Delhi District Court
State vs Hc Digambar Singh on 22 March, 2023
IN THE COURT OF SANJEEV KUMAR MALHOTRA
SPECIAL JUDGE: (PC ACT): (ACB-01):
RADC: NEW DELHI
CC No. 35/2019
CNR No.DLCT11-000223-2019
FIR No. : 04/2014
U/s : 7/13 (1) (d) of PC Act, 1988
PS : Vigilance
State VERSUS HC Digambar Singh
S/o Sh. Bhim Sain
R/o H. No.H-7, PS Sriniwas
Puri, Delhi.
Permanent Address :
Village - Mant, P.O. Pant
PS Surir, Distt. Mathura, U.P.
Date of Institution : 05.09.2018
Date of Arguments : 27.02.2023
Date of Judgment : 22.03.2023
JUDGMENT
1. Brief facts of the present case as per the charge-
sheet are that on 04.02.14, Sh. L. C. Yadav, ACP/VIU/ Vigilance gave a complaint cum rukka to Duty Officer, PS Vigilance Unit, Delhi that today i.e. on 04.02.14, TV channel Aaj Tak (Hindi) has aired a programme namely "Operation Delhi Police" from 20:00 hours onwards and in the said programme, several police officials of Delhi police are seen accepting bribe for doing some official duty and it FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 1 of 37 is clear from the telecast that HC Digambar Singh of PS Sangam Vihar, Delhi while on official duty is seen accepting gratification from an undercover agent of the said TV channel in lieu of settling a matter and thereby prima facie committed an offence u/s 7/13 (1) (d) of PC Act, 1988. It is stated that as per the approval of the senior officers, a case is to be registered against the said official and accordingly, a case u/s 7/13 (1) (d) of PC Act, 1988 be registered and investigation of case be handed over to Insp. Kapil Dev, Vigilance. On the basis of above complaint/directions, the present case FIR no. 4/2014 was registered u/s 7/13 (1) (d) of PC, 1988 Act against accused.
2. After registration of the case, during the course of investigation, unedited DVDs of subject sting operation containing raw footage were obtained from Sh. Satya Prakash, Asst. Manager, Legal Department, TV Today Network Limited. Sh. Akshay Singh and Sh. Umesh Dang, who had conducted the sting operation were examined and their statements u/s 161 Cr.P.C. were recorded. The gist of the statement of Sh. Akshay Singh is that he is a special correspondent in Aaj Tak TV Channel, India Today Group and to expose corruption in Delhi police, they were told to conduct sting operation by inducing and giving bribe to police officials at different police stations and to traffic police officials which would be telecasted on Aaj Tak Channel. On 31.01.2014, he alongwith Umesh Dang decided to conduct sting operation of some police official of PS Sangam Vihar as so many complaints regarding FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 2 of 37 corruption were being received from there. He met with HC Digambar Singh with an imaginary story regarding deal of a car and told him that he had a deal regarding purchase of Qualis car for an amount of Rs.5,00,000/- with Umesh Dang, who had already received an amount of Rs.2,00,000/- but despite that neither he was returning the amount nor he was giving the car to him and requested the accused to make a phone call to Umesh Dang. On the asking of special correspondent Akshay Singh, accused called Umesh Dang and talked with him on phone and thereafter, the special correspondent asked the accused as to how much amount he was required to pay, on which accused told him that as a matter of principle, he never made any demand in his service of 32 years and that only work should have been done and one may give as per his own sweet will. Thereafter, he gave him Rs.2,000/- which accused HC Digambar Singh kept in his pocket after counting and told him that in case Umesh did not return his money till tomorrow, then to come alongwith a written complaint. The aforesaid incident was recorded in the i-phone and the recording was later on transferred in the office computer of Aaj Tak TV channel and the original recording is stated to have been deleted from the i-phone as the same was required for the other sting operations.
3. Umesh Dang corroborated the version of Akshay Singh. Transcript of the video recording was prepared and accused was asked to give his sample voice, but accused did not give his consent for recording of his sample voice before FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 3 of 37 the Court. The sample voice of Akshay Singh was taken at CFSL for comparison and as per the report, the recordings contained in the audio files were found to be in continuity and there was no form of tampering or editing. Voice sample of Akshay Singh matched with the questioned voice and FSL expert opined the same to be probable voice of Akshay Singh. As far as video files are concerned, as per report of Photo and Scientific Aids Division, CFSL, CBI Ex.Q-1 (containing one DVD) is having two video files (file no. 2 and file no. 6) and that no tampering/editing was found in file no. 6 and hence it is authenticated. Further, it is intimated by Aaj Tak Channel that the original device has been deposited in the UP Vidhan Sabha in connection with Muzzafarnagar riots. Sh. Akshay Singh, Special Correspondent expired during investigation and his death certificate was obtained.
4. As per the contents of sting operation, transcript and other evidence, it was found that the accused has accepted bribe of Rs.2,000/- from Akshay Singh. Thereafter, prosecution sanction was obtained and the charge-sheet was filed in the court. Cognizance of offence under section 7/13(1)(d) of PC Act was taken on 11.09.2018.
5. Thereafter, accused HC Digambar Singh was summoned and after hearing the arguments, charge for the offence under Section 7 of PC Act was framed against the accused vide order dated 30.04.2019, to which he pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution examined 19 FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 4 of 37 witnesses. The brief summary of the evidence of prosecution witnesses is as under :
7. PW-1 is HC Mahesh Kumar, who deposed that on 07.02.2014, ACP L.C. Yadav gave him three DVDs for preparing separate DVDs of each incident and to give the same to different IOs case wise. He further deposed that as per direction, he prepared separate DVDs of each incident and gave the same to different IOs. PW-1 deposed that the DVD Ex.P1 of the present case was pertaining to accused HC Digambar Singh, who was posted at PS Sangam Vihar and same was handed over to the IO by him. PW-1 has also issued certificate U/s 65-B of Indian Evidence Act i.e. Ex.PW1/A pertaining to the DVD Ex.P1.
