-19 Sh. Pawan Singh, Alternate Nodal Officer from Vodafone Idea Ltd deposed that in October, 2015 he was posted as Nodal Officer in IDEA Cellular Ltd. During the investigation, he had handed over original customer application form of mobile no. 9540524604 in the name of Ms. Ravita along with copy of ID proof, production-cum-seizure memo dated 14.10.2015 to CBI. He proved the production-cum-seizure memo along with CAF and ID proof which were already exhibited as Ex.PW-18/D (colly).
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 15 of 53(E). Officials of CBI 14.18 PW15 Kailash Sahu, Deputy SP, CBI, AC-I, Delhi is the first IO of the case and he has deposed that in 2014 he was posted as Inspector, CBI, ACB, Delhi. In April, 2014 FIR of the present case was marked to him for investigation. The copy of FIR was proved by him as Ex. PW-15/A. He further testified that he was also handed over copy of the order dated 14.02.2014 passed by Hon'ble High Court in Criminal Writ Petition 1823/2012 along with covering letter dated 18.02.2014 which was exhibited as Ex.PW-15/B (colly.) (D-2). He also obtained the certified copy of the Writ Petition as well as orders passed in the said Writ Petition. The copy of the writ petition and orders contained in D-3 and D-4 respectively which were exhibited as Ex. PW-15/C and Ex. PW15-D respectively. He also received sealed packet from Ms. Anita Malhotra, AR (Criminal), Delhi High Court containing hard disks and memory cards as well as seal impression. The receipt memo was proved by him as Ex.PW-15/E (D-5). He testified that the sealed packet containing hard disks and memory cards was sent to CFSL for comparison vide letter dated 01.05.2014 Ex.PW-15/F (D-6) along with seal impression of Anita Malhotra. The data retrieved from exhibits by CFSL was received in CD for investigation purpose vide letter dated 24.07.2014 already exhibited as Ex.PW-14/B (D-8). He further deposed that both the accused had refused to give their respective specimen voices and their denial memos were already exhibited as Ex.PW-11/A (D-16) and Ex. PW-11/B (D-17). He also deposed that he had prepared the transcriptions of the voices appearing in CD in relation to the sting operation with the assistance of complainant Chetan Prakash Sharma and such entire transcription is contained in Ex.PW-6/C (D-14) and the relevant transcription is already exhibited as Ex.PW-6/D at internal CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 16 of 53 pages 14 to 16. The transcription-cum-voice identification memo Ex. PW-6/C (part of D-14) was prepared. He had also taken the sample voice of complainant and Swarndeep Shukla vide specimen voice identification memo Ex.PW-5/A and he identified the sealed envelope S-6 and S-7 containing the memory cards as Ex.PW15/G and Ex. PW- 15/H. He also collected documents from Delhi Police vide letter already exhibited as Ex.PW-1/1 (D-18) and recorded the statement of witnesses. Further investigation was entrusted to Sh. Sanjay Upadhyay.
14.19 PW18 Inspector Sanjay Upadhyay, CBI, ACB, Delhi is the second IO of the case and he has deposed that he received the case for further investigation in January, 2014. He has deposed that he recorded further statements of Swarandeep Shukla and Chetan Prakash and also recorded statements of other witnesses. During investigation, he has sent photographs of the accused persons for the purpose of comparison and opinion. He also obtained CAF from the Nodal Officer of MTNL and IDEA and posting details of accused persons were collected. He also received CFSL reports and after obtaining the sanction, he filed the chargesheet in the present case. He proved the forwarding letter through which specimen voices S-1 to S-9 were sent to CFSL for comparison as Ex.PW-18/A (D-7). He also proved the forwarding letter through which photographs Mark S-10 to S-20 were sent to CFSL for comparison as Ex. PW-18/B (D-9) and identified photographs of the accused which were sent to CFSL and the same were already exhibited as Ex.PW-14/D. The CFSL report on voice examination and examination of photographs receiving during the investigation were already exhibited as Ex.PW-13/B and Ex. PW- 14/C. He also identified his signature at point A on seizure memo Ex.
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 17 of 53PW-6/B through the certificate u/s 65 B was seized by him. He also proved the letter through which he received the posting details of accused Ajit Singh and Ajay Kumar from DCP (PCR), Model Town, Delhi along with the posting record as Ex. PW-18/C(colly). The production-cum-seizure memo dated 14.10.2015 through which original CAF in the name of Ravita was seized from the Nodal Officer was proved as Ex.PW-18/D(colly). He also proved the letter already Ex.PW-8/C through which sanction for prosecution in respect of accused Ajit Singh and Ajay were received by him. He also deposed that the report of CFSL dated 29.06.2015 already Ex. PW-17/A regarding examination of memory card and hard disks could not be filed with chargesheet as it was part of another case but the same was being relied in this case. He further deposed that during investigation, departmental inquiry proceedings file in respect of Ajit Singh and Ajay Kumar was collected and filed with the chargesheet and the same was proved as Ex. PW18/E(colly) (D-21).
Thereafter, PE was closed.
