Delhi District Court
Decision [Associated Provincial ... vs . on 7 June, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 91/2011
R.C. No. 48(A)/04
Case ID No. 02401R0370532009
Central Bureau of Investigation
Versus
1. Shri Ram Kumar
S/o Shri Lakhi Ram
R/o Village & Post Kassar,
District Jhajjar,
Haryana.
2. Shri Ram Kumar
S/o Hari Ram
R/o Village & Post Kandela,
P.S. Jind, District Jind,
Haryana.
Date of Institution : 19.07.2007
Date of reserving Judgment : 31.03.2014
Date of Pronouncement : 30.05.2014
C.C. No. 91/11 1 of 105
JUDGEMENT
Preliminary The accused herein, namely, Ram Kumar son of Shri Lakhi Ram, No. 232 W and Ram Kumar son of Shri Hari Ram, No. 391 W, who had been working in Delhi Police as Head Constables, have been sent up for trial for committing offences under section 120B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and the substantive offences thereof.
Allegations as per the charge sheet
2. The complainant Chetan Prakash son of Babu Lal had videographed several personnel of Delhi Police and Excise Department of GNCT of Delhi taking money from bootleggers in the areas under the jurisdiction of Police Station, Uttam Nagar and adjacent police station in order to expose their corrupt practices. He had approached the Hon'ble High Court by way of C.C. No. 91/11 2 of 105 Criminal Writ Petition seeking protection and also a direction for getting the matters investigated by CBI. He had submitted five Hi8 cassettes to the Hon'ble High Court of Delhi and also one VHS cassette having the video clippings of scenes he had clandestinely shot at the residences of various bootleggers including at the residence of one Shri Jasbir Sansi and his wife Beena Sansi at DDA Flats, Bindapur, P.S. Uttam Nagar during the year 200203.
3. On the basis of directions of the Court there were three cases registered at CBI, ACB, New Delhi viz RC DAI 2004 A 0048, RC DAI 2004 A 0049 and RC DAI 2004 A 0050. The present case relates to the RC No. DAI 2004 A 0048 which was registered in respect of incidents falling under the jurisdiction of Police Station Uttam Nagar.
4. During the investigation five Hi8 cassettes which were received from the Hon'ble High Court in sealed condition were sent to CFSL, Chandigarh for seeking their report on the editing C.C. No. 91/11 3 of 105 and tampering aspect. The report was received from the CFSL that the video recordings in the said cassettes were camera original and free from editing and tampering. CFSL, Chandigarh had also provided copies of said five Hi8 cassettes in computer CDs.
5. The computer CDs were shown to the complainant Shri Chetan Prakash and several other personnels of Delhi Police. They had identified the officials of Delhi Police and Excise Department in the questioned video clippings including the video clipping where the accused herein could be seen demanding and accepting bribe from Jasbir Sansi and his wife Beena Sansi.
6. In the video clipping Head Const. Ram Kumar (No. 232/W) was seen sitting in a chair in front of house of Beena Sansi who could be seen selling liquor bottles. The other Head Const. Ram Kumar (No. 391/W) could be seen accepting currency notes from Beena Sansi, counting the same and keeping in his pocket. (not charged for these allegations) C.C. No. 91/11 4 of 105
7. In an other scene the two could be seen together in front of the house of Jasbir Sansi, Head Const. Ram Kumar (No. 232/W) demanding and accepting money from Beena Sansi and then handed it over to the other accused Head Const. Ram Kumar (No. 391/W) and then HC Ram Kumar (No.391/W) keeping the money in his pocket. (Accused charged for these allegations.)
8. During the investigation the specimen voice of Head Const. Ram Kumar (No. 232/W) and Head Const. Ram Kumar (No. 391/W) were taken and sent for voice spectrography alongwith questioned video cassettes for spectrography report / opinion. A report was received from the CFSL, New Delhi stating, interalia, that the specimen voice of the two accused matched with the voice available in the questioned video cassettes.
C.C. No. 91/11 5 of 105 Charge
9. On the basis of the allegations, the charge under Section 120B IPC read with sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against both the accused persons and a separate charges under sections 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act was also framed against both the accused persons to which they pleaded not guilty and claimed trial.
It is submitted that there is some clarification required here with regard to the Belt numbers of two accused mentioned in the charge sheet and also in the charge framed. In the video clipping there are two head constables visible both of them having the name "Ram Kumar", one in the police uniform and the other is wearing a black jacket. The Head Constable wearing the black jacket had the belt No. 232/W and the other Head Constable wearing the uniform had the belt No. 391/W but C.C. No. 91/11 6 of 105 in the Charge Sheet and also in the Charge their belt number were incorrectly noted as 391/W and 232/W respectively. This, however, would not affect the out come of the case as in addition to writing the number there was another description given stating clearly that it was the H/C Ram Kumar in Black Jacket who receives the money ultimately and keeps it in the pocket.
Prosecution Evidence
10. Witness PW1 Inspector Surender Singh who was posted as SHO, Police Station Uttam Nagar from 01.01.2003 to February, 2004 had deposed that both the accused were working at the relevant time at P.P. East Uttam Nagar under the jurisdiction of Police Station Uttam Nagar as Head Constables during his tenure. The witness had further deposed that in connection of this case he had visited CBI office where a CD was played on a computer before him and he was asked to identify the police officials appearing in the said CD. After C.C. No. 91/11 7 of 105 watching the CD he had identified many police officials including both the accused herein.
11. Witness PW2 Const. Bhim Thakur was also a witness who had identified the two accused persons herein during the course of investigation. The witness had deposed that during the period 200103 he was posted at PP East Uttam Nagar under Police Station Uttam Nagar. Though he did not remember the place but he had stated that both the accused in the Court had been posted with him. The CD with exhibit mark Ex. 5 by CFSL was played in the Court before this witness. The witness, however, in the examination in chief stated that he could not identify the two accused in the said video clipping which was played in the Court. There were photographs also shown to him prepared from the video but he had still not identified them. At the end a suggestion was given to him by the Ld. Prosecutor that he was deliberately not identifying them as he has been won over by the accused persons.
C.C. No. 91/11 8 of 105
12. Witness PW3 Shri Chetan Prakash is the complainant and the main witness in this case. He had deposed about his filing the Writ Petition before the Hon'ble High Court and also filing of five Hi8 cassettes which were ordered to be sealed by the Hon'ble High Court and also directions being given for the investigation of this matter by CBI. The witness had identified copy of Writ Petition and also all the relevant orders collectively as Ex. PW3/1. The CD related to the Hi8 cassette in question was played in the Court. The witness had identified both the accused persons and also the place where the accused Head Const. Ram Kumar son of Lakhi Ram (No. 232/W) could be seen wearing the black jacket near the other Head Const. Ram Kumar son of Hari Ram (No. 391/W) in uniform. Smt. Beena Sansi wife of Jasbir Sansi could be seen sitting on a cot with three family members. The witness had watched the CD and given a detailed account as to what was being said by different persons in the scene including that Head Const. Ram Kumar son of Shri Hari Ram (No. 391/W) could be seen handing over one currency note of Rs. 100/ to the other Head Const. Ram C.C. No. 91/11 9 of 105 Kumar son of Lakhi Ram (No. 232/W) in black jacket. He could be seen sitting in a chair and keeping the said currency note in the pocket of a leather jacket which he was wearing. The corresponding scene from Hi 8 Cassette was also played before him to which he had deposed that it was the same as watched by him when CD Ex. 5 was played before him.
13. There was one more CD played in the Court bearing No. Ex.2. The same had also been watched by the witness and he had given a detailed account of what could be seen and heard on playing the said CD wherein the accused Ram Kumar son of Hari Ram could be seen accepting something from Smt. Beena Sansi. The corresponding Hi8 cassettes was also played before him. It may, however, be pointed out that the scene which was played before him from CD Ex.2 and corresponding Hi8 cassettes is not relevant to this case.
C.C. No. 91/11 10 of 105
14. The witness had also identified the signatures on the CD Identification Memo which was prepared by playing all the five CDs prepared from five Hi8 cassettes Ex. PW3/3. As per his testimony the scene related to this case for which the charge had been framed was described as scene No. 5 under the heading "CD Exh. No.5". Further, the scene related to this case was recorded as scene No. 9 under the heading 'CD Exh. No.2' and as scene No. 5 under the heading 'CD Exh. No. 5'.
15. Witness PW4 Shri Deepak Kumar Tanwar Sr. Scientific Officer from CFSL, Delhi had deposed that there was a letter dated 07.07.2006 received at CFSL, New Delhi from S.P, CBI, ACB, New Delhi alongwith 9 sealed parcels, specimen seals impressions and other related papers. On tallying the seals on the parcels with the specimen seals forwarded by S.P, CBI, ACB, New Delhi the seals were found to be intact. The parcel marked Q1 was opened by him and found to be having a video cassette. It was played by him and he had found that there were 28 audio/video clippings therein which he had marked as I to C.C. No. 91/11 11 of 105 XXVIII. In the video clipping Mark II the voice of the person staring with the sentence "Hawaldar haun main chalo kaal de dena mere ko kaoi baat naa....." was marked further by him as Ex Q1(II)(A). He had then selected the common clue words/sentences with respect to the specimen voice of the accused Head Const. Ram Kumar (No. 232/W) and marked by him as S1(A) in audio cassette Ex. 1 on side A for voice spectrographic analysis. He had provided the details of the words/sentences selected in detail in his report.
16. In the audio / video clipping mark XIV the voice of the person starting with the sentence "Tum dono ne bandh karva di hei.... are mare se nahi hei, mere se to ek paai bhi nahi hai....." was marked by him further as Ex. Q1(XIV)(A). From this audio / video clipping also he had selected some common clue words/sentences with respect to the specimen voice of the other accused Ram Kumar (No. 391/W) and marked it as S2(A) in the audio cassette Ex. 1 on side B for voice spectographic analysis. The details of the words / sentences selected had been given by him in his report in detail.
C.C. No. 91/11 12 of 105
17. On auditory examination of questioned voices and specimen voices revealed that they were having similar linguistic and phonetic features. The analysis of spectrography examination of the common clue words / sentences selected from the specimen voices and also from the questioned voices also showed that they were similar in respect of their number of formants, formant frequencies, distribution, intonation pattern and other general visual features in the voicegrams.
18. The witness had further deposed that the consolidated effect of the auditory and voice spectrography analysis was that voice mark Ex. Q1(II)(A) was the probable voice of Ram Kumar (No. 232/W) whose specimen voice was marked Ex. S1(A) and the questioned voice marked Q1(XIV)(A) and specimen voice of Ram Kumar (No. 391/W) marked S2 was the probable voice of Ram Kumar (No. 391/W). The witness had identified his report as Ex. PW4/B which he was sent to CBI alongwith all the other exhibits after being sealed with the seal of CFSL. The witness had identified the case properties in the Court.
C.C. No. 91/11 13 of 105
19. Witness PW5 Shri Deepak Purohit who was posted as ACP, Excise Intelligence Bureau with the Excise Department of Govt. of NCT of Delhi had identified the letter Ex. PW5/B which was received from CBI, ACB, New Delhi seeking certain clarifications and also letter Ex. PW5/A which was submitted to CBI signed by Shri B.L. Sharma, Collector Excise giving the clarifications sought.
