Bangalore District Court
Lokayuktha P.S. Tumakuru District vs A1-Suresh Gowda on 30 January, 2024
KABC010188462021
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present
Sri Santhosh Gajanan Bhat, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to elected former and sitting MPs/ MLAs in the State of Karnataka)
Dated this the 30th day of January, 2024
Spl.CC. No. 1342 / 2021
COMPLAINANT: State of Karnataka
by Lokayukta Police,
Tumakuru District
V/s
ACCUSED : Sri B.Suresh Gowda
S/o Late Bettaiah,
Aged about 57 years,
MLA, Tumakuru Rural Constituency,
R/o 2nd Cross, Saraswathipuram
(Devaraj Ars Road),
Tumakuru Town-572 101
Date of offence Based on the events happened prior to
22.10.2010
Date of report of offence 25.10.2010 complaint lodged before
Hon'ble Karnataka Lokayukta, Bengaluru
2 Spl.CC 1342/2021
Name of the complainant Sri G.Ramesh Gowda
Date of commencement of 07.04.2022
recording of evidence
Date of closing of evidence 25.11.2023
Offences complained of Sec.12 of the Prevention of Corruption
Act, 1988
Opinion of the Judge Accused is found not guilty
State represented by Sri S.S.Nagarale, Learned Special Public
Prosecutor
Accused represented by Smt. Nalina Mayegowda, Learned senior
Counsel for Shri Manjunath Hiral and Sri
Akshay Mithandhaya, Advocate for
Accused
JUDGMENT
The Deputy Superintendent of Police, Karnataka Lokayukta, Tumakuru had filed the charge sheet against the accused Sri Suresh Gowda for the offences punishable under Sec.7, 13(1)(d) r/w 13(2) and 15 of the Prevention of Corruption Act, 1988 ('P.C.Act' for short).
2. It is the case of the prosecution that in the year 2008 during the General Elections for Karnataka Legislative Assembly, the Bharatiya Janata Party ('BJP Party' for short) had secured 110 seats and had fallen short of majority by 3 to 4 seats to form the 3 Spl.CC 1342/2021 Government and subsequently with the support of 5 independent MLAs they were able to form the Government. It is the contention of the prosecution that at that point of time, the accused B.Suresh Gowda who was the MLA from Tumakuru Rural Constituency had tried to allure CW7 Sri S.R.Srinivas, who was the sitting MLA from Gubbi Vidhanasabha constituency, the candidate of Janata Dal (S) Party ('JD (S) Party' for short) and in furtherance of the same he had visited the office of S.R.Srinivas and had promised to pay a sum of Rs.18 Crores and promised to secure him Chairmanship/President of some Board or Corporation and the said incident was videographed and recorded by PW-4 S.R.Srinivas with the help of his wife PW-7 Smt.Bharati Devi. Said videographs were brought to the notice of the then President of JD(S) party Sri H.D.Kumaraswamy by PW-4 S.R.Srinivas and later on it was revealed by Sri H.D.Kumaraswamy in a Press Meet which was telecasted in various News Channel. On the basis of the same, a complaint came to be filed by PW1 Sri G.Ramesh Gowda before the Hon'ble Lokayukta, Karnataka Lokayukta, Bengaluru to initiate necessary action in this regard. Based on the same, necessary directions came to be issued by the Hon'ble Karnataka Lokayukta and subsequently, the file was 4 Spl.CC 1342/2021 transferred to the Superintendent of Police, Karnataka Lokayukta, Tumakuru to do the needful. As such the Investigating officer had commenced the preliminary inquiry to ascertain the veracity of the complaint. Thereafter, the Superintendent of Police, Karnataka Lokayukta, had secured the presence of independent witnesses, who were the Government officials and in their presence, he had recovered the CD in which the alleged conversation of offering financial help and offering of post was recorded by the accused person. The I.O. had also summoned the accused Suresh Gowda before the Lokayukta authorities and they had obtained his voice samples. All the said three CDs were sent to Truth Labs, Bangalore in order to ascertain the veracity of the same. That apart, the I.O. has also visited the house of PW7 Bharathi Devi to draw mahazar where the alleged incident had taken place and accordingly had drawn the mahzar at the place shown by her. After completion of the same, on the receipt of the report from the Truth Lab, Bengaluru, the FIR came to be registered on the basis of the preliminary investigation taken place. Thereafter, statement of the witnesses came to be recorded and on completion of the same, it was noticed that the allegations which were leveled against the accused were made out and accordingly, 5 Spl.CC 1342/2021 necessary permission was sought from the learned ADGP to accord permission to prosecute the accused person. On obtaining such permission, the charge sheet came to be presented before the Court.
3. The court on perusal of the materials on record, had taken cognizance for the aforesaid offences and the accused was secured before the court. The accused filed necessary discharge application under Sec.239 of Cr.P.C., seeking for his discharge. After hearing the accused, my predecessor in office found that there were necessary materials to proceed against the accused for the offence punishable under Sec.12 of the Prevention of Corruption Act, 1988 and accordingly necessary charge came to be framed and read over to the accused for which he had pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove their case had examined in all 14 witnesses as PW1 to PW14 and got marked documents Ex.P.1 to P.80 on behalf of the prosecution. On completion of the prosecution side evidence, necessary statement of the accused came to be recorded as contemplated under Sec.313 of Cr.P.C., wherein the accused had denied all the incriminating 6 Spl.CC 1342/2021 materials appearing against him. The accused had not preferred to lead any defence evidence and accordingly case was posted for arguments. The learned Senior Counsel Smt.Nalina, on behalf of the Accused has taken this court in length with respect to the materials secured by the prosecution and also the contentions urged by them.
5. Learned Senior Counsel had vehemently argued that the entire case of the prosecution does not indicate the exact date of alleged incident and even the Investigating Agency are unable to ascertain the same during preliminary inquiry and also during the course of investigation. It has been contended by her that the prosecution, in order to seek an order for conviction, has to specifically mention the date on which the alleged incident had taken place. Apart from that, it is her contention that the CD which came to be produced before the court is not supported by the mandatory certificate to be issued under Sec.65(B) of the Indian Evidence Act and when the entire case of the prosecution rests on the videograph which was allegedly a sting operation, the mandatory provision of complying Sec.65(B) has to be made by the Investigating Agency. Further, she has submitted that the complaint at Ex.P.1 does not disclose the incriminating material against accused persons and the 7 Spl.CC 1342/2021 Form-I annexed along with the complaint at Ex.P.2 presented before the Karnataka Lokayukta indicated that the complainant noticed on telecasting of news in Suvarna News Channel. However, the CD which was recovered as per Ex.P.39 was entirely different. She has also pointed out that the alleged CD which was produced before the concerned police was damaged during the course of trial and after obtaining the permission of the Court vide order dated 14.6.2023, a copy of the same was produced which was allegedly stored in the hard disc of the concerned police. It is her submission that the concerned officer who had transferred the same, should have been made a necessary witness and the said officer should have furnished the certificate under Sec.65(B) of the Indian Evidence Act, since the officer was the one who had stored the contents of the original CD in their computer which was later on transferred into a new CD. But no such effort was made by the prosecution. That apart, she has also submitted that the alleged incident had taken place in the year 2010 and it was ordered to conduct the preliminary inquiry by the concerned Lokayukta police, which had been lasted for about five years and later on the charge sheet was filed without obtaining necessary certificate under Sec.65(B) of the Indian Evidence Act. It 8 Spl.CC 1342/2021 is also been pointed out that the CD produced at Ex.P.13 was produced by PW4 S.R.Srinivas. However, no certificate was again obtained from him under Sec.65(B) of the Indian Evidence Act for producing the same. The Learned Senior Counsel has raised a technical question of law that whether the materials obtained by the Investigating Agency during the course of preliminary inquiry be construed as the materials which were collected during the course of final investigation. She has also raised another technical question that the preliminary inquiry was conducted for about five years by the investigating agency and if the prosecution contends to collect the materials prior to registering of FIR, the same violates the dictum of the Hon'ble Apex Court laid down in the case of Lalitha Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1. She has also submitted that initially in the FIR the name of PW4 S.R.Srinivas was arraigned as accused; however, he was left out by the Investigating Agency with a stray sentence that he was cited as witness. Though the Investigating Agency are at liberty to charge sheet only the persons against whom the offences are made out, it would also cast a duty on the Investigating Officer to mention that why the person who is arraigned as accused in the FIR was dropped 9 Spl.CC 1342/2021 and cited as witness. No such serious exercise is being made in the above case and hence it has been submitted that the charge sheet which has been filed is on flimsy grounds. She has also pointed out that as per the case of the prosecution, a video graphic transcription was recorded allegedly by S.R.Srinivas in his office when accused Suresh Gowda had made an attempt to offer him money amounting to Rs.18 Crore and also post of Chairman or President of a Board or Corporation. It is her submission that if, for the sake of arguments, that is to be accepted as true and correct, then how the CD which was allegedly handed over by him to the Investigating Agency at Ex.P.39 consisted of 14 different files when there is no whisper of evidence that the continuous recording of the alleged video transcription was broken into 14 folders by him. Unless necessary clarification is given by the Investigating Agency and also the mode of transferring the materials in to the CD, the materials which have been produced cannot be accepted. Further, it is her submission that as per the complainant himself, the video recording was for a period of 01 hour. However, the 14 different files which is forthcoming in the CD, which is produced before the Court includes of short videos divided in to 14 equal parts and as such the same cannot be relied upon.
10 Spl.CC 1342/2021
6. Learned Senior Counsel has also pointed out that as per the case of prosecution some of the conversation of alleged offer of allurement was made through the mobile phone of Accused Suresh Gowda and if the same is to be accepted for the sake of arguments, then the prosecution are duty bound to produce the CDR report and also the details of the SIM card and mobile phone through which the alleged conversation had taken place. Further it is pointed out that during the course of evidence of PW7 Smt.Bharathi Devi, stray deposition is found wherein she had deposed of recording the audio conversation between PW4 S.R.Srinivas and accused Suresh Gowda. Hence in the absence of any such materials being collected by the Investigating Agency, the audio recording found in the CD produced by the defacto complainant Sri S.R.Srinivas cannot be looked into.
7. The learned Senior counsel has also referred to the report of the scientific examiner who was examined as PW11 Smt.S.Neeru and has submitted that without explaining her educational qualification and other credentials to examine the scientific material and to tender her evidence in this regard, she could not be construed as an expert. That apart, she has also pointed that the report at Ex.P.69 particularly at page No.229 and 231 wherein 11 Spl.CC 1342/2021 reference has been made by the Scientific Expert that the video consisted of "lossy mode' and also no explanation has been given by the prosecution as to why there was a sudden shift in the recording as mentioned at page No.230 of the report. Further, the acoustic analysis at page No.233 would indicate of utterances being made by a third male person. If, for the sake of arguments, the conversation was allegedly recorded by PW7 Bharathi Devi, which had allegedly taken place between the PW4 S.R.Srinivas and accused Suresh Gowda, then how the voice of a third person could be noticed in the said audio recording. Further, it has been submitted that the report of the Scientific Officer does not indicate the third party software which was being used by the Truth Labs for ascertaining the veracity of the audio video recordings.
8. Further, the learned Senior Counsel has also pointed out that even otherwise, if the conversations and ocular evidence of the witness is examined, there are references to various other persons and their names are repeatedly poped up during the course of alleged conversation between PW4 S.R.Srinivas and Accused Suresh Gowda. In that event, summoning of said persons who are referred to in the alleged conversation i.e., Sri Zameer Ahmed Khan, Sri 12 Spl.CC 1342/2021 H.D.Kumaraswamy, Sri R.Ashok, was required and in the absence of the same, it is fatal to the case of the prosecution. She has pointed out to the court that as per the memo Ex.P.2 and in particularly Sl.No.14 and 15, it indicates that it is a copy obtained from Suvarna News Channel. The investigating agency had not summoned the news agency personal, nor secured the original transcription of the CD which was telecasted in their news channel which would have been considered as best evidence under the eyes of law.
9. It has also been submitted by the learned Senior Counsel that as per the case of the prosecution, the complainant had noticed telecasting of the said news item at Suvarna News Channel, but the CD which allegedly contained the said transcription, was not pertaining to Suvarna News Channel. It is also been submitted that during the course of cross-examination of the complainant, he has deposed that after watching news in Suvarna News channel, he came to know about the sting operation being carried out wherein the accused had given offer to flip flop from the Party. However, the CD which was produced before the court was pertaining to the news item telecasted in TV9 English channel and not in Suvarna News Channel. That apart, it has also been contended that the software which was 13 Spl.CC 1342/2021 used as per the contention of the prosecution with respect to the recording of the incident was not properly stated and on careful appreciation of the same it would indicate that the said software was released by Intel only in the year 2019, whereas the alleged incident had taken place much prior to that and it has been submitted how the prosecution could lay their hands on the recording of the incident with a device which was yet to be released.
10. Learned Senior Counsel has also argued that the statement was recorded in the month of January 2016 whereas the initial preliminary inquiry was ordered in the year 2010 i.e., after lapse of more than 6 years the statement of the witness came to be recorded which is nothing but a travesty of justice, which would indicate that fabricating of false complaint was being foisted against the accused person. The submission of learned Senior Counsel also indicates that as per the contention of the complainant he had given only one CD as per Ex.P.13, wherein voice sample belonging to accused was not compared with that of the original CD. It is also been submitted that interestingly the voice sample came to be recorded in the year 2014 and whereas the mahzar was pertaining to recovery of CD was made in the year 2011. It is her submission, how 14 Spl.CC 1342/2021 the mahazar came to be drawn in the year 2014 with respect to collecting of voice sample, when the CD was recovered in the year 2011. It is also been pointed out that at the time of seizure it is noticed that the CD consisted of 7 video files and 7 audio files. If, for the sake of argument, the contention of prosecution is accepted then they have to explain from where they had obtained 7 audio files, since it is the definite case of the prosecution that the contents of the sting operation which were in existence in the CD produced by the complainant was sent to Forensic Lab for scientific examination. It is also argued at length that non-seizure of mobile phone through which alleged conversation had taken place between PW4 S.R.Srinivas, PW7 Smt.Bharathidevi and accused Sri Suresh Gowda would cast a serious doubt over the case of the prosecution. It is also been argued that as per the findings in the report given by the Scientific Expert, a third male voice is also forthcoming. However, nowhere the prosecution has explained to whom said voice belonged to. Lastly, on technical count, it has been argued at length, whether the mahazar can be drawn in the year 2014 with respect to the recovery of CD made in the year 2011 and also it is argued that whether the preliminary inquiry conducted for a long period of time i.e., for about 15 Spl.CC 1342/2021 6 years prior to filing of FIR can be considered as evidence in the instant case and whether the act of IO in allegedly not filing FIR immediately on the receipt of complaint would cast a serious dent to the case of the prosecution, which in a way is against the settled principles of law laid down to by the Hon'ble Apex Court in Lalitha Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1.
11. Learned Senior Counsel also vehemently argued that as per Ex.P.22 only one portion was recorded due to technical problem in the video camera. However, the evidence on record indicated otherwise which is oxymoron to their case, since it was deposed by the I.O. as well as mahazar witnesses who were present on the date of copying of the transcripts, that due to technical glitch the contents of the CD could not be transferred to the laptop. That apart, it was also been submitted that as per mahazar Ex.P.22, the accused was not at all present when the alleged transcription mahazar was being drawn which was totally against to the settled law.
