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Delhi District Court

Cc No.17/19 State vs Sube Singh 1 on 28 September, 2019

     IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE
          (PC ACT CASES) ACB­01, CENTRAL DISTRICT
         ROUSE AVENUE COURT COMPLEX, NEW DELHI

CNR No. DLCT11­000177­2019
CC No. 17/19

State (Govt. of NCT of Delhi)

                                   VERSUS
1.      Sube Singh
        S/o Sh. Ghamandi Lal
        R/o VPO­Belahari, PS Kotkasim
        District Alwar, Rajasthan.


FIR No.       :      262/13
U/S           :      388/389 IPC & 7/13 PC Act
PS            :      Hari Nagar

                     Date of institution   : 12.08.2016
                     Judgment reserved on : 25.09.2019
                     Judgment delivered on : 28.09.2019

JUDGMENT

1. Brief facts of the case are that a PCR call was made on 31.05.2013 at 01:04 am vide which suicide attempt by a lady was reported. DD entry was made in this respect and ASI Sube Singh (accused) was informed telephonically to take appropriate action. ASI Sube Singh vide DD no. 12B at 02:15 AM returned and reported that no action was required and filed the call. It is also stated that the SHO concerned had also gone to the spot. Thereafter, on 21.06.2013, a letter was received vide which the complainant Mohd. Usman reported that on 30.05.2013, his friend CC No.17/19 State Vs Sube Singh 1 Vishal @ Vicky and wife of Vicky had some altercation and thereafter, the wife of Vishal @ Vicky had threatened to commit suicide. Vicky had informed this fact to the police and thereafter, police came to the spot and took the entire family to the police station. The matter between the family was settled but ASI Sube Singh demanded Rs.50,000/­ from Vicky and his father, threatening them to implicate in a case of abetment to commit suicide and also threatened them to send them to jail. It is further stated in the complaint that due to this threat by ASI Sube Singh, Vicky and his father were terrified badly and assured ASI Sube Singh that they would bring the amount in the morning. In the morning of 31.05.2013, Vicky asked for a loan of Rs.20,000/­ from the complainant Mohd. Usman and on repeatedly asking as to why the money was required, Vicky told Mohd. Usman about threat given by ASI Sube Singh. Mohd. Usman arranged a spy camera and videographed the entire incident and without informing Vicky and his family, recorded the incident of taking bribe by ASI Sube Singh with a spy camera. In the recording, the family of Vicky can be seen pleading with folded hands before ASI Sube Singh. ASI Sube Singh thus, accepted Rs.20,000/­ by misusing his official position. Mohd. Usman also stated in the complaint that his friend Vicky and his family be not troubled in the present case as they were not aware about the recording done by him. Alongwith his complaint, a CD containing the recording was also sent. Some enquiry on the said complaint was initiated. Meanwhile, the matter was also reported in the newspapers on 22.06.2013 and the then CMM, (West) directed registration of FIR on the basis of the said newspaper report. Thereafter, the present FIR was registered on the complaint filed on 21.06.2013. During the investigation, statements of complainant Mohd.

CC No.17/19 State Vs Sube Singh 2

Usman, Prem Prakash, Vishal Kumar @ Vicky and Smt. Poonam were also recorded under section 161 Cr.P.C. Prem Prakash, father of Vishal Kumar @ Vicky also stated that ASI Sube Singh already returned their amount on 20.06.2013 after calling them. Video recording of the place of the incident was also done. The site plan was prepared. The spy camera or original chip containing the recording was not produced by the complainant Mohd. Usman, rather he produced NCR dated 07.08.2013 and reported that spy camera and original chip were lost by him. Accused was arrested and during investigation, provisions of Prevention of Corruption Act were added and thereafter, investigation was transferred to ACP, Tilak Nagar. Transcript of the recording was prepared. Witnesses were called, who after perusing the transcript stated the same to be correct and signed the transcript. The CD was sent to FSL for examination. Sample voice of accused ASI Sube Singh, complainant Mohd. Usman, Prem Prakash and Poonam were recorded. However, as there was no sufficient voice examplers and due to poor quality of voice, the speaker identification test could not be carried out by the FSL. Bio­data of the accused was also obtained. The exhibits were thereafter, sent to CFSL, Lodhi Road. As per the report of CFSL, the voice examination report was corroborative. It was opined that all the three video files contained in the CD are authenticate and not doctored nor edited. Sanction under section 19 of POC Act was also obtained and the present chargesheet was filed.

2. Cognizance for the offence under section 388/389 IPC and 7/13 of Prevention of Corruption Act, 1988, against the accused was taken on 20.08.2016. Thereafter, vide order dated 18.03.2017, charge was framed against accused Sube Singh for the offences punishable under section CC No.17/19 State Vs Sube Singh 3 13(2) read with section 7/13(1)(d) of POC Act and 388/389 IPC to which accused pleaded not guilty and claimed trial.

3. Prosecution in support of its case has examined 28 witnesses. PW Prem Praksh was reported to have expired, vide order dated 10.10.2017, copy of his death certificate reveals that he had expired on 03.01.2016. PW­1 SI Bal Krishan has deposed that on 29.06.2013, he was working as Duty Officer from 05:00 pm to 1:00 am and he had registered the present FIR on the basis of rukka handed over to him by the SHO Jagjeet Singh Sangwan. Endorsement on the rukka is Ex.PW1/A and FIR is Ex.PW1/B. Certificate under section 65B of Indian Evidence Act is Ex.PW1/C and DD no. 46A dated 29.06.2013 is Ex.PW1/D.

4. PW­2 HC Umesh had prepared the bio­data Ex.PW2/A from the service record of ASI Sube Sing and the bio­data was provided to ACP Samay Singh vide letter Ex.PW2/B. Both the PW­1 and PW­2 have not been cross­examined, therefore their testimony remained unrebutted.

5. PW­3 HC Ramesh had deposed that on 31.05.2013 at 01:04 am, DD no. 7B Ex.PW3/A was lodged in the PS Tilak Nagar regarding an attempt to commit suicide (Fanda daal liya) and on the same day another DD no. 12B Ex.PW3/B was lodged at 02:15 am by ASI Sube Singh stating that no police action was required in the said incident. On 21.06.2013, another DD no. 18A Ex.PW3/C regarding suspension of ASI Sube Singh was lodged. During cross­examination, he denied that DD entries were not recorded by PW­3 and stated that he had no personal knowledge of the recording of the DD enteries.