20. In his testimony he had stated that the source money used to be provided to the staff of Excise Intelligence Bureau on the basis of the recovery of liquor seized by them in raids and not as an advance money to develop intelligence.
21. Witness PW6 Shri Robin Hibu who was posted as DCP (West) had deposed that he had accorded the sanction for prosecution of both the accused Ex. PW6/A and Ex. PW6/B after a request had been received from CBI and on perusal of the records provided by CBI and having satisfied himself on this account.
C.C. No. 91/11 14 of 105
22. Witness PW7 Ram Naresh who was posted as Const. with Delhi Police had identified both the accused persons as the officials who were posted with him in the Police Station Uttam Nagar in the year 200304. The Hi8 cassette was played in the court before this witness and from the video clipping in question he had identified both the accused persons as being visible in the said video clipping.
23. Witness PW8 Shri Jia Lal Sawhney who was posted as ACP(Vigilance) from Delhi Police in the year 2004 had deposed that he was entrusted with an inquiry in respect of Writ Petition filed by Chetan Prakash before the Hon'ble High Court with regard to allegations of corruption of officials of Delhi Police and Excise Department. He was handed over one VHS cassette containing recordings of officials of Delhi Police and Excise Department accepting bribe and indulging in corrupt practices and their presence at the houses of bootleggers.
C.C. No. 91/11 15 of 105
24. During the inquiry he had got prepared digital photographs and the transcript from the video clippings and also got identified the staff involved in such corrupt practices. He had recorded the statements of witnesses and collected copies of relevant records pertaining to their deployment. He had prepared the detailed report Ex. PW8/A and submitted the same to his officers alongwith annexures on 10.09.2004.
25. Witness PW9 Phool Singh though had admitted that he knew both the accused persons and had worked with them in the same Police Station i.e. Police Station Uttam Nagar but when he was asked to identify them from the video clipping played in the Court he had shown reluctance to identify them. This witness was crossexamined by Ld. Prosecutor. In the crossexamination too he had shown the same reluctance and at the end he was given the suggestion that he was deliberately not identifying them which was denied by the witness.
C.C. No. 91/11 16 of 105
26. Witness PW5 Dr. C.P. Singh, who was posted as Scientific Officer at CFSL, Chandigarh from 19992007, had deposed that on 09.11.06 he had received one sealed parcel from S.P., CBI, ACB, New Delhi. The seals on the parcels were found to be intact. They were tallied with the specimen seals provided with the forwarding letter and it was found to be the same. On opening the parcel he had found five Hi8 video cassettes of Sony make. He had marked them as Ex. 1 to Ex. 5 in the Laboratory. He had, in his testimony, given the purpose of the examination of the cassettes as follows:
(i) To examine whether video recorded on the video cassettes marked Ex. 1 to Ex. 5 were in continuity or otherwise.
(ii) To examine whether the video recorded on the above cassettes were edited or otherwise.
(iii) To examine whether the video recorded on the video cassettes are original master copy or copy of the master copy.
C.C. No. 91/11 17 of 105 He had further deposed that there was also a request to prepare two sets of working copies of the video recordings in Compact Disc Form from the video cassettes.
27. The witness had deposed that he had examined the cassettes with the help of VISAR tool, Vectorscope and Waveform Monitor and his findings were as follows:
(i) All the video shots in all cassettes were in continuity;
(ii) There was no indication of editing in the said cassettes; and
(iii) As there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that video recordings were camera original and thus master copy and not copy of the master copy.
C.C. No. 91/11 18 of 105
28. He had also prepared two sets of video recordings in CD form and given exhibit numbers corresponding to the exhibit numbers given to video cassettes. The witness had identified his report Ex. PW10/A with its annexures. He had also identified letter Ex. PW10/B of Dr. R. S. Verma, Director of CFSL, Chandigarh by which his report and all the video cassettes after being sealed with the seal of CFSL and two sets of working copies had been forwarded to CBI. The witness had identified the said Hi8 video cassettes which had been exhibited as Ex. P1 to P5 in the connected case CC No. 31/11.
29. Witness PW11 Shri Jasbir Sansi had deposed that in the year 200204 he was residing at DDA Flats at Binda Pur. In those day he used to sell 34 bottles of liquor after getting the same from 'Theka' and used to sell them further by adding one bottle of water in it to the customers who used to come to his flat from near by colonies. He also admitted that he had no license to sell liquor. There were 45 cases under the Excise Act registered against him and there were also one or two cases C.C. No. 91/11 19 of 105 registered against his wife Smt. Beena Sansi. According to his testimony he knew complainant Shri Chetan Prakash very well as Chetan Prakash was also in the business of supplying illicit liquor. Shri Chetan Prakash used to tell him to buy liquor from him. Although Chetan Prakash had prepared a video at his residence but he was not aware as to how and when the said video was prepared.
30. The Hi8 cassette with the relevant clipping was played in the Court in his presence. The witness had identified the place being seen in the video as his flat at Bindapur where he was residing. He had also identified two accused persons appearing in the said video clipping. He had also further identified his wife, his daughter and also wife of his son. There was a lady in the video clipping covering herself with a black shawl, he had identified her as his daughter named Sulochana. The witness had narrated as to what could be seen in the video clipping, like Ram Kumar (in uniform) s/o Hari Ram handing over currency notes to the other person with him Ram Kumar (in black jacket) C.C. No. 91/11 20 of 105 s/o Lakhi Ram. It also could be made out by him from the conversation that his wife was telling Ram Kumar (in uniform) that they only used to sell one or two 'pauas' and what should they give to him and that she was talking about giving money to them.
31. Witness PW12 ASI Satyawan who was posted as MHCR in the year 200508 at P.S. Uttam Nagar had deposed that on the instructions of the SHO he had supplied the copies of the FIRs registered against Shri Jasbir Sansi, Beena Sansi and Dev Raj Diwan under different provisions of Punjab Excise Act during the period 200203 i.e. Ex. PW12/B1 to B10 along with list Ex. PW12/A.
32. Witness PW13 HC Deep Chand had deposed that in the year 2003 he was posted as Chitta Munshi (Deployment Officer) in Police Station Uttam Nagar. He had come to know from News Channels of involvement of some police officials of Police Station Uttam Nagar in taking bribe from the bootleggers for C.C. No. 91/11 21 of 105 permitting them to sell liquor illegally in the area. After 1520 days he had been called by the Vigilance Department of Delhi Police for being shown video clipping for the purpose of identification of the officials who could be seen in the video clippings. After seeing the video clippings he had identified the two accused herein. He had taken alongwith him Duty Roster and copies of Daily Diary of the period 2003 to 2006. He had identified the said Duty Roster at page No. 175 of Inquiry Report Ex. PW8/A and also his statement recorded during the inquiry at page No. 177 of the said inquiry report.
33. Witness PW14 Shri Anand Singh Rawat, who was posted as Clerk in Sales Tax Department in April, 2006 at ITO, Delhi, had deposed that he had visited the CBI office in April/May, 2006 wherein in his presence voice samples of the accused persons had been taken. He had identified his signatures on the Voice Recording Memo Ex. PW14/A. C.C. No. 91/11 22 of 105
34. Witness PW15 Mukesh Kumar Inspector had deposed that in the year 2004 he was posted as Inspector of Police, CBI, New Delhi and the investigation of this case was entrusted to him after the registration of the FIR Ex. PW15/A by Shri D.C. Jain, the then S.P. This case was registered on the basis of directions given by the Hon'ble High Court of Delhi on a Writ Petition filed by one Shri Chetan Prakash alleging that various police officials of Delhi Police and Excise Department were indulging in demanding and accepting of illegal gratification from bootleggers in the area of Police Station Uttam Nagar.
35. He had referred to a Vigilance Inquiry conducted by GNCT, Vigilance Department prior to the registration of this case. As per his testimony the said inquiry report by letter dated 04.10.2004 Ex. PW15/B was forwarded to the Director of CBI which was handed over to him after the registration of the FIR. He was also handed over the copy of the order of the Hon'ble High Court Ex. PW15/C. C.C. No. 91/11 23 of 105
36. Subsequently, according to his testimony, a VHS video cassette was also forwarded to CBI in an unsealed condition, which was also handed over to him for the purpose of investigation. He had video CDs of the recordings in the said VHS cassettes prepared with the help of Inspector Prem Nath. He had recorded the statements of Shri Chetan Prakash, Shri Jasbir Sansi, his wife Smt. Beena Sansi and some other material witnesses. He had obtained specimen voice sample of the FIR named accused in the presence of independent witness Shri Anand Singh Rawat with the help of Inspector Prem Nath.
37. As per his testimony he had also taken voice sample of Jasbir Sansi, his wife Beena Sansi in the presence of independent witnesses Ram Phal and Mohd. Tabish vide memo Ex. PW15/D.
38. He had collected certain documents from Police Station Uttam Nagar. During the investigation he had forwarded the voice sample alongwith VHS cassette after sealing the same C.C. No. 91/11 24 of 105 alongwith the questionnaire to CFSL, Delhi for its opinion. He had identified the letter Ex. PW4/A bearing signatures of Shri Bhupinder Kumar, the then S.P. under whose signatures the voice sample had been sent to CFSL.
39. The witness had identified the cassettes in which he had recorded the specimen voice of Jasbir sansi and his wife Beena sansi Ex. P4 along with its wrapper Ex. P5 and also the audio cassettes Ex. P1 with its wrapper Ex. P2 wherein he had recorded the specimen voice of the accused herein.
40. Witness PW16 Shri D.K. Thakur is also the Investigating Officer who had taken over the investigation from Inspector Mukesh Kumar. As per his testimony he had forwarded five Hi 8 cassettes to CFSL, Chandigarh to obtain expert opinion regarding the authenticity and genuineness of the records and whether there was any editing or tampering in the video clippings recorded in the said cassettes. A positive report was received from the CFSL, Chandigarh indicating that the video C.C. No. 91/11 25 of 105 recordings were genuine and not tampered with. He had also received copies of the video clippings in the form of CDs for the purpose of investigation. He had further deposed that he had also received a positive voice spectrography report Ex. PW14/B from CFSL, Delhi.
41. During the investigation he had carried out the exercise of identifying the officials who could be seen in the CDs prepared from the Hi8 cassettes having the copies of the video clippings from the said Hi8 cassettes with the help of complainant Shri Chetan Prakash and prepared the CD Identification Memo Ex. PW3/3 and the Video Identification Memo Ex. PW16/A giving description of each of the scene which could be seen in the video clippings.
42. As per his testimony he had further sought clarifications from Excise Department through a letter dated 27.11.2006 Ex. PW5/A sent by Shri S.K. Palsania, the then S.P., CBI, Delhi and the clarifications received from the Excise Department on C.C. No. 91/11 26 of 105 28.11.2006 by letter Ex. PW5/A signed by Shri B.K. Sharma. Alongwith the said letter there was also Excise Policy Ex. PW6/B forwarded which was in vogue at that time. This also clarified that it was not permissible to sell liquor from residential premises in Delhi.