7.1. In his cross-examination, PW-1 admitted that date of preparation of any such recording would be reflected in the properties of particular device and it should have been 07.02.2014, as the recordings were transferred by him on 07.02.2014. At the request of Ld. Defence counsel when the DVD Ex.P1 related to present case was played on the computer, the date of access and date of modification of both the files of DVD Ex.P1 was reflected as 05.02.2014. To a specific question as put by Ld. Defence counsel, PW-1 deposed that he does not remember whether any seizure memo regarding handing over of DVD Ex.P1 was prepared by him or that the said DVD was kept by the IO in sealed cover or not. He further confirmed that no DVDs were given to him by Insp. M. S. Shekhawat for preparing copies.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 5 of 378. PW-2 is ASI Daleep Singh, who registered the FIR Ex.PW2/A on the basis of tehrir given by ACP L.C. Yadav and also made an endorsement on tehrir i.e. Ex.PW2/B. He deposed that he had also issued certificate u/s 65B of Indian Evidence Act in support of the printout of FIR i.e. Ex.PW2/C. 8.1. In his cross-examination, PW-2 deposed that he does not know how to operate the computer system. He further confirmed that the certificate U/s 65B of Indian Evidence Act was given in relation to the computer installed in the PS Vigilance for CCTNS.
9. PW-3 is Sh. Deepak Sharma, Editor, Aaj Tak Channel, who deposed that in the month of January- February 2014, his subordinate late Sh. Akshay Singh, Reporter in Aaj Tak had done a sting operation related to rampant corruption in police department and the sting operation was converted into DVDs after seeing the footage of the sting operation and later on the entire material was handed over to Dr. Puneet Jain, Legal Head of Aaj Tak News Channel, who used to issue certificate U/s 65B of Indian Evidence Act in respect of electronic records.
9.1. In his cross-examination, PW-3 deposed that the computer network of the company i.e. LAN was maintained by the IT Department and Dr. Puneet Jain used to see the legal aspects of the investigative stories. He deposed that the reporters used to download the raw footages of the sting operations and prepared DVDs and that every reporter used to have his own desk on which he used to work including FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 6 of 37 preparation of DVDs and the footages were downloaded on the desktop of the reporter. He further confirmed that in the present case also, Sh. Akshay Singh downloaded the footage on his desktop and that one spyware i.e. I-phone was issued to Sh. Akshay Singh and intern Sh. Sapan Gupta, however, he does not know with whom the said I-phone was as he left Aaj Tak channel in the year 2015.
10. PW-4 is HC Ravinder Pal, who deposed that on 18.06.2014, he received two sealed parcels from PS Vigilance and deposited the same in CFSL, CBI, Lodhi Road, New Delhi and collected the receipt from CFSL and gave the same to MHC(M) and RC no. 10/21/14 was also received by him with regard to deposit of the aforesaid parcels.
11. PW-5 is Ms. Anuradha Dey, Lab Assistant (Physics), CFSL, Delhi, who deposed that on 29.05.2014, a request was received from DCP, Vigilance Branch for recording of sample voice of Sh. Akshay Singh. PW-5 further deposed that on 09.06.2014, she alongwith Sh. Jayesh Bhardwaj recorded the sample voice of Sh. Akshay Singh in the presence of one witness namely Ct. Sikander in a fresh micro SD card Ex.P1 through digital voice recorder of make SONY and after recording the sample voice, the micro SD card was handed over to the IO who seized the same through seizure memo Ex.PW5/A. 11.1. In her cross-examination, PW-5 deposed that their department does not follow any standard operating procedure and does not have any manual containing FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 7 of 37 instructions for recording of sample voice. She further deposed that they had used SONY make recorder for recording of the sample voice and the purpose of recording of the sample voice was speaker identification not speaker verification.
12. PW-6 is Sh. Jayesh Bhardwaj, Lab Assistant (Physics), CFSL, Delhi, who deposed that on 29.05.2014, a request was received from DCP, Vigilance Branch for recording of sample voice of Sh. Akshay Singh and on 09.06.2014, he alongwith Ms. Anuradha Dey recorded the sample voice of Sh. Akshay Singh in the presence of one witness namely Ct. Sikander in a fresh micro SD card Ex.P1 through digital voice recorder of make SONY and after recording the sample voice, the micro SD card was handed over to the IO, who seized the same through seizure memo Ex.PW5/A. 12.1. In his cross-examination, PW-6 confirmed that there is no SOP (standard operating procedure) or working manual which is required to be followed for the purpose of taking voice sample as had been done in this case. He further deposed that he has not told the IO to mention the fact that Sony Recorder was used for recording of sample voice in any of the seizure memos. He further confirmed that purpose of recording of the sample voice was speaker identification. PW-6 admitted that the voice files similar to the sample files can be altered or modified on any computer using various softwares. He further admitted that the hash value is computed to maintain the authenticity and integrity FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 8 of 37 of the evidence when it is seized or received for the examination as per the NICFS Manual, Chapter-24 which is Mark-PW6/D4.
13. PW-7 is SI Amit Kumar, who proved the detailed bio-data Ex.PW7/A of HC Digambar Singh which was retrieved from office computer installed at IT Centre, Delhi by using his user ID. He also proved the certificate U/s 65B of Indian Evidence Act Ex.PW7/B in support of the aforesaid bio-data.