Statement of accused & Defence evidence
15. Statements of accused were recorded under Section 313 Cr.P.C.
15.1 Accused ASI Ajit Singh in his statement u/s 313 Cr.P.C also denied the incriminating evidence against him and stated that he was posted at PCR Van Z-99 at Bakhargarh Mor and he never had any talks with PW6 and PW7. He also stated that PW6 and PW7 are habitual of morphing, editing and manipulating the videograph for the purpose of extortion from public servants of various departments including police officials and both the of them indulge in anti-social CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 18 of 53 activities and there were number of criminal cases pending against them. He further stated that on 31.12.2010 they did not visit Jharoda Kalan at all and their PCR Van was located at a distance of more than 15 km from the alleged place of occurrence. He stated that the video file V0120003.AVI as well as memory card Ex. 6/2 were tampered and the certificate given by PW6 u/s 65-B is false. He further stated that his PCR Van Z-99 was never located either at ganda nala or within the jurisdiction of PS Najafgarh during the month of December, 2012. He did not deny the fact that the departmental inquiry was conducted against him but denied other facts. He also stated that the sanction has been accorded against him without application of mind. He also stated that CFSL experts were not notified u/s 79 A IT Act and were not experts. He also stated that the memory cards were doctored and tampered and DVD were prepared on the basis of tampered memory cards. He also stated that he has never been part of any conspiracy of alleged demand or acceptance. Complainant and his associates were in the habit of fabricating videos through professional studio against public servants including police officials for purpose of extorting money and in case of failure, they used to file false complaint using forged and fabricated videos. He also preferred to lead evidence in his defence but he did not examine any witness in his defence and closed his evidence vide order dated 22.02.2019.
15.2 Accused Ct. Ajay has denied all the incriminating evidence put to him and has taken a defence that he was posted at PCR Van at Bakhar Garh Mor and he did not have any telephonic conversation with PW7 Swarandeep Shukla. He also denied having met PW7 either on 25.12.2010 or 31.12.2010 and stated that PW6 and PW7 are habitual of morphing, editing and manipulating the videograph for the purpose CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 19 of 53 of extortion from public servants of various departments including police officials and both the of them indulge in anti-social activities and there were number of criminal cases pending against them. He further stated that on 31.12.2010 they did not visit Jharoda Kalan at all and their PCR Van was located at a distance of more than 15 km from the alleged place of occurrence. He admitted the departmental inquiry proceedings but denied the other facts. He also stated that the sanction has been accorded against him without application of mind. He also stated that CFSL experts were not notified u/s 79 A IT Act and were not experts. He also stated that the memory cards were doctored and tampered and DVD were prepared on the basis of tampered memory cards. He also filed written statement u/s 313 (5) Cr.P.C after obtaining permission from the court wherein he denied the incriminating evidence and stated that DD no. 2 dated 24.12.2010 i.e. roznamcha South-West Zone shows that he was on duty attending refresher course at Teen Murti, Traffic Police Line from 10.00 AM to 05.00 PM and on the alleged date of demand he was not on PCR duty and thus, there was no question of meeting PW7 and demanding a bribe. He further stated that he was posted with PCR Van Z-99 vehicle no. DL 1 CJ 7290 and location of the van was Bakhargarh Mor within the jurisdiction of Jafar Pur Kalan whereas the alleged place of occurrence is the location of PCR Van Z-94 which falls within the jurisdiction of PS Baba Haridas Nagar. He further stated that during month of December, 2010 he was posted with PCR Van at Bakhargarh Mor PS Jafar Pur Kalan and between PS Jafar Pur Kalan and PS Baba Haridas Nagar, there is another police station PS Najafgarh and no PCR van can leave its area of operation/police station without receiving a call from Police Control Room, Head Quarter/Command Room whether it is a normal call or emergency call. He also preferred to lead CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 20 of 53 evidence in his defence, but no witness was examined and closed his evidence on 22.02.2019 vide statement of his counsel recorded separately.
RIVAL CONTENTIONS
16. Ld. Sr. PP for CBI has argued that there are allegations of the accused persons demanding bribe from PW-7 Swarandeep Shukla and accused no. 2 accompanied with accused no. 1 was visible accepting the bribe amount of Rs.1500/-, which fact was recorded by PW-6 Chetan Prakash in the sting operation. He has argued that the memory card Ex.6-2 contains the video clipping V0120003.AVI of the entire incident which show accused no.2 demanding and accepting bribe money from PW-7 Swarandeep Shukla. He has argued that the memory card was sent to CFSL for scientific examination and reports have been received which show that there is no editing or tampering in the memory cards. PW-13 Dr. Subrat Kumar Chaudhary has also given his report comparing the specimen voices of Chetan Prakash and Swarandeep Shukla with the voices in the video clippings and the same were found to be of same persons. It was also argued that accused have denied to give specimen voice samples during the course of investigation and therefore adverse inference should be drawn against them. He further argued that departmental enquiry was also conducted against both the accused in which they were found guilty.
17. Ld. Sr. PP has also argued that the prosecution has proved its case by examining PW-6 Chetan Prakash and PW-7 Swarandeep Shukla who were witnesses to the offence and have also identified CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 21 of 53 accused no. 2 demanding and accepting the bribe in the video clipping in the presence of accused no.1 who was sitting in the PCR Van. He argued that both the accused in the video footage were also identified by PW-1 Raj Kumar and PW-2 Tara Singh from the police department. The prosecution has also proved on record the details of the duty of both the accused at PCR Van Z-99 at the relevant time by examining PW-4 HC Mahavir Singh who has proved the photo copy of the posting record of Ct. Ajay Kumar as Mark PW4/B. PW-10 SI Vinod Kumar also deposed that ASI Ajit Singh was posted in South-West Zone/PCR from 05.08.2009 to 17.03.2011 and was again posted to South-East Zone/PCR on 17.03.2011. The enquiry report Mark PW 2/1 has been proved by PW-2 Retd. SI Tara Singh. It has been argued that the prosecution has proved its case by oral evidence and also by electronic evidence. The offence also stands proved by the report of departmental enquiry. He argued that the prosecution has succeeded in proving the demand of bribe and its acceptance by the accused and, therefore, the accused is liable to be convicted.