6. PW­4 Mohd. Usman is the complainant who deposed that Vicky had informed the police about the incident of his wife committing suicide on the night of 30.05.2013 and thereafter, the matter was settled between CC No.17/19 State Vs Sube Singh 4 the family. He further deposed that the accused in the present case was the IO and after settlement, he had demanded Rs.50,000/­ from Vicky and his father on the pretext that in case the money was not given, Vicky and his family would be implicated in the case. He further deposed that Vicky and his father told that they would pay the said amount on the next day. Thereafter, Vicky called him on the night of 30.05.2013 but he could not respond as it was late night. Thereafter, Vicky again called on 31.05.2013 and told him to arrange Rs.20,000/­ and on enquiry Vicky told him the entire incident. He further deposed that he told Vicky that he would arrange the said amount and in the meanwhile, he arranged spy camera/watch and reached police station directly. He further deposed that Vicky and his family also came to PS and in his presence, father of Vicky, Prem Prakash had given Rs.15,000/­ to accused in the denomination of Rs.100/­. He further deposed that Rs.5,000/­ was paid later on which were in the denomination of Rs.1,000/­ and he had made the recordings of the transaction of the bribe through the spy camera/watch without informing Vicky and his family. He further deposed that he then got a CD prepared and gave the CD and complaint Ex.PW4/A to ACP, PS Tilak Nagar on which the present case was registered. He further deposed that he was called by ACP Tilak Nagar and CD was played in his presence and transcript Ex.PW4/B was prepared in his presence. He further stated that after seeing the CD and hearing the conversation, he told the ACP, PS Tilak Nagar that the recording was of the date of incident i.e. 31.05.2013. Thereafter, his sample voice was recorded in cassettes in FSL Rohini. He further deposed that the recording device was lost and therefore, he could not produce the same before the IO. He had also given certificate under CC No.17/19 State Vs Sube Singh 5 section 65B of the Indian Evidence Act Ex.PW4/C regarding the correctness of the recording. PW­4 further deposed that before taking the bribe amount, the conversation took place between him and Prem Prakash and during that conversation the accused had made demand of Rs.20,000/­. Initially, Rs.15,000/­ was given by Prem Prakash out of which Rs.5,000/­ was given by him to Prem Prakash. He further deposed that the accused was insisting for the balance amount of Rs.5,000/­ which was also given by Prem Prakash and he had watched Prem Prakash giving the bribe amount from outside the room. He further deposed that during investigation, he was taken to room of PS where money was handed over to accused but he does not remember the room number. He further deposed that the site plan was prepared in his presence. True copy of CD Ex.PW4/QC was played on the laptop and PW­4 after seeing the recording stated that the recordings are the same which were made by him regarding obtaining the bribe by accused from Prem Prakash and the same was recorded by him in his wrist watch camera and recording of accepting bribe was reflected in file no. 1. The audio cassette containing the sample voice of PW­4 was also identified by PW­4. PW­4 also identified his own voice as well as voice of accused, Prem Prakash and Poonam in the audio video recordings contained in the CD Ex.PW4/QC. Also when the audio conversation in the audio video recording were heard with the help of ear phones, the court made following observations regarding the transcript Ex.PW4/B :

"In the first video clip played the accused can be seen holding bundle of currency notes. In the documents attached with the chargesheet, CC No.17/19 State Vs Sube Singh 6 page no. 38 and 39 are stated to be of 2nd conversation whereas page no. 40 and 41 are stated to be of 3rd conversation. Whereas after hearing the conversation with the help of the earphone it is felt that page no. 39 is of 3rdconversation and page no. 41 is of 2nd conversation. Also on page no. 39 the conversation is between ASI Sube Singh and Prem Prakash and on page no. 38 the conversation is between ASI Sube Singh and Poonam. Similarly, on page no. 40 the conversation is between ASI Sube Singh and Prem Prakash and on page no. 41 the conversation is between ASI Sube Singh and Poonam. It seems that page no. 38 and 41 are the transcript of the 2nd conversation and page no. 39 and 40 are the transcript of 3rd conversation."

7. PW­4 Mohd. Usman during his cross­examination on behalf of Ld. Counsel for the accused has stated that he had met the police person in connection with the subject matter of the present case for the first time on 20.06.2013 and before 20.06.2013, he had not approached any senior police officer, CBI, Vigilance or ACB in connection with the present case. He further admitted that his complaint is undated but has further deposed that the complaint was received in the PS on 20.06.2013 and the photocopy showing the receiving is Mark­X. He further admitted that he had not mentioned any make, model, number or any identifiable feature of any spy camera/watch in his complaint Ex.PW4/A or in the statement under section 161 Cr.P.C. or in the NCR lodged in respect of loss of spy camera. He further stated that it was not possible to prepare the CD directly from the spy camera and it was prepared with the help of the computer and that data was first required to be transferred from the CC No.17/19 State Vs Sube Singh 7 watch/camera to the computer and thereafter, it was possible to prepare CD from the said computer. He further stated that he had not disclosed the address of the shop, name of the shop, name of the person who prepared the CD, make and specification of the computer through which the CD was made, to the police. He further admitted that he does not know English and he was not aware about the contents of the certificate under section 65B Indian Evidence Act Ex.PW4/C. He further deposed that Ex.PW4/C was drafted by one advocate. He further stated that he was not acquainted with the purpose for which the certificate Ex.PW4/C was required and that he had gone to the advocate for closing the case. He further deposed that he had signed the document Ex.PW4/C at PS Hari Nagar and that he had brought Ex.PW4/C to PS Hari Nagar under the impression that the advocate has drafted the application for closing the case and for this reason, he had signed the document in the PS. He further stated that the friend on whose laptop the CD was prepared was never taken to PS by him nor he had obtained the signed documents from the said friend. He further admitted that the matter between Vicky and his wife was settled in the night between 30.05.2013 and 31.05.2013 at the PS and that he was not aware about any DD entry that the matter was closed at 02:15 AM by lodging a DD. He further admitted that he had not handed over any memory card or chip to the police, though on 20.06.2013 as well as on 29.06.2013, the memory card/chip and the watch/camera were in his possession. He further stated that on 29.06.2013, the police had not asked him to hand over the memory card/chip or the spy camera nor he had shown the memory card/chip and watch/camera to the police on 29.06.2013. He denied the suggestion that he filed a manufactured CD CC No.17/19 State Vs Sube Singh 8 having doctored data with the police or that to prevent these facts from being surfaced during investigation, he had not provided the original memory card/chip and the spy camera. He further stated that he did not know what the certificate under section 65B Indian Evidence Act was and that document was given to him by the advocate. He denied the suggestion that on 31.05.2013, he had not visited the PS or that no transaction with respect to the money took place in his presence. He also denied the suggestion that he was not having any spy camera in his wrist watch. He denied the suggestion that no transaction in the form of audio or visuals were recorded in the CD. He further admitted that on 08.08.2013, he had given in writing in the PS Hari Nagar with regard to present case that he does not want any action in the present case as he was not having any evidence and the photocopy of the said letter is Mark­PW4/DA. He denied the suggestion that he wanted to extort money from the accused and in order to do so he got an article published in the newspaper. He further stated that he had not contacted any newspaper agency or any journalist in this connection. He denied the suggestion that as the matter between the husband and wife was settled during the intervening night of 30/31.05.2013, there was no occasion to demand money from anyone. He denied the suggestion that as DD entry with respect to compromise was recorded during the intervening night of 30/31.05.2013, there was no occasion for the accused to demand any money from anyone. He denied the suggestion that no certificate under section 65B Indian Evidence Act was signed by him or that he was not a witness of any incidence and just to extort money from the police officials, he lodged this false complaint.