14. PW-8 is Sh. R. K. Srivastava, Principal Scientific Officer, CFSL, who deposed that on 01.07.2015, he received one DVD marked as Exhibit-Q1 in sealed condition from physics division for computation of hash value and he reported that DVD Exhibit Q1 was found fully functional and undamaged and mentioned its MD5 hash value in his report i.e. Ex.PW8/A. He further deposed that on 05.12.2018, he received two sealed parcels from Vigilance Branch for providing forensic copies/mirror image of these two exhibits alongwith hash value and he prepared the copy of DVD marked as Exhibit-Q-1 which was marked as "copy of Exhibit Q-1". PW-8 computed the MD5 hash value of the DVD marked as "Copy of Exhibit Q-1" but same did not match with the hash value of DVD marked as Exhibit Q-1. He further deposed that the data of both the aforesaid DVDs was validated on the basis of forensic parameters. PW-8 deposed that the hash value of two individual files i.e. "2.mov" and "6.mov" were computed and matched and the forensic clone of micro SD FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 9 of 37 card marked as Exhibit S-1 was prepared/validated and was marked as "I Exhibit S-1" whose hash value was computed and matched with that of Exhibit S-1 which were mentioned in his report dated 28.12.2018 i.e. Ex.PW8/B. 14.1. In his cross-examination, PW-8 produced Standard Operating Procedure running into two pages i.e. Ex.PW8/DA. To a specific question as put by Ld. Defence counsel, PW-8 deposed that mirror image of a media is the forensic replica of the media. To a specific question as put by Ld. Defence counsel, PW-8 replied that he gave opinion on the functionality of the DVD Exhibit Q-1 and not on the specific files and he had only computed the hash value of the DVD. He further deposed that since no previous hash value of the media was provided, the hash value computed by him could not be compared/verified and the hash value was provided by him as it was desired in the forwarding letter which can be used for authentication purpose for further reference. When the attention of the witness was drawn on page no. 2 of his worksheet which is part of Ex. PW-8/DD that the date of last access is 05th Feb 2014, the witness replied that it means that file was accessed on that date.
15. PW-9 is Sh. P. K. Gottam, Principal Scientific Officer, CFSL, who deposed that on 27.03.2015, he received the exhibits from Physics Division for examination of DVD Ex.P1 contained in one sealed parcel marked as Q-
1. He further deposed that the video contents of the DVD FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 10 of 37 were copied in a folder on MAC computer and DVD was containing two video files i.e. file no. 2. and 6. PW-9 deposed that as per his report dated 26.05.2015 Ex.PW9/A, he concluded that there is tampering in file no. 2 and there was no tampering in file no.6 and same was authenticated.
15.1. In his cross-examination, PW-9 deposed that one CD Exhibit Q-1 was copied onto MAC computer and video files were named as mov.2 and mov.6. He further deposed that in the file mov.2, around three seconds computer mouse point was seen in the video and in the file mov.6, there were no editing sign seen, therefore video file mov.2 represents towards editing off line. To a specific question as put by Ld. Defence counsel, PW-9 deposed that in the worksheet part of Ex.PW9/DB, it is mentioned in para no. 8(2) that regarding file no. 2, 'in the start is OK' implies original video file start from this point as normally by the video camera and 'at last is the sharp cut' which implies video may be continued from this point and some portion has been erased. To a specific question as put by Ld. Defence counsel, he deposed that in the worksheet part of Ex.PW9/DB, it is mentioned in para no. 8(2) that regarding file no. 6, 'in start sharp cut' implies video may be continued from this point and some portion in the beginning has been erased and 'At end OK cut' it implies original video file ended from this point as normally by the video camera. He further confirmed that he has given opinion regarding the tampering/editing of 2.mov file only on the basis of cursor and VLC bar which is reflected inside the FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 11 of 37 video and the cursor reflected in the mid video means that it is re-recorded one.
16. PW-10 is Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics), CFSL, who deposed that his office received a letter dated 18.06.2014 alongwith two sealed parcels marked no.1 and S-1, specimen seal impression of 'DK', copy of FIR, copy of seizure memo dated 08.05.2014, copy of transcription of conversation and carbon copy of road certificate no.10/21/14 dated 18.06.2014 for forensic voice examination and other related examination from DCP, Vigilance. He further deposed that parcel marked No. 1 was containing a DVD of make moserbaer PRO which was marked as Exhibit-Q1 and the same was played and found containing two video files namely "2" and "6" containing audio-video recordings of total duration of 7 minutes 18 seconds and 2 minutes 12 seconds which were marked by him as Q-1(1) and Q-1(2) respectively. PW-10 deposed that in recorded conversation marked Q-1(1), the voice of a person started with sentence "....Kal de dega, ye maine aapse kaha tha na sir..... " and in recorded conversation marked Q-1(2), the voice of a person started with sentence "....Hello, Umesh, Bhai Sahab mera phone to utha liya karo yaar......". He further deposed that the DVD mark Exhibit-Q-1 contained two conversations in audio-video recordings marked as Exhibit-Q1(1) and Q- 1(2). PW-10 deposed that on the basis of critical auditory examination, waveform and spectrographic examination of audio-video recording marked Exhibit-Q-1(1) and Q-1(2) FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 12 of 37 contained in DVD marked Exhibit-Q-1 revealed that the audio recordings are in continuity and no form of tampering/editing could be detected, however for definite opinion, original source of recording may be required. He further deposed that the auditory examination of questioned voices marked Exhibit-Q-1(1)(A) and Q-1(2)(A) and specimen voice of Sh. Akshay Singh marked Exhibit-S-1(A) revealed that they are similar in respect of their linguistic and phonetic features. PW-10 deposed that on the basis of both examination, he concluded that the voice marked Exhibit-Q-1(1)(A) and Q-1(2)(A) are the probable voice of the person namely Sh. Akshay Singh, whose specimen voice was marked as Exhibit-S-1(A), vide his detailed report dated 06.04.2015 i.e. Ex.PW10/A. During examination of this witness, Ld. Predecessor of this Court observed that as Micro SD Card has been marked as Ex.P1 and inadvertently DVD Ex.Q-1 has also been exhibited as Ex.P1, it was noted that the DVD is now exhibited as Ex.P-2.