43. He had also received from the office of DCP(West) letter Ex. PW10/C with regard to the FIRs registered in Police Station Uttam Nagar against bootleggers named Shri Jasbir Sansi, his wife Smt. Beena Sansi and Shri Dev Raj Diwan of Police Station Uttam Nagar alongwith the copies of the said FIRs Ex. PW12/B 1 to B10.
44. He also referred to the Inquiry report of Shri J.L. Sawhney the then ACP, Vigilance, GNCT of Delhi Ex. PW8/A having been received from GNCT of Delhi.
Statement under Section 313 Cr.P.C.
45. All the incriminating evidence, which had come on record was put to the accused persons and their statements under C.C. No. 91/11 27 of 105 Section 313 Cr.P.C had been recorded. They had also submitted additional statements under section 313(5) Cr.P.C. Defence Evidence
46. One Shri Rajbir Singh, who was Incharge of Police Post Uttam Nagar on 16.11.2003 was examined as DW1 in defence. He had identified certain entries from the Daily Diary of PP Uttam Nagar of Police Station Uttam Nagar of 16.11.2003. As per entry No. 5 Ex. DW1/A he alongwith SI Tejpal and HC Ram Kumar No. 391/W and others had departed for law and order arrangement duty because of "Nagar Kirtan" (Vishal Nagar Kirtan, J.J. Colony, Pankha Road Gurdawara). He had further identified Entry No. 16 Ex. DW1/B showing his return to the Chowki at about 7.00 PM.
47. He had deposed that the entire staff had remained with him during that period.
C.C. No. 91/11 28 of 105 Arguments
48. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsels. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution as well as defence. SANCTION FOR PROSECUTION
49. The prosecution had examined Shri Robin Hibu, PW6, who was posted as DCP (West) in June 2007, to prove the order of sanction for the prosecution of both the accused under the provisions of Prevention of Corruption Act, 1988. This witness had deposed that both the accused herein namely Head Constable Ram Kumar no. 232/W and Head Constable Ram Kumar no. 391/W were posted at P.S. Uttam Nagar in the west district. He was competent to remove them from service. He had identified the sanction orders Ex. PW6/A and Ex. PW6/B which he had passed, according sanction for the prosecution of both C.C. No. 91/11 29 of 105 the accused herein under Section 19 of the Prevention of Corruption Act, 1988 for their prosecution under the provisions of the Prevention of Corruption Act, 1988.
50. As per the testimony of this witness he had received a request from CBI for according sanction for their prosecution who were found taking bribe from a couple namely Smt. Bina Sansi and Shri Jasbir Sansi from Bindapur, Uttam Nagar. He had deposed that before according sanction he had gone through the record provided to him by CBI. After having gone through the record and satisfying himself he had accorded sanction.
51. I have seen the crossexamination of this witness. The first part of his crossexamination relates to as to how the files were received in the office of this witness and how was the file related to this case was sent to CBI after sanction had been accorded in this case. The reply of the witness had been that he had neither sent the sanction order directly or received the request C.C. No. 91/11 30 of 105 directly and the movement of the same had been through official channel. In the second part of the crossexamination there was a suggestion given to him that he had alongwith the files also received a draft sanction order which witness had denied.
52. In the third part of the crossexamination the emphasis was as to whether before according sanction the witness had watched the cassette or CD himself related to this case. The witness had admitted that he did not watch the cassette or the CD himself but at the same time he had emphasized that he had gone by the CFSL report submitted to him and in the light of the CFSL report he did not consider it necessary to himself watch the CD or the cassette.
53. It is submitted by Ld. Defence Counsel that since the competent authority did not watch the CD or the video cassette related to this case it would show he had gone by what had been provided by CBI and the draft sanction order supplied to him without the application of mind.
C.C. No. 91/11 31 of 105
54. There is one more submission made that as per the testimony of Sh. D. K. Thakur, the Investigating Officer had collected the Sanction Order on the same day on which he had visited the competent authority. This would mean that the competent authority did not have material on the basis of which he could have accorded sanction and on the day he had visited, the Sanctioning Authority had merely signed the draft sanction and supplied it to the Investigating Officer.
55. From the testimony of the Investigating Officer Sh. D. K. Thakur, I find that he did not say anything in particular about this case but deposed generally that he had visited offices of different DCPs and it was possible that he may have collected the order of sanction on the same day of his visit. His testimony in this regard reads as under: "The cases arising out of the same FIR were many. Therefore, I must have got prepared 5 to 6 copies of the entire sets of documents and the statement of witnesses recorded as they were to be sent to 5 to C.C. No. 91/11 32 of 105 6 DCPs in whose jurisdiction the police officials involved were posted. I must have sent the documents for seeking sanction of prosecution in this case. At this point of time it would not be possible for me to say that as to when the letter of request was sent for seeking the sanction and when it was received. (Vol) However, there was not much of gap between the two. (Vol further) I remember that I had met four DCPs of Delhi Police on being called for discussion in the matter. For me it would not be possible to say whether they had called our office or our SP had called them but as far as I am concerned I had visited them on the directions of my SP. It would not be possible for me to give the dates as to when I had visited. I would not like to see my case diary to answer this question."
56. It was not such a case where the sanction could not have been granted on the same day. After all what was expected from the Sanctioning Authority was only to satisfy himself that it was a case where the sanction could be accorded. Supply of draft sanction order is not an indication that the Sanctioning Authority would not exercise its discretion or apply its mind before according sanction. If it had been a case where the C.C. No. 91/11 33 of 105 Investigating Officer had stated that he had not supplied any material to the Sanctioning Authority but only a draft sanction order then there was some reason to draw such a conclusion. Testimony of Sh. D. K. Thakur as well as the Sanctioning Authority Sh. Robin Hibu would show that there was material which had been supplied to the Sanctioning Authority for his perusal. There had been no suggestion either to Sanctioning Authority PW6 Sh. Robin Hibu or PW 16 Sh. D. K. Thakur, Investigating Officer that there had been no material supplied to the Sanctioning Authority but only draft sanction order. It may be 1 noted that under section 114(e) of Indian Evidence Act, the court can presume that all official acts have been regularly performed and in this case I find no material to dispel the said presumption.
1 114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
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(e) That judicial and official acts have been regularly performed.
C.C. No. 91/11 34 of 105
57. One may appreciate the fact that according sanction under Section 19 of P.C. Act is an administrative exercise and therefore, it is to be judged on the same parameters on which a Court is supposed to evaluate an administrative act likeas to whether the authority according sanction was competent to accord sanction and that while according sanction the sanctioning authority did not get swayed by the considerations which should not have influenced its decision or it had taken into account something which it should not have, while arriving at its decision [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation. [1948] 1 KB 223]. At the same time one may also appreciate that while evaluating a sanction order Court does not sit in appeal so as to examine the case on merit from the point of view that as to in the given circumstances sanction should or should not have been granted. Though the Court may examine the order of sanction from the angle of 'perversity' i.e. if the decision was based on 'no evidence' but at the same time it would not go into the question of sufficiency of evidence available with the sanctioning authority to reach its C.C. No. 91/11 35 of 105 conclusion. As they say it the Court examines the process of decision making and not the decision itself.
I am of view that in the above given circumstances the sanction order cannot be held to be bad in law or without the application of mind.
Integrity of the Video Clipping
58. Witness PW16, Shri Dilip Kumar Thakur had deposed that during the investigation he had forwarded five Hi8 video cassettes in question to CFSL, Chandigarh to obtain expert opinion regarding the authenticity and genuineness of recordings and whether there were any editing or tampering in the said video recordings in the said video cassettes.
59. Dr. C.P. Singh who was posted as Junior Scientific Officer, Physics at CFSL, Chandigarh had examined those cassettes C.C. No. 91/11 36 of 105 and replied the questions which were asked from the side of CBI with regard to the said cassettes. The said questions were:
"(i) whether video recorded on the video cassettes marked Ex. 1 to Ex. 5 were in continuity or otherwise;
(ii) whether the video recorded on the video cassettes were edited or otherwise; and
(iii) whether the video recorded on the video cassettes are original master copy or copy of the master copy."
60. The witness had deposed that he had examined those cassettes with the help scientific tools viz. of VISAR tool, Vectorscope and Waveform Monitor and on examination it was revealed:
(i) That all the video recordings were in continuity;
(ii) That there was no indication of any form of editing on the video recordings; and C.C. No. 91/11 37 of 105
(iii) As there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that the video recordings are camera originals, he had concluded that video recordings on the above said video cassettes were original master copies and not a copy of the master copies."
61. The witness had identified his report Ex. PW10/A which related to all the five Hi8 cassettes.
62. The witness was crossexamined on various aspects. The major portion of the crossexamination is devoted to the Hi8 cassette Ex. P2, but one may notice that as far as this case is concerned the video clipping in question is from video cassette Ex. 5 (Ex. P5 in Court). Therefore, most of the questions which have been asked are more of academic in nature than seriously questioning the integrity of the video clippings in the Hi8 cassette Ex. P5.
C.C. No. 91/11 38 of 105
63. The questions which were asked with regard to the video clippings in video cassette Ex. 2 arose because as per the report itself while examining the Hi8 cassette Ex. 2 witness had observed that the recording were made therein on previously recorded material on the said tape. The witness had, however, clarified that those changes were made 'incamera'. In order to seek the explanation from him that as to what is meant by changes 'incamera' and as to how it was being claimed that the video recordings were not found to be edited despite making an observation that Shot no. 1, 3 and 4 there were over recordings. The witness had adequately explained the same. The Court Question and the answer given by him read as under: "C.Q. What do you mean by incamera editing and how do you claim that the video recordings were not found to be edited despite your observation that in the Shot no. 1, 3 and 4 there were over recordings?
Ans. The cameraman who choose to record particular shots depending on his desire at a time of recording the video by on and off of the camera is known as incamera editing.
C.C. No. 91/11 39 of 105 The over recordings made on the video cassette were indicated to have been recorded on 21.11.2003 were indicated in camera on instrumental analysis of the video recordings as mentioned at point X on Ex.
PW10/A. Every video camera has a signature which is unique to it. In this case it was observed that there was a consistency in the recordings as the video camera signature appearing throughout the shooting was same. Had this video cassette been used in any other camera or VCR a different video signature would have appeared. I can say that as far as the identified shots are concerned there is a continuity in which there had been no editing."
64. Again I would like to emphasize that the cassette which is connected with this case is not Ex. P2 but Ex. P5 and there is no question put to the witness with regard to the said cassette to shake his testimony. The video shots related to this case are Shot no. 11 to 20, referred to in the report Ex. PW10/A of Dr. C.P. Singh, beginning at 18.07 minutes and concluding at 39.55 minutes. It may be noted here that for us relevant shots are shot C.C. No. 91/11 40 of 105 11 and 12 beginning 18.07 and ending at 37.46, as at this point of time accused leave the scene though the scene continues even thereafter. In the light of the testimony of the witness and scientific examination by him I am of the view that there cannot be any doubt as to the integrity of the said video shots that the same had not been edited or tampered with and that the same were camera original.