18. Per contra, Ld. Counsel for the accused no. 1 has filed written arguments and has submitted that the prosecution has primarily based its case on the memory card Ex.6/2, statements of expert witnesses and the complainant PW6 Chetan Prakash and eye witness PW7 Swarandeep Shukla. It has been submitted that the memory card Ex.6/2 has no authenticity as it was lying with the complainant in unsealed condition from the date of alleged incident i.e. 31.12.2010 till it was deposited in the Hon'ble High Court and the possibility of tampering with the memory card cannot be ruled out. It was also submitted that the properties including the date of the video in question do not match with the alleged date of incident. The existence of CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 22 of 53 memory card Ex.6/2 also becomes doubtful in view of the cross examination of PW2 where he deposed that no memory card had come to his knowledge during the inquiry and he had not asked the complainant that if he had memory card regarding this case even the complainant had not told regarding any memory card relating to this case. It was further submitted that initially in the writ petition complainant had prayed for deposit of six hard disks and two memory cards. However, later on he filed an application and was granted permission by the Hon'ble High Court to deposit five hard disks and five memory cards vide order dated 05.02.2013. It was also submitted that the memory card was taken by the complainant to Pal Movies for preparing the CD and this fact also finds mention in certificate u/s 65-B of Evidence Act Ex.PW6/A but the IO did not investigate this fact to ascertain the truthfulness of the story of memory card. It was also submitted that the original DVR was never seized by the IO and sent to CFSL to ascertain the compatibility of memory card with DVR and whether the DVR was in working condition. The report Ex.PW17/A prepared by PW17 Sh. Gautam Roy does not inspire confidence in the absence of the said DVR and PW17 in his cross examination admitted that he cannot tell which device was used to record the digital file in the memory cards. PW17 was also unable to give any plausible explanation as to how he came to the conclusion that the videos in the memory card were recorded through the video camera or that it is not possible that digital files in the memory card were transferred from some other computer. PW17 had also not mentioned the date of creation of digital files in Ex.6/2 in his report and he could not tell the date of creation of files in Ex.6/2. PW17 in his cross examination told the duration of video in question as one hour five minutes and eighteen seconds (1:05:18). However, actual duration of the video in question in CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 23 of 53 the memory card is five minutes eighteen seconds. It is also submitted that PW17 in his cross examination admitted that without looking at the original instrument, it cannot be said whether it was read only or read and write compatible. He also admitted that without looking at the original instrument, it cannot be said whether the files have been renamed or not. It was submitted that PW17 himself has contradicted his own report regarding non tampering of memory cards examined by him and no reliance can be placed on his report and the possibility of tampering of memory card cannot be ruled out.
It was further submitted that the oral testimonies of PW6 and PW7 are unsafe to rely upon as they are contradictory to each other and there are material improvements in their testimonies. PW6 has failed to give any satisfactory explanation as to why the matter was not reported to the police or other authorities immediately after the incident and why the complaint was filed after a delay of six months and why the writ petition was filed in the Hon'ble High Court after a delay of more than two years. It was submitted that PW6 admitted that on 31.12.2010 two sting operations were conducted by him, one in the present case and other relating to the police officials of PS Ranhola. It was submitted that the complaint in the other sting operation was filed by PW6 in the police station on 26.01.2011 itself and therefore, it is unbelievable that PW6 could not file complaint with the police in this case due to paucity of time. PW6 also did not mention the name of the accused persons in the writ petition despite the fact that he had come to know about the names of the accused much before the filing of the writ petition. It was also submitted that PSO of PW6 was also present at the time of incident but he was neither examined nor cited as a witness by the IO which raises adverse inference against the prosecution. PW6 and PW7 during their cross examination were CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 24 of 53 unable to depose the true and full account of transcription-cum-voice identification memo Ex.PW6/C. It was also submitted that PW6 and PW7 were having criminal antecedents and it would be highly unsafe to rely upon their testimonies without independent corroboration. It was also submitted that the evidence recorded in departmental inquiry cannot be read against the accused persons as the same is not binding on this court and the witnesses examined in the departmental inquiry have not been examined in this case and PW6 and PW7 never appeared in the departmental proceedings. The CD relied upon in the inquiry proceedings was never sent to CFSL to establish its authenticity and admittedly it was not an original electronic evidence.
It was further submitted that the GPS location of PCR vehicle or the log book of PCR Van Z-99 was not investigated to find out whether the accused persons moved out of their base on the alleged date of incident. It was also submitted that the IOs of the case did not investigate the case fairly and thoroughly and did not examine any independent witness and therefore, the implication of the accused persons is manipulated.
19. Ld. counsel for the accused no. 1 has also placed reliance on the following judgments in support of his arguments:
i) Ram Singh & ors. Vs. Col. Ram Singh [AIR 1986 SC 3] wherein Hon'ble Supreme Court laid down the conditions for admissibility of tape recorded statements as under:-
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize 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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 25 of 53 the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(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.
ii) C. R. Mehta Vs. State of Maharashtra [1993 Crl. L. J. 2863] wherein it was held that if the tape recorded evidence is to be acceptable, tape must have been sealed at earliest point of time and not opened except under the orders of court.
iii) Anil Kumar Tito @ Anil Kumar Sharma @ Titto Vs. State NCT of Delhi [2015(8) LRC 297(Del) wherein it was held that where the accuracy of tape recorded statement is not proved by satisfactory evidence, tape recorded conversation does not stand the test of requisites spelt out by Apex Court in the case of Ram Singh (supra).
Accused could not have been convicted of the offence merely on the basis of report of FSL.
iv) 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.