12. It is also been argued that as per the complainant's case, he had furnished video consisting continuous recording, whereas 16 Spl.CC 1342/2021 clippings which were produced before the court and also the video clippings which were sent for scientific examination to Truth Labs, Bengaluru, were only snippets and if the same is to be accepted as correct, then the prosecution has to explain where exactly the entire recording for more than 1 hour had taken place and why the same was not produced before the Investigating Agency and also before the Court. The learned Senior Counsel has also pointed out to the report which had been furnished by the Truth Labs at Ex.P.69. Said report was sent by the Truth Lab to the Investigating Agency after allegedly completing examination of the CDs on 24.4.2014. It is her submission that in the forwarding letter Ex.P.68 itself at the enclosure column, the Chairman of the Truth Lab had specifically stated that along with forwarding the report, they had sent copy of the I.O. request letter, complainant's affidavit, invoice of samples, Form-152, FIR, Sample seal, etc., which were in 16 sheets. It is her specific contention that, the FIR as per the prosecution case came to be registered in the year 2015 only and precisely as per Ex.P.65 the FIR was registered on 25.4.2015. By pointing out the same, it has been argued that the case of the prosecution itself was doubtful and also on perusal of the CDs and carefully examining it, it would indicate 17 Spl.CC 1342/2021 that a voice of a third person was also forthcoming in the CD. However, no explanation was given by the prosecution as to the third person's voice in the CD. It is also been submitted that as per Ex.P.69 mahazar i.e., item No.1 CD was recovered with a label mentioning as 'Operation Karnataka'. However, pancha witnesses who had deposed before the court had unequivocally stated that the CD was labeled as 'Operation Kamala'. The learned Senior Counsel argued that there is lot of difference between labeling the CD as it is the bounden duty of the prosecution to prove their case beyond reasonable doubt and further they were required to establish without any iota of doubt with respect to recovery of CD and since the witnesses deposed only in general parlance and the same would not support the case of the prosecution.
13. It has also been submitted that allegedly the CD consisted of 28 files and all the 28 files had the same header and which was lastly modified on 20.01.2014. If the modification had taken place on 20.01.2014, once again the prosecution has to offer an explanation as to who and in what circumstances the CD was modified and without raising any hash tag value, submission of the Investigating Agency cannot be accepted. The learned Senior 18 Spl.CC 1342/2021 Counsel has also argued that the transcript pertaining to the accused Suresh Gowda was transferred in his absence, which is once again against to the settled principles of law. Lastly, it has been argued that not much investigation has taken place after filing of the FIR and in fact the prosecuting agency are totally relying upon the materials which were collected allegedly during the course of preliminary inquiry. It has been argued that the collection of materials prior to registering of FIR and after registering of FIR does not stand on the same footing and in fact the prosecution should have collected the materials to point out the overt act of the accused after registration of the FIR. It has been argued that the preliminary inquiry could only be made to ascertain whether there exist any prima facie case and the scope of preliminary inquiry cannot be extended to be any part with the charge sheet. It has also been submitted that the earlier investigation was done by Sri Shivakumar, who was reported to be dead during the course of trial. Hence, as per the case of prosecution the one who had conducted major investigation and the signatures of earlier I.O. Shivakumar was identified through his successor in office PW14 Ravish. However, during the course of his cross-examination, he has specifically deposed that he never worked with CW19 19 Spl.CC 1342/2021 Shivakumar. In that event, the entire findings which have been tendered by PW14 Ravish would create serious question mark over the case of the prosecution.
14. The learned Senior Counsel also relied upon the following authorities:-
1) P.Sirajuddin Vs. State of Madras, reported in (1970) 1 SCC 595 with respect to procedural aspects which is required to be followed during the course of copies of statement by the Investigating Agency.
2) Surajmal Vs. State (Delhi Administration) reported in (1979) 4 SCC 725 wherein it has been held that mere recovery of bribe money is insufficient to convict a person when substantive evidence in the case was not reliable. Further the appreciation of evidence where the testimony of witness which was inseparable and indivisible was disbelieved in respect of the some of the accused, it could not be used to convict any other person.
3) C.M.Girish Babu Vs. CBI reported in (2009) 3 SCC 779 wherein once again it has been held that mere recovery of tainted amount of the accused when substantive evidence was not reliable, could not be used by the prosecution and also as per 20 Spl.CC 1342/2021 Sec.20 of the Prevention of Corruption Act, the burden of proof is not so high on the accused as that of the prosecution to prove their case beyond all reasonable doubt.
4) Lalitha Kumari Vs. Government of Uttar Pradesh and others reported in (2014) 2 SCC 1 - the ratio is already discussed supra.
5) Rajat Prasad Vs. CBI reported in (2014) 6 SCC 495 - In the above case Hon'ble Apex Court held that sting operation was not a recognized method for crime detection and proof of criminal act in India, unlike in United States and Hon'ble Apex Court had explained the extent of the same which could be appreciated.
6) Somasundaram alias Somu Vs. State represented by the Deputy Commissioner of Police reported in (2020) 7 SCC 772 - wherein the Hon'ble Apex Court has explained the combined result of Sec.133 r/w Sec.114 of Indian Evidence Act wherein it is held that the Court as a rule of prudence should appreciate that still it would be unsafe to convict an accused solely based on the uncorroborated testimony of an accomplice.
7) Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7 SCC 1 - wherein the 21 Spl.CC 1342/2021 mandatory provision of Sec.65(B) of Indian Evidence Act was discussed.
8) Crl.A.2760/2012 (Umesh Vs. State of Karnataka by Lokayukta Police, Belgaum) wherein once again the relevancy of Sec.65(B) of the Indian Evidence Act is appreciated.
15. By pointing out the said infirmities the learned Senior counsel appearing on behalf of the advocate appearing for the accused has summarized her arguments that the prosecution has utterly failed to prove the case beyond reasonable doubt and also the Investigating Agency is not clear that whether the materials collected prior to registering of FIR is to be relied upon or the materials which were recovered after registration of FIR. By pointing out the said aspects, she had sought for acquitting the accused person.
16. The learned Special Public Prosecutor, Sri S.S.Nagarale has submitted his reply to the contentions raised by the learned senior counsel. During the course of his reply he has relied upon the judgment of Hon'ble Apex Court reported in (2019) 11 SCC 575 (State (NCT of Delhi) Vs. Pankaj Chaudhary), wherein it has been held by the Hon'ble Apex Court that the sole testimony of the prosecutrix is sufficient to convict a accused if it inspires confidence.
22 Spl.CC 1342/2021 Learned Spl. PP relied upon another authority of Hon'ble Apex Court reported in (2023) 4 SCC 731 (Neeraj Dutta Vs. State (Government of NCT of Delhi) wherein presumption to fact with regard to demand and acceptance of illegal gratification may be made by a court of law by way of interference only when the foundational facts have been proved by the relevant oral and documentary evidence and not in the absence thereof. By relying upon the above said authorities he has argued that the evidence of PW4 and PW7 lays down foundation to the case of the prosecution that when the same is once again looked into with the materials collected during the course of investigation, it would clearly indicate that the prosecution has proved their case beyond all reasonable doubt and accordingly, he has sought for convicting the accused person.
17. Heard the arguments of both the parties and perused materials. The points that would arise for my consideration are as follows:-
1) Whether the prosecution proves beyond
reasonable doubt that the accused B.Suresh
Gowda being MLA of Tumakuru Rural
23 Spl.CC 1342/2021
Constituency from BJP Political Party had
visited the office of CW7 S.R.Srinivas, MLA of Gubbi Constituency, Tumakuru District and tried to induce him to resign from his position of MLA by receiving illegal gratification of Rs.18 Crores and also offered chairmanship of any statutory Board or corporation in the State of Karnataka, which was videographed and certain snippets of the conversation was also captured through sting operation and as such the accused had abetted offence punishable under Sec.7 and 11 of the Act and thereby committed an offence punishable under Sec.12 of the Prevention of Corruption Act, 1988?
2) What order?
18. My answer to the above points are as follows:-
Point No.1: In the Negative Point No.2: As per final order for the following:-
REASONS
19. Point No.1:- Before adumbrating to the facts of the case, once again the entire evidence which has been recorded before the court is to be recapitulated. PW1 Rameshgowda is the 24 Spl.CC 1342/2021 complainant who has deposed that on 25.10.2010 he had lodged written information as per Ex.P.1 before Hon'ble Karnataka Lokayukta along with Form No.1 as per Ex.P.2 and P3 and he had identified his signature. It is his contention that on 21.10.2010 the accused had offered Rs.25 Crore and also post of any statutory Board or Corporation to Sri S.R.Srinivas who was also the MLA of Gubbi Constituency, in order to join BJP Party, which was telecasted in a news and as such he had lodged a complaint since it was against the principles of democracy. It is his evidence that he had visited the office of Lokayukta and had given necessary information which was reduced in to writing as per Ex.P.6. Once again he was called to the office of Lokayukta on 21.6.2016 wherein he had given another statement that the accused was being guided by the then Home Minister and also Transport Minister Sri R.Ashok which was forthcoming in the CD. During the course of cross examination he had deposed that he was an philanthropist and was into social services from his college days and also he was the President of Karnataka Nava Nirmana Vedike and had filed more than 100 complaints in respect to corruption cases. Apart from that nothing much was elicited with respect to his background. However, it is his 25 Spl.CC 1342/2021 evidence that along with Ex.P.5 document he had furnished only one CD. Further he has deposed that the news telecasted was recorded into CD when he was in his office at Shivamogga and he had obtained the CD from some known person. Further, he has deposed that he got the complaint drafted at Shivamogga itself. Apart from that nothing much has been elicited.
20. Subsequently, he was recalled by the prosecution and he has deposed that the video was recorded at one Sharma Video Center and he has collected the same and handed over to Lokayukta Office. However, the CD which was furnished to the Court was broken and accordingly, he was called upon to the concerned police station once again wherein a woman constable by name Smt.Baby Rani, who had on an earlier occasion had transferred the contents of the CD to the computer, had once again copied to another CD and it was identified and marked as Ex.P.39 along with the certificate under Sec.65(B) of Indian Evidence Act as per Ex.P.40. However the marking of the CD was seriously objected by the learned counsel for accused on the ground that the same had not complied the mandatory provision of Section 65(B) of the Indian Evidence Act.
26 Spl.CC 1342/2021
21. During the course of cross-examination he has deposed that the contents of the CD at Ex.P.39 which he had produced was consisting of 15 minutes video which was with respect to the telecasting of news item at TV9 channel and has specifically deposed that the contents of the CD at Ex.P.39 was copied and written by Smt.Baby Rani who was Police Constable. He has also deposed that the contents of the original CD was in consonance with the CD written in the police station and since it was tallying with each other, he had got a certificate issued as per Ex.P.40. Apart from that nothing much was elicited from the mouth of this witness.
22. PW2 S.Parashivamurthy is the mahazar witness who has deposed that in the month of November 2010 as per the direction of the District Social Welfare Officer, he had visited the office of Lokayukta on 15.11.2010 wherein he had met CW3 N.R.Mohan Murthy and complainant Ramesh Gowda who had answered the 20 questionnaires with respect to a sting operation named as Operation Kamala telecasted in Suvarna News and the said transcription came to be recorded and lastly a mahazar was drawn as per Ex.P.6 for which he had affixed his signature. He has deposed that there were 27 Spl.CC 1342/2021 14 audio and video files in which file No.1 to 6 were audio files and file No.7 to 14 were video files and the audio conversations were not clearly audible. It is his evidence that another mahazar which was drawn between 2 to 4 p.m. as per Ex.P.7 and later on the contents of the CD was sealed and during the course of evidence the same was opened and marked as Ex.P.13. He has also deposed that on 19.3.2011 once again he had went to Lokayukta office where PW5 S.R.Srinivas, sitting MLA of Gubbi Constituency was present and his voice sample was collected and had drawn mahazar as per Ex.P.15 and EX P.16 for which he and one N.R.Murthy had affixed their signature. During the course of cross-examination he has deposed that on 19.3.2021 he was present in the Lokayukta office, however, he has feigned his ignorance about the files which were prevailing in Ex.P.17 and 18 CDs. Further, it is his contention that the videos in the CD were transferred to the laptop, it consisted of 14 files. However, he has feigned his ignorance with respect to the format of the contents of CD and the name of the file mentioned prior to it being burnt on a CD. Further, he has feigned his ignorance about the mode in which the CD was copied. It is his evidence that at the time of recording the sample voice of S.R.Srinivas, he was present.
28 Spl.CC 1342/2021 However, he has feigned his ignorance that he was not present in the room where allegedly the voice recording was being conducted. However, he has also feigned his ignorance of the white paper where he allegedly affixed his signature. He has categorically admitted that he had not seen the CD properly and the file No.7 to 14 was not clearly visible. He has specifically deposed that when the contents of the CD was displayed apart from Sri Suresh Gowda and Sri S.R.Srinivas, another person was present, who could not be identified.
23. PW3 Manjunath.N is another mahazar witness who was summoned to Lokayukta office at the time of recording the transcription. He has deposed that on 20.1.2014 he had visited the office of Lokayukta and at that time, accused Sri Suresh Gowda present and he was enquired and his video and audio was recorded in the Laptop which was written on the said CD and DVD for which he had affixed his signature. The witness has deposed that the videograph was for 9 minutes and 28 seconds and the same was kept in a properly sealed cover. He has deposed that on 13.1.2016 he along with Nagendra Kumar was called by the concerned police and 29 Spl.CC 1342/2021 there a mahazar was drawn at the place which was shown by the wife of Srinivas i.e., Smt.Bharathi Devi from where she had recorded the incident in her mobile phone and accordingly the mahazar as per Ex.P.21 was drawn. During the course of cross-examination, he has deposed that initially when the audio and voice records were being made no glitch had taken has taken place and it was specifically suggested that at the time of recording the same there were some technical glitch.
24. PW4 S.R.Srinivas has deposed that the concerned police had issued him a notice to visit the police station and accordingly, on 01.12.2010 he had visited the Lokayukta office at Tumakuru and had furnished a letter as per Ex.P.36. He has also identified the contents of the DVD at Ex.P.13 which consisted of the conversation that had taken place between him and the accused Sri.B.Suresh Gowda. He has deposed that he was being requested by the members of BJP Party to flipflop from JD(S) Party in the year 2008 when he was MLA of Gubbi Constituency. At that point of time, accused Suresh Gowda had repeatedly contacted him and requested him to change over from JD(S) party to BJP Party and on one particular day he had 30 Spl.CC 1342/2021 visited his house at Vidyanagar along with one Mr.Masala Jayaram and he had requested Rs.25 crores for flip-flopping the party. Later on after making discussion it was agreed that he would be paid with Rs.15 Crores and at that point of time the accused telephonically contacted the then Home Minister Sri R.Ashok who had also assured him to provide him with a post of Chairman of a Board or Corporation. Further he has deposed that he had demanded to make the payment immediately, for which he had requested for some time and went outside and immediately, he had contacted their party President Sri H.D.Kumaraswamy, and immediately, Sri E.Krishnappa, Sri Zamir Ahmed Khan and Sri Puttanna along with their supporters had come near his house, which came to the knowledge of accused Suresh Gowda who had refused to make payment and went away. It is his specific assertion that the entire incident was for about 45 minutes which was recorded by his wife in her mobile and handy camera which was written on a DVD by her and later on it was furnished to concerned police. During the course of cross-examination, he has explained his ignorance about the instrument which was used by his wife to record the incident, or the make and the company name. He has also feigned his about the 31 Spl.CC 1342/2021 length of the video recording and also on how many occasions the accused had visited his house. It is contention that at the time of recording his voice sample one more person was present who was recording the same. Further, he has admitted of not lodging any complaint after the incident before the concerned police. It was suggested to him that he was suspended from JD(S) party which was admitted by him and he has denied the suggestion of being involved in anti-party activities. Apart from that nothing much was elicited from him.