CC No.17/19 State Vs Sube Singh 9

8. PW­5 Vishal Kumar @ Vicky deposed that on the night of 30.05.2013, some dispute arose at the dinner time and his wife who was suffering from depression threw the food outside and told him that she was trying to commit suicide by hanging herself. They informed this fact to the father of Poonam (wife of PW­5) who told them to sort out the issue at their own. He further deposed that on hearing the noise, neighbours had also gathered and then his father called the PCR. After the PCR call, accused had come and made enquiries from Poonam. PW­5 further deposed that SHO also came and took them to the PS. He further deposed that he was sitting in the PS area while his father and brother Sunil were in the room of accused where conversation took place between them and accused. He further deposed that the conversation took place till 05:00 am of 31.05.2013 and he was again called at 10:00 am. He further deposed that his father told him that accused had demanded Rs.50,000/­ from them to sort out the matter or he would implicate them in a case of abetment of suicide. He further deposed that on 31.05.2013, he alongwith his wife and father went to the PS. He further deposed that he had told about the entire incident as well as of demand to his friend Usman. Mohd. Usman told him that he has some connection with the police and he could get reduced the amount. He further deposed that his father had Rs.15,000/­ and asked Usman to arrange Rs.5,000/­. He further deposed that on 31.05.2013 at 10:00am, he, Usman, his wife and his father went to PS. He further deposed that he and his wife remained in the park inside the PS whereas his father and Usman went to the room of accused and thereafter, his father told him that he had given Rs.20,000/­ to the accused and got the matter settled and accused had obtained the signatures of PW­5 and his wife on the CC No.17/19 State Vs Sube Singh 10 settlement. He further deposed that his father was called at the PS Tilak Nagar and the accused had returned the amount to his father and his father again told this fact to him.

9. As the witness was not revealing the complete facts, he was cross­ examined by Ld. Addl. PP for the State. During his cross­examination by the Ld. Addl. PP, PW­5 deposed that on 01.07.2013, he was also called by the IO at the PS and enquiries were made from him. He also clarified that video clip was also shown to him. He further deposed that on the intervening night of 30/31.05.2013, accused had told him that accused would implicate him in the case of abetment to suicide if he would not pay Rs.50,000/­ and that he and his father were made to sit in the PS till 05:00 AM. He further stated that his father pleaded to the accused that he was not in a position to pay such huge amount and they were relieved after 05:00 am with direction to bring Rs.20,000/­ till 10:00 am. He further deposed that he alongwith his father and Usman went to PS. His father had taken Rs.15,000/­ alongwith him and PW­5 had seen his father taking Rs.15,000/­ from home. He further stated that his father had given Rs.15,000/­ to the accused and accused had further threatened him to give Rs.5,000/­ more and this amount of Rs.5,000/­ was taken from Usman. This witness has denied the suggestion that transaction of giving bribe took place in his presence. He further admitted that on 07.07.2014, CD was seized in his presence and was played on the computer and its transcript was matched and he had signed the transcript Ex.PW4/B. The three video clips contained in the CD Ex.PW4/QC were played in the presence of the witness and PW­5 identified his father late Sh. Prem Prakash in the first video clip to be the person who was pleading with folded hands before CC No.17/19 State Vs Sube Singh 11 the accused. .He further stated that in the striped shirt was his brother Sunil Kumar and in the 2nd and 3rd video clips, he had identified himself. He also identified his wife in the 2nd video clip.

10. During his cross­examination on behalf of accused, PW­5 deposed that he was shown video clips in the PS during investigation. He further stated that on 30.05.2013 when SHO, PS Tilak Nagar visited their house, Usman was not present. He further deposed that accused had come to their residence within 15 to 20 minutes of the call to the police at 100 number and SHO, PS Tilak Nagar had come after 5 minutes to 10 minutes of the accused's coming to their residence. He further stated that SHO, PS Tilak Nagar had not made any enquiry from him at his residence and just took him in his vehicle to the PS. He further stated that SHO had not made any enquiry from him either in the vehicle or at the PS nor he had told the facts to the SHO. He further stated that he was let off from the PS on the next date i.e. in the morning of 31.05.2013 at 05:00 am and he was made to sit in a different room and his father and brother were in different room. He further stated that he again went to PS alongwith his father, brother, wife and his Buaji and Usman had also reached there later on. He further stated that they had remained in the PS for around 1½ hours to 2 hours. He admitted that his wife returned to his residence from PS alongwith him and other family members on 31.05.2013. He also admitted it to be correct that his wife had given in writing in the PS that she had settled the matter with him and she had no dispute with him and accused Sube Singh advised his wife to settle the dispute and on his advice his wife had settled the dispute with him. He further stated that he was not CC No.17/19 State Vs Sube Singh 12 given any notice to come again when he had left the PS at 05:00 am nor any such notice was given to his wife. However, the police officials had asked them to come again. In response to a suggestion that the DD entry Ex.PW3/B regarding settlement was made at 02:15 am on 31.05.2013, PW­5 deposed that he was not told about any such DD entry. He denied the suggestion that as the matter was settled between him and his wife at 02:15 am in the intervening night of 30/31.05.2013, there was no occasion for them to again visit to PS on 31.05.2013. He denied the suggestion that there was no demand of money at the instance of accused or that at the instance of Usman he had given the statement to the police. He denied the suggestion that no money was paid to the accused on that day. He denied the suggestion that Usman prepared a complaint to extort money from the police officials and for this reason, he had lodged a false complaint with the police or a false CD was prepared to falsely implicate the accused. He also denied the suggestion that there was no recording of the PS or that no transaction took place between the persons shown in the CD. He denied the suggestion that accused did not demand any money from him or that they were all allowed to go after 02:15 am from the PS. He denied the suggestion that they were not detained in the PS till 05:00 am.

11. PW­6 Suresh Kumar, Ahlmad proved the order dated 24.06.2013 Ex.PW6/B and 28.06.2013 Ex.PW6/C of the then Ld. CMM. He also proved the judicial file in this respect Ex.PW6/A. The attested copy of order dated 24.06.2013 and 28.06.2013 sent to PS are Ex.PW6/D and Ex.PW6/E.

12. PW­7 Ct. Parveen has deposed that on 14.08.2015, he was posted at PS CC No.17/19 State Vs Sube Singh 13 Hari Nagar and on that day ACP Samay Singh gave him an authority letter and on his instructions, he went to CFSL, Lodhi Road and collected exhibits sealed with the seal of CFSL alongwith result from CFSL and deposited the exhibits in the Malkhana and gave the result to ACP Samay Singh. He further deposed that the exhibits were intact so long as they remained in his custody.