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 26 of 53v) Ravindra Mahadeo Kothamkar Vs. The State of Maharasthra [908- Appeal-1152-2004-J.doc dated 9.10.2015] wherein it was held that in appreciating evidence in trap cases, character of complainant assumes importance where the complainant himself had acted contrary to law and faced the danger of inviting action by local authority against the unauthorized constructions were carried by him, his evidence need to be scrutinized with due care.
vi) Suraj Mal Vs. The State (Delhi Administration)[AIR 1979 SC 1408] wherein it was held that where witness makes two inconsistent statements in their evidence either at one stage or at two stages, the testimonies of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
vii) Ramjanam Singh Vs. The State of Bihar [1956 SC 643 (S) AIR V.43 C.108 Oct.) wherein it was held that the court could only proceed on the evidence given on oath in the witness box by the witness and not made in the letter.
viii) Shashi Kant Vs CBI, 2007 (1) SCC 630 and CBI Vs Ashok Kumar Aggarwal & Anr., 2014 (14) SCC 295 wherein it was held that where the case was not investigated as per the CBI (Crime) Manual 2005 which is mandatory.
ix) K. Lal Vs. CBI [Crl. A. 261/2003 decided on 20.5.2013 by Delhi High Court wherein it was held that no adverse inference can be drawn against the accused for the refusal to give voice samples when the accused sought to avail his constitutional right to consult his counsel.
x) Rajinder Prasad Gupta Vs. State (NCT of Delhi) [Crl. MC 148/2017 decided on 13.9.2017 by Delhi High Court] wherein it was held that Section 311-A Cr.P.C permits the Court to direct taking of CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 27 of 53 handwriting samples or specimen signatures for the purpose of any investigation or proceedings under the court. This section does not talk of taking voice samples. In the absence of any provision in the court, the accused cannot compel to give voice sample. The same can be taken only when he furnishes his consent. If the Trial Court makes an observation stating that an adverse inference is drawn against the accused, the same amounts to compelling him to submit his voice sample and Section 311-A Cr.P.C does not permit the same.
20. Ld. counsel for accused no. 2 has also advanced arguments on the similar lines. He further argued that the place of posting of the PCR Van Z-99 was at Bakhargarh Mor which is at a distance of more than 15 km from the place of alleged incident and the prosecution has not placed any evidence on record to show that the PCR Van Z-99 had gone to the place of incident on 31.12.2010. It was also argued that the experts examined by the prosecution cannot be termed as experts as they had not been notified u/s 79 A of IT Act and hence, no reliance can be placed on their reports and their testimonies. It was further argued that PW17 did not mention the hash value of the digital file in his report and also did not mention the date of creation of the file. It was argued that PW17 only mentioned the date of last modification which is not in consonance with the alleged date of incident. It was argued that PW17 in his cross examination has admitted that the duration of the video file no. V0120003.AVI is 1:05:18 whereas the actual duration of the video file in the memory card produced before the court is 05 minutes and 18 seconds. It was also argued that the date of modification of the video file is 28.06.2010 as per the statement of PW1 which is much prior to the date of alleged incident. He has also argued that the statements of PW6 and PW7 are full of contradiction and cannot be safely relied CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 28 of 53 upon. It was also argued that the prosecution has failed to prove the demand allegedly made by accused no. 2 and it was submitted that as per the copy of DD entry register containing DD no. 2 dated 24.12.2010 Ex.DW2/C available at page no. 193 in the inquiry file Ex. PW18/E (D-
21), accused no. 2 was attending two days' training programme at Traffic Police Lines, Teen Murti and was not on PCR duty which falsifies the claim of PW7 Swarandeep Shukla that accused no. 2 had demanded bribe money from him on 25.12.2010. He also argued that the prosecution has also failed to prove that the video file V0120003.AVI contained in memory card Ex.6/2 was without any tampering, morphing/editing. Hence, the same cannot be relied upon.
21. In rebuttal, Ld. Sr. PP for CBI has argued that there is no extraordinary delay in filing the complaint by the complainant. It was submitted that complainant filed his complaint with PS Baba Haridas Nagar on 08.07.2011 and PW6 has also given explanation in this regard in his cross examination and when no action was taken by the police, complainant approached Hon'ble High Court by filing the criminal writ petition. It was also argued that PW6 and PW7 have corroborated the case of prosecution and have also proved the video recording contained in memory card Ex.6-2. It was also argued that the complainant had no motive to falsely implicate the accused. He further submitted that the report Ex. PW 13/B of PW 13 Dr. Subrat Kumar Choudhary, report Ex. PW 14/C of PW 14 Sh. P.K. Gautam and report Ex. PW 17/A of PW 17 Sh. Gautam Roy have authenticated the video recording of sting operation conducted by PW 6 Chetan Prakash.
22. He also argued that non giving of voice sample by the accused raises an adverse inference against him and the judgment of K.Lal CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 29 of 53 (supra) relied upon by counsel for accused is distinguishable on facts. He also argued that there is nothing on record to establish that the complainant or his associates made any extortion call to the accused persons after recording the sting operation. As regards the non certification/notification of experts under Section 79-A of I.T. Act, Ld. Sr. PP has placed reliance of the judgment of Hon'ble Madras High Court in K.Ramajayam @ Appu Vs. Inspector of Police, Chennai, 2016 Cri.LJ 1542 wherein Hon'ble High Court had approved the method adopted by the police in sending the digital video recording itself to FSL for computer expert to view recording and give report of events and had held that the Central Government has not 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 methods evolved by the Scientific officer of FSL to analysis and give their opinions on electronic data are correct and cannot be faulted with.
23. Ld. Sr. PP for CBI also placed reliance on the order dated 30.01.2018 of Hon'ble Apex Court in Shafi Mohd. Vs State of Himachal Pradesh, SLP (Crl.) No. 230/2017 wherein it was held that where a party is not in possession of device from which the electronic document is produced, such party cannot be required to produce certificate u/s 65-B(4) of the Evidence Act. It further held that requirement of certificate u/s 65-B(4) being procedural can be relaxed by the Court wherever interest of justice so justifies.