25. PW5 A.S.Jayaram @ Masala Jayaram who was the eye witness to the incident had turned hostile and not supported the case of prosecution and during the course of cross examination by the learned SPP nothing much was elicited from him.
26. PW6 E.Krishnappa has also not supported the case of prosecution and he was considered hostile witness and he was cross- examined by the learned SPP. However, nothing much was elicited from him apart from his denials.
27. PW7 Smt.Bharathi Devi, the wife of PW4 S.R.Srinivas, who had allegedly recorded the incident. It is her contention in the 32 Spl.CC 1342/2021 month of October 2010, she had discussed with her husband to put an end for flip-flopping of MLAs by receiving ill-gotten money for changing the political party and hence, they had decided to record the conversation on their phone. It is her contention that on the same day between 9 pm to 10 pm Masala Jayaram, accused Suresh Gowda had come to their house and were conversing with her husband S.R.Srinivas in their office room which was situated next to her house and they were offering some amount to her husband to flip flop the party. At that point of time, Sri Krishnppa, Zamir Ahmed Khan and Puttanna had also come to their house and on noticing them, accused Sri Suresh Gowda went away. It is her specific contention that the accused had tried to allure him by offering a bribe of Rs.15 crore to flip flop the party and to join BJP party. During the course of cross-examination, she has feigned her ignorance, that whether they possessed a computer or laptop in their house in the year 2010. She had also feigned her ignorance, whether the data in the cassette was transferred directly to the computer or by her children or by her staff members work in their house. She has feigned her ignorance that whether they had any DVD writing software in their house. She has deposed of giving an interview 33 Spl.CC 1342/2021 before the media persons with respect to 'Operation Kamala'. She also deposed that the conversation between her husband and Suresh Gowda was leaked to media by her husband and Sri H.D.Kumaraswamy. However, they had not lodged any police complaint in this regard. Subsequently, she was recalled and produced a certificate under Section 65(B) of Indian Evidence Act which was marked subjected to objections. Apart from denial nothing much was elicited from her.
28. PW8 S.N.Pasha was the one who had carried the CDs to the Truth Lab at Bengaluru for the purpose of scientific examination.
29. PW9 S.M.Jagadish Prasad has deposed that on 09.11.2010, the learned ADGP of Karnataka Lokayukta had sent him written information along with complaint of M.Ramesh Gowda as per Ex.P.1 and on the basis of the same he was directed to conduct a preliminary enquiry. Further, it has been deposed that he had addressed a letter to Competent Officers to depute their officials for drawing a mahazar and on 15.11.2010 the complainant Ramesh Gowda was present in his office in the presence of witnesses PW2 Parashivamurthy and CW3 N.R. Mohan Murthy, wherein they had 34 Spl.CC 1342/2021 prepared a questionnaire and had recorded the answers of the complainant which was reduced in to writing by way of typing and at such time they had also drawn mahazar as per Ex.P.6. He has also deposed that the complainant had answered to his questionnaire that he had copied the video files through an employee of Sharma Video at Shivamogga and in order to ascertain the authenticity of the same he had addressed a letter to PW4 S.R.Srinivas and later on he had also addressed a letter to Smt.Bharathi Srinivas. Further, he has deposed of collecting of CDs along with letter as per Ex.P.36 from PW4 S.R.Srinivas. It is his evidence that he had issued a reminder on 01.03.2011 to Sri.S.R.Srinivas to appear before him and subsequently, he had appeared and he had secured two independent witnesses as mahazar witness and had displayed the video CD which was handed over to him by S.R.Srinivas. The said CD consisted of totally 14 files, which were running for a period of about 1 minute each and out of that file No.1 to 6 were audible and whereas file No.7 to 14 are not clearly audible. They had recorded the verbatim conversation and had drawn the mahazar as per Ex.P.7. It is his evidence that on 19.3.2011 S.R.Srinivas was summoned to his office and was appraised of collecting his voice sample for which he had 35 Spl.CC 1342/2021 agreed and accordingly, the same came to be recorded and later on it was transferred to his laptop under mahazar Ex.P.14. Since voice sample of Sri.Suresh Gowda was required for the purpose of enquiry, he was summoned to his office wherein the accused had appeared on 08.06.2011. During the course of cross-examination he had admitted that he did not had any impediment to collect voice sample of Ramesh Gowda and he had not done so, since he was directed to collect only the voice sample of Sri S.R.Srinivas and Accused Suresh Gowda. He has also admitted that he did not had any impediment to seize the original footage of Suvarna News Channel, however he has volunteered that since he was barred from doing the same prior to registration of FIR. Apart from that nothing much was elicited from him.
30. PW10 M.R.Goutham was the Police Inspector, Karnataka Lokayukta and deposed of receiving directions from the then Superintendent of Police, Karnataka Lokayukta to register complaint against the accused person. In pursuance of the same he had registered FIR in Cr.No.4/2015 as per Ex.P.65. He has also deposed that at the time of registering the complaint he had also 36 Spl.CC 1342/2021 recovered CD which was enclosed by the complainant which he had subjected to PF No.11/2015 marked as Ex.P.66. Apart from that nothing much was elicited from him.
31. PW11 S.Neeru is the Scientific Expert deposed that she had completed graduation in B.Sc., (Mathematics) and had completed Master Degree in Information Technology. She has deposed of tendering evidence before the various courts and also it is her evidence that she had analyzed nearly 400 cases including the speaker identification case. Further, she has deposed that she had joined Truth Labs as Scientific Officer in the year 2010 and on 23.1.2014 the Lab had received five sealed parcels along with a requisition letter dated 22.01.2014 from the Superintendent of Police, Karnataka Lokayuktha, Tumakuru Division requesting to examine the voices contained in the CD's in the sealed parcel covers. It is her contention that on opening the parcel No.1 she had found that it contained 1 DVD of Sony make labeled as Operation Karnataka and the said DVD contained one folder named as "BJP MLA sting". The second folder "CD format" also contained 14 audio video files and she had marked them as Q15 to Q28. Whereas the earlier ones 37 Spl.CC 1342/2021 numbered as Q.1 to Q.14. She has further deposed that the Second parcel contained of one CD of HP Invent make labeled as "sample voice of Sri. S.R. Srinivas MLA recorded on 19-03-2011" and the duration of the CD was 1 hour 26 minutes and 34 seconds which she had marked it as S1. Further, the 3rd parcel contained one DVD of Sony make labeled as "Video Disc containing sample voice of Sri. S.R. Srinivas M.L.A. recorded on 19-03-2011" and on opening of the said DVD she found that it consisted of 4 audio video files which she had marked as S2 to S5 respectively. The 4th parcel had contained one DVD of Sony make labeled as "sample voice of Sri. B. Suresh Gowda, M.L.A. recorded on 18-01-2014" and it had consisted one audio video file which she had marked as S6. The 5th parcel contained one DVD of Sony make labeled as "Video Disc containing sample voice of Sri. B. Suresh Gowda, M.L.A. recorded on 18-01- 2014" for which she had numbered as S7.
32. It is the evidence of PW11 that item No.1 to 5 were in working condition and they were free from physical damages and she had subjected the same to acoustic analysis and spectrographic analysis and based on the examination she was of the opinion that the 38 Spl.CC 1342/2021 voice characteristics of the speaker in the recordings matched with the characteristics of the speakers in the recordings at S1 to S5. She has also deposed that the voice characteristics of the speaker in Q1/2 to Q28/2 in the recordings Q1 to Q28 were matching with characteristics of the speakers in the recordings S6 and S7. Accordingly, she has deposed of furnishing a detailed report on 24.04.2014 which was forwarded by her Director on the same day as per Ex.P.68. During the Course of cross-examination she has deposed that she was Manager at Wipro Technologies for the last 2 1/2 years and she did not had any impediment to furnish certificates with respect to her credentials. She has also feigned her ignorance with respect to the duration of length of each speaker which were sent for analysis and also she has deposed that there is no minimum requirement of length of audibility to conduct the audio speaker analysis test and it is her evidence that the quality of the levels of the audibility would be significant factor to be determined. Further, during the course of cross-examination she has admitted that she did not had any impediment to furnish the output generated by the third party software which were used for conducting the analysis of the voice samples. Further, she has also admitted that in order to conduct 39 Spl.CC 1342/2021 voice sample analysis it was required to collect the sample voice in the same language in which the questioned voices were recorded. Apart from that nothing much was elicited from her.
33. PW12 B.Lokesh was working as Superintendent of Police, Karnataka Lokayukta and has deposed that on 24.04.2015 he was called upon by the ADGP office, Karnataka Lokayukta and was directed to take further actions on the basis of the recommendations made by the Hon'ble Lokayukta and along with that he was handed over with 3 documents which were Memo dated 24.4.2015 at Ex.P.71 and on the basis of the same he had directed PW10 M.R.Goutham to register a case and proceed with in accordance with law.
34. PW13 Ramesh Chandra is the other I.O, deposed of recording the sample voice of accused Suresh Gowda on 18.01.2014 in the presence of mahazar witnesses by name N.Manjunath and K.V.Nagendrakumar and the entire proceedings were video graphed and the recording was reduced into writing. He has deposed that at the time of video recording the entire process, they had faced some technical glitch and as such they were unable to video record the entire proceedings. However, the proceedings were recorded by 40 Spl.CC 1342/2021 using the laptop of their office which they had converted and reduced the voice recording and got it written on a CD. He has deposed that the mahazar at Ex.P.21 reflects the true and correct factor. That apart he has deposed that on 20.01.2014 another mahazar was drawn in the presence of N.Manjunath and K.V.Nagendrakumar, who had visited his office and they got transcribed entire contents of the voice recording which was made on the previous date. It is his evidence that on 22.1.2014 he had requested the Director of Truth Lab, Bengaluru to verify, compare and give an opinion with respect to the veracity of the materials sent by his predecessor in office. During the course of cross-examination he has deposed that he had not enquired the officials of Suvarna News Channel or the anchor who had spoken with PW7 Smt.Bharathi Devi, since his predecessor had already enquired them. Further, he had also deposed that he did not have any impediment to recover original CD which was mentioned at Sl.No.17 of Ex.P.6 from the Suvarna News Channel. For the sake of clarity Ex.P.6 is the questionnaire prepared by the Lokayukta officials at the time of investigation. Apart from that nothing much was elicited from him.
41 Spl.CC 1342/2021
35. PW14 C.R.Ravish is the Deputy Superintendent of Police, Karnataka Lokayukta, Tumakuru, deposed that he had received files from CW19 S.M.Shivakumar, who died about 1 1/2 years back. He has deposed that said S.M.Shivakumar had conducted majority of investigation and he had recorded statement of the witnesses and later on the investigation was completed and he had requested the ADGP, Karnataka Lokayukta to accord permission to file charge sheet before the jurisdictional Court. During the course of cross-examination, it is his evidence that Sri S.M.Shivakumar had already prepared list with respect to the materials collected by him during the course of his investigation. Apart from seeking for permission to file the charge sheet, he had not done any major investigation. Subsequently the witness was once again recalled and he had deposed that he had not verified that whether the Video files furnished by the PW7 Bharathi Devi was for a period of 45 minutes at the time of filing the charge sheet. He has also deposed that the duration of the video file on an average it was for about 45 minutes. It is his evidence that there were no specific directions to send the recovered CD for scientific examination to the Truth Lab only instead of State Forensic Science Laboratory at Bengaluru. He has 42 Spl.CC 1342/2021 also expressed that there was no impediment for him to enquire PW4 S.R.Srinivas and accused Suresh Gowda with respect to the phone numbers used by them at the time of alleged incident. Apart from that nothing much has been elicited from his mouth.
ANALYSIS AND APPRECIATION OF THE EVIDENCE:-
36. The first and foremost fact which requires to be appreciated by this Court is the manner in which criminal case being set in to motion. It is settled principles of law that a criminal law can be set into motion even by a third person and law does not require that a person injured should only set criminal law into motion. As such in the instant case, PW1 Rameshgowda who has claimed to be President of Navakarnataka Nirmana Vedike (R) had lodged written information as per Ex.P.1 on 25.10.2010 stating that a sting operation was being carried out which was telecasted in Suvarna News 24X 7 wherein it was noticed that the accused Suresh Gowda had made an offer of inducement to Sri. S.R.Srinivas who was sitting MLA of Gubbi Constituency for a sum of Rs.25 crores and also a position in any Board or Corporation. It is his contention that the said incident would lower the image of the elected representatives in the eyes of
43 Spl.CC 1342/2021 general public and also it was playing fraud upon the voters of the constituency. Accordingly, he had sought for taking necessary action against the accused Suresh Gowda by lodging complaint before the Hon'ble Lokayukta. Along with the said complaint, the complainant had also filled up Form-1 as per Ex.P.2 wherein he had specifically stated at column No.4 that the conduct and act of the accused was only of de-meaning the office of the elected representatives and also cheated and defrauded the votes under the Representation of Peoples Act. In particularly at column No.5 he has stated that he was basing his allegations on the basis of the CD which was released to the media on 21.10.2010. That apart in column No.8 he has specifically stated that the CD was with Sri S.R.Srinivas, MLA of Gubbi Constituency which was telecasted in Suvarna News TV. In the accompanying Form No.2 at Ex.P.3 he has verified the contents. It is pertinent to note that on the basis of the same, necessary directions came to be issued by the Hon'ble Lokayukta to the competent authorities to look in to the matter and to conduct preliminary investigation. At this juncture, it is relevant to note and refer to the directions which were issued by the Karnataka Lokayukta which was marked by way of confrontation at Ex.D.1. Ex.D.1 is the order sheet 44 Spl.CC 1342/2021 wherein it has been specifically directed by the learned ADGP, Karnataka Lokayukta that the questioned CD with the voice sample would be sent to Central Forensic Science Laboratory ('CFSL' for short). Apart from that the relevant portion which is extracted as "I have spoken to Director, CFSL, in this regard'. Based on the said directions issued by the ADGP, the CD which was furnished by the complainant was initially marked as Ex.P.4 along with the voice sample collected during the course of investigation by the I.O., Karnataka Lokayukta, Tumakuru, were sent for scientific examination to the Truth Lab, Bengaluru. It is relevant to note that the I.O. on various dates had secured the presence of PW4 S.R.Srinivas to their office and there the voice samples were collected. The voice sample which were collected were also recorded initially through the devise which was available in their office and transferred to the Laptop and later on it was burnt upon a DVD. It was also relevant to note that the entire transcription that had taken place were videographed and reduced into writing in the presence of two independent witnesses by drawing necessary mahazar. Subsequently, the accused Suresh Gowda was also secured before the Investigating Agency and his voice sample came to be recorded. At 45 Spl.CC 1342/2021 this juncture, the learned Senior counsel Smt.Nalina.M appearing on behalf of the learned counsel for accused, had argued at length that the collection of voice sample itself is in violation of settled principles of law. It is her submission that in order to collect voice sample, the procedural safeguards is required to be met by the investigating agency. That apart she also pointed out that the collection of voice sample would amount to the self-incrimination as defined under Article 20 of the Constitution of India and as such necessary permission should have been obtained in writing by the accused persons. I have bestowed my anxious reading on the said submission urged by learned Senior Counsel in this regard. In the instant case the Investigating Agency have not collected any such written consent from the accused B.Suresh Gowda. However, during the course of evidence by the I.O. i.e., PW13 Ramesh Chandra deposed of obtaining consent of the accused orally, which is totally against to the settled principles of law.