13. PW­8 Ct. Mukesh Kumar deposed that on 30.07.2014, on the instructions of IO ACP Samay Singh, he had collected the exhibits from MHC(M) vide RC No.89/21/14 and deposited the same at FSL Rohini alongwith the forwarding letter. He further deposed that after depositing the case property at FSL Rohini, he collected acknowledgment receipt from there and gave the same to MHC(M). During his cross­ examination on behalf of accused, he deposed that he had gone to the reception of FSL from where he was directed to go to the concerned room of FSL for depositing the exhibits.

14. PW­9 Alok Garg is the sanctioning authority who had deposed that a request of the investigating agency for according sanction against accused under section 197 Cr.P.C. was received and the same was forwarded to the competent authority i.e. Hon'ble L.G. alongwith the necessary documents including statements of witnesses, seizure memos, copy of transcription, copy of FIR etc. and after perusing the entire file, Hon'ble L.G. accorded prosecution sanction under section 197 Cr.P.C. against the accused and this sanction was communicated vide order dated 13.03.2015 Ex.PW9/A.

15. During the cross­examination, he deposed that the request letter regarding sanction was received on 10.12.2014 and the same alongwith other documents was sent to Hon'ble L.G. on 04.02.2015. He further CC No.17/19 State Vs Sube Singh 14 stated that apart from the other documents, copy of draft chargesheet, order of the then Ld. CMM dated 28.06.2013, site plan, DD entry no. 7B dated 31.05.2013 were also received. The other DD entries, reply of notice by Mohd. Usman dated 30.07.2013 and various other documents were also received alongwith the request letter. He further admitted that the copy of the recording was not asked by the Hon'ble L.G. or by them before according sanction. He further stated that the file was received in the office of Hon'ble L.G. on 06.02.2015 and the file was received after the approval on 20.02.2015 bearing the signature of Hon'ble L.G. dated 18.02.2015. PW­9 admitted that as per the note dated 05.01.2015, dealing assistant gave the noting that Hon'ble L.G. may be requested to grant prosecution sanction. He further stated that he did not make any dissenting note as he did not have any dissenting opinion and he was also of the opinion that the file be forwarded to the Hon'ble L.G. for his decision. He further denied the suggestion that the note prepared by the Assistant was endorsed upto the level of Principal Secretary, Home without ascertaining that no material is available on record to accord sanction in the present case. He also denied the suggestion that because of non­pointing out the discrepancies or insufficiency of evidence at the level of Home Department and Law Department, Hon'ble L.G. signed the file in routine manner, without application of mind or that the sanction was granted in mechanical manner without considering the documents at all.

16. PW­10 HC Khemender Kumar deposed that on 30.05.2013, he was working as Chitha Munshi and on the instructions of SHO, PS Tilak Nagar made entries regarding emergency duties of upper subordinate police officials of PS Tilak Nagar. He further deposed that ASI Sube CC No.17/19 State Vs Sube Singh 15 Singh was deputed on night emergency duty on 31.05.2013 and one call regarding incident of hanging by one lady was dealt with ASI Sube Singh. PW­10 has identified the copy supplied by him to the IO and on his identification the same were exhibited as Ex.PW10/B though he stated that the original of the same was destroyed vide order dated 22.05.2017. During his cross­examination on behalf of accused, he admitted that no date is mentioned below his original signature on the Ex.PW10/B, however, he stated that he had signed on the same, when he had supplied the copy of Chitha Register to the IO.

17. PW­11 ASI Manoj Kumar deposed that on 07.08.2013, he was working as Duty Officer at PS Uttam Nagar and at about 07:30 pm, one person namely Usman came to PS and stated that he had lost some documents and one watch camera and DD entry in this regard was made at serial no. 81B and thereafter NCR no.2034/13 Ex.PW11/A was recorded.

18. PW­12 ASI Jai Singh deposed that on 01.07.2013, he was posted at Photo Section, Vikaspuri and on receipt of telephonic message from PS Hari Nagar, he reached at PS Tilak Nagar and had videographed the main gate of PS, park and one room situated there. He further stated that the said room was situated near the main gate of the PS and on the instructions of SHO, he made a video shoot and gave the said CD to the SHO. He further stated that the IO had recorded his statement in this respect and he had put his signatures on the CD. He identified the CD Ex.PW12/A to be the same which contained the videography done by him. The three clips were played in his presence and he identified the three clips which were recorded by him. The scene of police station, Samjhauta Park, Sanjha Piao and rooms of the PS are visible in the same. During his cross­examination on behalf of accused, he deposed CC No.17/19 State Vs Sube Singh 16 that he had handed over the CD to the IO on the same day on which the recording was made and later on two more copies of the CD were also sought from him but they could not be prepared as the original CD Ex.PW12/A was already submitted. He further stated that the video was made with the help of video camera and the recording was transferred to CD and the CD was handed over to the IO. He further deposed that when the memory of the video camera gets full, they have to delete the recordings and therefore, the present recording was also deleted. He further deposed that as the original recording was deleted, more copies could not be made and that he was not asked for certificate under section 65B Indian Evidence Act. He admitted that the recording of the main building of the PS was not made, however the portions shown in the clips are the parts of the PS compound. He denied the suggestion that no recording was done on 01.07.2013 by him.

19. PW­13 Ms. Poonam is wife of PW­5 Vishal @ Vicky and she has deposed that a quarrel had taken place between her and her husband and according to her version, her husband had put a cord around her neck and shown that she had tried to commit suicide and her father in law called the police. She further deposed that some SHO had come to her matrimonial home and apart from SHO, one police official had also come and she pointed towards the accused to be said police official. She further stated that accused wanted her to sign some blank papers but she refused and also refused to go to PS at night. She further deposed that her husband and all the male members were taken to PS and they had returned to the residence after 05:00 pm. She further stated that she saw her husband, father in law and brother in law sitting on the ground floor in the morning and she was relieved to see that they were CC No.17/19 State Vs Sube Singh 17 back from PS. Her husband then told her that they were called at PS for signing some documents, her husband also told her that she should not say anything at the PS and thereafter, all would be saved. She further stated that she went to PS alongwith her husband, father in law, brother in law and Bua Saas. Video clips contained in the CD were also played during her testimony. PW­13 identified her father in law in the video clip. She also identified her husband, herself as well as accused in the video footage. She further stated that the recordings were of the PS and of the incident when she had gone to PS next day morning after the quarrel with her husband. However, she submitted that she does not know who had made the said recordings. As she was not revealing the complete facts, permission was sought to ask leading question and during her cross­examination by Ld. Addl. PP, she admitted that she had accompanied her father in law and husband once for recording of sample voice. She stated that she was made to read a paper. She identified her signatures on the transcript Ex.PW4/B but could not tell the date when she had signed on Ex.PW4/B and also stated that she had not seen the contents of the CD at the time of preparation of transcript Ex.PW4/B.