16.1. In his cross-examination, PW-10 deposed that he can not admit or deny the suggestion that in case of tampering in the video recording, there would be tampering in the audio recording also. He further deposed that he had examined the audio recording by segregating it and also side by side with the video recording. To a specific question, he deposed that he did not demand hash value of the audio video recording from the investigating agency and did not note down the hash value of the recording at the time of examination. He volunteered that this is the duty of FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 13 of 37 computer forensic expert of their lab. He admitted that hash value is one of the parameter for detecting tampering/ editing. He volunteered that it is so only if the hash value is provided by the investigating agency at the time of submission of the exhibits in the lab.
17. PW-11 is Retired ACP L.C. Yadav, who deposed that on 04.02.2014 at about 08:00 pm, on news channel AAJ Tak, one programme namely Operation Delhi Police was telecasted in which some police officials of Delhi Police were shown accepting bribe and accused HC Digambar Singh from PS Sangam Vihar was also shown in the programme. He further deposed that after discussion with senior official, he prepared rukka Ex.PW11/A and FIR No.04/2014 was registered and investigation was assigned to Insp. Kapil Dev. PW-11 deposed that as there were seven connected FIRs, copy of the relevant recording pertaining to every case was got prepared separately by HC Mahesh at PS Vigilance and the recording pertaining to accused HC Digambar Singh was handed over to Insp. Kapil Dev by HC Mahesh, who had prepared the DVD. He further deposed that a letter Ex. PW-11/B dated 05.02.2014 was sent at Aaj Tak news channel office and the reply of Sh. Punit Jain dated 06.02.2014 i.e. Ex. PW-11/C was received alongwith three DVDs of unedited recording, one DVD of telecasted version and copy of transcription i.e. Ex. PW-11/D. 17.1. In his cross-examination, PW-11 admitted that he was not the IO of any of the FIR no. 01/14 to 07/14 on 05.02.2014. He further confirmed that he got collected one FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 14 of 37 DVD of telecasted version from the office of PRO PHQ Delhi after lodging the complaint in all the seven cases by sending his driver to PHQ and that he did not prepare any seizure memo of the said DVD. He further confirmed that the copies of DVDs received from PHQ were not got prepared by him through HC Mahesh on 04.02.2014. He deposed that four DVDs i.e. Ex. P2, Ex. P5, Ex. P6 and Ex. P7 were brought by Sh. Satya Prakash, Asst. Manager, Aaj Tak to his office on 06.02.2014 and that he did not verify from Sh. Satya Prakash whether the DVDs brought by him were containing original recordings or not. To a specific question as put by Ld. Defence counsel, PW-11 deposed that he cannot admit or deny the suggestion whether Insp. M. S. Shekhawat, Insp. Punia and Insp. Kapil Dev had gone to the office of Aaj Tak on 06.02.2014 for collecting four DVDs and transcript.
18. PW-12 is Sh. R. S. Chauhan, Retired Additional CP, who deposed that he perused the entire file and on application of mind, found sufficient incriminating material against HC Digambar Singh and accorded sanction U/s 19 of PC Act against him i.e. Ex.PW12/A, which was forwarded through covering letter i.e. Ex.PW12/B. 18.1. In his cross-examination, PW-12 deposed that copy of draft chargesheet was sent to him alongwith the request letter, however, he does not remember whether the fact about the death of Sh. Akshay Singh was mentioned in the draft charge-sheet or not. He further deposed that he had perused the audio-video recording and the transcript as well FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 15 of 37 as the report of CFSL regarding matching of voice sample, however he does not remember whether the audio-video recording was sent in a DVD or in any pen drive. He further deposed that certificate under Section 65B of Indian Evidence Act dated 20.12.2017 issued by Dr. Punit Jain from TV Today Network was not received alongwith the request letter. He denied the suggestion that he has not applied his mind and granted sanction in mechanical manner. He confirmed that HC Digambar Singh was exonerated in the Departmental Inquiry vide order Ex. PW- 12/DA bearing his signature at point A.
19. PW-13 is ACP Mahavir Panwar, who deposed that on 15.07.2018, investigation of the present case was assigned to him and since the investigation in the present case was completed, he prepared the final chargesheet and filed the same in the court.
20. PW-14 is ACP Kapil Dev, who deposed that on 06.02.2014, he had accompanied Insp. M. S. Shekhawat (IO of case FIR No.01/2014) and Insp. Virender Singh to the office of TV Today Network, Noida, UP where Sh. Satya Prakash, Assistant Manager, Legal Deptt., TV Today Network produced three unedited DVDs and one edited DVD alongwith transcript of the telecast. He further deposed that Insp. M. S. Shekhawat took the aforesaid four DVDs/CDs and transcription into police possession vide seizure memo Ex.PW14/A. PW-14 deposed that on the direction of ACP L. C. Yadav, one copy of CD Ex.P1 FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 16 of 37 containing particular sting operation of accused Digambar was provided to him on 07.02.2014 and he had seen the said CD. He further deposed that he sent one notice U/s 91 Cr.P.C. i.e. Ex.PW16/DA to Sh. Punit Jain, Legal Head, TVTN for providing original recording, recording devices, names and addresses of under cover reporters and source of money used in the sting operation etc. 20.1. In his cross-examination, PW-14 deposed that he did not prepare any seizure memo on 07.02.2014 about handing over of Ex.P1 to him by Ct. Mahesh and deposed voluntarily that it was given to him for the purpose of looking into the sting operation and for using it during investigation. He admitted that Ex.P1 was the first CD of sting operation which was received by him and that he did not obtain any certificate U/s 65B of Indian Evidence Act from Ct. Mahesh. He further admitted that Mata Data of the CD Ex.P1 in the properties section is showing date of access and date of modification as 05.02.2014 in both the files. He further admitted that no certificate U/s 65B of Indian Evidence Act was collected by them from Satya Parkash and that he does not remember whether any inquiry was made from Satya Prakash about the person who had prepared those four DVDs. He admitted that he did not play those four DVDs so as to verify whether files available in Ex.P1 were in fact available in those four DVDs or not.