37. Be that as it may, I have also bestowed my anxious reading to the alleged transcription on the basis of which the criminal law was set into motion. The entire case of the prosecution rests on 46 Spl.CC 1342/2021 the telecasting of the news item in news channel i.e., Suvarna News 24X7 initially on 21.10.2011. It is pertinent to note that the said news item was telecasted and it was viewed by various viewers throughout the State of Karnataka. The Complainant Rameshgowda who had lodged written information as per Ex.P.1 has contended that on watching the said news item, he came to know about the illegal act committed by the accused persons wherein he had tried to induce the complainant S.R.Srinivas to flip-flop from his political party to BJP Party by receiving a sum of Rs.25 crores and also he was assured post of Chairman or President of any Board or Corporation. At this juncture, the original transcription which was telecasted in the news channel is required to be appreciated. Admittedly, as per the complainant's case, the said news item was telecasted on 21.10.2011 in Suvarna News 24X7 channel. Initially the CD which was produced by the complainant Rameshgowda was recovered by the Investigating Agency and marked before the court as Ex.P.4. However, during the course of evidence it was noticed that the CD was not in working condition and also a crack had appeared on the CD. At that point of time, Investigating Agency had filed necessary application to produce secondary evidence by filing copy of the CD 47 Spl.CC 1342/2021 which was stored in the computer of the I.O. The application came to be allowed vide orders passed by my predecessor in office on 14.06.2023. On the basis of the impugned orders, once again the Investigating Agency had furnished the copy of the contents of the CD Ex.P.4 which was burnt in to CD and produced before the court which was marked as Ex.P.39 and the contents of the CD Ex.P.39 was displayed before the court indicating telecasting of news item of TV9 English news channel. Learned Senior Counsel has pointed out that the secondary evidence which is permitted to be led before the court should be copy of the original contents which was produced earlier. However, in the instant case as per the complainant as could be noticed from the written information at Ex.P.1 and also as per Form No.1 and 2, which was furnished to the Investigating Agency i.e., Karnataka Lokayukta, the complainant Ramesh Gowda had specifically stated that he came to know about the incident of alleged allurement given by the accused Suresh Gowda on the basis of the news item telecasted in Suvarna News 24X7 which was Kannada news channel. However, the contents of the CD at Ex.P.39 which is alleged to be copy of the contents which were stored in the devise of the I.O. indicating that a news item being published and telecasted in 48 Spl.CC 1342/2021 TV9 English Channel. As such it is her submission that the production of document at Ex.P.4 and Ex.P.39 itself is entirely different and the same is not tallying with each other. That apart, much argument has been addressed with respect to the veracity and genuineness of the CD which has been produced and also the voice sample produced at Ex.P.12, Ex.P.14, Ex.P.15 and Ex.P.16 which were sent to scientific examination along with voice sample of accused Suresh Gowda and Ex.P.31 and Ex.P.33 to the Truth Lab, Bengaluru. With respect to the said allegation, same will be dealt by me in the later part of the judgment.
38. At this juncture, learned Special Public Prosecutor Sri S.S.Nagarale has vehemently argued that the case of the prosecution is not entirely resting on the contents of the CD. It is his submission that the case rests on the direct ocular evidence of PW4 S.R.Srinivas and PW7 Bharathi Devi who are the eye witnesses to the incident where allurement was given by the accused B.Sri Suresh Gowda. It is his submission that the CD transcripts at Ex.P.4 and Ex.P.39 and voice samples of CD can only be used as additional document to fortify their contention. In order to butters his submission, learned 49 Spl.CC 1342/2021 SPP has relied upon the authority of Hon'ble Apex Court reported in (2019) 11 SCC 575 (State (NCT of Delhi) Vs. Pankaj Choudhary) wherein it has been held by the Hon'ble Apex Court that the Court may rely upon the sole testimony of the witness if it inspires the confidence of the Court in order to award conviction to the accused. That the said principle was laid down in a case pertaining to sexual offence against women. The learned SPP has brought to the notice of this court that the ratio laid down in that case by the Hon'ble Apex Court that the court may rely upon the sole testimony of the witness has to be appreciated. In the instant case it is his submission that there are no materials to reject the evidence of the witnesses who were examined before the court and in particularly the evidence of PW4 S.R.Srinivas and PW7 Smt.Bharathidevi. It is his submission that when there is direct ocular evidence the same requires to be given precedence over the other form of materials which has been produced. That apart, he has also relied upon another authority of the Hon'ble Apex Court reported in (2023) 4 SCC 731 (Neeraj Dutta Vs. State). In the said judgment, Hon'ble Apex Court held that the presumption of fact with regard to the demand and acceptance or obtainment of illegal gratification may be made by a court of law by 50 Spl.CC 1342/2021 way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. By pointing out the said findings the learned Spl. Public Prosecutor has argued that in the instant case as per the case of the prosecution accused Suresh Gowda who was sitting MLA of Tumakuru Constituency had tried to allure the defacto complainant Sri S.R.Srinivas by making an offer of Rs.25 Crore and also post of Chairman of any Board or Corporation. It is his contention that the said offence is fortified by the evidence of PW7 Smt.Bharathi Devi. Apart from that he has submitted that there are no materials to indicate that any sort of ill-will existed between the parties and in the absence of the same, the Court cannot rely upon the sole testimony of PW4 and also that of PW7, who had recorded the video of the entire incident which had taken place between the accused and Sri S.R.Srinivas. The materials at Ex.P.39 which was copy of the CD at Ex.P.4 and also voice samples of Sri.B.Sri Suresh Gowda Ex.P.31 and Ex.P.33 CDs, when compared with the voice sample of S.R.Srinivas which were sent to Truth Lab would only indicate that the report at Ex.P.68 furnished by the Truth Lab would only fortify the case of the prosecution.
51 Spl.CC 1342/2021
39. In order to appreciate the said aspect that whether the evidence of PW4 S.R.Srinivas and PW7 Smt.Bharathi Devi has sterling witness in the instant case, it required to recapitulate entire evidence which is lead before the Court. Once again at the cost of repetition, the evidence collected by the Investigating Agency is required to be appreciated with the evidence which came to be recorded before the Court. As already discussed, it is noticed that a preliminary enquiry was ordered by the learned ADGP, Karnataka Lokayukta to enquire that whether the contents of CD was tallying with the voice sample of accused Sri Suresh Gowda and that of PW4 S.R.Srinivas. In this regard, initially before registering of the FIR itself, in the year 2011, Sri S.R.Srinivas was summoned to the office of Lokayukta and where his voice sample was collected. At the same time, the voice sample of the accused Suresh Gowda was also collected by the Investigating Agency (though it is objected by the learned Senior Counsel that it was not done in accordance with law), the court has considered the same and the manner in which entire proceedings had been conducted.
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40. As per the evidence of PW4 S.R.Srinivas, he was approached by the accused Suresh Gowda who had tried to allure him by offering sum of Rs.25 Crore and also Chairmanship or Presidentship of Board or Corporation. It is his contention that the said incident had taken place in the year 2008 at about 8.30 p.m. when Suresh Gowda had visited his office at Vidyanagara along with PW5 Masala Jayaram. It is his contention that initially he had demanded Rs.25 Crore, however, he was offered only Rs.5 crore and later on it was settled for Rs.15 Crore by accused Suresh Gowda. He has also deposed that he had brought it to the notice of party President Sri H.D.Kumaraswamy. Immediately, at that time the party leaders of JD(S) Party, PW6 E.Krishnappa, Sri Zamir Ahmed Khan and Sri.Puttanna along with their supporters came near his house. At this juncture, it is noticed that as per the evidence of PW4 S.R.Srinivas, which was given before the Lokayukta authorities at the initial point of time i.e., during preliminary enquiry also indicates that the some of the party workers had visited his house when a offer of allurement was being made by accused Suresh Gowda. If that is the case, the prosecution has to explain why they had not summoned Sri Zamir Ahmed Khan, Sri H.D.Kumaraswamy, whose name would 53 Spl.CC 1342/2021 repeatedly forthcoming in the entire incident as the one to whom the original CD was sent and the person who was also having clear first hand information or knowledge about the alleged incident. It is also noticed from the record as per the case of the prosecution, Sri E.Krishnappa, Sri.Zamir Ahmed Khan and Sri.Puttanna along with their supporters had come near the residence of PW4 Sri S.R.Srinivas. Unfortunately, for the case of the prosecution, PW5 Masala Jayaram who allegedly accompanied accused Suresh Gowda to the house of PW4 S.R.Srinivas, had turned hostile and nothing much elicited from him during cross-examination.
41. It is relevant to note another person by name Sri E.Krishnappa was examined as PW6 and he too had turned hostile and nothing much elicited from him during cross-examination.
42. That apart, Sri Zamir Ahmed Khan, Sri Puttanna and Sri H.D.Kumaraswamy were not at all summoned nor inquired by the Investigating Officer which would put a serious question mark on the case of prosecution.
43. I have also bestowed my anxious reading to the further part of the cross-examination. PW4 S.R.Srinivas wherein he has 54 Spl.CC 1342/2021 deposed that they had conversed for about 45 minutes in their office. It is relevant to note at this juncture, repeatedly witness PW4 S.R.Srinivas and PW7 Bharathi Devi stating that the conversation had taken place for a period of 45 minutes, whereas the voice sample collected and sent for scientific examination before the Truth Lab, Bengaluru, did not contain of a continuous conversation being recorded. It is relevant to note that as per the case of prosecution there were totally 14 audio video files available in the CD which was allegedly furnished by the defacto complainant S.R.Srinivas and the same consisted of video of 1 minute each. This raises a question how the said conversation for about 45 minutes were broken into conversation of 1 minute each by the witness or who had tinkered with the video conversation that had taken place. Be that as it may, it has been deposed by the witness that the video portion was reduced in to DVD by PW7 Bharathi Devi. Further, it is interesting to note that the original DVD was handed over as per the case of the defacto complainant Sri S.R.Srinivas to Sri H.D.Kumaraswamy. If that contention is to be accepted then once again the prosecution has to explain why enquiry was not made with Sri H.D.Kumaraswamy, who allegedly possessed original DVD which was furnished by PW4 55 Spl.CC 1342/2021 S.R.Srinivas at the inception stage itself. In the further part of his cross-examination, the witness has deposed that he was displayed with the DVD in the police station on 18.6.2016. Later on his voice sample collected by the Investigating Agency. During the course of cross-examination he has feigned his ignorance with respect to the materials used by his wife to record the entire conversation and also the manufacturer of the Video recorder or the handy camera used for recording the conversation. It is his evidence that the accused Sri Suresh Gowda had stayed back in their house for about 30 to 45 minutes and he does not know for how long the conversation had taken place. He has also deposed that at the time of calling Press Meet, they had distributed CDs to the Press persons and also to the Investigating Agency and also to Sri H.D.Kumaraswamy. He has specifically deposed that his son and his wife had helped him to play DVD and he has feigned his ignorance about editing of DVD by his son. The aforesaid evidence is required to be appreciated with the evidence of PW7 Smt.Bharathi Devi in order to ascertain whether the quality of evidence tendered before the court can be termed as sterling evidence. Smt.Bharathi Devi once again reiterated the contention of the accused Sri Suresh Gowda had intended to allure 56 Spl.CC 1342/2021 her husband PW4 S.R.Srinivas by offering money and also some Post of Chairman or President of some Board or Corporation. She has also admitted that at that point of time, accused was accompanied by PW5 Masala Jayaram and later on near their house Sri E.Krishnappa, Sri Zamir Ahmed Khan and Sri Puttanna had come. Also the same was notified to the Party President Sri H.D.Kumaraswamy. If the said aspects were to be accepted as true and correct once again a serious question mark would be raised on the manner in which investigation is being conducted by the Investigating Agency, as to why they had not preferred to record statement of Sri Zamir Ahmed Khan, Sri Puttanna and Sri H.D.Kumaraswamy, who was the recipient of the original DVD which was supplied to him by PW4 S.R.Srinivas.
44. Further, PW7 Smt.Bharathi Devi had also stated that she had recorded the audio conversation that had taken place between accused Sri Suresh Gowda and her husband. Further, the said aspect was also videographed by her by standing near the passage of her house. It is relevant to note that the concerned police had drawn a mahazar as per Ex.P.29 where the PW7 Smt.Bharathidevi had stated 57 Spl.CC 1342/2021 to have video recorded the conversation. At this juncture, the boundaries which is mentioned in the mahazar require to be appreciated, which is as follows:-
East by : 4th Cross and thereafter Nandini Nilaya West by: Vacant site North by: Residential house of S.Murthy South by: Residential House of MLA by name Gurukrupa along with vacant site.
45. If the evidence of Smt.Bharathi Devi is to be accepted, then existence of passage would have been mentioned in the mahazar. Obviously the mahazar was drawn at the behest of PW7 Smt.Bharathi Devi, who had shown the place of alleged incident.
46. For the purpose of convenience once again the materials which were collected is to be recapitulated, wherein PW7 Smt.Bharathi Devi has specifically deposed that she had stood in the passage between the house of the sitting MLA i.e., her husband PW4 S.R.Srinivas and the office room where the alleged incident had taken place. The mahazar drawn near the office does not indicate of any such passage being present. The Court has examined the said aspect in detailed manner only to ascertain whether the said
58 Spl.CC 1342/2021 testimony of the witness can be considered as that of sterling quality. What amount to sterling witness has been reported in the judgment of Hon'ble Apex Court reported in (2012) 8 SCC 21 (Rai Sandeep v. State (NCT of Delhi) wherein it is held as:
In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the
59 Spl.CC 1342/2021 sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
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47. When the said principles are appreciated with the facts of the case, it does not indicate that the evidence of PW4 and PW7 can be construed as that of sterling quality so as to support the prosecution case solely upon their testimony. As such it would drive the court to look in to the other materials collected by the Investigating Agency i.e., voice sample and also original transcription of the CD which were furnished by PW4 S.R.Srinivas. PW4 S.R.Srinivas had furnished CD which was marked as Ex.P.13 during the course of his investigation by the Karnataka Lokayukta and in the said CD it was described the manner in which the conversation had taken place. As per the video contents the accused had allured the defacto complainant S.R.Srinivas with money and post to flip flop from his party and join BJP party. Be that as it may, the transcription was sent to the Truth Lab for conducting scientific examination.
48. The learned Senior Counsel has vehemently argued that at the first instance the report furnished at Ex.P.68 and Ex.P.69 by PW11 Neeru.S cannot be considered as valid evidence in the eye of law. In order to better appreciate the said aspect she has relied upon 61 Spl.CC 1342/2021 the authority of Hon'ble Apex Court in respect of competency and role of experts to furnish said report in the instant case. In the said judgment rendered by Hon'ble Apex Court with respect to the role of experts, the court has relied upon the judgment reported in (2009) 9 SCC 709 (Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors.) "11) EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise
ii) that the evidence must be based on reliable principles, and
62 Spl.CC 1342/2021
iii) that the expert must be qualified in that discipline. [See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178]
12) Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under:
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger- impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.
Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the 63 Spl.CC 1342/2021 acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant."
13) The importance of the provision has been explained in the case of State of H.P. v. Jai Lal and Ors., [(1999) 7 SCC 280]. It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."