20. During her cross­examination, she has stated that she was in her room when police had arrived after her father in law dialed at 100 number. She further stated that as a daughter in law, she did not want any action against her father in law and husband and on next day on asking of her Bua Saas she stated that she did not want any action. She further stated that even on the previous night, she did not want any action against her father in law and husband and that she had told the SHO not to take her husband to the PS on the previous night. She further stated that her Bua CC No.17/19 State Vs Sube Singh 18 Saas had persuaded her to save her in laws and when she had gone to the room in the PS, the accused was present inside the room. She further stated that she had returned to her matrimonial home alongwith her Bua Saas and mother in law. She further deposed that her father in law and husband and brother in law came later on. She further admitted that on the intervening night of 30/31.05.2013 itself, she had told the police that she did not want any action against her in laws and police had asked her to come to the PS to sign the statement and on the next day she went to PS to sign her statement alongwith her husband, father in law and Bua Saas. She further stated that she had signed the document on her own and on being persuaded by her in laws. However, she denied that she has wrongly identified her father in law and accused in the video clip played in the court.

21. PW­14 Sh. Ajay Pandey, the then Ld. CMM deposed that he had come across a news article published in Hindi daily Navbharat Times dated 22.06.2013 and on his own instance, he took notice of the said report regarding demand of Rs.50,000/­ by one police official and drew an ordersheet dated 24.06.2013 Ex.PW6/B. He further stated that on 28.06.2013, a report was filed from PS Tilak Nagar in which it was stated that only departmental proceedings are pending. PW­14 observed that investigation in the present case was required and also directed to register an FIR. He also directed that spot of crime be preserved and photograph and videography of spot of crime be taken. The ordersheet dated 28.06.2013 is Ex.PW6/C and judicial file is Ex.PW6/A containing the newspaper Ex.PW14/A.

22. During his cross­examination on behalf of accused, PW­14 deposed that he had not examined any reporter of Navbharat Times before passing CC No.17/19 State Vs Sube Singh 19 order dated 24.06.2013 and 28.06.2013 and that there was no written or oral complaint pending under section 200 Cr.P.C. in his court regarding the present case. He admitted that he was not having any jurisdiction under the Prevention of Corruption Act nor he had examined the witness in the present case. He further admitted that he did not view any audio video recording nor had called for original device.

23. PW­15 V. Lakshmi Narasimhan, Assistant Director (Physics) deposed that on 30.07.2014, he had received two sealed parcels bearing the seal of MKY through Ct. Mukesh which were intact and were tallied with the specimen seals. On opening the parcel no. 1, one CD was found which was marked as Ex.1 which was found containing three video files of .AVI format. On opening the parcel no. 2, four audio cassettes were found and Sube Singh's specimen voice sample was marked as Ex.S1, specimen voice sample of Usman was marked as Ex.S2, specimen voice sample of Poonam was marked as Ex.S3, specimen voice sample of Prem Prakash was marked as Ex.S4 and he opined that no sufficient voice exemplars could be found in relevant files due to poor quality of voice signals and speaker identification test could not be carried out. His report is Ex.PW15/A.

24. PW­16 Sumit Chauhan deposed that in the year 2013, he had gone to PS Tilak Nagar to cover some news and met one Mohd. Usman who provided one CD and told that one police man is seen to have obtained money in the said CD. He further deposed that he gave the CD at the Editorial Desk and the news regarding the same was telecasted in the News Express TV Channel. CD in the present case was played during his testimony in the court and he had seen the contents of the CD. He submitted that the contents were same which were provided by Mohd.

CC No.17/19 State Vs Sube Singh 20

Usman to him and he had provided at the desk of the news channel for telecast. During his cross­examination, he deposed that he had not provided any document, pertaining to his employment in the News Express as a reporter, to the IO. He further stated that he had met Mohd. Usman for the first time in the year 2013 when Mohd. Usman had provided the CD to him and he never had any telephonic conversation with Mohd. Usman. He further stated that he was not shown the CD of the video recording in the PS. He further admitted that he had not seen the accused accepting the bribe personally nor he had checked the authenticity of the CD provided by Mohd. Usman.

25. PW­17 HC Prem Prakash deposed that on 25.07.2014, he had joined the investigation of the present case with ACP Samay Singh and had accompanied him to Physics Division for recording sample voices of Sube Singh, Complainant Mohd. Usman, Prem Prakash, Poonam and Vishal Kumar. He further stated that sample voice of accused, complainant Mohd. Usman, Prem Prakash and Poonam were recorded and FSL officials provided four cassettes containing the original voice sample and four copies of the same to the IO. He further deposed that voice sample of Vishal Kumar was not taken as no conversation was attributed to Vishal Kumar in the questioned conversation. He further stated that two separate parcels were prepared and sealed with the seal of MKY and seized vide seizure memo Ex.PW17/A. During his cross­ examination, PW­17 had admitted that seizure memo Ex.PW17/A does not bear the signature of any official of FSL Rohini. However, he denied the suggestion that the FSL officials were not asked to sign the document because no proceedings in FSL, Rohini took place with respect to recording of voice sample. He denied the suggestion that no CC No.17/19 State Vs Sube Singh 21 sample voice was taken by the officials of FSL, Rohini. PW­17 further stated that he had not heard the questioned conversation before or on that day. He further stated that concerned persons were given some papers for reading for recording of sample voice and stated that he had not signed those papers and in his presence, no other person had signed on those papers and that no transcript of the sample voice was prepared. He denied the suggestion that voice files were given from the copy of the CD and was made sample voice.

26. PW­18 Ct. Deepak deposed that on 22.04.2015, on the instructions of IO, he had collected the case property from the MHC(M) and had deposited the same in CFSL, Lodhi Road alongwith the forwarding letter. He further deposed that the case property remained intact so long as remained with him. Testimony of this witness remained unrebutted.

27. PW­19 Pradeep Kumar Gottam, Principal Scientific Officer deposed that on 06.07.2015, he received a case of CD examination from Physics Division of CFSL, CBI through internal forwarding letter for video examination and opinion on tampering and editing in the video files contained in the CD. He examined the video files on VLC media player and Final Cut Express Software timeline to verify the authenticity of the video file/continuity of the video file and found no editing or alteration in all the three video files. He further deposed that all the three video files were found in continuity and were authentic. His report is Ex.PW19/A. He further deposed that after examination, he sent the aforesaid CD to the Physics Division. He identified the CD Mark­CD1 which was examined by him. Also, perusal of the file reveals that CD­1 could not be played in the testimony of Mohd. Usman and thereafter, one true copy was got prepared from the CFSL which is Ex.PW4/QC.