21. PW-15 is Ct. Sikender Maan, who deposed that on 09.06.2014, voice samples of Akshay Singh and Sapan FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 17 of 37 Gupta were recorded at CFSL, Lodhi Road, New Delhi in his presence and the same was seized by IO vide memo Ex.PW5/A.
22. PW-16 is Sh. Puneet Jain, who deposed that in the year 2014, he was designated as Head, Legal & Compliances, Company Secretary and Vice President, Internal Audit of India Today Group. He further deposed that the sting operation was conducted by Editorial Team which was headed by late Sh. Akshay Singh and broadcasted on 04.02.2014 on Aaj Tak Channel related to exposing corruption in Delhi Police. PW-16 deposed that he responded a notice U/s 91 Cr.P.C. sent to the company on 05.02.2014 and in total four CDs/DVDs Ex.P2, Ex.P5, Ex.P6 and Ex.P7 were handed over to the concerned department which comprises of three CDs/DVDs of raw footage/unedited footage and one CD/DVD was of the broadcasted footage. He further deposed that certificate U/s 65B of Indian Evidence Act was also provided since the requisite footage as a process was transferred from the I- phone (without SIM), used by late Sh. Akshay Singh in the sting operation. PW-16 deposed that the footage was transferred from the I-phone to the company computer as per the requisite process and CDs/DVDs were made by the library under his direct supervision and were consequently handed over to the police through Sh. Satya Parkash, Assistant Manager, Legal on 06.02.2014. He further deposed that the footage as a process was deleted from the I-phone after successful transfer to the office computer as FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 18 of 37 the said I-phone was also used for other coverages and was lastly handed over to the Vidhan Sabha, UP in some other related sting operation. PW-16 deposed that Sh. Akshay Singh had expired after the aforesaid sting operation. He further deposed that he had provided separate certificate U/s 65B of Indian Evidence Act in connection with each FIR and the certificate pertaining to present FIR is Ex.PW16/B which was sent alongwith letter dated 20.12.2017. PW-16 deposed that he had informed the Investigating Agency about the death of Sh. Akshay Singh and provided copy of his death certificate.
22.1. In his cross-examination, PW-16 deposed that he had communicated to the IO that the original recording device used in the present case was in the custody of UP Vidhan Sabha in connection with Mujjafar Nagar riots, vide letter Ex.PW17/B. He further deposed that he cannot tell as to when the recordings were transferred from I-Phone to the computers of SIT or as to when the recordings were deleted from the I-Phone or as to when the recordings were transferred from SIT to library department. He further deposed that he does not recall as to who had prepared edited footage from the unedited footage of the sting operation and as to where the edited version was prepared whether in SIT or library. He admitted that process of transfer of recordings from I-Phone to the computers of SIT and thereafter from the computers of SIT to the computers of library were not done in his presence. He further deposed that he cannot say whether the unedited footage of the FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 19 of 37 present sting operation were transferred to the computers of library section in one go by the same person or in the same manner from the computers of SIT section to the library section. He further deposed that he does not remember for how many times certificate U/s 65B of Indian Evidence Act was provided by him to the IO and after seeing the certificate U/s 65B of Indian Evidence Act Ex.PW16/DE, he admitted that the same is executed by him. He further deposed that he did not watch the original recordings in I- Phone.
23. PW-17 is Sh. Umesh Dung, who deposed that in the year 2014, he was working as intern India Today group and he had not accompanied Sh. Akshay Singh, who was his senior, to any sting operation conducted by him at that time. He further deposed that he is not aware anything about the present case.
23.1. PW-17 was cross-examined by Ld. Addl. PP for the State, but he denied all the suggestions put by Ld. Addl. PP for the State. He denied the specific suggestion put by Ld. Addl. PP for the State that he has been won over by the accused and that is why he is not intentionally disclosing the true facts of the case and deliberately deposing falsely.
24. PW-18 is Insp. Vinay Kumar, to whom investigation of present case was assigned in August 2015. He deposed that he obtained postmortem report of Sh. Akshay Singh and certificate U/s 65B of Indian Evidence Act Ex.PW16/B from the competent authority of Aaj Tak Channel. He further deposed that he made request before the court for FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 20 of 37 taking voice sample of accused HC Digambar Singh who refused to give his consent for recording of his voice sample. PW-18 deposed that he obtained prosecution sanction Ex.PW12/A from the administrative authority of accused HC Digambar Singh and place the same on record. He also collected duty roster of accused Ex.PW18/B, which was seized through memo Ex.PW18/A and also collected bio-data of accused Ex.PW18/C. 24.1. During his cross-examination, PW-18 deposed that he did not seek any clarification about handwritten portion at point X on memo Ex.PW19/A as to why this portion was handwritten whereas entire memo was typed one. He further deposed that no site plan was available on file when the file was received by him and he also did not prepare any site plan. He further deposed that he did not verify as to who had typed the transcription Ex.PW19/D and did not obtain any opinion from CFSL that the transcription Ex.PW19/D was authenticated and was correct as per the audio track of the sting operation. He further deposed that he has compared the transcript Ex.PW19/D with the audio track of the sting operation and found it correct. He further confirmed that he did not seek any clarification from Insp. Devender Saini for not signing Ex.PW19/D earlier or as to about scriber of this transcription. He further deposed that he neither obtained the mobile number of Sh. Akshay Singh nor he collected CDRs of mobile phone of Sh. Akshay Singh for ascertaining his location at or around PS Sangam Vihar. He further deposed that Satya Parkash was one of the FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 21 of 37 material witness in this case, but he could not record his statement inadvertently. He admitted that vide letter Ex.PW18/DA, he had informed Sh. Punit Jain of TVTN that he was not competent to issue certificate U/s 65B of Indian Evidence Act. To a specific question, he deposed that it does not come to his notice that the copy of the sting operation given by Ct. Mahesh to the first IO of the present case was sealed and deposited in the Malkhana in February 2014 itself. He further admitted that as per report of Photo Division, it was opined that audio-video file no. 2 of the said DVD was tampered and that whatsoever money transaction was available in the sting operation of the present case, it was in audio-video file no. 2.