49. In the said authority, Hon'ble Apex Court had an occasion to consider the evidence of expert and it has been held that 64 Spl.CC 1342/2021 the expert must be within recognized field of expertise and evidence must be based on the reliable principles and the expert must be qualified in that discipline. In this regard, the court has once again appreciated the evidence of PW11 Neeru.S wherein she has deposed that she had studied and obtained graduation in B.Sc. (Mathematics) and completed her Master Degree in Information Technology and had completed Digital Forensic Course, which was accepted worldwide and had held several certificates in order to justify the same. It is not forthcoming in the evidence with respect to the qualification of the expert on digital forensic science and also that whether the course completed by her was having recognition. As per Sec.45 of the Indian Evidence Act, expert evidence can be termed as one, on the basis of the same the court has to form an opinion with respect to a foreign law or science or Art. However, at the same time, a serious duty is casted upon the court to ascertain whether the person who appears before the court is really expert who has got expertise in tendering such evidence. In the instant case, no material is forthcoming with respect to the said aspect. Apart from that the court has already considered the materials which have been collected by the Investigating Agency in the instant case.
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50. In this regard reliance is being placed on the authority rendered by the Hon'ble Supreme Court of Ohio reported in the case of State of Ohio V Hartman ( 754 N.E.2d 1150) (October 3, 2001) wherein it was succinctly discussed and held as:
In addition to the requirement of relevancy, expert testimony must meet the criteria of Evid.R. 702, which provides that a witness may testify as an expert if:
"(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons * * *;
"(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
"(C) The witness' testimony is based on reliable scientific, technical, or other specialized information."
We find that the first prong of the rule was satisfied, since expert testimony was necessary to make fingerprint comparisons. We find that the second prong of the test also satisfied, since defendant never challenged or objected to Warrick's expert qualifications at trial. However, defense counsel did point out to the judge that Warrick's testimony was "blazing new ground" and that the scientific reliability of the digital enhancement method had not been established. The trial 66 Spl.CC 1342/2021 court accepted the reliability of digitally enhanced fingerprint evidence, finding that "the use of the computer in this instance is no different than * * * would be the use of an overhead projector, microscope, a magnifying glass or anything else like that that would enhance an expert's ability to make his determination and therefore I find that there's nothing -- no new trails being blazed here and I'm overruling the objection for that reason."
We have designated four factors to be considered in evaluating reliability of scientific evidence: "(1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance."State v. Nemeth (1998), 82 Ohio St.3d 202, 211, 694 N.E.2d 1332, 1338-1339, citing Miller v. Bike Athletic Co. (1998), 80 Ohio St.3d 607, 611, 687 N.E.2d 735, 740. However, it is important "to emphasize that none of these factors is a determinative prerequisite to admissibility." Nemeth at 211, 694 N.E.2d at 1339, citing Miller at 612-613, 687 N.E.2d at 741. See, also, Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.
51. When the said dictum is carefully appreciated it indicates that the testimony must relate to the matters beyond 67 Spl.CC 1342/2021 knowledge or experience of lay persons. On appreciating the dictum it indicates that the following factors are required to be considered which are as follows:
a) Whether the theory or technique has been tested,
b) Whether it has been subjected to peer review,
c) Whether there is a known or potential rate of error and
d) Whether the methodology has gained general acceptance.
52. The aforesaid aspect assumes importance, since a serious question mark is raised with respect to the credibility of the witness and also the mode of conducting the scientific examination. On appreciating the report at Ex.P.69, it doesn't indicate that the theory or technique which was adopted was tested and whether the same was subjected to peer review and whether there were any potential rate of error and also nothing is forthcoming in the evidence that the theory or the methodology adopted has got general acceptance throughout. In the absence of the same, it cannot be accepted as valid report furnished in accordance with necessary standards. Further there are no materials to indicate the manner in 68 Spl.CC 1342/2021 which the scientific examination was carried out by her, what were the instruments used for carrying out the scientific examination. Though she has deposed that the voice sample and the alleged CD at Ex.P.13 were subjected to audibility test and spectrographic test, the instrument which was used was not explained in detail nor the methodology explained by her for arriving at conclusion as noticed in Ex.P.68 and EX.69. It is just to notice that the reliability of electronic evidence and admissibility of the video by computer or others is based on the procedure which is required to be undertaken by the Investigating Agency.
53. Apart from that reliance is also placed upon the judgment rendered by the Hon'ble Supreme Court of Arkansas in the case of Nooner V State of Arkansas, 907 S.W.2d 677 (October 9, 1995) wherein it is held as:
Nooner contends that it was error for the circuit court to allow into evidence photographs that had been "manipulated." He further maintains that because the photographs were "altered," the silent witness theory should not apply. The State counters that the photographs were not "altered" but were merely "enhanced" by giving more brightness and improving the contrast for better 69 Spl.CC 1342/2021 definition, as one does when adjusting a television picture.
We first emphasize that there is nothing before us that indicates that the still photographs of the suspect ultimately introduced into evidence were changed to include a face, features, or physique of someone not present in the original videotape. Indeed, the jury and the circuit court watched a slowed version of the original videotape and then saw the "enhanced" still photographs. Thus, the viewers of the tape had the opportunity to identify any distortion in the photographs of the depicted suspect.
In a pre-trial hearing regarding whether the photographs should be suppressed, state witnesses, including representatives of private firms, meticulously described their role in the enhancement process. Rupert Robertson, a video specialist for Arkansas Power & Light Company, testified that he slowed the original videotape down by making an exact duplicate of it in the Betacam format and then freezing each frame for several seconds. Tom Burney of Jones Productions testified that he took a still frame from the duplicate videotape, transferred it to his computer, and softened the pixels on the suspect's face to remove the graininess. He did not add or subtract features from the original, except to "mosaic out" the victim. Carl Tillery of Color Masters testified that he took the computer disk prepared by Tom Burney and made still 70 Spl.CC 1342/2021 photographs. He multiplied the pixels per square inch to improve the contrast and adjusted the brightness in one of the still photographs. He also testified that he in no way altered the features in the photographs. Jeff Bishop from Camera Mart testified that he made still photographs from the original videotape. He only adjusted the brightness in the photographs.
Reliability must be the watchword in determining the admissibility of enhanced videotape and photographs, whether by computer or otherwise. We turn to the treatise cited by the Arkansas Court of Appeals in Fisher v. State, supra:
Relevant computer-enhanced still prints made from videotape recordings are admissible in evidence when they are verified as reliable representations of images recorded on master videotapes.... The master videotape used in producing the computer enhancement should also be admitted in evidence to help determine the reliability of the still picture.
54. The facts mentioned in the above said case are quite similar to the case on hand, wherein it was held that the computer stills are admissible if they are verified as being reliable representations of images recorded on the original video tapes.
Further it was held that original video tapes are to be produced
71 Spl.CC 1342/2021 before the court. In the case on hand admittedly, it is stated that at one point of time there is sudden shift in the video and hence it requires to be explained that why there was sudden shift and also the report doesn't indicate that whether there were any changes in the pixels of the video which was recorded. When the said aspect applied to the case on hand, it indicates originally a conversation was reduced in to video by PW7 Smt.Bharathi Devi by using handy camera and it was transferred in to a DVD by her, which was sent to the party President Sri H.D.Kumaraswamy and later on it was telecasted in various news channels. At the same time, it is appropriate to note that Ex.P.4 CD which was furnished by the complainant-PW1 Ramesh Gowda consisted of snippets of the Videographic transcription that had taken place and telecasted in Suvarna News Channel. However, the said original CD was not at all recovered nor it was found by the Investigating Agency. Further as per the case of the prosecution, the CD furnished by the complainant was indeed stored in the computers of the Investigating Agency and subsequently when secondary evidence was led before the court by obtaining the copy of the same, it turned out to be entirely different from the one which was produced on earlier instance. In the 72 Spl.CC 1342/2021 backdrop of said aspect the authority which has been laid down in the case mentioned above is to be considered which should have been compiled by the Investigating Agency. It is also relevant to note that as per the report of the expert, the video clipping indicated of sudden shift in its footage. In order to better appreciate said aspect, I have also carefully appreciated the report at Ex.P.69. At page No.134 of the report at Ex.P.69, the audio video scientific analysis has been discussed and in the said columns it has been specifically mentioned of noticing of a sudden shift in the scene and it is noted that the shift is seen between 44 Sec. 80 Milli Sec and 44 minutes 120 Milli secs., of the recording 'Q9'. Further it is stated that the sudden shift was shown in the figures mentioned below in the report (figures have been extracted in the report Annexure No.3). Further it is also observed that a sudden shift in the scene is seen between 35 Sec and 320 milli seconds and 35 minutes 360 milli seconds of the recording Q12, the sudden shift is shown in the figures in the report (Figures are extracted in the report). If there was sudden shift in the scene as noticed by the expert is to be accepted, once again the Investigating Agency are required to offer an explanation that how and why the sudden shift had taken place and whether it was morphed, modified 73 Spl.CC 1342/2021 or altered by any persons. In the instant case said effort has not been made by the Investigating agency in order to justify their contention.
55. That apart, it is relevant to note at this juncture that the investigating officer had displayed the contents of the video and its transcription was reduced into writing and the said proceedings were conducted in the presence of PW2 Parashiva Murthy and CW3 N.R Mohan Murthy in the office of the Karnataka Lokayukta at Tumkuru. In that report it is specifically stated that it comprised of seven video files which were numbered as No.7 to 14 and it consisted of conversation of one minute each and further it is also mentioned that a third person is noticed in the said video files. If for the sake of arguments, the same is accepted, then again the prosecution has to offer an explanation, who was that person and also the reason for non-examining him, since it is repeatedly described in the report that the third person had taken active role in the alleged conversation that had taken place between the defacto complainant PW4 S.R. Srinivas and accused Sri B.Suresh Gowda. There is total silence on the part of the prosecution in this regard. At the cost of repetition when once again the report of the expert Ex.P69 is revisited, a mention is found 74 Spl.CC 1342/2021 that during the audio conversation a voice of the third person also noticed. The prosecution is unable to explain how the voice of the said third person came into existence. If for the sake of arguments, it is to be accepted that PW.5 A.S.Jayaram @ Masala Jayaram was also present at the time of the incident, and then the records indicate that he had turned hostile and did not supported the case of the prosecution. Apart from that during the course of cross-examination nothing much was elucidated.
56. The fact that the sample voice of the accused collected is also been seriously questioned by the learned Senior Counsel appearing on behalf of the accused counsel. It is her contention that at the time of collecting the voice samples, a written consent should have been obtained and the same should have been collected in accordance with the procedures laid down by law. However, in the instant case, no such attempt has been made by the Investigating Agency. Hence, the contention of the learned Senior Counsel is justifiable. I have also carefully appreciated the acoustic analysis which has been submitted at Ex.P.69. In the report at Ex.P.69 it has been specifically stated that the recordings which were more fully 75 Spl.CC 1342/2021 described as S1 to S7 predominantly contained the voice of two male speakers conversing in Kannada, however, some utterances by a third male person was also detected for brief instance. The recordings at S6 and S7 contained some utterances in English by one of the speakers in addition to Kannada conversation. Admittedly in the instant case, the voice samples which were collected were from PW4 S.R.Srinivas and accused B.Suresh Gowda, which were sent for analysis to the Truth Lab. If for the sake of argument, the report of the acoustic analysis is to be accepted, then it would lead to an inference that in the background of the recordings a conversation could have taken place over telephone also. If the conversation had taken place over telephone, then once again a duty is casted upon the Investigating officer to ascertain the manner and mode in which the telephonic conversation had taken place. As rightly pointed by the learned Senior Counsel no mobile phones, nor the SIM, nor any CDR report were collected by the Investigating Agency to point out that at relevant point of time a conversation had indeed taken place between accused Sri Suresh Gowda and PW4 S.R.Srinivas. That apart, the detection of third male voice in the acoustic analysis would once again casts a doubt about the veracity of the report of the Truth Lab 76 Spl.CC 1342/2021 in confirming that the sample voices were found to be proper and correct with that of the CD furnished at Ex.P.13. All these aspects raise a question mark over the credibility in which the report has been furnished.
57. I have also bestowed my anxious reading to the pitch and intensity, contour which has been addressed by the expert with respect to utterance of the word 'amount' 'yestu' 'Bangalore', 'rajaname' and ' Tumakuru'. The contour and the intensity of the pitch which has been furnished and compared by preparing the chart does not indicate that the questioned recording and standard recording consisting of the intensity contour and the pitch contour are entirely different. That apart the graphic scenes that had been depicted in the report also raise a severe question mark over the manner in which the investigation has been conducted. For instance, at internal page No.135 of the report at Ex.P.69 certain graphical snippets have been extracted, which are four in numbers. In the last graphical snippet it has been noticed that it was for 1 minute 30 sec 480 milli second, wherein pictures of two persons have been furnished. If this snippet is carefully appreciated, the picture does not 77 Spl.CC 1342/2021 belong either to accused B.Sri Suresh Gowda or to PW4 S.R.Srinivas. Apart from that it is also noticed that in the background a banner is noticed depicting 'Tumakuru'. Admittedly as per the case of prosecution, the incident had taken place inside the house of PW4 S.R.Srinivas and if the same is to be accepted then how the banner and also snippet of a function is forthcoming in the CD. The above exercise is made only to ascertain whether the evidence rendered by PW4 S.R.Srinivas and that of PW7 Smt.Bharathi Devi is of such sterling quality which could solely be relied upon to award conviction to accused person. When the said incidents are appreciated a serious question mark would be casted upon the case of the prosecution.
58. In the above case, I have also carefully appreciated the evidence lead by PW7 Smt.Bharathi Devi. In her evidence she has initially deposed that the incident was video graphed by her and also she had recorded the audio conversation in her mobile phone. As already discussed above, the mobile phone was not at all recovered nor any effort was being made by the Investigating Agency to recover the SIM or the CDR report in order to ascertain whether the 78 Spl.CC 1342/2021 accused as well as PW4 S.R.Srinivas had conversed with each other at relevant point of time. Even otherwise the manner in which incident is allegedly transferred in to a CD from Handy camera is also a debatable point. As per the evidence of Smt.Bharathi Devi PW7, she had video graphed the incident in her handy camera and she had transferred it to a CD with the help of the staff working in their house. She has not at all deposed that how the contents of the handy camera was transferred in to a CD and further she has also deposed that she had obtained the help of her son. Subsequently, when her evidence was collected, once again application was filed under Sec.311 of Cr.P.C., by the prosecution seeking to recall the PW7 Bharathidevi for the purpose of further chief examination and at that point of time Ex.P.80 the certificate issued under Sec.65-B of Indian Evidence Act came to be marked through her. No doubt the said certificate is marked subject to its admissibility, since objections were raised with respect to its admissibility by the defence counsel. When the contents of the certificate is carefully appreciated and that to in the last paragraph, it is noticed that she had visited one computer center and handed over the videograph portion stored in her Sony handy camera to be transferred in to a CD and accordingly 79 Spl.CC 1342/2021 she got it transferred. It is her further contention that the contents which videographed through the said handy camera was carried by her son to abroad and there he had lost the same. At the inception itself, objections had been raised that the contents of Ex.P.80 which is allegedly a certificate issued under Sec.65-B of the Indian Evidence Act, is not proper, the court for the sake of considering the contentions urged by the prosecution, has looked in to for a limited purpose. The manner in which the certificate is required to be issued under Sec.65-B of the Indian Evidence Act has been laid down by the Hon'ble Apex Court in the judgment reported in (2020) 7 SCC 1 (Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others) "It may also be seen that the person who gives this certificate can be anyone out of several persons who occupy a "responsible official position" in relation to the operation of the relevant device, as also the person who may otherwise be in the "management of relevant activities" spoken of in sub- section (4) of Section 65-B. Considering that such certificate may also be given long after the electronic record has actually been produced by the computer, Section 65-B(4) makes it clear that it is sufficient that such person gives the requisite certificate to the "best of his knowledge and belief".