APPRECIATION OF EVIDENCE
24. At the outset, it may be mentioned that accused persons have not disputed the fact that at the time of incident they were employees in CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 30 of 53 Delhi Police and were posted in South-West Zone/PCR and on 31.12.2010 they were posted on PCR Vehicle Z-99 bearing registration no. DL 1 CJ 7290 in C Shift (Day Shift) at Bakhargarh Mor. PW3 ASI Lehri Singh has also proved the copy of the Duty Roster available at page no. 199 and 125 of D-21 Ex.PW18/E establishing these facts. However, the accused persons have disputed the alleged incident and have submitted that they never met the complainant Chetan Prakash and Swarandeep Shukla at the alleged place of incident and never de- manded any money.
SANCTION FOR PROSECUTION OF ACCUSED
25. The object behind the requirement of grant of sanction to prose- cute a public servant need not detain the court save and except to reit- erate that the provisions in this regard either under the Code of Crimi- nal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of the discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is whether the act complained of has a reasonable connection with the discharge of official duties by the Government or the public servant. If such connection exists and the discharge or exercise of the govern- mental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivo- lous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjusti-
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 31 of 53fied claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provi- sions have been incorporated in Section 19 (3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Proce- dure which, inter alia, make it clear that any error, omission or irregular- ity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned.
26. Ld. Sr. PP for CBI has submitted that CBI had applied for sanc- tion for prosecution against both the accused persons and sanction for prosecution was accorded by PW8 DCP Raj Kumar Singh who was competent authority to remove officials upto the rank of Sub Inspectors posted in PCR.
27. During the course of arguments, counsels for the accused per- sons have also not disputed the grant of sanction for prosecution against the accused persons.
28. In the present case, Sh. Raj Kumar Singh, DCP appeared as PW8 in the witness box and deposed that he had perused the material i.e. FIR, memos, statement of witnesses, CFSL report, copy of tran- scription along with CD and other documents collected during the in- vestigation and after perusing the same, he was convinced that both the accused were required to be prosecuted for the offences committed by them u/s 120-B IPC and section 7 and 13 (2) r/w 13(1) D of PC Act and accordingly he granted sanction for their prosecution. He proved the sanction order qua ASI Ajit Singh (A-1) as Ex.PW8/A and the sanc- tion order qua Ct. Ajay Kumar (A-2) as Ex. PW8/B and the same was CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 32 of 53 forwarded to CBI by ACP Establishment vide forwarding letter Ex.PW8/C.
29. In the present case both the accused have not raised any objec- tion regarding the validity of sanction orders Ex.PW8/A and Ex.PW8/B granted by PW8 at the stage of final arguments. Hence, I am of the considered opinion that the sanction for prosecution accorded by PW8 vide orders Ex.PW8/A and Ex. PW8/B against the accused persons has been validly granted by the competent authority.
30. Now Coming to the merits of the case, prosecution in the present case has relied upon two sets of evidence i.e., the video footage con- tained in memory card Ex.6/2 recorded by PW6 Chetan Prakash at the time of the incident and oral testimonies of the witnesses PW6 Chetan Prakash and PW7 Swarandeep Shukla @ Sanuj Shukla who were the main witnesses of the prosecution. Firstly, I shall discuss the electronic evidence produced by the prosecution and thereafter the oral testi- monies of the witnesses.
ELECTRONIC EVIDENCE
31. As per the case of prosecution, PW6 Chetan Prakash conducted a sting operation along with PW7 Swarandeep Shukla and made a video recording of accused no.2 accepting the bribe money from PW7 Swarandeep Shukla in the presence of accused no.1. According to PW-6, he was carrying a button camera with DVR PV500 for recording the sting operation. It is further the case of the prosecution that on the directions of Hon'ble High Court PW6 had deposited five hard disks and five memory cards in the registry of Hon'ble High Court and the CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 33 of 53 same were sent to CFSL for forensic examination. Three reports were received from the CFSL.
In the first report Ex. PW13/B (D-10) given by PW13 Dr. Subrat Kumar Choudhary it was observed that the questioned voice marked exhibit 6-2(3)(C) was probable voice of Chetan Prakash Sharma whose specimen voice was marked exhibit S-7 (4) (C) and questioned voice marked exhibit 6-2(3) (K) was probable voice of Swarandeep Shukla whose specimen voice was marked exhibit S-6 (3) (K). Both the accused had refused to give their sample voices vide denial memos Ex. PW11/A (D-16) and Ex.PW11/B(D-17).
In the second report Ex. PW14/C given by PW14 Sh. P.K. Gau- tam, it was observed that the person in the sample photograph S-12 (accused ASI Ajit Singh) which is Ex.PW14/D appears to be similar with a person visible in the audio/video file V0120003.AVI (Ex.6-2) and the person in the sample photograph S-13 (accused Ct. Ajay Kumar) which is Ex.PW14/D appears to be similar with a person visible in the audio/video file V0120003.AVI (Ex.6-2).
In the third report Ex. PW17/A given by PW17 Sh. Gautam Roy, it was observed that the memory cards Ex. 6/1 to 6/5 are not being tampered.
32. 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. 6/2 and PW6 Chetan Prakash has also given his certificate u/s 65-B Indian Evidence Act (Ex.PW6/A) in this regard and the same can be safely relied upon.
33. Ld. Counsels for accused have vehemently argued that the video footage in memory card Ex. 6/2 is full of suspicion and possibility CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 34 of 53 of tampering cannot be ruled out. PW6 did not produce the original recording device and condition nos. 3, 5 and 6 given by Hon'be Supreme Court in the case of Ram Singh & Ors. Vs Col. Ram Singh (supra) have not been complied with. It was also argued that the recordings remained with PW6 for almost two years and in unsealed condition and therefore, the chances of tampering cannot be ruled out. It was also argued that DVR was having internal memory and it has not been proved by the prosecution whether the recording was originally done on the internal memory of the DVR and thereafter transferred to the memory cards or it was done directly on the memory cards. It was argued that the electronic record produced by the prosecution does not inspire confidence and cannot be safely relied upon.