25. PW-19 is Insp. Devender Saini, who deposed that on 07.03.2014, investigation of present case was assigned to him and on 08.05.2014, he called Akshay to the Vigilance office who had conducted the sting operation. He further deposed that one DVD which was lying in the case file was played in the computer of Vigilance and shown to Akshay Singh, who after seeing the contents of the DVD, stated that the footage/sting was the same which was shot by him regarding HC Digambar Singh of PS Sangam Vihar from his mobile phone. PW-19 deposed that he recorded the statement of Akshay Singh Ex.PW19/B and on 19.06.2016, he took him to CFSL, Lodhi Colony for obtaining his voice sample and the CFSL officials had taken the voice sample of Akshay in micro SD card which was taken by him in police possession vide memo Ex.PW5/A. As per PW-19, later on FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 22 of 37 the sealed DVD, the sealed exhibits and the transcript were sent to CFSL, Lodhi Road for opinion and he received the result Ex.PW10/A on 14.08.2015. He also admitted that transcription Ex.PW-19/D was prepared by him during investigation and on 30.05.2018, he was called by the IO to put his signature on the transcription.
25.1. During his cross-examination, PW-19 admitted that Insp. D. V. Gautam was not present when proceeding dated 08.05.2014 was conducted by him. He denied the suggestion that Akshay Singh was not present in PS Vigilance on 08.05.2014 or that no recording in any DVD was identified by him. He confirmed that neither he got the spot of sting operation identified from Akshay Singh nor prepared any site plan and that he cannot give any explanation for not preparing the site plan. He deposed that the transcript was not prepared for relying upon in the investigation file and it was prepared only for help in the investigation. He further confirmed that the specific date of sting operation was not revealed to him during investigation.
26. After completion of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to him which he denied as false and incorrect and stated that he is innocent and has been falsely implicated in the present case by the undercover reporters of TVTN by fabricating sting operation for the purpose of increasing their TRP and that no complaint of Akshay Singh or any TVTN officials was FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 23 of 37 pending with him. It was further submitted by accused that he had not demanded or accepted any money from anybody as claimed. He opted to lead defence evidence.
27. In his defence, he examined SI Pawan Kumar as DW-1, who brought the original record regarding Vigilance Enquiry of HC Digambar Singh and proved the final order dated 24.04.2018 alongwith the findings dated 05.04.2018 as Ex.DW1/A to Ex.DW1/C (colly).
28. Arguments have been advanced by Ms. Purnima Gupta, Ld. Chief PP for the State and also by Sh. Sanjay Gupta, Ld. Defence Counsel for the accused. I have also perused the written arguments as filed on behalf of accused.
29. Ld. Chief PP for State argued that the footage of sting operation was played in the presence of Akshay Singh on the computer of Vigilance by PW-19 Insp. Devender Saini and after seeing the contents of the DVD, Akshay Singh told him that the footage/sting was the same which was shot by him regarding HC Digambar Singh of PS Sangam Vihar on his mobile phone. It has been submitted that PW-16 Sh. Punit Jain, who was Head of Legal & Compliances, TV Today Network Ltd. has specifically deposed that the footage was transferred from the I-phone used by Late Sh. Akshay Singh and the CDs/DVDs were made by the library under his direct supervision and therefore his certificate u/s 65-B of Indian Evidence Act is admissible in support of DVD Ex.P-2 relating to the sting of present case being secondary evidence.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 24 of 3730. Ld. Chief PP for State further argued that the accused had refused to give his voice sample when an application was filed by the IO before the Court and therefore adverse inference should be drawn against him. It has been submitted that the prosecution has proved its case beyond reasonable doubt.
31. Per contra, Ld. Defence counsel argued that the original source of alleged sting operation i.e. I-phone was neither seized nor produced before the Court and Sh. Akshay Singh, who allegedly recorded the sting operation regarding the imaginary story for giving bribe to accused could not be examined as he expired. It is submitted that PW-17 i.e. Sh. Umesh Dang, who as per prosecution story accompanied Sh. Askhay Singh for conducting the sting operation has not supported the case of prosecution.
32. Ld. Defence counsel further argued that prosecution witnesses have deposed two different stories regarding procurement of four DVDs i.e. three raw DVDs and one edited DVD from which PW-1 HC Mahesh allegedly copied the DVD Ex.P-2 related to sting operation of present case. It is submitted that as per PW-11 Retd. ACP L. C. Yadav, who got the case FIR registered, Sh. Satya Prakash, Asst. Manager, Aaj Tak brought four DVDs alongwith letter of Sh. Punit Jain at his office on 06.02.2014, but PW-14 ACP Kapil Dev to whom the investigation of present case was assigned, deposed that on 06.02.2014, he alongwith Insp. M. S. Shekhawat and Insp. Virender Singh reached at the office of TV Today Network where Sh. Satya Prakash, Asst.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 25 of 37Manager produced three unedited DVDs and one edited DVD, which were taken in police possession by Insp. M. S. Shekhawat.
33. Ld. Defence counsel vehemently contended that as per prosecution case, DVD Ex.P-2 was prepared by PW-1 HC Mahesh on 07.02.2014 from three unedited DVDs, but the Mata Data of the DVD Ex.P-2 when checked during cross examination, had shown the date of access and date of modification of both the files copied in DVD Ex.P-2 is of 05.02.2014 and there is no explanation on record in this regard.