80 Spl.CC 1342/2021 [Obviously, the word "and" between knowledge and belief in Section 65-B(4) must be read as "or", as a person cannot testify to the best of his knowledge and belief at the same time.]"
59. In the aforesaid judgment Hon'ble Apex Court was pleased to hold that certificate is a mandatory provision, it should be issued by a person who occupy a responsible official position in relation to the operation of the relevant device, as also the person who may otherwise be in the management of relevant activities. If the said postulate is applied to the case on hand, the first and foremost aspect which is required to be established is from where the videographed incident was transferred in to CD and which was the computer center utilized and in what manner or mode the same came to be copied. If for the sake of argument, the certificate issued at Ex.P.80 is to be accepted then obviously it would lead to draw an inference that the certificate issued is not proper under the eyes of law.
60. That apart I have also bestowed my anxious reading with respect to the relevancy of the documents as laid down by the
81 Spl.CC 1342/2021 Hon'ble Apex Court in the aforesaid judgment which is more fully described as follows:-
"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar.P.V V., and incorrectly "clarified" in Shafi Mohammad. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in 'Tailor Vs. Taylor, which has been followed in a number of the Judgments of this court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise only if render Section 65-B(4) otiose.
73. The reference is thus answered by stating that:
73.1. Anvar P.V., as clarified by us hereinabove, is the law declared by this Court on Section 65-8 of the Evidence Act. The judgment in Tomaso Bruno, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.1, do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65-8(4) is unnecessary if
82 Spl.CC 1342/2021 the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V.2 which reads as... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,...". With this clarification, the law stated in para 24 of Anvar P.V. does not need to be revisited.
1. Reasons for the acrimony behind Section 65-B.
76. Documentary evidence, in contrast to oral evidence, is required to pass through certain checkposts, such as (i) admissibility, (11) relevancy and (iii) proof, before it is allowed entry into the sanctum. Many times, it is difficult to identify which of these checkposts is required to be passed first, which to be passed next and which to be passed later. Sometimes, at least in practice, the sequence in which evidence has to go through these three checkposts, changes. Generally and theoretically, admissibility depends on 83 Spl.CC 1342/2021 relevancy. Under Section 136 of the Evidence Act, relevancy must be established before admissibility can be dealt with. Therefore if we go by Section 136, a party should first show relevancy, making it the first checkpost and admissibility the second one. But some documents, such as those Indicated in Section 68 of the Evidence Act, which pass the first checkpost of relevancy and the second checkpost of admissibility may be of no value unless the attesting witness is examined. Proof of execution of such documents, in a manner established by law, thus constitutes the third checkpost. Here again, proof of execution stands on different footing than proof of contents.
77. It must also be noted that whatever is relevant may not always be admissible, if the law imposes certain conditions. For instance, a document, whose contents are relevant, may not be admissible, if it is a document requiring stamping and registration, but had not been duly stamped and registered. In other words, if admissibility is the cart, relevancy is the horse, under Section 136. But certain provisions of law place the cart before the horse and Section 65-B appears to be one of them.
78. Section 136 which confers a discretion upon the Judge to decide as to the admissibility of evidence reads as follows:
"136. Judge to decide as to admissibility of evidence.- When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;
84 Spl.CC 1342/2021 and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact."
79. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The second part of Section 136 states that if the fact proposed to be proved is one, of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the court is satisfied about such undertaking, the court may proceed to admit evidence of the first mentioned fact. The third part of Section 136 deals with the relevancy of one alleged fact, which depends upon another 85 Spl.CC 1342/2021 alleged fact being first proved. The third part of Section 136 has no relevance for our present purpose.
80. Illustration (b) under Section 136 provides an easy example of the second part of Section 136. Illustration (b) reads as follows:
"(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced."
81. What is laid down in Section 65-B as a precondition for the admission of an electronic record, resembles what is provided in the second part of Section 136. For example, if a fact is sought to be proved through the contents of an electronic record (or information contained in an electronic record), the Judge is first required to see if it is relevant, if the first part of Section 136 is taken to be applicable.
82. But Section 65-B makes the admissibility of the information contained in the electronic record subject to certain conditions, including certification. The certification is for the purpose of proving that the information which constitutes the computer output was produced by a computer which was used regularly to store or process information and that the information so derived was regularly fed into the computer in the ordinary course of the said activities.
86 Spl.CC 1342/2021
83. In other words, if we go by the requirements of Section 136, the computer output becomes admissible if the fact sought to be proved is relevant. But such a fact is admissible only upon proof of some other fact, namely, that it was extracted from a computer used regularly, etc. In simple terms, what is contained in the computer output can be equated to the first mentioned fact and the requirement of a certification can be equated to the last mentioned fact, referred to in the second part of Section 136 read with Illustration (b) thereunder.
84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B, for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled."
61. When the aforesaid aspects are carefully looked into the certificate which is attached and got marked through PW7 as Ex.P.80 87 Spl.CC 1342/2021 is not in accordance with the provision of law laid down under Sec.65-B of Indian Evidence Act.
62. The Hon'ble Apex court has clearly laid down the dictum that how the discrepancy in the evidence is required to be appreciated and whether each and every omission can be considered as fatal which would go to the roots of the case. In this regard the judgment rendered in (2023)2 SCC 353 ( Manoj Vs State of M.P) throws light on the said facts which is extracted herewith:
180. This Court has further emphasised that if discrepancies in the depositions are minor, or that witnesses contradict themselves during their testimonies (as opposed to their previous police statements) what is important is the nature of contradictions. In Rammi v. State of M.P. [Rammi v. State of M.P., (1999) 8 SCC 649 : 2000 SCC (Cri) 26] , this Court held that : (SCC p. 656, para
24) "24. ... courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of 88 Spl.CC 1342/2021 two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny."
181. In Appabhai v. State of Gujarat [Appabhai v. State of Gujarat, 1988 Supp SCC 241 : 1988 SCC (Cri) 559] , it was ruled that : (SCC p. 246, para 13) "13. ... The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded."
182. In a similar vein, it was observed, in Vinod Kumar v. State of Haryana [Vinod Kumar v. State of Haryana, (2015) 3 SCC 138 : (2015) 2 SCC (Cri) 31] that : (SCC p. 149, para 24)
24. ... Only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that it would be justified in jettisoning his evidence."
183. The omission of some of the prosecution witnesses to mention a particular fact, or corroborate something, which is deposed to by other witnesses, therefore, does not ipso facto favour an accused. What is important, however, is whether the omission to depose about a fact is so fundamental that the prosecution version becomes shaky and incredulous. In the present case, the omission to depose about certain facts, by PW 4, or PW 19, or any other witness cannot inure to the accused's 89 Spl.CC 1342/2021 benefit. Each of the facts they omitted, was supported by one or more witnesses.
63. I have also bestowed my anxious reading to the cross- examination portion of PW7. In the said cross-examination she has deposed that in the year 2010 she was having smart mobile phone which was not at all recovered by the concerned police. Further, she had feigned her ignorance about possessing of DVD writing software in the year 2010 and it is her specific contention that she herself had copied the data in to a CD and handed over to her husband. However, the certificate which is issued at Ex.P.80 is totally contrary to her evidence. Prior to that she has deposed that her son and some of her workers in her house had transferred the data in to the computer from the handy camera which was used and she had taken the assistance of her son and workers to transfer it in to a CD. The evidence which is tendered before the Court is totally contrary to the contents of the certificate which is issued at Ex.P.80. It is noticed that there is some sort of improvisation being made in the statement of the witness at every stage and for the sake of clarity it is to be mentioned that initially at the time of tendering her statement under section 161 of Cr.P.C., she had stated that the video graphed incident was 90 Spl.CC 1342/2021 transferred to the DVD by her and also she had given the evidence before the court that the contents of the video camera was transferred into a DVD with the help of her son and servants in their family. However the certificate issued under 65(B) of Indian Evidence Act is totally contrary to the same. When the ratio of the aforesaid judgment is applied to the case on hand, it indicates that each and every omission to depose any fact will no inure benefit to the accused, however at the same time, the Hon'ble Apex court has held that if such and omission is going to the root of the case, the same will have to be viewed seriously. In the instant case, the witness have been changing their stand with respect to recording of the alleged incident and also transferring the data to the CD and hence the evidence would clearly indicate that the same inures benefit to the accused as the omissions and improvements are going to the root of the case. Under the circumstances, the contention of the prosecution that the CD produced before the Court at Ex.P.13 along with the certificate issued under Sec.65(B) of the Evidence Act, does not comply with the required standard of proof and hence, the same cannot be looked into. No doubt that the prosecution had contended that the contents of the CD could only be considered as subsidiary 91 Spl.CC 1342/2021 material to support their contention and the ocular evidence of PW4 and PW7 Smt.Bharathidevi would be suffice to hold that the incident had taken place, the court had already in detail discussed about the manner in which the evidence has been tendered. As noticed from the case, the independent witnesses i.e., PW5 - Masala Jayaram and PW6 - Eranna have already turned hostile. Further the evidence of both the witnesses is contrary to each other. It is also been vehemently argued that the Investigating Agency had not made any effort to collect the original video graphed incident which was telecasted in TV. For the sake of convenience and at the cost of repetition, if the case the prosecution is revisited it indicates that the complainant PW1 Rameshgowda had come to know about the incident on the basis of some telecast being made at Suvarna 24X7 Kannada news channel. Subsequently, the said CD was copied by one Sharma Video at Shivamogga and it was produced before the Lokayukta authorities. If for the sake of arguments said aspect is to be accepted, then once again the Investigating Agency have to answer why they had not made any effort to collect the original CD which was allegedly given by Sri S.R.Srinivas to Sri H.D.Kumaraswamy or the material which was telecasted in Suvarna 92 Spl.CC 1342/2021 News Channel 24X7 on 21.10.2010. In this regard, I have relied on the judgment of the Hon'ble Apex Court reported in (2009)5 SCC 417 (All India Anna Dravida Munnetra Kazhagam Vs. L.K.Tripathi and others) wherein it has been held as follows;-
"32. The law on the admissibility of tape recorded versions is well settled. In Ram Singh and others v. Col. Ram Singh [1985 (Supp) SCC 611] Fazal Ali, J with whom Sabyasachi Mukharji, J. agreed, laid down the following tests for determining the admissibility of tape recorded version:
1. The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice.
Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
2. The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence: direct or circumstantial.
3. Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded.
4. The tape-recorded statement must be relevant.
93 Spl.CC 1342/2021
5. The recorded cassette must be sealed and must be kept in safe or official custody.
6. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances.
64. In the said judgment the Hon'ble Apex Court has held that the Xerox copies of the news papers in which the contents of the speech made was published was required to be collected by the Investigating Agency by collecting the original tape containing the telecast of the speech made by the respondent/ respondents therein. Even in the instant case, if the incident was telecasted in a news channel, the Investigating Agencies should have made an effort to collect the original CD or the tape which was telecasted. Further in the said authority itself the Hon'ble Apex Court was pleased to hold that the Investigating Agencies should follow the tests as laid down by Hon'ble Apex Court for determining the admissibility of the tape recorded version. In the said judgment Hon'ble Apex Court has held that the voice of the speaker must be identified by the maker of the record or other persons who recognize his voice. In the instant case, no such effort has been made by the I.O. though it is held that a sample was collected in their office and also it is noticed from the 94 Spl.CC 1342/2021 records, as rightly pointed out by learned Senior Counsel, that the requisition letter which were sent to the Truth Lab, would indicate that they had collected the voice sample of Sri S.R.Srinivas, Sri.B.Sri Suresh Gowda and also they had mentioned in which of the CDs the same was prevailing and also they had requested to compare the same. In my humble opinion, said requisition letter itself is not proper, since it should have been handed over by the investigating Agency only by requesting the concerned authority to ascertain that whether the sample voices found in the CD were tallying with that of the voices in the CD at Ex.P.13. The I.O. at the time of recording the sample voice itself should have displayed the original CD and the voice of accused Sri Suresh Gowda should have been identified by the maker of the record. In order to do so the Investigating officer should have summoned up PW7 Smt.Bharathi Devi who was the maker of the record, i.e., the person who had video graphed the incident and had recorded the audio transcription, conversation that had taken place between the parties. That apart, the accuracy of the tape recorded statement was to be proved by the maker of the record, by leading satisfactory evidence either direct or circumstantial. In the instant case, the direct evidences which were relied upon by the 95 Spl.CC 1342/2021 prosecution i.e., PW5 A.N.Jayaram @ Masala Jayaram had already turned hostile and PW6 Eranna who was circumstantial witness to indicate that a alleged conversation had taken place between accused Sri Suresh Gowda and PW4 S.R.Srinivas, had also turned hostile. The Hon'ble Apex Court has also laid down the dictum that the tape recorded statement must be relevant one. By closely considering the facts mentioned in the above case, it is apparent that the prosecution has utterly failed to prove aforesaid aspects with respect to the authenticity and proof of the contents of Ex.P.13 CD.
65. I have also appreciated the arguments made at Bar with respect to the registration of the case by the Investigating Agency. An interesting question is raised that whether investigation could be commenced prior to registration of FIR or whether the materials collected during the course of preliminary enquiry could be construed as the materials collected during the course of investigation. In order to better appreciate the same, reliance is required to be placed on the authority of the Hon'ble Apex Court reported in (2014) 2 SCC 1 (Lalitha Kumari Vs. Government of U.P. and others) wherein the Hon'ble Apex Court had laid down the 96 Spl.CC 1342/2021 criteria for considering the same which is extracted for the sake of convenience and reads as follows:-
"i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The
97 Spl.CC 1342/2021 category of cases in which preliminary inquiry may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
66. Admittedly, whenever a cognizable offence is noticed by the Investigating Agency, immediately a FIR required to be 98 Spl.CC 1342/2021 registered. In the instant case, a direction was issued by the learned ADGP, Karnataka Lokayukta, Tumakuru to conduct a preliminary enquiry as contemplated under the provisions of law in the aforesaid judgment to ascertain that whether the voices found in the CD furnished by the complainant Rameshgowda was in consonance with the sample voice of accused B.Sri Suresh Gowda and defacto complainant PW4 S.R.Srinivas. As noticed, the directions was issued in the year 2010 and whereas the FIR came to be registered in the year 2015. At the same time, the conducting of preliminary enquiry in any other manner for which it is necessitated is also required to be appreciated. In this regard reliance is placed on the judgment of the Hon'ble Apex court in the judgment rendered in the case of (2022)13 SCC 675 (State of Jammu and Kashmir V Dr Saleem Ur Rehman) wherein it is held as:
30. So far as the submission on behalf of the respondent that in the present case by conducting a preliminary enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of preliminary enquiry, investigation is not permissible since the FIR is lodged is concerned, the aforesaid submission seems to be attractive but has no
99 Spl.CC 1342/2021 substance. While holding a preliminary enquiry under Rule 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of preliminary enquiry, by no stretch of imagination, will be considered as investigation under the Code of Criminal Procedure which can only be after registration of the FIR.