65. The submission made by the Ld. Defence Counsel before the Court largely was confined to what was put to witness in the crossexamination with regard to the Hi8 cassette Ex. P2. As it has been already stated above that as far as this case is concerned any discussion about the Hi8 cassette Ex. P2 is more of academic nature as what we are concerned here is the cassette Ex. P5 and not cassette Ex. P2.
66. This question also needs to be appreciated from the angle that this Cassette as well as the CD made therefrom were played in the Court during the testimony of witness PW3 C.C. No. 91/11 41 of 105 Sh. Chetan Prakash and also PW11 Jasbir Sansi but at no point of time any question was raised that what could be heard or seen was not correct or manipulated.
67. I am of the view on the basis of the said report it can be said that the video clipping in question is camera original; it was not edited or tempered.
Speaker Identification
68. Witness PW 4 Sh. Deepak Kumar Tanwar Sr Scientific Officer from CFSL Delhi was examined to prove that the voices in the conversation in question were that of the two accused herein. Though the report supports the case of the prosecution but I am of the view that the prosecution cannot take benefit of the same. The record would show that the cassette sent for examination was not the Hi 8 cassette which was played in the Court and also for which the report was obtained from CFSL Chandigarh as to its integrity but a VHS cassette which had C.C. No. 91/11 42 of 105 clippings copied from all (five) Hi8 Cassettes. Witness had admitted in the crossexamination " It is correct that the cassette which I had examined relating to this case was not Hi 8 cassette which was stated to have been received by CBI from High Court and forwarded to CFSL. (Vol) The said cassette was examined in another connected case." That being the case the said report would be of no help in determining if the voices in the said Hi 8 Cassette which were heard in the Court were of the Accused persons.
69. That, however, is not the end of the matter. As noted above the Hi 8 cassette Ex P5 as well as the CD prepared therefrom by CFSL Chandigarh had been played in the Court in the presence of the accused persons during recording of testimony of witness PW3 Chetan Prakash in his examination inchief as well as crossexamination but no suggestion was given to him that the voices attributed to accused persons were not theirs and had been manipulated. Similarly when the said Hi 8 cassette was played in the Court during the course of testimony of PW11 Jasbir Sansi no such issue was raised.
C.C. No. 91/11 43 of 105 What can be heard and seen in the Cassette
70. In the examination in chief and also in the cross examination witness PW3 Chetan Praksh had narrated as to what could be heard and seen in the video scene in question. I am reproducing herein below first what he had narrated in the examination in chief and then what he had stated in the cross examination when the same cassette was played again. Before proceeding further let me also make it clear that in the examination in chief it was the Compact Disc (CD) prepared from the cassette which was played first and then cassette in question for comparison to confirm that there was no difference in the copy and the original.
Relevant part of his narration in the examinationin chief reads as under:
"I have seen the screen of DVD Player wherein a video scene is visible, in which H.C. Ram Kumar (A2) in Police Uniform is siting on a chair in front of house of Jasbir Sansi situated at Binda Pur, DDA C.C. No. 91/11 44 of 105 Flats, Delhi. The other i.e. H.C. Ram Kumar (A1) wearing black leather jacket is standing near H.C. Ram Kumar (A2). Smt. Bina Sansi wife of Shri Jasbir Sansi is sitting on a cot and her three female family members are also present there. CD Ex5 is further played wherein Smt. Bina Sansi is talking with both the accused persons and saying that "Saare Sansi Uttam Nagar Gaye Hue Hain", "Binda Pur Mein Na Toh Kuch Khaya Kamaya Bimari Aur Lag Gayi". H.C. Ram Kumar (A2) is saying "Flat Bhi Khali Pade Huye Hain", on which Smt. Bina Sansi replied saying that "Haan Flat Bhi Khali Pade Huye Hain". H.C. Ram Kumar (A2) is saying "Ek Aur De", on which Smt. Bina Sansi is saying "Ek Do Paua Bech Rahe Hain". H.C. Ram Kumar (A2) is saying "Yeh Kua Hain Sau, Hawaldaar Do Hain".
H.C. Ram Kumar (A2) again said "Kay Hai Yo". Smt. Bina Sansi is saing "Yeh Bhi Chori Se Le Ke Diye Hain". H.C. Ram Kumar (A2) again said "Hawaldaar Do, Sau Ka Note Ek, Bejati Mat Kara Kar". H.C. Ram Kumar (A2) further said "Laa Ek Aur De". Now, H.C. Ram Kumar (A2) is seen handing over one currency note of Rs. 100/ to H.C. Ram Kumar (A1), who is seen sitting on the chair and keeping the same in the pocket of leather jacket, worn by him. Smt. Bina Sansi is talking about some accident of her son. H.C. Ram Kumar (A1) is saying "Jisko Chot Lagi Hai, Usko C.C. No. 91/11 45 of 105 Agar Kharcha Mil Jaye To Case Register Nahin Hota, Usko Kharcha Nahin Mila Isliye Complaint Ki Hai, Usko To Dawai Ka Bhi Kharcha Nahin Mila". After some general talks, H.C. Ram Kumar (A2) was telling his name and his telephone number as well as name of coaccused i.e. H.C. Ram Kumar (A1). In the video, it is also seen that daughterin law of Smt. Bina Sansi was writing in her copy the said names and telepone number. Thereafter, both the said accused left the place and went on a Scooter No. DDO2397."
71. Thus it is absolutely clear from above that the Accused Ram Kumar 391W (A2), who is in police uniform could be seen demanding money and not only for himself but also for the other Accused Ram Kumar 232W, in black jacket, (A1) accompanying him and going to the extent of saying that she should not insult them, there are two head constable and she was offering them one currency note of Rs. 100/. ("Hawaldaar Do, Sau Ka Note Ek, Bejati Mat Kara Kar".) C.C. No. 91/11 46 of 105 Relevant part of the crossexamination of the witness reads as under :
" Q.: Please watch the video clipping related to this matter in this cassette and inform this Court that the only discussion which is taking place in this video clipping is with regard to a case of accident?
A.: It is not correct that the only discussion which is taking place in this video clipping is with regard to a case of an accident and nothing else.
Q.: Is it not correct that there were discussion taking place about some vehicle and there was some reference to an accident and some reference to registration of a case relating to accident?
A.: It is correct. (Vol.) But this is not the only discussion which is taking place. (vol. Further ) there had been handing over of money and also demand with regard to that .
Q.; Hear the video clipping again and inform that in which part/frame of the clipping there is demand?
A.: The same is in the portion 16:5:11 to 16:5:40 and again in the portion 16:11:30 to 16:11:45.
C.C. No. 91/11 47 of 105 What can be heard in the portion 16:5:11 to 16:5:40 is as follows:
H.C. Ram Kumar : Ek aur de youn na kar...la aur de...yun na kar havaldar doh hain...sau ka note pakda rahi hai...la ek aur de...yo ke hai...sau rupay...havaldar doh hain.
What can be heard in the portion 16:11:30 to 16:11:45 is as follows :
H.C. Ram Kumar : La de phir chalen Bina Sansi : Tere ko maine de bhi diye... ek doh pawa bech rahi hoon chori chupe. H.C. Ram Kumar : Main havaldar hoon... maine dilwaye na... aap aap le liye.
Q.: Is it not that in the clipping portion 16:5:00 to 16:5:40 can it be not heard "paanch sau wala mat diyo... sau wala diyo"?
A.: Yes it could be heard "paanch sau wala mat diyo".
72. Thus when in the crossexamination the Ld. Defence Counsel wanted the witness to clearly show as to where accused Ram Kumar in Uniform(A2) could be heard making a demand, it was clearly pointed that in the portion 16:05:11 to C.C. No. 91/11 48 of 105 16:05:40 he could be heard saying Ek aur de youn na kar...la aur de...yun na kar havaldar doh hain...sau ka note pakda rahi hai...la ek aur de...yo ke hai...sau rupay...havaldar doh hain. If roughly translated in English it would mean - give one more, do not do it like this.... give (one) more... do not do it like this there are two hawaldaars... giving a note of rupees 100.... come on give one more..... what is this... 100 rupees..... there are two hawaldaars.
73. The fact of demand being made by HC Ram Kumar (391/W) for money can also be made out from the testimony of PW11 Jasbir Sansi. When he was asked to describe as to what could be seen in the video clipping he had narrated "The other persons visible in the video are my wife Beena, my two daughters and also wife of my son. I have seen Ram Kumar in uniform handing over currency note to the other person with him (Ram Kumar S/o Late Sh. Lakhi Ram). What I can make out from the conversation which is going on between Ram Kumar in uniform with my wife is that my wife is telling him that C.C. No. 91/11 49 of 105 we only sell one or two 'pauas' and what should they give to him. She is talking about giving money to Ram Kumar."
74. Thus it is certain there is clearly a demand by HC Ram Kumar No. 391/W in uniform (A2) not only for himself but for the other accused HC Ram Kumar No. 232/ W in black jacket (A1) accompanying him.
75. There is, however, a question if Beena Sansi had actually paid the money to HC Ram Kumar in uniform(A2). What could be clearly seen was that the accused Ram Kumar in uniform(A2) had passed on a currency note of Rs. 100 to the other accused HC Ram Kumar in black Jacket (A1) accompanying him. When witness PW11 Jasbir Sansi was asked to narrate to the court the sequence before Ram Kumar in uniform(A2) was seen handing over the money to the other accused Ram Kumar in black jacket(A1), the witness had stated that he could not make out any thing from it. At this point of time Ld. Prosecutor for CBI had pointed out that from the video C.C. No. 91/11 50 of 105 clipping it could be made out that Beena Sansi wife of Jasbir Sansi had passed on money to Ram Kumar in uniform(A2) after taking it from her daughter Sulochana. At this point of time I had made a note that it could be pointed out to me at the time of final arguments. During the course of writing the judgment I had accordingly called for the cassette for my own viewing to appreciate this fact. I had watched the scene. Though no currency note could be seen from the angle the video was shot, being passed from Beena Sansi to Ram Kumar in uniform(A2) but what could be noted in the quick succession was while the Ram Kumar in uniform(A2) was asking for the money to be paid, Beena Sansi receives something from a lady in the picture in black shawl (identified as Sulochana by PW 11) and then Beena Sansi passes on something to HC Ram Kumar in uniform(A2) and then clearly accused Ram Kumar in uniform(A2) could be seen handing over a currency note of Rs. 100 to the other accused i.e. Ram Kumar (A1) wearing black jacket.
C.C. No. 91/11 51 of 105
76. From the sequence of events it is nothing but certain that accused Ram Kumar in uniform(A2) had received money from Beena Sansi and handed over the same to the other accused HC Ram Kumar in black Jacket (A1).
77. Thus from the sequence of events which could be seen it is certain that the money was received by Ram Kumar in uniform(A2) (391/W) from Beena Sansi and then passed on to the other HC Ram Kumar (232/W) in black Jacket (A1) pursuant to a demand made by Ram Kumar in uniform (391/W) (A2) not only for himself but also for the other accused HC Ram Kumar (232/W) in black jacket(A1).
Conclusion:
78. Thus it can be said that the Accused Ram Kumar 391/W ( A2) in uniform had made demand of money not only for himself but also for the other Ram Kumar 232/W ( A1) in black jacket. Thereafter Accused Ram Kumar 391/W (A2) in uniform received C.C. No. 91/11 52 of 105 the money from Beena Sansi and passed on to the other accused Ram Kumar ( A1) in black jacket.