34. When a party produces a documentary evidence in support of its case, two questions are required to be determined before it can be re- lied 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.
35. 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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 35 of 53 the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e.,electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
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;CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 36 of 53
(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.
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."
36. The above judgment was again discussed in the case Shafi Mohammad Vs State of Himachal Pradesh, in Special Leave CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 37 of 53 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 judgement 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 65-B of the Evidence Act was not admissible.
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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 38 of 53 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 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."
37. 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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 39 of 53 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 65-B Evidence Act is not always mandatory and the applicability of the requirement of certificate under section 65-B can be relaxed whenever interest of justice so justifies.
38. In the present case, although the original recording device has not been produced by the prosecution but it has been claimed that the memory cards produced by PW6 Chetan Prakash are 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 PW6 Chetan Prakash as Ex. PW6/A (D-13) and the same was seized vide production-cum-seizure memo Ex. PW6/B (D-12). Therefore, memory cards produced by the prosecution cannot be rejected merely on the ground that the same are inadmissible in evidence for the want of certificate u/s 65-B of Evidence Act.
39. Now, the next question which requires determination is whether the aforesaid memory cards (electronic record) so produced by the prosecution are genuine and authentic and whether the same can be safely relied upon or not.
CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 40 of 5340. Ld. Sr. PP for CBI has argued that PW6 Chetan Prakash has given certificate u/s 65-B Evidence Act Ex.PW6/A that there is no tampering in the memory cards produced by him. Expert from CFSL has also certified that the memory card Ex. 6/2 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 PW6 for almost two years before it was produced and sealed before the Ld. Registrar General in compliance of the orders of Hon'ble High Court. It was also argued that PW6 himself has admitted in his cross examination that he had got prepared CD from the memory card. He was also not sure that whether the memory card used in sting operation was new or had been used earlier which creates doubt about the genuineness of the memory card Ex. 6-2 produced by the prosecution.
41. I have given by thoughtful consideration to the arguments advanced at the Bar.
42. It is pertinent to note that in the present case sting operation of the accused persons was conducted on 31.12.2010 and writ petition no. 1823/12 [Ex. AD-2 (colly)] was filed before the Hon'ble High Court in December, 2012. As per record, complainant Chetan Prakash had handed over five hard disks and five memory cards to the office of Registrar General on 11.02.2013 and till then the memory card remained with him. PW6 Chetan Prakash has also admitted in his cross examination that he got CD prepared from the memory card but he was not aware whether the person from whom he got the CD prepared knew the process of editing. He was also not aware if he was CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 41 of 53 an expert in editing or not. He also stated that he got the CD prepared within one month of the sting operation. The mere fact that the memory card remained unsealed in the custody of complainant show that possibility of tampering of the memory card cannot be totally ruled out and a doubt is created regarding genuineness of the memory card. Even though PW6 has claimed that the memory card Ex. 6/2 was original and contained original recordings but except for his bald statement there is no other material to prove it.
43. Secondly, PW6 has also admitted in para 5 of his certificate u/s 65-B of Evidence Act Ex. PW6/A that with the help of Pal Videos at Uttam Nagar he made CDs and also the copies from the memory cards. 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 Palji Movies/Pal Studio 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.
44. Non production of the original recording device i.e DVR PV500 during the trial is another factor which creates doubt about the genuineness of the memory card Ex. 6/2. PW6 Chetan Prakash in his cross examination had stated that the DVR had already been seized in another case. However, no attempt seems to have been made by the IOs of the case namely PW18 Inspector Sanjay Upadhaya and PW15 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 42 of 53 Inspector Kailash Sahu to seize the DVR used for recording the sting operation and for sending it to CFSL to ascertain whether it was in working order or not and whether it was compatible with SD card for recording the video clippings. Hence, in the absence of the original recording device i.e DVR, it cannot be said with certainty that the video files available in the memory card Ex. 6/2 were recorded directly or they had been copied from some other source.
45. Ld. Sr. PP has argued that in CFSL report Ex. PW17/A, it has been observed that the memory card is not being tampered. Hence, it would not be proper to raise doubt on the report of CFSL. Counsels for the accused have argued that PW17 himself has stated in his cross examination that as to which device was used to record the digital files in the memory card as CBI had not sent to him the instrument used for recording in the memory card. He also admitted that without looking at the original instrument, it cannot be said whether it was read only or read and write compatible and further without looking at the original instrument, it cannot be said whether the files have been renamed or not. PW17 in his cross examination, deposed that it is not possible that digital files in the memory card were transferred from some other computer and volunteered that the digital files in the memory card were taken with the help of video cameras but he was unable to give any satisfactory explanation for arriving at this conclusion. He also admitted that he had not mentioned the date of creation of digital files in Ex.6/2 in his report and he could not tell the date of creation of video files in Ex.6/2.
46. It is now 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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 43 of 53 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 regarding non tampering of the memory card has been given by PW17 Sh. Gautam Roy in his report Ex. PW17/A. He appeared in the witness box to prove his report and deposed that there was continuous flow of video and there was not stoppage, pause, etc and therefore, there was no tampering in the five memory cards examined by him. However, when he was cross examined by counsel for the accused no. 1, he could not tell about the device which was used for recording the digital files in the memory card. He also admitted that he had not mentioned the date of creation of digital files in his report. He further admitted that the duration of file no. V0120003.AVI was 01:05:18 as mentioned in his report. However, the memory card produced by the prosecution in the court shows that the duration of the video file V0120003.AVI was only 05 minutes and 18 seconds only. PW17 also did not mention the hash values of the digital files contained in the memory card sent to him, although he had mentioned the hash value of hard disks sent to him. However, no reason has been given by him 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. He also deposed in his cross examination that he had analyzed the properties of digital files examined by him but he had not mentioned the same in his report. He also admitted that it is not possible to tell how many times the files have been modified prior to the last date of modification. He also admitted that the last date of modification is part of properties of the file. He also admitted that he had not mentioned the last date of modification of the file in his report. The cross examination of PW17 Gautam Roy thus shows that he himself has contradicted his own CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 44 of 53 report regarding non tampering of the memory cards examined by him. A bare perusal of the report Ex.PW17/A shows that it does not mention the tools/software used for examining the memory cards. The report also does not mention the technology used for detecting tampering in the memory cards. The report also does not mention experimental details regarding detection of tampering and no description or observations of findings has been given in the report regarding detection of tampering. There are no illustrations, photographs, waveforms, spectographs, screen shots etc placed with the report. Thus the report is bereft of the necessary details. Hence, I do not deem it appropriate to place reliance on his report Ex. PW17/A and the same is accordingly rejected.