67. In the aforesaid authority, which is required to be read conjointly with the judgment of the Hon'ble Apex court in Lalitha Kumari's case would indicate that the main purpose of conducting preliminary enquiry is to ascertain whether there are materials to take cognizance for cognizable offence, but under the guise of preliminary enquiry the investigating agency cannot proceed to verify the veracity of the complainant. In the instant case it is required to be noted at the cost of repetition that the preliminary enquiry was being 100 Spl.CC 1342/2021 conducted for a very long period of nearly five years and that too as per the directions of higher officials of Hon'ble Lokayuktha institution, the CD in which the alleged incident was video graphed was sent to The Truth Labs to ascertain its veracity. It is also relevant to note that the covering letter addressed by the Investigating Agency itself indicated that to whom the voice samples belonged to, which would in a way a method adopted to appreciate the veracity of the complainant. If only for the purpose of ascertaining about existence of materials to take cognizance was being made by the investigating agency, the same would have satisfied the dictum laid down by the Hon'ble Apex Court discussed supra, but in the instant case it was to ascertain the veracity of the complainant, which is highly illegal and contrary to the settled principles of law.
68. It is also relevant to note that the materials which were collected during the course of preliminary enquiry were heavily relied upon by the prosecution since not much investigation was conducted after registering of the FIR. In other words, the FIR at Ex.P.65 was registered on 25.4.2015, whereas the report was forwarded by the Truth Labs at Ex.P.68 and 69 was on 24.4.2014. It 101 Spl.CC 1342/2021 is relevant to note that the forwarding letter consists of the details of the enclosures which were sent back by the scientific examination lab and in particularly at enclosure No.2 it has been stated as 'copy of I.O. request letter, complainant's affidavit, invoice of sample, Form 152, FIR, sample seals, etc.'. The second enclosure would indicate that along with the report, the Copy of FIR was also sent back to the Investigating Agency. It would be appropriate by the Investigating agency to clarify how they had issued the copy of the FIR prior to registration of the same to Truth Lab for scientific examination. To be precise, the forwarding letter was written on 24.4.2014 and as per the records the FIR was registered on 25.4.2015 i.e., after lapse of about 8 months from the receipt of the report from Truth Lab, Bengaluru. In that event, it would indicate that either the report which is furnished by the Truth Lab is not proper or the Investigating Agency have registered the FIR prior to 2015 as mentioned in the forwarding letter. In both the instances, the same would cause a serious dent over the manner in which the investigation was conducted. The registration of FIR is pre-mandate one to conduct the investigation. In the instant case though the Investigating Agency was empowered to conduct a preliminary 102 Spl.CC 1342/2021 enquiry, the sole aspect which requires to be answered is, whether such a preliminary enquiry can be continued for a period of six years that too with an attempt to continue the same to ascertain the veracity of the complaint and later on, whether an FIR could be registered. No doubt, if proper explanation is given, there is no time limit to complete the investigation. At the same time, if there is an enormous delay or unreasonable delay, a duty is casted upon the Investigating Agency to explain why such a huge delay had taken place that too running for more than six years. It is also noticed that after registration of FIR, some minor mahazars were drawn and after that not much investigation had taken place nor any further statement came to be recorded and only on the basis of the report of the Scientific Expert, it seems that the charge sheet has been filed.
69. Interestingly, the mahazar at Ex.P.29 at the place of alleged incident was drawn on 13.1.2016 after registration of the FIR, there the statement of the witnesses were recorded and prior to that samples were collected and also a mahazar was drawn to collect the samples and Ex.P.7 consist of the video transcription of the incident already described. All these aspects are not matching with 103 Spl.CC 1342/2021 each other and the same was creating serious doubt over the case of prosecution.
70. The learned Senior Counsel Smt.Nalina.M has rightly argued that the conducting of the investigation prior to registration of FIR itself is barred under the provisions of law. In the aforesaid judgment, Hon'ble Apex Court has clearly held that any amount of investigation which is made prior to registration of FIR will not stand the rigors of the procedures established under the eyes of law. That apart it is also noticed that after registration of the FIR, no serious attempts were made to secure either the original CD or summoning of the witness i.e., Sri H.D.Kumaraswamy, to whom allegedly, as contended by PW4 S.R.Srinivas had handed over the original video CD at the first instance. It is also relevant to note that the Investigating Agency had not summoned either the media personnel who had telecasted the news item at Suvarna 24X7 news channel or the persons from Sharma Video, who allegedly copied the contents of the news item in to a CD and handed over the same to PW1 Rameshgowda. The evidence of the person who had copied the contents of news item at Sharma Video, Kote, Shivamogga and the 104 Spl.CC 1342/2021 news channel which had telecasted the news item, would be a very important material in the proof of their case.
71. The court had also considered the aspect that whether the sting operation as allegedly conducted by PW4 S.R.Srinivas could be termed as valid one under the eyes of law. It has been argued at length by the learned Senior counsel that at the time of filing of the complaint before the Lokayukta Authorities by PW1 Rameshgowda in Form No.1 and 2, he had specifically disclosed that B.Suresh Gowda and also S.R.Srinivas are required to be prosecuted for committing the offences under the Prevention of Corruption Act and also the Representation of the People Act, 1950. She had also brought to the notice of this Court about the FIR which was registered. As per Ex.P.65 FIR was registered in Cr.No.4/2015. In column No.4 of the FIR the name of the accused persons reflected of instituting the case against Sri Suresh Gowda as well as S.R.Srinivas. However, interestingly, at the time of filing the charge sheet the name of the second accused shown in the FIR was dropped and he was arraigned as witness. The manner in which arraying of accused No.2 mentioned in the FIR, as a witness in the charge sheet is also requires 105 Spl.CC 1342/2021 to be considered. In this regard the learned Senior Counsel has relied upon the judgment reported in (2014) 6 SCC 495 (Rajat Prasad Vs. CBI). In the said judgment it has been held as follows:-
18. Thus, sting operations conducted by the law enforcement agencies themselves in the above jurisdictions have not been recognized as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered. Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a State agency but by a private individual and the liability, not of the principal offender honey trapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender. Should such an individual i.e. the sting operator be held to be criminally liable for commission of the offence that is inherent and inseparable from the process by which commission of another offence is sought to be established? Should the commission of the first offence be understood to be obliterated and extinguished in the face of claims of larger public interest that the sting operator seeks to make, namely, to expose the main offender of a serious crime injurious to public interest? Can the commission of the initial offence by the sting operator
106 Spl.CC 1342/2021 be understood to be without any criminal intent and only to facilitate the commission of the other offence by the "main culprit" and its exposure before the public? These are some of the ancillary questions that arise for our answer in the present appeals and that too at the threshold of the prosecution i.e. before the commencement of the trial
19. The answer to the above, in our considered view would depend, as in any criminal case, on the facts and circumstances thereof. A crime does not stand obliterated or extinguished merely because its commission is claimed to be in public interest. Any such principle would be abhorrent to our criminal jurisprudence. At the same time the criminal intent behind the commission of the act which is alleged to have occasioned the crime will have to be established before the liability of the person charged with the commission of crime can be adjudged. The doctrine of mens rea, though a salient feature of the Indian criminal justice system, finds expression in different statutory provisions requiring proof of either intention or knowledge on the part of the accused. Such proof is to be gathered from the surrounding facts established by the evidence and materials before the Court and not by a process of probe of the mental state of the accused which the law does not contemplate. The offence of abetment defined by Section 107 of the IPC or the offence of criminal conspiracy under Section 120A of IPC would, thus, require criminal intent on the part of the offender like any other offence. Both the offences would require existence of a culpable mental state which is a 107 Spl.CC 1342/2021 matter of proof from the surrounding facts established by the materials on record. Therefore, whether the commission of offence under Section 12 of the PC Act read with Section 120B IPC had been occasioned by the acts attributed to the accused appellants or not, ideally, is a matter that can be determined only after the evidence in the case is recorded.
20. What the accused appellants assert is that in view of the fact that the sting operation was a journalistic exercise, no criminal intent can be imputed to the participants therein. Whether the operation was really such an exercise and the giving of bribe to A-1 was a mere sham or pretence or whether the giving of the bribe was with expectation of favours in connection with mining projects, are questions that can only be answered by the evidence of the parties which is yet to come. Such facts cannot be a matter of an assumption. Why in the present case there was a long gap (nearly 12 days) between the operation and the circulation thereof to the public is another relevant facet of the case that would require examination. The inherent possibilities of abuse of the operation as videographed, namely, retention and use thereof to ensure delivery of the favours assured by the receiver of the bribe has to be excluded before liability can be attributed or excluded. This can happen only after the evidence of witnesses is recorded. Also, merely because in the charge-sheet it is stated that the accused had undertaken the operation to gain political mileage cannot undermine the importance of proof of the aforesaid facts to draw permissible conclusions on basis 108 Spl.CC 1342/2021 thereof as regards the criminal intent of the accused in the present case.
21. An issue has been raised on behalf of the appellants that any finding with regard to the culpability of the accused, even prima-facie, would be detrimental to the public interest inasmuch as any such opinion of the Court would act as an inhibition for enterprising and conscious journalists and citizens from carrying out sting operations to expose corruption and other illegal acts in high places. The matter can be viewed differently. A journalist or any other citizen who has no connection, even remotely, with the favour that is allegedly sought in exchange for the bribe offered, cannot be imputed with the necessary intent to commit the offence of abetment under Section 12 or that of conspiracy under Section 120B IPC. Non applicability of the aforesaid provisions of law in such situations, therefore, may be ex-facie apparent. The cause of journalism and its role and responsibility in spreading information and awareness will stand subserved. It is only in cases where the question reasonably arises whether the sting operator had a stake in the favours that were allegedly sought in return for the bribe that the issue will require determination in the course of a full- fledged trial. The above is certainly not exhaustive of the situations where such further questions may arise requiring a deeper probe. As such situations are myriad, if not infinite, any attempt at illustration must be avoided."
109 Spl.CC 1342/2021
72. The Hon'ble Apex Court had an occasion to consider whether sting operations can be considered as valid under the eyes of law. In the said judgment, Hon'ble Apex Court had held that the complainant need not be aggrieved person only and even a journalist or any other citizen, who has no connection, even remotely, with the favour that is allegedly sought in exchange for bribe offered can be imputed with necessary intent to commit the offence of abetment under Sec.12 of P.C.Act or that of conspiracy under Sec.120-B of IPC. Non-applicability of the aforesaid provision of law in such situation, therefore, may be an ex-facie apparent. However, the Hon'ble Apex Court had observed that the question reasonably arises is whether the sting operator had any say in the favours allegedly sought in term for the bribe and the said aspect is required to be considered at the time of full dressed trial. If the said aspect is applied to the case on hand, it is noticed that as per the case of the prosecution, accused B.Suresh Gowda had offered a post of Chairman or President to PW4 S.R.Srinivas in any Board or Corporation and along with that he offered an handsome amount of money to flip flop from his political party to join BJP party. Further for the sake of arguments, it is noticed that there are several 110 Spl.CC 1342/2021 conversations in the CD produced by him which would indicate of bargaining of higher amount from the accused. If the said aspect is to be accepted, then once again the beneficiary of the said aspect would be PW4 S.R.Srinivas, and as such rightly, the I.O. at the time of filing the FIR had arraigned him as accused. However, there is no explanation even by the Investigating Agency to indicate why he was dropped from the status of an accused and why he was arraigned as witness in the above case. If for a moment, the judgment of Hon'ble Apex Court is made applicable to the case on hand, it would indicate that certain bargain were also being made by PW4 S.R.Srinivas and finally it was settled between the parties that a sum of Rs.15 Crores were to be paid. No doubt, it has been stated by PW7 Smt.Bharathi Devi that the sting operation was carried out only to cleanse the society at large; the same requires to be corroborated with the evidence of PW4 S.R.Srinivas. In the instant case, no such fact is found in the evidence of PW4 S.R.Srinivas. It is made clear that the court is not accepting the contention of the prosecution that an allurement was given by Sri B.Suresh Gowda to PW4 Sri. S.R.Srinivas. It is only to point out that how the matter has transpired and the mode of conducting the investigation by the Investigating 111 Spl.CC 1342/2021 Agency. By looking in to the aforesaid facts, the undisputed fact which would emerge in the above case is that the prosecution has utterly failed to prove the allegations leveled against the accused person.
73. I have also bestowed by anxious reading to the charges which has been framed and also the materials in the charge sheet. Initially the charge sheet was filed under Sec.7, 12, 13(1), 13(2) (d) of the Prevention of Corruption Act, 1988. Subsequently, an application seeking discharge of the accused, came to be filed and this court had noticed that the accused had not committed any offence under Sec.7 or under Sec.13 of the P.C.Act, whereas there were materials to frame charges under Sec.12 of the P.C.Act. If for the sake of arguments, the charges are framed under Sec.12 of the P.C.Act, then the prosecution has to establish that on which day he had made an inducement or allurement to PW4 S.R.Srinivas to flip- flop from his party and to join the BJP party and receive a sum of Rs.15 Crores as negotiated between them. However, in the instant case the exact date of incident is not forthcoming and all that it has been mentioned is that in the Assembly Elections held in the year 112 Spl.CC 1342/2021 2008, the incumbent Government was falling short of 3-4 seats to prove their majority and hence, they had planned for a sting operation to get the MLAs flip-flop from other party to BJP party. Apart from that the allegations leveled against the accused is also not indicating that how and in what manner and on which day such inducement was given by the accused person. It is the well settled principles of law that when a charge leveled against the accused, it should be a specific one and should point out the manner in which he had committed. The entire charge sheet does not discloses the date on which such an alleged allurement was given nor the manner in which it was being made. The entire evidence which is placed before the court and also on appreciating the opinion of the expert, which the court had not accepted would only lead to a unequivocal inference that the prosecution had utterly failed to prove their case beyond reasonable doubt.
SUMMATION:-
74. By looking in to the facts of the case as per the case of the prosecution, a allegation which is leveled against accused Sri B.Suresh Gowda is that he had allured and tried to induce P.W.4
113 Spl.CC 1342/2021 S.R.Srinivas to resign from JD(S) MLA position and to join BJP by receiving a sum of Rs.18 Crore and also Chairmanship or President of any other Board or corporation. However, the incident which was allegedly recorded by PW7 Smt.Bharathi Devi is not inspiring confidence and the incident was initially brought to the notice of Hon'ble Karnataka Lokayukta by PW1 Rameshgowda is also not corroborated with materials produced, since as per his own contention the alleged incident was telecasted in a news channel i.e., Suvarna 24X7 at Ex.P.4 CD and since it was damaged during the course of investigation, a copy of the same, which was allegedly retained in the computer of the Investigating Agency, was produced before the court. However, to the surprise of the court, the contents of the CD which came to be marked as Ex.P.39 before the court indicated that the news item which was being relied upon was in English language in TV9 News Channel and not Suvarna 24X7 News Channel. That apart there is no iota of materials to indicate the manner in which the video graphed by PW7 Smt.Bharathidevi, nor the equipment used for allegedly recording the incident was recovered or the description of the same was collected by the Investigating Agency. It is also relevant to note that the certificate 114 Spl.CC 1342/2021 under Sec.65(B) of Indian Evidence Act furnished at Ex.P.80 through PW7 Smt.Bharathi Devi indicates that the entire conversation which was allegedly video graphed was transferred in to a laptop by her with the help at a computer center and later on the data was transferred in to a CD. However, her evidence indicates that she herself had copied it to the computer with the help of her son and workers in her house and handed over to her husband, who in turn had given it to Sri H.D.Kumaraswamy. In the instant case, the Investigating Agency, had not made any efforts to either request the news agency i.e., Suvarna 24X7 News Channel to part with the original CD through which the news item was telecasted, nor they had summoned Sri H.D.Kumarswamy to ascertain whether he was handed over with the original CD as contended by PW4 S.R.Srinivas. That apart the certificate which is along with the CD is not in accordance with law as contemplated and indicated in the judgment rendered by the Hon'ble Apex Court in the cases of 'Arjun Panditrao Khotkar Vs.Kailash Kushanrao Goranthyal and others'. And as such the evidentiary value of the video graphed contents at Ex.P.13 is diminished. The alleged collection of voice samples is also not in accordance with law and it is also relevant to 115 Spl.CC 1342/2021 note that on 18.1.2015, the voice sample of accused Sri Suresh Gowda has been recorded and due to some technical glitch the same could not be completed and on the very next day i.e., on 20.01.2015 again the same came to be transferred into a CD. However, at the time of transferring the data in to a CD, accused was not present, which would indicate that the corresponding mahazar, which was drawn was not in accordance with the provision of law. All the said aspects would only lead to an inference that the prosecution has utterly failed to prove the allegations leveled against the accused.