CC No.17/19 State Vs Sube Singh 22

Attempt was made to play CD­I during the testimony of PW­4. However, the same could not be played as there was scratch on it. IO was directed to obtain a copy of the same from CFSL, Lodhi Road. IO produced an envelope sealed with the seal of AK SSO­II(PHY)CFSL CBI NEW DELHI and the sealed envelope was opened in the court and it contained a CD which is true copy of Q1 (CD­I) and was played during the testimony of PW­4 Mohd. Usman.

28. During the cross­examination, PW­19 deposed that the CD­1 which was received in the Photo Division was internally transferred from Physic Division. He further deposed that the file in the CD were audio­video files and after examination of the audio­video files in the CD, CD was returned to the Physics Division on 08.09.2015. The witness further admitted that he had never examined the CD Ex.PW4/QC and therefore, it does not bear the number of the Photo Division of CFSL. He further stated that Final Cut Express Software is being used in CFSL for the last six years. He further stated that Final Cut Pro X Software is available with them for last two years but it was not available in CFSL in the year 2015. The witness further deposed that his report was technically reviewed by Sh. Rakesh Bisht, Principal Scientific Officer and the copy of same is Ex.PW19/X1. He admitted that the original recording device was not forwarded to them for examination. He further denied the suggestion that in poor quality video, it is difficult to give the opinion regarding tampering and editing in comparison to video prepared through high resolution camera. He further stated that as there was no tampering in the present case in the video files, therefore no screenshots were taken. He further deposed that he had played the video files frame to frame and found no editing. Witness denied the suggestion CC No.17/19 State Vs Sube Singh 23 that if three video files are shot at different times and transferred in a CD, all the three video files will be in continuity. He further deposed that whenever the camera is switched off or stopped, then camera will generate a new video file or a new file may be generated based on individual camera default settings regarding duration and data capacity. He further deposed that Dr. Amitosh Kumar has examined the CD in Physics Division for the purpose of auditory examination. He denied the suggestion that he prepared the report on the asking of the police or that he has not examined any CD.

29. PW­20 Pushpendra Kumar, the then DCP is the Sanctioning Authority who had accorded the sanction under section 19 of P.C. Act Ex.PW20/A to prosecute the accused after examining the entire file and after application of his mind. During his cross­examination on behalf of accused, he admitted that he had only received the copy of CFSL result dated 26.06.2015 and 02.09.2015 and copy of the FSL result was not received. Though in the forwarding letter of the ACP, it is mentioned that FSL, Rohini had expressed their inability to give opinion regarding voice matching as the audio quality was poor. He also admitted that no certificate under section 65B of Indian Evidence Act was forwarded alongwith the request letter. He further admitted that the questioned audio­video CD was not put before him for perusal. He further deposed that as the CFSL result was sent to him for perusal and was sufficient alongwith other documents to form an opinion, therefore he did not summon the CD. He further admitted that it was a case of delayed FIR and further deposed that considering all the facts, he deemed it fit to accord sanction. PW­20 denied the suggestion that sanction was granted in mechanical manner and without appreciation of CC No.17/19 State Vs Sube Singh 24 all the documents brought on record or without application of mind.

30. PW­21 ACP Aalap Patel deposed that he was one of the IO in the present case and when the investigation was assigned to him, he had perused the file and found that almost all the investigation was complete and he recorded supplementary statement of the complainant on 21.02.2016 and thereafter, as sufficient incriminating material was found, he prepared the chargesheet and filed the same in the court. During cross­examination, he admitted that there was nothing on record about seizure of original recording device. He denied the suggestion that the NCR referred by Mohd. Usman was a fabricated document or that there was no sufficient material to launch prosecution against the accused or that accused was falsely chargesheeted.

31. PW­22 HC Naveen Sharma deposed that on 25.07.2014, the IO deposited two sealed parcels sealed with the seal of MKY in the Malkhana and on 28.07.2014, IO deposited one more parcel sealed with the seal of MKY in the Malkhana. He further deposed that on 30.07.2014, IO deposited the case property in the FSL, Rohini and also sent the same to CFSL, Lodhi Road on 22.04.2015. The relevant entries are Ex.PW22/A and road certificate in Register no. 21 is Ex.PW22/B. He further deposed that there was no separate entry regarding the deposit of sample seal and sample seal were also deposited. He denied the suggestion that all the entries are ante­dated.

32. PW­23 SI Amit Kumar deposed that on 13.08.2013, he joined the investigation of the present case and the IO had interrogated the accused Sube Singh and had arrested him vide arrest memo Ex.PW23/A. He further deposed that on 05.09.2013, the case file was assigned to him for further investigation. He further deposed that on 11.09.2013, section CC No.17/19 State Vs Sube Singh 25 388 IPC was added. He further deposed that on 09.10.2013, he had examined Sumit Chauhan and had recorded his statement under section 161 Cr.P.C. and thereafter, Prevention of Corruption Act was invoked in the present case and investigation was transferred to ACP, Sub­Division Tilak Nagar.

33. PW­24 Retd. ACP Samay Singh deposed that on 11.03.2014 he was posted as ACP, Tilak Nagar and investigation of the present case was assigned to him and then he prepared the transcript of the questioned CD with the assistance of SI Amit. He further deposed that on 04.07.2014, complainant Mohd. Usman joined investigation and in his presence, CD was played and transcript was tallied. On 07.07.2014, he examined Vishal Kumar @ Vicky and Prem Prakash and in their presence questioned CD was played on the computer. He identified the voice of the accused as well as of Vishal and Prem Prakash and told that it is the correct version of the CD. He further deposed that on 17.07.2014, accused joined the investigation and gave his consent Ex.PW24/A for recording his voice sample. He further deposed that on 25.07.2014, PW­ 24 alongwith accused, complainant Mohd. Usman, Prem Prakash, Vishal Kumar, Poonam and panch witnesses reached at FSL Rohini alongwith 10 empty audio cassettes where voice sample of accused Sube Singh, complainant Mohd. Usman, Prem Prakash and Poonam were taken in four audio cassettes and copy of the same were also prepared in further four audio cassettes. He further deposed that all the eight audio cassettes were converted into clothe parcels vide seizure memo Ex.PW17/A. He further deposed that case property was deposited in the Malkhana of PS Hari Nagar. PW­24 has further deposed that the questioned CD was converted into clothe parcel and sealed with the seal CC No.17/19 State Vs Sube Singh 26 of NKY and seized vide seizure memo Ex.PW24/B. On 30.07.2019, the sealed parcel containing questioned CD and another sealed parcel containing four audio cassettes of specimen voice sample were sent to FSL Rohini through Ct. Mukesh and SI Manoj Kumar collected the FSL result alongwith the exhibits from FSL Rohini. PW­24 further deposed that on perusal of the FSL report, he found that there was no definite opinion and thereafter, he moved an application with the Addl. C.P., West District to accord prosecution sanction vide letter Ex.PW24/C. The sanction under section 197 Cr.P.C. Ex.PW9/A was conveyed vide sanction order dated 13.03.2015. Thereafter the IO collected the bio­ data Ex.PW2/A of accused Sube Singh vide letter Ex.PW2/B. He further deposed that on 22.04.2015, the exhibits i.e. questioned CD as well as audio cassettes containing the specimen voice sample were sent to CFSL, CGO Complex, New Delhi alongwith the forwarding letter through Ct. Deepak and on 13.07.2015, voice examination report from CFSL, CGO Complex was received and as per the opinion of CFSL, CGO Complex voice of accused and the witness in the questioned voice tallied with the respective specimen voices. He further deposed that on 14.10.2015, a report from CFSL was also received as per which all the three video files were in continuity and authentic and not doctored or altered. He further deposed that a request letter Ex.PW24/D sent on 21.10.2015 for according prosecution sanction under section 19 of the POC Act which was received on 28.10.2015. The transcript of the conversation in the video file is Ex.PW4/B and the CFSL result is Ex.PW24/F. He further identified the CD Ex.CD­1 to be same which he had viewed and from which he had prepared the transcript. He also identified the contents of the CD Ex.PW4/QC to be the same which he CC No.17/19 State Vs Sube Singh 27 had viewed and prepared the transcript and also identified the four cassettes Ex.PW24/G containing the specimen voice of the accused, Mohd. Usman, Prem Prakash and Poonam and their copies on identification were exhibited as Ex.PW24/H.