Presumption under section 20 of Act.
79. Once the conclusion is reached that that there was a demand for money from the side of both the accused and the money too was accepted for both accused, It can be presumed under section 20 of the Prevention of Corruption Act, 1988 that they had received this money as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of their official functions, favor or disfavor to Bina Sansi for rendering or attempting to render any service or disservice to her.
DEFENCE OF ACCUSED PERSONS Memory card not being handed over by the complainant
80. According to the Ld. Defence Counsel the handycam C.C. No. 91/11 53 of 105 which was used by the complainant also had a memory card, which was admitted by the complainant as well though it was claimed by him that he had used it only for still photographs. It was submitted by Ld. Defence Counsel :
"Admittedly, there was a memory card also in the handycam camera used by the complainant. Meaning thereby whatever may have been recorded on the Hi8 cassette as deposed by him was also getting automatically simultaneously recorded on that memory card. This memory card had not been handed over by the complainant either to the High Court or to the CBI and it always remained with him meaning thereby he could have doctored it and played it in the Court as well while the same was brought by him to the Court for playing the Hi8 cassettes."
81. This argument to me seems to be a little farfetched. It may be correct that for playing the Hi8 cassette in question it was perhaps the handycam of Sony make brought by the complainant which was used. If the Ld. Defence Counsel had any issue on this account he should have either subjected the C.C. No. 91/11 54 of 105 handycam to examination if he suspected it be having any previously loaded memory card. It is too late in the day to speculate about it. In any case one may also note the CD prepared from the said Hi8 cassette was played first and the Hi8 cassette in question was only played later on just for comparing the contents of the video clipping played from the CD with the video clipping in the Hi8 cassette and they were found to be same. Meaning thereby if there had been any manipulation made during the period when the cassette was being played, the video clipping in the CD, which was played earlier separately, could not have matched with the video clipping which was played later from the video cassette in question. I am, therefore, not inclined to accept this argument that the cassette was doctored in the court itself when it was played by using the handycam brought by the complainant so as to show that the accused herein had demanded and accepted bribe as concluded above.
C.C. No. 91/11 55 of 105 Contradictory Stand Taken by Chetan Prakash
82. It was submitted by the Ld. Defence Counsel that the witness Chetan Prakash had deposed in the court at one stage that he had watched the CDs as well as the video cassettes and had compared the same but soon had changed the statement by saying that he had only watched the CDs and not the video cassettes and therefore, had no occasion to make comparison between the two. From it, Ld. Defence Counsel had drawn the conclusion that the witness Chetan Prakash had neither been shown any CD nor any video cassette and the investigating officer had written everything of his own.
83. It does not appears to me if the investigating officer could have written the description of the scene as given in the CD identification memo of his own without there being any assistance from anyone. As far as the scene is concerned it could be seen by anyone independently. The assistance was C.C. No. 91/11 56 of 105 required for identifying the place and the persons who could be seen in the scene for which definitely the investigating officer would have required assistance from someone. He himself therefore could not have written about the scene in question what is recorded in the CD identification memo. The best person who could have assisted him was none other than the complainant who had claimed to have shot the video. I am, therefore, of the view that on the basis for the above so called contradiction no such conclusion can be reached that the investigating officer had recorded the description of the scene in question in the CD identification memo of his own. I also find it a little difficult to understand that if this could at all be considered as a contradiction. Sometimes when a witness is examined in the court he can make some incorrect statement and also correct it. The same would not necessarily amount to a contradiction. It also cannot said to be a kind of improvement made. Soon after he had made the statement that he had watched and compared the CDs and the video cassettes without being prompted by anyone he had himself volunteered and said C.C. No. 91/11 57 of 105 sorry and clarified that he had only watched the CDs and not the video cassettes. The relevant part of the statement reads as under: " I had watched and compared the video cassettes as well as the CDs in the office of CBI and had found them to be the same. They were played by the Investigating Officer. I do not remember that at the time the said video cassette/CDs had been played, how many copies thereof were with the Investigating Officer. (Vol.) I am sorry, I would like to clarify that it was only the CDs which were played before me and not the video cassettes and, therefore, I had no occasion to make a comparison of the same".
84. In the above given circumstances in my opinion the argument of the Ld. Defence Counsel can not be accepted. Non submission of Original Cassettes
85. It was submitted by the Ld Defence Counsel that the complainant had not submitted the original Hi8 cassette with C.C. No. 91/11 58 of 105 the High Court. They were submitted only after having copied recordings in the Hi8 cassettes on to a VHS video cassettes. The VHS video cassette also was not handed over by him to the High Court but only to Delhi Police.
86. An original cassette from which copies may have been made would not necessarily have any implication of the same having been tampered with. It is possible to make the copies from a audiovideo recording into other mediums and yet the original may still retain its originality. In other words it really does not matter if before he had submitted the original in the High Court he had made copies therefrom. Incidentally not in this case but in the connected case ( CC No. 89/11) a question on this line was put by the Ld. Defence counsel to Dr. C. P Singh, the expert from CFSL, and he had clarified that it will not make any difference. The same reads as under:
"Q: In case number of copies are prepared from one cassette, what would be the effect thereof on the original cassette?
C.C. No. 91/11 59 of 105 A: There won't be much difference after being subjected to the process of copying from the original cassette by playing the original cassette until there is wear and tear on the tape of the video cassette".
In the description given of scene no. 9 in CD Identification Memo and description given of scene no. 2 in Video Identification Memo there is reference to money being accepted from Jasbir Sansi, in the present case the allegation is of accused persons having accepted money from Beena Sansi.
87. It is submitted by Ld. Defence Counsel that as per the testimony of Sh. D. K. Thakur scene no. 9 in the CD Identification Memo is the same as scene no. 2 in the Video Identification Memo but one can spot clearly difference between the two scenes. The same would also be clear from the testimony of the witness Dr. C. P. Singh recorded in the connected case related to accused Sachin. In both the scenes there is reference to Money being accepted by Ram Kumar from Jasbir Sansi where as clipping played in the court would show that in the clipping Jasbir Sansi was not in the picture.
C.C. No. 91/11 60 of 105
88. In my view the above submission of the Ld. Defence Counsel is misplaced. The description of the said scenes would itself show that only one of the Ram Kumar i.e. accused no. 1 who was identifiable. The scenes described in the scene no. 9 in CD Identification Memo and scene no. 2 in Video Identification Memo do not have any connection with this case. The scene which relates to the present case is scene no. 14 as described in Video Identification Memo(prepared from VHS cassette) and scene no. 5 as described in CD Identification Memo. In both the scenes one can find reference to both the accused herein and also money being taken from Beena Sansi as is the allegation in the present case.
Contradiction as to the distance from which the video was shot.
89. It is submitted by the Ld. Defence Counsel that Sh. Chetan Prakash in his testimony had deposed that he had shot the video from a distance of about 25 feet and as per the C.C. No. 91/11 61 of 105 testimony of Sh. Mukesh Kumar, the first Investigating Officer, after visiting the spot he had verified that the distance from which the said video was shot was 150200 feet.
90. It is a question of assessment by two individuals. In my opinion, it is hardly of any consequence. What is material is what could be seen in the video and not the distance from which it had been shot.
Non seizure of video camera
91. According to the submissions made by the Ld. Defence Counsel, the Investigating Officer had not seized the camera with which the alleged video clippings were shot. In the absence of the camera no conclusions could have been reached even by the experts as to where and when the tampering could have been made, particularly in view of the fact that the camera being used was a digital camera.
C.C. No. 91/11 62 of 105
92. I have not been provided with any scientific basis or explanation that as to how there was necessity to also examine the camera with which the video clipping in question had been shot. I am of the view that this question should have been appropriately put to the expert witness Dr. C.P Singh who was in the best position to answer this question. This question being raised at this stage without being put to Dr. C. P Singh or providing any scientific explanation in my view is of no consequence.
Difference of timing given in the CD Identification Memo, Video Identification Memo (prepared from VHS cassette and the Hi 8 Cassettes played in the court.)
93. It was submitted by the Ld. Defence Counsel that as per the Video Identification Memo, the scene (scene no. 5) starts at 18:07 minutes, in CD Identification Memo and in the Hi8 Cassettes which is played in court on 02.05.2011 the scene started at 16:38.
C.C. No. 91/11 63 of 105
94. One needs to understand that as far as Video Identification Memo is concerned the same relates to the VHS cassette where in the complainant had copied the clippings from various Hi8 cassettes. The said VHS cassette was neither played in the court nor as such relied upon. The same needs to be kept out of the purview. One may add that even CBI did not even consider it fit to send this VHS cassette for forensic examination. (see discussion in connected case CC No. 86/11, CBI Vs Sachin).
95. Now coming to the CD Identification Memo which was prepared on the basis of a CD which was prepared by CFSL Chandigarh for the purpose of investigation. As per this memo the scene starts in terms of timing at 18:07 minutes and ends at 37:46 minutes. I had played the CD for my own satisfaction on this account. Before proceeding further it may be noted that when a CD is played on a programme like VLC media player it would show at the timing bar 00:00 as the initial time. As the CD is played this time keeps changing. When the CD was C.C. No. 91/11 64 of 105 played this scene appeared at 18:07 and the time which appeared on this bar, at the time when the two accused were leaving the spot was 37:46, though the scene thereafter continued till 39:55. As it appears from the CD Identification Memo that so far as the Investigating Officer is concerned he had considered the timing between 18:07 to 37:46 only relevant for this case.
96. Now looking at the Hi8 cassette and also the report of Dr. C. P Singh Ex. PW 10/A, one would find that there are two things which are mentioned. One is the duration and the other is the date and time appearing as Metadata on the scene. It may also be added here that a scene can be of different shots. It may further be noted that every momentary pause during the shoot would result into a different shot. The examination of the report of Dr. C. P Singh would show in the last column he has written the date and time appearing as Metadata on the various shots comprising the scene.
C.C. No. 91/11 65 of 105
97. The Metadata appears relating to time at the beginning of the first shot as 16:03 which is same as 4:03 PM as mentioned by Dr. C. P Singh in his report. When it comes to the starting time he must have noted it as it was appearing before him when he was playing the cassette using different softwares for the shot by shot examination of the entire scene. Apparently it is clear that the timing at the beginning of the first shot (i.e. shot no. 11) which is 18:07 matches with what is mentioning in the CD Identification Memo. It is at the end of the shot no. 12 the accused persons leave the spot and the timing which is given for the same is 37:46 which is also the same as mentioned in the CD Identification Memo. If we look at the entire scene which runs from shot no. 11 to shot no. 20, though the relevant part of the scene is for 19:39 minutes i.e. shot no. 11 and shot no. 12 but as far as the entire duration of the scene is concerned i.e. from shot no. 11 to shot no. 20 it lasts for 21:50 minutes. I, therefore, on the examination of the relevant record and having watched the CD as well as the Hi8 cassettes find no C.C. No. 91/11 66 of 105 discrepancy in the terms of timing so as to create any doubt of it having been tampered.