75. Before parting, it would be appropriate to consider the manner in which the investigation has been carried out by the Investigating Agency. The duty of Investigation Officer does not terminate merely by recording the statement of some persons and collecting certain documents and placing it before the court. Rather a sacrosanct duty has been imposed upon the Investigation Officer to go into the root of the case and to examine the manner in which the alleged offences are committed. A trial encompasses investigation, inquiry, trial, appeal and retrial. It assures the guarantee under Article 21 of the Indian Constitution and also embarrasses the life and liberty 116 Spl.CC 1342/2021 of the accused as well as the interest of the victim, his near and dear ones as well as community at large. Therefore, the investigation process cannot be taken so lightly or alienated from each other with levity. Any criminal offence is one against the society at large casting an onerous responsibility on the State which is the guardian and purveyor of human rights and also protector of law to discharge its sacrosanct role, responsibility and committedly, always accountable to the law abiding citizenry. The role of police is to be one of protection of life, liberty and property of citizens with investigation of offence being one of its foremost duties. That the aim of investigation is ultimately to search for truth and to bring the offender to book.
76. In this regard the court has relied upon wordings of celebrated Lord Denning in his book "The Due Process of Law", First Indian reprint, 1993, Page 102 wherein it has been stated that "
"In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well- trained and well-disciplined force of police whom it can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. The police, of 117 Spl.CC 1342/2021 course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants."
77. One of the responsibilities of the police is protection of life, liberty and property of citizens. The investigation of offences is one of the important duties the police which they have to perform. The aim of investigation is ultimately to search for truth and bring the offender to book. Further, the court has to appreciate the avowed purpose of a criminal investigation and its efficacious prospects with the advent of scientific and technical advancements which have been candidly synopsized in the prefatory chapter on "Criminal Investigation -- Basic Perspectives by Paul B. Weston and Renneth M. Wells" which reads as dealing with the history of criminal investigation in the treatise on Criminal Investigation.
"Criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum 118 Spl.CC 1342/2021 inquiry. Successful investigations are based on fidelity, accuracy and sincerity in lawfully searching for the true facts of an event under investigation and on an equal faithfulness, exactness, and probity in reporting the results of an investigation. Modern investigators are persons who stick to the truth and are absolutely clear about the time and place of an event and the measurable aspects of evidence. They work throughout their investigation fully recognizing that even a minor contradiction or error may destroy confidence in their investigation. The joining of science with traditional criminal investigation techniques offers new horizons of efficiency in criminal investigation. New perspectives in investigation bypass reliance upon informers and custodial interrogation and concentrate upon a skilled scanning of the crime scene for physical evidence and a search for as many witnesses as possible. Mute evidence tells its own story in court, either by its own demonstrativeness or through the testimony of an expert witness involved in its scientific testing. Such evidence may serve in lieu of, or as corroboration of, testimonial evidence of witnesses found and interviewed by police in an extension of their responsibility to seek out the truth of all the circumstances of crime happening. An increasing certainty in solving crimes is possible and will contribute to the major deterrent of crime--the certainty that a criminal will be discovered, arrested and convicted."
119 Spl.CC 1342/2021
78. The investigation entirely rests upon Scientific evidence and at the time of collecting scientific evidences and materials, the investigating agencies should be careful to consider the relevant provisions of law and they shall obtain and seek the assistance of expert in that field, which is not forthcoming in the entire materials that what had transpired the Investigating Agency to send the audio and video samples along the CD at Ex.P.13 to Truth Lab, Bengaluru when it was specifically directed by the learned ADGP, Karnataka Lokayukta to send the CD to the Central Forensic Science Lab (CFSL), Bengaluru. The Investigating Officer is unable to answer all these aspects and the above aspects would only indicate the callous manner in which the investigation was conducted. As per their own case, the alleged incident had taken place somewhere in the year 2008 and 2010 and initially a complaint was lodged in the year 2010 and preliminary investigation was conducted for a long period of more than five years and subsequently, the reports are obtained on 24.4.2014 from the Truth Labs, indicating that the voice samples were tallying with that of the CD in Ex.P.13 and FIR was registered after lapse of 8 months thereafter i.e., 25.4.2015 as per Ex.P.65, which only cast a serious question mark over the manner in which 120 Spl.CC 1342/2021 the investigation was conducted. The accused is made to run from pillar to post all these years and is made to suffer ignonimity due to the pendency of the case, which was not at all proved by the prosecution. The Investigating Agency cannot wash off their hands by mere filing of a charge sheet by collecting some stray materials stating that it was collected during preliminary enquiry. The law is well settled that the purpose of preliminary enquiry as indicated by the Hon'ble Apex Court is to ascertain whether sufficient materials are available to proceed against the accused person to take cognizance. However, at the same time, the preliminary enquiry should not be utilized as an instrument to target any person and to make him suffer ignonimity for a long period and to ascertain the veracity of the complaint. All the said aspects would clearly indicate that the prosecution has utterly failed in unraveling of the truth. Ultimately the aim of investigation is to unravel the truth from falsehood and in that journey the Investigating Agency had totally failed to do justice to their contention. Hence, there is no other alternative for this court rather than to accept the contentions urged by the accused person and accordingly, the prosecution had utterly 121 Spl.CC 1342/2021 failed to prove their case. Sequentionally, I answer point No.1 in the Negative.
79. Point No.2: In view of my findings on point No.1 supra, I proceed to pass the following order:
ORDER Acting under Sec.235(1) of Cr.P.C., the accused B.Suresh Gowda is found not guilty of the offence punishable under Sec.12 of the Prevention of Corruption Act, 1988 and accordingly, he is acquitted.
Bail bond of the accused stands cancelled. (Dictated to the Stenographer Grade-I, transcribed by him, revised and corrected by me and then pronounced in the Open Court on this the 30th day of January, 2024).
(Santhosh Gajanan Bhat) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka) ANNEXURES
1. Witnesses examined by the prosecution:-
PW1 Ramesh Gowda
PW2 S.Parashivamurthy
PW3 N.Manjunatha
PW4 S.R.Srinivas
122 Spl.CC 1342/2021
PW5 A.S.Jayaram @ Masala Jayaram
PW6 E.Krishnappa
PW7 Bharathidevi
PW8 S.M.Pasha
PW9 Jagadish Prasad S.M.
PW10 M.R.Goutham
PW11 S.Neeru
PW12 B.Lokesh
PW13 Ramesh Chandra
PW14 C.R.Raveesh
2. Witnesses examined by the defence/accused.- Nil
3. Documents exhibited by the prosecution.
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW1
Ex.P.2 Form No.1
Ex.P.2(a) Signature of PW1
Ex.P.3 Form No.2 (Affidavit)
Ex.P.3(a) Signature of PW1
Ex.P.4 CD
Ex.P.5 Notice issued to complainant by the S.P.,
Karnataka Lokayukta, Tumakuru
Ex.P.5(a) Signature of PW1
Ex.P.5(b) Signature of PW9
Ex.P.6 Statement of complainant before the S.P.,
Karnataka Lokayukta
123 Spl.CC 1342/2021
Ex.P.6(a) Signature of complainant
Ex.P.6(b) Signature of PW2
Ex.P.6(c) Signature of PW9
Ex.P.7 Video and dialogue verification mahazar
Ex.P.7(a) Signature of PW2
Ex.P.7(b) Signature of PW9
Ex.P.8, 8(a) Sheet containing Sample Signature of PW2
Ex.P.9, 9(a) Sheet containing Sample Signature of PW2
Ex.P.10,10(a) Sheet containing Sample Signature of PW2 Ex.P.11,11(a) Sheet containing Sample Signature of PW2 Ex.P.8(b) to Signature of PW9 11(b) Ex.P.12 C.D.Cover Ex.P.12(a) Signature of PW2 Ex.P.13 CD Ex.P.13(a) Signature of PW2 Ex.P.14 Mahazar dt.19.3.2011 (recording the voice of Srinivas, MLA Gubbi) Ex.P.14(a) Signature of PW2 Ex.P.14(b) Signature of PW9 Ex.P.15 CD sealed cover Ex.P.15(a) Signature of PW2 Ex.P.16 CD Sealed cover Ex.P.16(a) Signature of PW2 Ex.P.17 CD Ex.P.17(a) Signature of PW2 Ex.P.18 CD Ex.P.18(a) Signature of PW2 124 Spl.CC 1342/2021 Ex.P.19 Attendance certificate dt.19.3.2011 Ex.P.19(a) Signature of PW2 Ex.P.20 Attendance certificate dt.12.1.2016 Ex.P.20(a) Signature of PW2 Ex.P.21 Mahazar dt.18.1.2014 Ex.P.21(a) Signature of PW3 Ex.P.21(b) Signature of PW13 Ex.P.22 Mahazar dt.20.1.2014 Ex.P.22(a) Signature of PW3 Ex.P.22(b) Signature of PW13 Ex.P.23 to 28 Sample seal Ex.P.23(a) to Signature of PW3 28(a) Ex.P.23(b) Signature of PW13 Ex.P.29 Mahazar dt.13.1.2016 Ex.P.29(a) Signature of PW3 Ex.P.29(b) Signature of PW8 Ex.P.29(c) Signature of PW14 Ex.P.30 Attendance Certificate dt.13.1.2016 Ex.P.30(a) Signature of PW3 Ex.P.31 DVD cover Ex.P.31(a) Signature of PW3 Ex.P.32 DVD Ex.P.32(a) Signature of PW3 Ex.P.33 CD Cover Ex.P.33(a) Signature of PW3 Ex.P.34 CD 125 Spl.CC 1342/2021 Ex.P.34(a) Signature of PW3 Ex.P.35 Notice dated 29.11.2010 Ex.P.35(a) Signature of PW4 Ex.P.35(b) Signature of PW9 Ex.P.36 Letter submitting CD to SP Ex.P.36(a) Signature of PW4 Ex.P.36(b) Signature of PW9 Ex.P.37 Statement of CW8 Ex.P.38 Statement of CW9 Ex.P.39 CD Ex.P.40 Certificate under Sec.65(b) of Evidence Act Ex.P.40(a) Signature of PW1 Ex.P.41 Letter Ex.P.41(a) Signature of PW8 Ex.P.42 Memo dated 9.11.2010 Ex.P.42(a) Signature of PW9 Ex.P.43 Letter dt.12.11.2010 addressed to DC, Tumakuru Ex.P.43(a) Signature of PW9 Ex.P.44 Letter dt.12.11.2010 to District Social Welfare Officer, Tumakuru Ex.P.44(a) Signature of PW9 Ex.P.45 Letter dt.12.11.2010 to Deputy Commissioner, Tumakuru Ex.P.46 Attendance Certificate issued to CW3 Mohan Murthy Ex.p.46(a) Signature of PW9 Ex.P.47 Attendance Certificate issued to PW2 S.Parashivamurthy 126 Spl.CC 1342/2021 Ex.p.47(a) Signature of PW9 Ex.P.48 Letter dated 22.11.2010 Ex.P.48(a) Signature of PW9 Ex.P.49 Letter dated 23.11.2010 Ex.P.49(a) Signature of PW9 Ex.P.50 Letter dated 01.03.2011 Ex.P.50(a) Signature of PW9 Ex.P.51 Letter to Deputy Commissioner, Tumakuru dt.18.3.2011 Ex.P.51(a) Signature of PW9 Ex.P.52 Letter to District Social Welfare Officer, Tumakuru dt,18.3.2011 Ex.P.52(a) Signature of PW9 Ex.P.53 Official Memorandum Ex.P.54 Letter dt.18.3.2011to District Social Welfare Officer, Tumakuru Ex.P.55 Letter dt.26.3.2011 Ex.P.55(a) Signature of PW9 Ex.P.56 Letter by PI to Pw9 Ex.P.57 Letter dated 01.04.2011 Ex.P.57(a) Signature of PW9 Ex.P.58 Letter dt.28.4.2011 Ex.p58(a) Signature of PW9 Ex.P.59 Letter dt.28.4.2011 Ex.P.59(a) Signature of PW9 Ex.P.60 Reminder dt.26.5.2011 Ex.P.60(a) Signature of PW9 Ex.P.61 Letter dt.26.5.2011 127 Spl.CC 1342/2021 Ex.P.62 Letter dt.8.6.2011 Ex.P.62(a) Signature of PW9 Ex.P.63 Certificate dt.18.3.2011 Ex.P.63(a) Signature of PW9 Ex.P.64 Certificate dt.19.3.2011 Ex.P.64(a) Signature of PW9 Ex.P.65 FIR in Cr.No.4/2015 registered by PW10 Ex.P.65(a) Signature of PW10 Ex.P.66 PF No.11/2015 Ex.P.66(a) Signature of PW10 Ex.P.67 Report along with PF Ex.P.67(a) Signature of PW10 Ex.P.68 Forwarding letter dt.24.4.2014 Ex.P.69 Forensic speaker identification report dated 24.4.2014 Ex.p.69(a) Signature of PW11 Ex.P.70 Letter consisting sample seal Ex.P.70(a) Signature of PW11 Ex.P.71 Memo dt.24.4.2015 Ex.P.71(a) Signature of PW12 Ex.P.72 Letter dt.24.4.2015 Ex.P.72(a) Signature of PW12 Ex.P.73 Letter dt.16.1.2014 Ex.P.73(a) Signature of PW13 Ex.P.74 Letter dt.18.1.2014 Ex.P.74(a) Signature of PW13 Ex.P.75 Letter dt.22.1.2014 128 Spl.CC 1342/2021 Ex.P.75(a) Signature of PW13 Ex.P.76 Memo enclosed with CD Ex.P.76(a) Signature of PW13 Ex.P.77 Invoice dt.22.1.2014 Ex.P.77(a) Signature of PW13 Ex.P.77(b) Signature of PW13 Ex.p.78 Letter dt.29.5.2014 adressed to ADGP, Karnataka Lokayukta, Benglauru Ex.P.78(a) Signature of PW13 Ex.P.79 Certificate dt.1.8.2018 under Sec.65(B) of Evidence Act.
Ex.P79(a) Signature of PW13 Ex.P.80 Certificate under Sec.65(B) of Evidence Act Ex.P.80(a) Signature of PW7 Bharathi Devi
4. Documents exhibited by the Defence/Accused:-
Ex.D.1 Order of ADGP dated 9.11.2010 in note sheet. Ex.D.2 Note of ARE-2 on receipt of complaint from Ramesh Gowda
5. List of Material Objects marked by the prosecution:- Nil LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected former and sitting MPs/MLAs in the State of Karnataka)