47. Keeping in mind aforesaid inconsistencies and infirmities, I am of the considered opinion that the possibility of tampering or manipulation in the memory card Ex. 6/2 cannot be ruled out as the memory card has remained in unsealed condition for almost two years in possession of the complainant Chetan Prakash and the prosecution has 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 on the electronic evidence produced by the prosecution in the form of memory card Ex. 6/2.
ORAL EVIDENCE OF THE WITNESSES
48. Once the memory card Ex. 6/2 is excluded from consideration, the only material evidence left with the prosecution is the testimonies CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 45 of 53 of PW6 Chetan Prakash and PW7 Swarandeep Shukla who had conducted the sting operation on the accused. The remaining witnesses are either police officials who had handed over the documents relating to posting, departmental inquiry etc. of accused persons to CBI or had joined the investigation in recording of the specimen voice of complainant and Swarandeep Shukla and preparation of transcript of the videos file of memory cards. Hence, there is no need to discuss their testimonies in details.
49. At the outset, it may be mentioned that there is a delay of almost two years in filing the writ petition by PW6 Chetan Prakash before the Hon'ble High Court and there is also delay in filing of the complaint with PS Baba Haridas Nagar on 08.07.2011 by PW6 Chetan Prakash. No explanation has been given as to why no complaint was made to the police immediately after conducting the sting operation. It is also pertinent to note herein that PW6 has himself admitted in his deposition that he had earlier also done sting operations and had filed number of writ petitions against the officials of Delhi Police in the Hon'ble High Court of Delhi and he was also aware about the existence of Anti Corruption Branch (ACB) and CBI and was also aware that they could also catch any dishonest and corrupt person red handed if someone makes complaint to them but still no complaint was made by PW-6 or PW-7 either to CBI or ACB immediately after bribe was demanded by accused persons or after the sting operation was conducted on them which raises serious doubts on the real motives of the complainant PW-6 and PW-7.
50. Another important aspect of the matter is that the name of the accused persons is not mentioned in para 9 (x) and (xi) of the writ CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 46 of 53 petition Ex. AD-2 (D-3) filed by the complainant Chetan Prakash despite the fact that he had come to know about the names of the accused persons before filing of the writ petition. Both PW6 and PW7 have stated in their deposition that they knew about the name of accused no. 2 even before the sting operation but it is surprising that even his name has been wrongly mentioned as Ct. Sanjay in the complaint made to PS Baba Haridas Nagar, despite the fact that the said complaint was filed after six months of conducting sting operation by PW6 and PW7. It is also beyond comprehension as to why affidavit of PW7 Swarandeep Shukla @ Sanuj Shukla was not filed along with the writ petition when affidavits of other complainants/victims such as Sheela, Naresh Kumar, Pooran Singh, and Phoola Devi were filed along with the writ petition Ex. AD-2.
51. Further, perusal of the writ petition Ex. AD-2 reveals that PW6 and PW7 had conducted two sting operations on 31.12.2010. One was against Nasib Singh and another sting operation was against the present accused persons namely ASI Ajit Singh and Ct. Ajay. The complaint against Naseeb Singh was filed in January, 2011 itself at PS Ranhola whereas in the present case, the complaint against the accused persons has been filed at PS Baba Haridas Nagar in July, 2011. The explanation given by PW6 in his cross examination for the delay in filing the complaint that he could not file the complaint against accused persons earlier as he was busy in other stings and was getting his house constructed, appears to be false and afterthought. If PW6 could have filed a complaint against Naseeb Singh in January, 2011, there is no reason why he could not have filed the complaint against the present accused persons also during the said period itself. The delay of six months in filing the complaint also raises serious doubts on CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 47 of 53 the real motives of the complainant.
52. The testimonies of PW6 and PW7 are also contradictory to each other in material particulars. According to PW6, Swarandeep Shukla had informed him about the demand made by the police officials, 10-15 days prior to the sting operation conducted by them on 31.12.2010 whereas PW7 has deposed that he had told PW6 about the demand made by the police official on 30.12.2010 when after he received phone call from accused Constable Ajay on that day. Further, PW6 has deposed that on 31.12.2010 when he reached the drain flowing near Jharoda Kalan, Swarandeep was already present there on his scooter. However, in his cross examination PW6 contradicted himself and deposed that after he reached the drain, he made a call to Swarandeep Shukla and then he also reached there near the drain. There are further contradictions in the testimony of these witnesses regarding the time when the sting operation was conducted. PW6 has deposed that the present sting operation was conducted at around 08:00am/09:00am. However, when he was confronted with his statement Ex.PW2/B recorded in the departmental enquiry, he admitted that the time of sting operation was mentioned as between 12:00 noon to 02:00 pm. On the other hand, PW 7 has deposed in his cross examination that two stings were made on 31.12.2010 and the other one was done at around 01:00 or 01:30 noon and again stated that it was done between 11:00 am and 02:00 pm. This shows that even the witnesses are themselves not sure as to when the sting operation was conducted by them which is highly unbelievable.