34. Ld. Defence counsel further argued that it is also admitted by PW-18 that the alleged transaction of money is shown in file no. 2.mov and as per opinion of PW-9 Sh. P. K. Gottam, who was working as Principle Scientific Officer at CFSL, there was tampering in file no.2.mov as the cursor reflected in the mid video, which means that it is re- recorded one.
35. Ld. Defence counsel further argued that Sh. Punit Jain was not the competent person to issue certificate u/s 65- B of Indian Evidence Act relating to three unedited DVDs from which allegedly HC Mahesh copied the video footage related to present case on DVD i.e. Ex.P-2. It is submitted that the IO informed Sh. Punit Jain vide letter Ex. PW- 18/DA that he was not the competent person to issue a certificate u/s 65-B of Indian Evidence Act and sought address of Sh. Deepak Sharma vide letter Ex. PW-18/DB to FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 26 of 37 ask him for providing certificate u/s 65-B of Indian Evidence Act, but same was not obtained.
36. It was argued by Ld. Defence counsel that accused has been exonerated in the departmental proceedings and the documents produced before Disciplinary Authority are mirror image of the subject matter of present case. Ld. Defence counsel has drawn my attention in respect of authorities i.e. Jahan Singh vs. State, 2020 (2) RCR (Cr.) 794 Delhi; Vishal Chand vs. State, 2011 (1) JCC 570 Delhi and Johnson Jacob vs. State, WP (Crl.) 1279/2021.
37. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused must be proved beyond all reasonable doubts. In this regard, reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Cr) 217 SC and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution.
38. It is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 27 of 37 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognized as human right which cannot be wished away.
39. Sh. Akshay Singh, Special Correspondent of Aaj Tak channel, who had conducted and recorded the sting operation related to present case could not be examined as he passed away during investigation and Sh. Punit Jain, Head Legal & Compliances provided the copy of his death certificate to the IO. The original device i.e. I-phone through which Sh. Akshay Singh recorded the sting operation was not produced before the Court and it has come on record in the evidence of PW-16 Sh. Punit Jain that the original recording device was in the custody of UP Vidhan Sabha in connection with Muzaffarnagar riots. PW-17 Sh. Umesh Dang, who accompanied Sh. Akshay Singh at the time of present sting operation has not supported the case of prosecution. He has denied the suggestion of Ld. Addl. PP for State that he has been won over by the accused and that is why, he is intentionally not disclosing true facts of the case.
40. As noted above, there is no direct ocular evidence or primary evidence against the accused that he demanded or obtained any bribe from Akshay Singh which was allegedly recorded by him through his I-phone. The original device i.e. I-phone through which the sting operation was recorded has not been produced before the Court, therefore, the entire case of the prosecution is based upon the DVD Ex.P-2.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 28 of 37(During the evidence of PW-10 Sh. Deepak Kumar Tanwar, Principle Scientific Officer, CFSL, it was observed by the Ld. Predecessor that Ex.P1 has been given to Micro SD card and DVD Ex. Q1 is marked as Ex.P-2). Admittedly as per case of prosecution, the DVD Ex.P-2 was prepared at the office of Vigilance on 07.02.2014 by PW-1 HC Mahesh Kumar from the four DVDs i.e. three raw and one edited DVD which were handed over to him by PW-11 ACP Sh. L. C. Yadav and the data on those DVDs was copied from the office computer of TV Today Network, on which, allegedly the data was transferred from the original device, therefore, DVD Ex.P-2 being a secondary evidence is to be proved as per Section 65-B of Indian Evidence Act.
41. In case titled as Anvar P. V. Vs P. K. Basheer, AIR 2015, SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 29 of 37 Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 30 of 37 Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
42. Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its decision dated 14.07.2020, on the issue of certificate under section 65B Indian Evidence Act, 1872 observed as under:
"............We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose...
84. But Section 65-B(1) starts with a non obstante clause excluding the application of the 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 FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 31 of 37 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".
43. Thus, for the admissibility of any secondary evidence in digital form, the certificate under section 65B of Indian Evidence Act is a mandatory requirement. The requirement of certificate u/s 65-B of Indian Evidence Act is to rule out any tampering with the electronic evidence produced on record. Source and authenticity are the two hallmarks pertaining to electronic record. Firstly, the question arises, from whom PW-11 Sh. L. C. Yadav received four DVDs containing raw footage as well as edited footage of sting operations conducted by Sh. Akshay Singh, undercover reporter of the Aaj Tak TV Channel. In this regard, PW-11 Sh. L. C. Yadav deposed that he had sent a letter Ex. PW-11/B to Aaj Tak news channel office to provide unedited original recording of the programme and Sh. Satya Prakash, Assistant Manager, Legal brought four DVDs to his office on 06.02.2014 alongwith letter of Sh. Punit Jain i.e. Ex. PW-11/C, but PW-14 ACP Kapil Dev, to whom investigation of present case was assigned, deposed that on 06.02.2014, he had accompanied Insp. M. S. Shekhawat and Insp. Virender Singh to the office of TV Today Network located at Noida, UP where Sh. Satya FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 32 of 37 Prakash, Assistant Manager, Legal Department, TV Today Network produced three unedited DVDs containing raw footage and one edited DVD alongwith transcript of the telecast and Insp. M. S. Shekhawat took all those four DVDs and transcription into police possession. Thus, the prosecution witnesses contradicts each other and deposed two different versions regarding receiving of three unedited CDs/DVDs containing raw footage and one edited DVD from the Aaj Tak channel.