34. During his cross­examination, he stated that he had come to know that the DD entry regarding attempted suicide by Poonam, was filed on the same night by the accused. He further stated that he had orally warned accused Sube Singh at the time of giving sample voice that the same may be used against him. He further stated that on the day when the voice sample of accused was recorded in the FSL, he had not taken the questioned CD with him to the FSL. He further stated that on 15.10.2014, when the request letter for grant of sanction was sent, FSL result was not available on record. He further deposed that he had mentioned the facts of the previous FSL report in the forwarding letter and had also annexed the copy of the FSL report when the exhibits were sent to CFSL. He denied the suggestion that he had obtained a false report from the CFSL or that any draft proforma of sanction was sent alongwith the request letter for obtaining sanction under section 19 of POC Act.

35. PW­25 Retired ACP Jagjeet Sangwan deposed that on 29.06.2013 when he was posted as SHO, PS Hari Nagar, complaint of the complainant Mohd. Usman was received in the PS Hari Nagar and he had made an endorsement on the complaint Ex.PW24/A for the registration of FIR and after registration of FIR, he had visited the spot at the instance of the complainant. He further deposed that on 01.07.2013, he had called Prem Prakash and his son Vicky at PS Tilak Nagar and in their presence, photography of the PS areas was got done and the photographer gave the CC No.17/19 State Vs Sube Singh 28 recording in a CD Ex.PW12/A. He further deposed that he gave notice to Mohd. Usman to provide original device and chip but the complainant gave in writing that he would produce the original device and chip in the court vide his letter Ex.PW25/C. He also collected the duty roster Ex.PW10/B of PS Tilak Nagar on 31.05.2013 and thereafter, he arrested the accused. He further deposed that the complainant had given in writing that he had lost the wrist watch camera and also given the copy of NCR Mark­PW4/DA in this respect. He also identified the CD Ex.1 to be the same which he had received alongwith the complaint. The copy of CD is Ex.PW4/QC. Copy of the Ex.CD­1 (Ex.PW4/QC) was played in the presence of witness and two video files could be played. Witness identified the contents of the video files which he had viewed in Ex.CD­1. Third file in the Ex.PW4/QC could not be played during the recording of testimony of PW­25, thereafter, the CD placed on judicial file Ex.PW12/A was played and witness identified that it is a recording of premises of PS Tilak Nagar including the spot which is also visible in the CD Ex.PW4/QC. He denied the suggestion that after the order of Ld. CMM, West District vide order dated 28.06.2013, an ante­dated complaint was procured to avoid the displeasure of Ld. CMM.

36. PW­26 Amitosh Kumar is the Expert from CFSL, CBI who deposed that a request letter from ACP, Tilak Nagar was received in CFSL on 22.04.2015 alongwith two sealed parcels, specimen seal and copy of transcription. The case was alloted to him for examination and the seals were tallied with the specimen seal and found intact. Parcel no.1 was sealed with the seal of "FSL,VLN,DELHI" and on opening was found to be containing a CD. The other parcel was also bearing the seal of "FSL, VLN, DELHI" and on opening the same was found containing four CC No.17/19 State Vs Sube Singh 29 audio cassettes marked as Mark­S1 to S4. He further deposed that the questioned and specimen recordings were played with the instrument and transferred to the instrument namely Speech Science Lab for examination. The questioned voice of the suspected persons were segregated from the recorded conversations and compared with the respective specimen voice recordings. He further deposed that after comparing and identifying the questioned voice with specimen voice, it was found that the questioned voice marked as Q­1 (1)(A), Q­1(2)(A) and Q­1(3)(A) and the specimen voice marked as S­1 (I)(A) are similar to each other and of the same person namely Sube Singh on the basis of auditory and Spectrographic examination. He further deposed that the questioned voice marked as Q­1 (1)(B), Q­1(3)(B) and Q­1(3)(B) and the specimen voice marked as S­2 (I)(B) are similar to each other and of the same person namely Sh. Mohd. Usman on the basis of auditory and Spectrographic examination and he opined accordingly. He further deposed that the questioned voice marked as Q­1 (2)(C) and the specimen voice marked as S­3 (I)(C) is similar to each other and of the same person namely Smt. Poonam on the basis of auditory and Spectrographic examination. He further deposed that the questioned voice marked as Q­1 (1)(D), Q­1(3)(D) and the specimen voice marked as S­4 (I)(D) are similar to each other and of the same person namely Sh. Prem Prakash on the basis of auditory and Spectrographic examination. He further deposed that after examination of the CD marked as Exhibit.Q­1, it was found that there was no tampering/editing in the recorded conversation contained in Exhibit Q­1. The CD and audio cassettes marked Q­1, S­1 to S­4 were sealed and sent to the forwarding authority alongwith the original report. His detailed report is CC No.17/19 State Vs Sube Singh 30 Ex.PW24/F. He also identified the Ex.CD1 and all the four audio cassettes Ex.PW24/G.

37. PW­27 Insp. Manoj Kumar deposed that on 04.07.2014, he joined the investigation of the present case. He further deposed that in his presence, complainant Mohd. Usman after seeing and hearing the conversation of the CD, verified the contents of the transcription of the CD from the CD and told that transcription ExPW4/B is the correct version of the conversation recorded in the CD. He further deposed that on 28.07.2014, in his presence IO ACP Samay Singh seized the CD vide memo Ex.PW24/B. He further deposed that on 18.11.2014, he collected the FSL result alongwith sealed exhibits in the present case FIR and handed over to the IO and he deposited the sealed exhibits alongwith copy of result with MHC(M), PS Hari Nagar. He identified the CD Ex.CD­1.