98. At the end I would like to note that these are the issues which should have appropriately been raised at the time when expert had been examined in the court who could have answered these questions and provided necessary clarifications instead of being raised at the time of the final arguments. Observation of the court with regard to seals been found to be open/broken on 22.02.2011 in the connected case CC No.52/11
99. Ld. Defence Counsel made a submission that this court could take a judicial notice of a fact that on 22.02.2011 when witness PW4 was being examined in case CC No. 52/11 there was an envelope produced in the court and the court had made the observation that though the envelope has bearing the court seals but three seals at the mouth of the envelope were found to be open/broken and ultimately from the said envelope five C.C. No. 91/11 67 of 105 original cassettes were taken. Once the court had found the seals to be broken it can be assumed that cassettes therein had been tampered with. It would mean that any of the said cassettes produced thereafter would not be reliable and there authenticity would be in doubt. The testimony in this case was recorded on 02.05.2011 for the first time when video cassette in question i.e. Ex.P5 was produced and played in the court. Thus the possibility of it having already been tampered before it was produced/played in the court cannot be ruled out.
100. It may be noted that it is possible that sometimes because of mishandling the seals can get broken as they are brittle in nature. Though I find an observation being made by the court "three seals impressions at the mouth of the envelope are open/broken". I, however, do not find that as a result of it the mouth of the envelope was open to the extent that the cassettes therein, which were five in number could have been easily taken out and placed back into it easily. I find no such observation. Had it been so I am certain that an observation in that regard C.C. No. 91/11 68 of 105 must have been noted. I would also like to point out that despite the seals impressions open/broken, the envelope was still required to be open for taking out material from it. Further one may also take note of the fact that inside that envelope there was one another brown envelope and on the opening of the same there was still another unsealed envelope found having 5 video cassettes. In my opinion it would have physically impossible to take out so much material from the partially opened envelope and the same being insert back into it. In the given scenario in my opinion the fact of a few seals being found broken would have assumed significance only if it would have been followed by an observation that it was possible to take out the material which was found inside the envelope with ease and being put back into it with equal ease. In the absence of any such observation I am of the view that it would not be appropriate to jump to the conclusion that just because a few seal impressions were found to be open/broken it should be assumed all the cassettes found therein had been tampered with.
C.C. No. 91/11 69 of 105 Unreliability of Sh. Chetan Prakash as a witness, non examination of Beena Sansi as witness in this case and no other independent witness being examined to support the case of prosecution.
101. It is true that Smt. Beena Sansi was not examined as a witness in this case. Before she could be called as a witness in this case, she had passed away. Chetan Prakash one can say is an interested witness in the sense that he definitely is interested in the outcome of this case because he is the person who had gone to the extent of approaching Hon'ble High Court for getting these cases registered. Apart from it more importantly his testimony is on the core allegations is based on what could be heard and seen in the video clipping which were played in court. In other words, his testimony in nothing but giving account of what could be heard and seen from the video clipping played in the court. As such one may observe that in so far as the core allegations are concerned there is nothing to separate his testimony from the video clipping itself. Therefore, what is of importance is the video clipping and nothing more. I have C.C. No. 91/11 70 of 105 already held in a connected case ("CBI Vs. Vijay Pal" bearing CC No. 92/11) that a video recording is a "Silent Witness" which can stand alone without the support from any other independent source. I had dealt with this aspect in detail in the said case. It would be of relevance to reproduce the said discussion here. It reads as under:
"SILENT WITNESS THEORY
26. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent are "worth thousand words".
More often than not in case of a videography the words and the acts of the accused herself/ himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually the court depends on the account of events which had taken place in the commission of offence who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court may not have been present at the time the offence was committed but it is as good as the court having C.C. No. 91/11 71 of 105 seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what witnesses have to say about it. In R M Malkani " s 1 case Hon'ble Supreme Court had described a tape recorded evidence as " real evidence". It was stated "When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."
27. There is another factor may be referred here that human memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.
28. I am of the view this evidence is not only substantive evidence but can be also a preferred evidence in case of difference in the testimony of witness have may claim to have seen an incident 1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 C.C. No. 91/11 72 of 105 and the a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. N Sri Rama Reddy Vs Sh. V V Giri 1 in reference to a tape recorded conversation, while approving the decision in one Scottish case2 " From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.
29. This "silent witness" though is "worth thousand words" but still cannot be subjected to crossexamination. Thus the only way it can be defeated is to question its admissibility and relevancy.
30. American jurisprudence would define it as "
Silent Witness Theory"3. In brief it means " A theory or Rule in the Law of Evidence : Photographic 1 1971 AIR SC 1162 2 Hope & Another V H M Advocate (1) Scots Law Times 264 3 dictionary.findlaw.com/definition/silentwitnesstheory.html C.C. No. 91/11 73 of 105 evidence ( as photograph or videotapes) produced by a process whose reliability is established may be admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify the accuracy of its depiction." One can find the elaboration of this rule and applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State of Arkansas [ 7 Ark. App. 1 (1982)]1 . The relevant part of the Judgment reads as under:
"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at 1 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx C.C. No. 91/11 74 of 105 the store, based on personal observation.
A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photographic evidence is a "silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).
In Arkansas, photographic evidence is admissible under the "pictorial testimony"
theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter.
Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); Ballew v. State, 246 Ark.
1191, 441 S.W.2d 453 (1969); Gross v.
State, 246 Ark. 909, 440 S.W.2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959); Reaves v. State, 229 Ark. 453, 316 S.W.2d 824 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v.
State, 219 Ark. 367, 242 S.W.2d 701 (1951); Simmons v. State, 184 Ark. 373, C.C. No. 91/11 75 of 105 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910).
The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases.
However, the precise objection made in the case at bar was not raised in either case. See, French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).
This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness" theory. We hold that the trial court correctly ruled that the video tape recording was admissible.
The Uniform Rules of Evidence, Rule 901
(a), Ark. Stat. Ann. § 281001 (Repl.
1979), provides that authentication is a condition precedent to the admissibility of evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims.
C.C. No. 91/11 76 of 105 Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 281001 (Repl. 1979), provides that "photographs" includes photographs, xray films, video tapes, and motion pictures. Xray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark. 83, 163 S.W. 180 (1914); Miller v. Minturn, 73 Ark. 183,83 S.W. 918 (1904).
Obviously, it is impossible for a witness to testify that an xray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, xrays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.
1969). Every jurisdiction admits xray films as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally.2 We note that Rule 1001 (2) treats xrays, photographs, video C.C. No. 91/11 77 of 105 tapes, and motion pictures, as one and the same.
Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 4154 (2d ed.1969).
Photographic evidence can observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word.
We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness" theory are fundamentally different from the foundational requirements under C.C. No. 91/11 78 of 105 the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness" theory, .since. the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion."
The reflection of the Rule in the Indian Law
31. As it may seem the expression " silent witness theory" in this form or any other form does not find reference in the Indian Jurisprudence but the expression like " Real Evidence" in R M Malkani ( supra) and expression like "primary and direct evidence" in Sh. N Rama Reddy v. V V Giri ( supra) take us in the same direction.
C.C. No. 91/11 79 of 105
32. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in terms of appreciation of such evidences.1 Even if it assumed that that the technology has made it easier to doctor or morph video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same.
33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.
34. It was laid down by the Hon'ble Supreme Court in R M Malkani as under:
"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find 1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 C.C. No. 91/11 80 of 105 out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."
35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with " care and caution".
36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Cri. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:
a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has C.C. No. 91/11 81 of 105 denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
37. The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions ( b)
(c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination.
C.C. No. 91/11 82 of 105 In specific reference to videotapes it can be done by resorting i.e speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with."
102. In the light of the above discussion reproduced, I am of the opinion that even in the absence of the testimony of Beena Sansi or any questions being raised as to the testimony of Chetan Prakash, the video clipping in question i.e. "the Silent Witness" in itself is sufficient to establish the case against the accused persons.
Opinion of Dr. C. P. Singh cannot be relied upon without independent corroboration
103. It was submitted by the Ld. Defence Counsel that the court cannot in a case solely base its conviction on the basis of the opinion of an expert. He had made reference to the judgments C.C. No. 91/11 83 of 105 of Hon'ble Supreme Court in case of Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210 and also in the case S. Gopal Reddy vs. State of A.P. (1966) SCC (Crl.) 792.
104. In Magan Bihari Lal vs. State of Punjab there was a railway receipt involved stated to have been forged by the appellant before the court. During investigation the specimen handwriting of the appellant was taken. The same was compared with the forged writing on the railway receipt by the Government Examiner of Questioned Documents and as per his report the specimen handwriting of the appellant matched with the forged writing on the railway receipt. The only evidence against him was this report of the expert and he having been found in the company of one Umedi Lal when this Umedi Lal was talking to one Joginder Lal and Ram Nath in connection with the sale of iron sheets, which was the subject matter of forged railway receipt. The circumstances were such in which it was difficult to believe as to how appellant who was working only as a guard with the railway administration could have come into possession blank railway receipt of a railway station which C.C. No. 91/11 84 of 105 was not in his jurisdiction at any time and also he had nothing to do with the train by which the wagon in question was dispatched. There was also no evidence to connect him with the theft of the blank receipt. The other evidence of the appellant having been found in the company of one Umedi Lal when Umedi Lal was talking to one Joginder Lal and one Ram Nath with regard to the sale of the iron sheets was found to be unsatisfactory and not inspiring confidence of the court. The only evidence which stood against the accused was the opinion of the handwriting expert. Hon'ble Supreme Court had observed "it would be extremely hazardous to condemn the appellant merely on the strength of the opinion of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law"
C.C. No. 91/11 85 of 105
105. The above law laid down by the Hon'ble Supreme Court in case Magan Lal vs. State of Punjab was reiterated in the other case S. Gopal Reddy Vs. State of A.P. referred to by the Ld. Defence Counsel.
106. The above observation of the Hon'ble Supreme Court came way back in 1977, I may submit that even the science of examination of questioned documents is far advanced today than what it was in 1977. There are far more sophisticated tools of examination available than what were prevalent earlier. In any case the examination of handwriting has never been considered as an exact science because of various factors which influence the writing of a person in a particular set of circumstances and at a particular point of time. Therefore, in practice the opinions of the handwriting experts have been treated differently from the opinions of the experts basing their conclusion on exact science. I am of the view, therefore, that it will not be appropriate to paint every expert deposing in the court with the same brush and judge the testimony of every expert on the same parameters C.C. No. 91/11 86 of 105 which may be there for appreciating the testimony of a handwriting expert. I am of the view that the observation made by the Hon'ble Supreme Court in Magan Lal's case are to be considered to be correct only in respect of the "Handwriting Experts". Therefore, in my opinion the observations made by the Hon'ble Supreme Court in the above cases in relation to the handwriting expert's opinion can not be extended to opinions of other experts including examination of videography for its originality and also it having been tampered with or not.
107. There is another factor which one has to consider that there are lots of areas of science and technology where courts are necessarily have to go with the opinion given by an expert, for example in the case of a paternity dispute which is to be determined on the basis of DNA examination, the court may have to go with the opinion of the expert where there is little to choose from competing claims being made from either side.