44. Next question comes as to who was the person having lawful control over the use of the computer of Aaj Tak Channel on which the data regarding sting operation was transferred from the original device i.e. I-phone of Akshay Singh and thereupon, the data was copied in three DVDs containing raw footage of the sting operation for the purpose of furnishing certificate u/s 65-B of Indian Evidence Act. In this regard, prosecution has examined two witnesses of Aaj Tak channel i.e. PW-3 Sh. Deepak Sharma, who was Editor of Aaj Tak and PW-16 Sh. Punit Jain, who was Head of Legal & Compliances of Aaj Tak channel. PW- 3 Sh. Deepak Sharma, Editor of Aaj Tak deposed that the reporters used to download raw footages of sting operations and prepare DVDs and that every reporter used to have his own desk on which he used to work including preparation of DVDs. He deposed that in the present case also, Sh. Akshay Singh downloaded the footage on his desktop and Dr. Punit Jain, Legal Head used to issue certificate u/s 65-B of Indian Evidence Act in respect of electronic records. PW-16 Sh.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 33 of 37Punit Jain, Head Legal & Compliance has also admitted in his cross examination that process of transfer of recordings from I-phone to the computers of SIT and thereafter from the computers of SIT to the computer of library were not done in his presence. However, he issued the certificate u/s 65-B of Indian Evidence Act i.e. Ex. PW-16/B pertaining to present FIR. From the testimony of PW-3 Deepak Sharma, it appears that although the footage of sting operation of present case was downloaded by Sh. Akshay Singh on his desktop from original device and DVDs were also prepared by him, but as PW-16 Sh. Punit Jain was the Head, Legal & Compliances, he was asked to furnish certificate u/s 65-B of Indian Evidence Act without considering the requirement of Section 65-B of Indian Evidence Act. Not only this, PW-18 Insp. Vinay Kumar vide his letter Ex.PW-18/DA informed PW-16 Sh. Punit Jain of TVTN that he was not competent person to issue certificate u/s 65-B of Indian Evidence Act. Thus, certificate u/s 65-B of Indian Evidence Act issued by PW-16 Sh. Punit Jain i.e. Ex. PW-16/B in support of unedited DVDs is not admissible as Sh. Punit Jain was not the person having lawful control over the use of the computer on which the data of sting operation was downloaded from the original device and copied in three DVDs.
45. Ex.P-2 is the DVD which was prepared by PW-1 HC Mahesh Kumar on 07.02.2014 from three unedited DVDs (which are Ex.P-2, P-5 and P-6 in case FIR no. 01/2014). It is admitted case of the prosecution that three FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 34 of 37 unedited DVDs were received by PW-11 Sh. L. C. Yadav on 06.02.2014 alongwith the reply of Sh. Punit Jain i.e. Ex. PW-11/C and thereafter, Sh. L. C. Yadav directed PW-1 HC Mahesh Kumar to prepare separate DVDs of each incident and to give the same to different IOs case wise. However, when the DVD Ex.P-2 was played before the Court for the purpose of finding its properties, the date of access and date of modification of both the files appeared as 05.02.2014. PW-1 HC Mahesh Kumar was reexamined by Ld. Addl. PP for State in this regard, but he deposed that he cannot give any explanation as to why date of access and date of modification of both the files of DVD Ex.P-2 is 05.02.2014, whereas it was prepared by him on 07.02.2014. Thus, Mata data of DVD Ex.P-2 falsify the testimony of PW-1 that he prepared the DVD Ex.P-2 on 07.02.2014.
46. PW-9 Sh. P. K. Gottam, Principal Scientific Officer, CFSL examined the DVD Ex.P-2 in photo division of CFSL and found that it contained two video files i.e. 2.mov and
6.mov. PW-18 Insp. Vinay Kumar admitted in his cross examination that whatsoever money transaction was available in the sting operation of the present case, it was in the audio video file no.2.mov. The authenticity of DVD Ex.P-2 containing two files i.e. 2.mov and 6.mov is also damaged by the evidence of PW-9 Sh. P. K. Gottam, who after examining the DVD Ex.P-2 concluded that there is tampering in file no. 2.mov of the DVD Ex.P-2 and explained that the cursor reflected in the mid video means that it is re-recorded one.
FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 35 of 3747. The question of raising adverse inference against the accused for not giving his voice sample would arise only when the contents of the video recording is proved in accordance with law, which has not been done in the present case. The source as well as authenticity of DVD Ex.P-2 is not established on record even by way of secondary evidence. Moreover, the relevant file in DVD Ex.P-2 was found to be tampered one.
48. Before parting, it would be relevant to note here that the testimony of prosecution witnesses shows that the investigation of present case was conducted in a lackadaisical manner from the initial stage till the investigation was finalized by the IOs. PW-11 ACP Sh. L. C. Yadav, who got registered the case FIR and received three unedited DVDs, did not seize the same or supervise the process of preparing separate DVDs of individual case before handing over the DVDs to respective IOs of seven FIRs. PW-18 Insp. Vinay Kumar admitted that Sh. Deepak Sharma was the person Incharge of computer of TVTN, but his certificate u/s 65-B of Indian Evidence Act was not obtained. Not only this, PW-18 Insp. Vinay Kumar admitted that Sh. Satya Prakash, Assistant Manager, Legal was one of the material witness in this case and submitted that he could not record his statement inadvertently. No efforts were made to brought the original device which was deposited with UP Vidha Sabha.
49. In view of above reasons and discussion, I am of the considered opinion that prosecution has miserably failed to FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 36 of 37 prove its case against accused HC Digambar Singh beyond reasonable doubt. Accordingly, benefit of doubt is given to the accused and he is acquitted from the charge framed against him. His bail bonds stands cancelled and surety is discharged.
50. File be consigned to record room after due compliance. Digitally signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2023.03.22 15:17:33 +0530 Announced in the open court (Sanjeev Kumar Malhotra) on 22 nd March, 2023 Special Judge (PC Act) (ACB-01) Rouse Avenue District Courts New Delhi FIR No. 04/2014, PS Vigilance State vs. HC Digambar Singh Page 37 of 37