53. Another major contradiction in the testimony of PW6 and PW7 is with regard to the presence of PSO of PW6 Chetan Prakash at the time CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 48 of 53 of sting operation. PW6 has stated that he was having a PSO on the date of sting operation of the present case and PSO was with him at the time of sting in question but he was at little distance and PSO had accompanied PW6 to the spot in the vehicle of PW6. However, PW7 in his cross examination is totally silent on this aspect and he does not utter a single word about the presence of PSO of PW6 either in his examination in chief or in his cross examination. The case of the prosecution is that PW6 had reached in his car near the drain flowing near Jharoda Kalan and parked his car alongside the road near drain and from there PW6 accompanied PW7 on his scooter to Bahadurgarh Road. If at all PW7 had met PW6 near the drain flowing near Jharoda Kalan where PW6 had parked his car, how it is possible that PW7 did not notice the presence of PSO of PW6 in the car. These contradictions in the testimony of PW6 and PW7 cast a serious doubt if at all they had met with each other on 31.12.2010 for conducting the sting operation or not.
54. A bare perusal of testimony of PW7 shows that in his cross examination, he has made lots of improvements from the statement Ex. PW7/A recorded u/s 161 CrPC which further makes his testimony doubtful. It is also pertinent to mention here that PW7 in his examination in chief mentioned about giving Rs.1,500/- to Constable Ajay (A-2) at the time of sting operation, however, PW6 Chetan Prakash who was present at the spot and was recording the sting operation does not mention the amount given as bribe money to Constable Ajay Kumar (A-2). PW6 was also unable to recall the exact amount of bribe given by PW7 Swarandeep to Ct. Ajay (A-2). Further, PW7 stated in his cross examination that he had also appeared in the departmental proceedings against the accused however, the record of CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 49 of 53 the departmental proceedings Ex. PW 18/E shows that neither PW6 nor PW7 appeared as witnesses in the departmental proceedings conducted against the accused persons.
55. Ld. Sr. PP for CBI has further argued that the prosecution has also proved the departmental inquiry file of both the accused Ajit Singh and Ct. Ajay Kumar conducted by Delhi Police as Ex. PW18/E and they both were held guilty. It was also argued that the evidence in the said case also proves the guilt against the accused Ajit Singh and Ct. Ajay Kumar. Counsels for accused have argued that the evidence recorded in departmental inquiry cannot be read against the accused in the present case as the witnesses who had deposed in the departmental inquiry have not been examined in this case. They further argued that PW6 Chetan Prakash did not appear at all in the inquiry proceedings despite service of notice and PW7 Swarandeep Shukla remained untraced. Reliance in this regard has been placed on the judgment of Ramjanam Singh Vs State of Bihar (supra) wherein it was held that court can only proceed with the evidence given on oath in the witness box and not on the statement made in the letter.
56. A bare perusal of the file containing the proceedings of departmental inquiry Ex. PW18/E reveals that the complainant PW6 Chetan Prakash and PW7 Swarandeep Shukla never appeared in the inquiry proceedings. Other witnesses in the inquiry proceedings were the police officials including inquiry officer. The CD relied upon in the inquiry proceedings was not sent to CFSL to rule out the possibility of tampering and manipulation and this fact is established from the statement of PW2 Tara Singh who had conducted the inquiry and has admitted that the CD which he had received from the complaint was not CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 50 of 53 original and volunteered that he was not an expert in this regard. He further deposed that he had taken both the accused to IT Centre at PHQ and there he was told that the CD appears to be a copy and he could not comment that CD being electronic evidence can be easily tampered. He further deposed that during the enquiry no memory card had come to his knowledge and he had not asked complainant if he had memory card with regard to the case and even the complainant did not disclose about the memory card related to this case. Hence, in my considered opinion, the findings in the inquiry proceedings are of no help to the prosecution as the standard of proof required in the criminal proceedings to convict an accused are much higher than the standard of proof required in departmental inquiry to hold a person guilty. Secondly, the findings are also of no benefit to the prosecution as the basic principles of Evidence Act for admitting or proving electronic record have not been complied with by the inquiry officer. Thirdly, the complainant Chetan Prakash and his friend Swarandeep Shukla who were the material witnesses to the prosecution did not appear and depose before the inquiry officer. Hence, I am not inclined to place any reliance on the findings given against the accused in the inquiry proceedings.
57. Hence, in view of the aforesaid discussion, I am of the considered opinion that the testimonies of PW6 and PW7 are full of material contradictions and there is no independent corroboration to their testimonies. It has also come on record that PW6 and PW7 were having criminal background and therefore, it would be unsafe to rely upon their testimonies without independent corroboration. Although 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 CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 51 of 53 submission made by Ld. Sr. PP in view of the judgment of our own High Court in Sat Paul Vs Delhi Administration (supra) 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 view from the judgment of Ravinder Mahadev Kothamkar Vs State of Maharashtra (supra) 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.
58. In the present case both PW-6 and PW-7 had a criminal background and a possibility cannot be ruled out that they might have conducted the sting operations to implicate the police/govt. officials 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
59. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove its case beyond CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 52 of 53 reasonable doubts and accused are entitled for benefit of doubt. Accordingly, accused Ajit Singh (A-1) and Ajay Kumar (A-2) are acquitted for the charged offences u/s 7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988 or in the alternative Section 11 of P.C. Act, 1988. Previous bail bonds of accused stands cancelled. Surety stands discharged. The accused is 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: 2019.04.02 14:59:33 +0530 Announced in the open court (ANIL KUMAR SISODIA) On 2nd day of April, 2019 Special Judge (PC Act) (CBI)-04 Central Distt: Tis Hazari Courts Delhi CC No. 532388/16 CBI Vs. Ajit Singh & Anr. Page 53 of 53