C.C. No. 91/11 87 of 105
108. There is also another factor which is required to be taken note of in this case the examination of expert Dr. C.P. Singh was not there to establish any particular fact against the accused like in the case of a handwriting expert where the opinion is to be given as to whether a particular writing can or can not be attributed to a particular person. In other words the opinion sought to either determine or rule out the authorship of a particular document. Even in the case of speaker identification the opinion sought is whether an accused can be linked with the speech which could be heard in a recorded conversation. The report of Dr. C.P. Singh per se is not to connect the accused with the commission of the crime but to just determine if the video recordings in question were camera original and also not edited or tampered with. As already submitted above, it is what is recorded in the video recording which is the evidence against the accused persons, which can be accepted even without any independent corroboration.
C.C. No. 91/11 88 of 105
109. In the above given circumstances in my view I find no reason to not to rely on the report of Dr. C. P. Singh. Accused could not have been there at the residence of Jasbir Sansi on 16.11.2003
110. According to the Ld. Defence Counsel the accused persons could not have been there on 16.11.2003 at about 4:00 P.M. as has been alleged by the prosecution. In order to establish this fact on behalf of the accused persons there was one witness DW1 Shri Rajvir Singh examined, who was posted as In Charge Police Post East Uttam Nagar on 16/11/2003. As per his testimony on 16/11/2003 HC Ram Kumar Accused No. 2 (391W) could not have been there at the residence of Jasbir Sansi at around 4.00 PM as Ram Kumar Accused No.2 (391 W) was with him on arrangement duty from 9.30 AM to 7.00 PM. As per the submissions of defence since on 16/11/2003 he was on arrangement duty from 9.30A.M. To 7.00 P.M. he could not have been there at 4.00 P.M. at he residence of Jasbir Sansi. It C.C. No. 91/11 89 of 105 would mean that the video clipping in question has been tempered with to show that he was there. Ld. Defence Counsel had added since both the accused have been shown to be together present at the house of Jasbir Sansi on 16/11/2003, if one cannot be believed to be there the other also cannot be believed to be there.
111. In the statement under Section 313(5) submitted by Accused no. 1 Ram Kumar (HC 232/W) it was stated that to make inquiries into a complaint lodged by one Shriman relating to injuries being received by his wife Smt. Rukmani vide MLC No. 18310/3 dated 08.09.2003, he had left the police post at 3:30 P.M with the HC Ram Kumar Accused No. 2 (391 W) after making the departure entry in the Rojnamcha no. 17. They had visited the house of the injured where they had met Shirman husband of the injured. They were told that the injury had been caused by the scooter belonging to the soninlaw of Jasbir Sansi, thereafter on the same day they had visited the house of Jasbir Sansi, where they had met Smt. Bina wife of Jasbir Sansi, her daughter namely Sulochana, Smt Shobha wife of C.C. No. 91/11 90 of 105 Jitender @ Raju etc. They had informed them that the husband of the injured was willing to settle the mater in case the injured is paid some money. They had not demanded bribe or gratification from anyone. They had thereafter returned from the house of Jasbir Sansi. They had no occasion to visit their house on 16.11.2003 in fact on 16.11.2003 HC Ram Kumar Accused No. 2 (391W) was with S.I. Rajvir Singh Lamba on arrangement duty to escort one nagar kirtan from 9:15 A.M. He had returned to Chowki at about 10.30PM. As per the statement of the other Accused Ram Kumar (391W) under section 313(5) though Sh. Lamba had returned from the spot of arrangement at about 7:00 P,M. but he was directed to remain at the spot alongwith Constable Hanuman to remove the encroachment and to take legal action for any violation. He had prepared a rukka under Section 283 Cr.P.C. against one Ram Narain at about 7:00 P.M. and sent it to P.S. Uttam Nagar for registration of the case, on the basis of the same there was also one F.I.R. registered against Ram Narain. He had also arrested said Ram Narain and released him on bail at the spot itself.
C.C. No. 91/11 91 of 105
112. To sum up though admittedly they had visited the house of Jasbir Sansi on 15.11.2003 primarily to convey them that the injured was willing to settle the matter amicably but on 16.11.2003 they had not visited the house of Jasbir Sanasi infact one of them i.e. Accused no. 2 H.C. Ram Kumar no. 391/W had been with S.I. Rajvir Singh Lamba on arrangement duty for the entire day.
113. What has been stated by the accused persons with regard to their visiting the house of Jasbir Sansi or they being informed by Shriman showing his willingness to settle his case with the soninlaw of Jasbir Sansi do not find its reflection in the official records. First of all it is difficult to understand, if the story of the defence is to be believed, as to what was the reason for H.C. Ram Kumar no. 391/W to accompany H.C. Ram Kumar no. 232/W. It was a case neither assigned to him for investigation nor for assisting H.C. Ram Kumar no. 232/W in the investigation of the case. D.D. No. 17 of 15.11.2003 would show that H.C. Ram Kumar ( 232W) alone had left for making the inquiries for C.C. No. 91/11 92 of 105 the house of th injured at 3:30 P.M. The arrival entry made by him on next day by DD No. 7 at 9:35 A.M. would also show that he was not in the company of the other accused H.C. Ram Kumar no. 391/W. This arrival entry would also show that there is no reference to his having visited the house of Jasbir Sansi on 15.11.2003 alone or with the other accused HC Ram Kumar no. 391/W as has been claimed by both the accused persons in their statement under Section 313(5) Cr.P.C. It only refers to HC Ram Kumar 232/W, having visited the house of Shriman, complainant where Shriman had not given any final word to him as to any settlement he would like to have with anyone who had caused injuries to his wife Smt. Rukmani but had only stated that neither his wife nor his son were at home and if he has to say anything in this respect he would visit the chowki himself and convey whatever he has to say after consulting his wife and son. Incidentally, it would also show that by this time the accused had not been identified and there had also been no proposal of any settlement from the side of Shriman which goes against the assertion of the accused persons that on 15.11.2003 C.C. No. 91/11 93 of 105 they had visited the house of Jasbir Sansi to talk about the settlement related to the said accident case. This DD also makes reference to constable Thawar Singh who had remained associated with the inquiry related to the accident case. If on 15.11.2003 constable Thawar Singh was associated with the inquiry relating to the accident case there is no reason why he would not have visited the house of Jasbir Sansi alongwith HC Ram Kumar 232/W. If the accused persons are to be believed than the video clipping relates to 15.11.2003 when they had visited the house of Jasbir Sansi to talk about the accident case, then there is no reason why constable Thawar Singh could also not have been seen in this video clipping. I am of the view that in the given circumstances I would find it difficult to believe that both the accused had visited the house of Jasbir Sansi on 15.11.2003 to make inquiries about the case related to the accident and also to talk with them about the settlement of the said case.
C.C. No. 91/11 94 of 105
114. HC Ram Kumar 232/W did not lead any evidence or produce any material to show that on 16.11.2003 he could not have been there at the residence of Jasbir Sansi at about 4:00 P.M. as he was somewhere else at that point of time. There was however, as already noted above, some evidence lead by examining witness DW1 and also producing the entries in the Rojnamcha that the other accused HC Ram Kumar 391/W, could not have been there at the residence of Jasbir Sansi as he was on that day on bandobast duty with S.I. Rajvir Singh Lamba from morning till about 7:00 PM for escorting a nagar kirtan and after 7:00 P.M. he had remained associated in the investigation of one another case under Section 283 IPC as per the directions of S.I. Rajvir Singh Lamba.
115. The examination of witness DW1 would show that the size of the procession which was to be escorted was not very big it was of 200300 meters. The distance it was to travel was about 45 kilometers. It has come in the evidence of DW1 that all of them had left from the Chowki in separate vehicles and C.C. No. 91/11 95 of 105 after the procession was over also they had left independently meaning thereby if someone was to leave the procession in between he could have done so independently. In other words, I do not find it neither impossible nor improbable that HC Ram Kumar No.391/W could not be there at the residence of Jasbir Sansi on 16.11.2003 at about 4:00 P.M. In any case when I compare the two evidences on record one where the accused Ram Kumar 391/W could actually be seen in action himself talking to the wife of Jasbir Sansi alongwith the other accused Ram Kumar 232/W, and also receiving and passing the money to the other Accused Ram Kumar 232/W and the same having been proved to be not tempered with I would go with such formidable evidence presented by the prosecution than the evidence being presented on behalf of the defence. Reference to Judgments Ram Singh vs. Col. Ram Singh AIR 1986 SC 3 and Pratap Singh vs. State of Punjab LLJ 1966 Page 458
116. Ld. Defence Counsel has made reference to the above judgment of the Hon'ble Supreme Court for making the C.C. No. 91/11 96 of 105 submission that before admitting the video cassette in question it was necessary for this court to ensure that the time and place and the accuracy of the content must be proved by a competent witness and the voices must be properly identified as the magnetic tapes can be erased and be reused. The court must be satisfied that it had not been tampered with.
117. If one goes by the judgment of Hon'ble Supreme Court in Pratap Singh's case then for admitting a tape recorded conversation in evidence it is not even necessary to establish the foundational facts such as it was genuine and not tampered with. As per the said judgment of the Hon'ble Supreme Court if there exists well founded suspicion that a tape recorded conversation had been tampered with then in that case it would be a ground for the court to discount wholly its evidentiary value. In other words what would get affected is its probative value and not it being admitted in evidences per se. The relevant part of the judgment reads as under: C.C. No. 91/11 97 of 105 "Before passing on to a consideration of the details of the several allegations there is one matter to which we ought to make reference at this stage and that is the admissibility and evidentiary value of the taperecorded talks which have been produced as part of his supporting evidence by the appellant. The learned Judges of the High Court without saying in so many terms that these were inadmissible in evidence, this being the contention raised by the respondentState, have practically put them out of consideration for the reason that taperecordings were capable of being tampered with. With respect, we cannot agree. There are few documents and possibly no piece of evidence which could not be tampered with, but what would certainly not be a ground on which Courts would reject evidence as inadmissible or refuse to consider it. It was not contended before us the taperecordings were inadmissible. In the ultimate analysis the factor mentioned would have a bearing only on the weight to be attached to the evidence and not on its admissibility. Doubtless, if in any particular case there is a wellgrounded suspicion, not even say proof, that a tape recording has been tampered with, that would be a good ground for the Court to discount C.C. No. 91/11 98 of 105 wholly its evidentiary value. But in the present case we do not see any basis for any such suggestion."
118. It may further be noted that in Pratap Singh's case there was no dispute or assertion that the voices recorded were not of those persons they purported to be. The tape recorded conversations in the said case were found to be reliable. In the present case also when the Hi8 cassettes (audiovideo tapes) was played in the court wherein both the accused persons could be clearly seen talking to Smt. Bina Sansi not for once it was disputed by any of the accused that the voices which could be heard openly in the court were not that of the accused persons. It may be stated even at the risk of repetition that there is a report of the forensic expert testifying the shots in the cassette in question including the shots related to this case were genuine and not tampered with. In the given circumstances in my opinion in terms of the judgment of the Hon'ble Supreme Court in Pratap Singh's case the Hi8 cassette in question could not only be admitted in evidence but is also reliable.
C.C. No. 91/11 99 of 105
119. In the judgment of the Hon'ble Supreme Court in the case of Ram Singh vs. Col. Ram Singh wherein the reference was made to the judgment of the Hon'ble Supreme Court in Yusufalli Esmail Nagree vs. State of Maharashtra (1967) 3 SCR 720:
(AIR 1968 SC 147). One of the requirements which was referred to in Yusufalli Esmail Nagree was that the time and place of the recording of a tape must be proved by a competent witness.
120. In case of a tape recorded conversation it is nearly impossible to vouch for time and place of it having been recorded. The same difficulty however, does not arise in the case of audiovideo recorded conversation because the place itself is visible as such on the screen and also the date and time appear in the form of metadata. The place has been identified by witness Chetan Prakash (PW 3) and also by the witness Jasbir Sansi (PW11) as the residence of Jasbir Sansi. It has not been so disputed or questioned in the crossexamination that either the date and time appearing on screen were not C.C. No. 91/11 100 of 105 correct or that the place being visible was not the residence of Jasbir Sansi.
121. In the above judgment of Yusufalli Esmail Nagree there was emphasis laid that the court should be satisfied that the record had not been tampered with. I am of the view that there could not have been any better way of doing it by having the same established by forensic examination of the video tapes.
122. There was one more requirement laid down in Ram Singh's case that the voice of the speaker must be duly identified by the maker of the record or the others who recognize his voice. The voices could be heard clearly when the tape was played being spoken by the accused persons. They were identified by the complainant Chetan Prakash (PW3). It was not disputed that they were not the voices of the accused persons.
C.C. No. 91/11 101 of 105
123. To say that the voices in the said recording were not of the accused persons would be denying what was clearly obvious. Offence under Section 7 of Prevention of Corruption Act
124. In view of the foregoing discussion I conclude that both the accused have failed to rebut the presumption of law under Section 20 of the Prevention of Corruption Act, 1988 and thus they can be said to have committed the offence under Section 7 of Prevention of Corruption Act, 1988.
Offence under Section 13 (1) (d) (ii) read with Section 13(2) of Prevention of Corruption Act.
125. There is no manner of doubt that the accused persons had no business to take money from Smt. Bina Sansi, it is abundantly clear that they had abused their position as officials of Delhi Police thus, they can be said to have committed the offence under Section 13(1) (d) (ii) punishable under Section 13(2) of Prevention of Corruption Act,1988.
C.C. No. 91/11 102 of 105 CONSPIRACY
126. Usually there is no direct evidence available to establish conspiracy between two accused but in this case it is palpable. Accused HC Ram Kumar 391/W (A2 in uniform) could be clearly heard demanding the money not just for himself but also for the other accused HC Ram Kumar 232/W (A1 in black jacket). He could be heard saying " hawaldar do, sau ka note ek, bejati mat kara kar....... la ek aur de" then he could also be seen passing on a currency note of Rs. 100/ to the other accused HC Ram Kumar 232/W (A1 in black jacket).
127. In my view the above facts are good enough to establish the conspiracy between the two accused persons and it is also clear that the conspiracy was to demand money for forbearing to take action against Smt. Beena Sansi i.e. to commit offence under Section 7 of Prevention of Corruption Act,1988 and for this purpose to abuse their position as public servants i.e to commit offence under Section 13(1)(d)(ii) punishable under C.C. No. 91/11 103 of 105 Section 13(2) of Prevention of Corruption Act 1988. Thus, they can be said to have committed the offence under Section 120B IPC read with Section 7 and Section 13(1)(d)(ii) punishable under Section 13(2) of the Prevention of Corruption Act,1988. Order:
128. In view of the conclusion reached above: I. I am convicting the accused Head Const. Ram Kumar No. 232/W of the offences punishable under section 7 and also 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. II. I am convicting the accused Head Const. Ram Kumar No. 391/W of the offence punishable under section 7 and also 13(1)
(d) r/w 13(2) of the Prevention of Corruption Act. III. I am also also convicting both the accused Head Const. Ram Kumar No. 272/W and Head Const. Ram Kumar No. C.C. No. 91/11 104 of 105 391/W of the offence punishable under section 120B IPC read with Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 30th of May, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi
C.C. No. 91/11 105 of 105
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 91/2011 R.C. No. 48(A)/04 Case ID No. 02401R0370532009 Central Bureau of Investigation Versus
1. Shri Ram Kumar S/o Shri Lakhi Ram R/o Village & Post Kassar, District Jhajjar, Haryana.
2. Shri Ram Kumar S/o Hari Ram R/o Village & Post Kandela, P.S. Jind, District Jind, Haryana.
Date of Institution : 19.07.2007 Date of reserving Order : 02.06.2014 Date of Pronouncement : 07.06.2014 C.C. No. 91/11 106 of 105 ORDER Preliminary
1. Convicts Ram Kumar s/o Shri Lakhi Ram No. 232/W and Ram Kumar s/o Shri Hari Ram No. 391/W , who were posted as Head Constables with Delhi Police, have been convicted for having committed offences punishable under section 7 and section 13(2) read with section 13(1)(d) of the Prevention of corruption Act, 1988 and also for having committed offences punishable under section 120B IPC read with Section 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act,1988.
Hearing
2. I have heard Ld Defence Counsel for the convicts as well as Ld. Public Prosecutor for CBI and have gone through the record of this case.
C.C. No. 91/11 107 of 105 Guidelines of Sentencing
3. The broad guidelines for sentencing can be found in Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders. The same reads as under:
"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
C.C. No. 91/11 108 of 105 Extenuating Circumstances
4. The following extenuating circumstances have been pointed on behalf of the convict Ram Kumar son of Lakhi Ram No. 232/W in defence:
(i) The convict is the sole bread earner of his family. He has aged mother of more than 80 years of age. He has three children including two daughters. One daughter is handicap and th and is studying in B.A. and the other daughter is studying in 9 th standard. His son is studying in 12 standard. His entire family is financially dependent on him for support.
(ii) Convict has a clean service record.
(iii) The amount involved in the bribe is only Rs. 100/.
5. The following extenuating circumstances have been pointed on behalf of the convict Ram Kumar son of Shri Hari Ram No. 391/W in defence: C.C. No. 91/11 109 of 105
(i) The convict is the sole bread earner of his family. He has aged parents to support who are more than 85 and 80 years old.
This is the only case pending against him.
(ii) Convict has a clean service record and he has only ten months left in his retirement.
(iii) The amount involved in the bribe is only Rs. 100/. Aggravating circumstance
6. Ld. Public Prosecutor for CBI on the other side has made a submission that the convicts are officials of police and the manner in which the offence has been committed does not call for leniency and they should be awarded sufficient deterrent punishment.
C.C. No. 91/11 110 of 105 Sentence of imprisonment
7. The fact that the Convicts are the sole bread earner of their families and that they have family responsibilities are extenuating factors, which need to be taken into account as imprisonment of punishment of long duration will have an adverse impact on their families. The amount of bribe involved is very small and, therefore, would not call for punishment on the higher side.
8. At the same time, it cannot be lost sight of the fact that the convicts were posted as Head Constables with Delhi Police. It was their duty to prevent the commission of such offences for which they accepted the money.
9. The maximum punishment which has been provided in terms of imprisonment under section 7 of the Act is five years and the maximum punishment provided in terms of C.C. No. 91/11 111 of 105 imprisonment under section 13(2) of the Act is seven years. For the offence under section 120B read with Section 7 and 13(2) r/w 13(1)(d) of the P.C. Act as well the maximum punishment which can be awarded is seven years.
10. It may be kept in view that this punishment which has been provided is even for the cases where highest level of Government functionaries are involved and amount involved may run into crores of rupees. If I have to balance the extenuating and aggravating circumstances and also take into account the maximum punishment provided for the above offences, in my view the ends of justice would be met if the convicts are sentenced to rigorous imprisonment for a period of Three years for the offence under section 7 of the P.C. Act and also to rigorous imprisonment for the same number of years for the offence under section 13(2) read with section 13(1)(d) of the Act and under section 120B read with Section 7 and 13(2) r/w 13(1)(d) of the P.C. Act with a direction that all the sentences shall run concurrently.
C.C. No. 91/11 112 of 105 Sentence of Fine
11. Sentence of fine is an integral part of section 7 as well as section 13(2) of the Act and so also in this case u/s 120B IPC as in this case the punishment under section 120B would be the same as under sections 7 and 13(2) of P.C. Act. Imposition of fine is one of the effective ways of punishment in the economic offences. It can be meant to make the convicts realise that earning through illegal means would not pay. However, while imposing the fine the Court also can not be oblivious of the fact that the fine to be imposed may ultimately not turn out to be having a ruinous effect on his family. At the same time the fine to be imposed should have correlation not only with the money earned by the illegal means but also the position the public servant was holding. I want to add that in such cases while imposing the fine, I am in favour of actually recovering the fine from the convicts and not to just get away by suffering imprisonment in default of payment of fine.
C.C. No. 91/11 113 of 105
12. In the light of foregoing discussion and the facts and circumstances of the case in my opinion considering his family responsibility imposing over all fine of Rs. 40,000/ (Rupees Forty Thousand only) on convict Ram Kumar son of Lakhi Ram No. 232/W and overall imposing a fine of Rs. 60,000/ (Rupees Sixty Thousand only) on convict Ram Kumar son of Hari Ram No 391/W would meet the ends of justice.
Sentence
13. In the light of above discussion, I am sentencing the convicts as under : Sentence of convict Ram Kumar son of Lakhi Ram No. 232/W. Convict Ram Kumar s/o Lakhi Ram shall:
(i) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 10,000/ (Rupees Ten Thousand only) for C.C. No. 91/11 114 of 105 having committed the offence under section 7 of the P.C. Act, 1988;
(ii) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 15,000/ (Rupees Fifteen Thousand only) for having committed the offence punishable under section 13(2) read with section 13(1)(d) of the P.C. Act,1988; and
(iii) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 15,000/ (Rupees Fifteen Thousand only) for having committed the offence under section 120B read with section 7 and 13(2) r/w section 13(1)(d) of the P.C. Act,1988.
Sentence of convict Ram Kumar son of Hari Ram Ram No. 391/W. Convict Ram Kumar s/o Hari Ram shall:
(i) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 20,000/ (Rupees Twenty Thousand only ) C.C. No. 91/11 115 of 105 for having committed the offence under section 7 of the P.C. Act, 1988;
(ii) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 20,000/ (Rupees Twenty Thousand only) for having committed the offence punishable under section 13(2) read with section 13(1)(d) of the P.C. Act,1988; and
(iii) undergo rigorous imprisonment for a period of Three years and pay fine of Rs. 20,000/ (Rupees Twenty Thousand only ) for having committed the offence under section 120B read with section 7 and 13(2) r/w section 13(1)(d) of the P.C. Act,1988.
14. The sentences imposed shall run concurrently. It is noted that the convicts had not remained in jail at any point of time in this case.
15. The Convicts will have time of three weeks to make the payment of fine. In case of their failure to pay the fine during the C.C. No. 91/11 116 of 105 said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 07 of June, 2014 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.
C.C. No. 91/11 117 of 105