38. During his cross­examination, he deposed that on 04.07.2014, the CD was in unsealed condition.

39. PW­28 Ct. Jagdish deposed that on 25.07.2014, he accompanied the IO alongwith Ct. Prem Prakash, Prem Prakash (father of Vishal), Poonam, Vishal, Sube Singh and Mohd. Usman to FSL Rohini where voice sample of Sube Singh, Mohd. Usman, Poonam and Prem Prakash were taken in four audio cassettes and copies of the same were also prepared which were sealed with the seal of MKY vide memo Ex.PW17/A. He further deposed that voice sample of Vishal was not taken as there was no voice of Vsihal in the questioned recording.

40. After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. in which all the incriminating evidence was put to the accused which he denied as false and incorrect CC No.17/19 State Vs Sube Singh 31 and stated that he neither demanded nor accepted any money from the complainant. He further stated that when the DD entry was assigned to him, he alongwith Ct. Ashok visited the spot and found that it was a matrimonial dispute and the matter was already settled by the family members and Smt. Poonam gave in writing in presence of the parties as well as the SHO. The SHO had already arrived there and in his presence, the matter was compromised. He further stated that on that day, he was on emergency duty from 08:00 pm to 08:00 am and he also received another case DD no. 96B and he left the spot and the family members were taken to the PS in the government vehicle. He further stated that he filed the call on the basis of the compromise, therefore there was no occasion for him to demand the money. He further stated that the instrument used in the alleged recording was not produced by the complainant and the case was registered without verifying the contents of the alleged CD.

41. Thereafter, accused examined two witnesses in his defence. DW­1 Ct. Pradeep proved the Rojnamcha Register of PS Tilak Nagar containing the DD no. 96 dated 19.05.2013 Ex.DW1/A and DD no. 12 dated 31.05.2013 Ex.DW3/B.

42. DW­2 Ct. Ashok deposed that on 30.05.2013, he was posted in PS Tilak Nagar and was on emergency duty from 08:00 pm to 08:00 am. He further deposed that on 30.05.2013, he was deputed with ASI Sube Singh on a number of calls and left the PS Tilak Nagar at about 09:05 pm vide DD no. 96 Ex.DW1/A. He further deposed that the call in the present case was received by them at around 01:00 am on 31.05.2013 and they went to Vishnu Garden to attend the call. He further stated that at the spot they did not find anything regarding suicide and there was a CC No.17/19 State Vs Sube Singh 32 minor family quarrel. The SHO also reached at the spot and statement of Poonam was recorded who stated that she did not want any action. SHO took the family of the complainant in order to see that the quarrel does not aggravate. He further deposed that he alongwith the accused went to DDU regarding another call wherein victim was admitted. He further deposed that in his presence, no talks regarding demand of money took place. He further deposed that he was with the accused throughout. He further deposed that after attending the calls marked to them, they reached at the PS Tilak Nagar at around 02:15 am on 31.05.2013 and DD entry Ex.PW3/B was made. He further stated that the SHO had informed that a case qua DD entry no. 7B has to be filed as the family members have settled the issue amicably among themselves. He further deposed that he does not know anything about the present case and that he remained alongwith the accused till 08:00 am, however, he did not remain with the accused throughout as he had gone for nature calls also, for drinking water, for bringing Rojnamcha etc. He further stated that he cannot say what talks took place between the accused and any other person during the period when he was not with him. He further deposed that he cannot say if during that period, accused had made any demand from anybody.

43. Arguments on behalf of Ld. Addl. PP for the State and Ld. Counsel for the accused heard.

44. Ld. Addl. PP for the State has argued that prosecution case in nutshell is that the accused Sube Singh while posted as ASI at PS Tilak Nagar was assigned DD No. 7B on 31.05.2013 at night and he demanded bribe of Rs.50,000/­ and accepted Rs.20,000/­ from Prem Prakash on 31.05.2013 morning. PW­4 Mohd. Usman had specifically deposed that in his CC No.17/19 State Vs Sube Singh 33 presence Sh. Prem Prakash had given Rs.20,000/­ to accused and PW­4 had made recording of the transaction of the bribe through spy camera and he gave the CD containing recording alongwith his complaint to ACP, Tilak Nagar. He also proved the transcript of the CD and has also given certificate under section 65B of Indian Evidence Act. He had also deposed that before taking bribe amount of Rs.20,000/­, conversation took place between him, accused and Prem Prakash and in the said conversation, accused had demanded Rs.20,000/­. PW­5 Vishal Kumar @ Vicky and PW­13 Poonam had corroborated the prosecution version.

45. Ld. Addl. PP for the State has further argued that PW­19 P.K. Gottam had proved that there was no editing or alteration in all the three video files contained in the CD. PW­20 Pushpender Kumar, DCP, West District proved the prosecution sanction under section 19 of POC Act against the accused. PW­26 Sh. Amitosh Kumar, Senior Scientific Officer, CFSL had proved that questioned voice attributed to Sube Singh, Mohd. Usman, Poonam and Prem Prakash on comparison with the specimen voices of Sube Singh, Mohd. Usman, Poonam and Prem Prakash matched respectively. There is no animosity between any of the prosecution witnesses and accused and no question arises of implicating accused falsely in the present case. Accused was dealing with the DD no. 7B and therefore, he had sufficient motive for demanding bribe from Prem Prakash and his son Vishal.

46. Ld. Addl. PP for the State has further argued that there is no material delay in registration of the FIR which may vitiate the investigation and trial proceedings. Mere delay in lodging of the FIR is not fatal to the prosecution case unless there is manipulation in the evidence. Preliminary enquiry before lodging the FIR is not mandatory in all cases CC No.17/19 State Vs Sube Singh 34 and the same is prerogative of the investigating agency. Hon'ble Supreme Court in case of Lalita Kumari Vs State of U.P., Writ Petition (Crl.) No. 68/2008, decided on 12.11.2013 by Hon'ble Supreme Court, has held and provided some circumstances in which preliminary enquiry can be done by investigating agency prior to registration of FIR. At the same time, Hon'ble Apex Court in the said case has held that police is duty bound to register an FIR, if the allegations disclose the commission of cognizable offence. In the present case, PW­4 Mohd. Usman is a genuine witness who is the friend of Vishal and was present at the time of transaction of bribe and had witnessed the entire incident and there is no illegality in collecting the incriminating evidence by way of recording the transaction of bribe through spy camera. There is no provision of law which bars the private individual from conducting sting operation without involving state agency. It is further argued that demand of bribe at each occasion is separate offence and in the present case, PW­4 had categorically deposed that on 31.05.2013, accused had demanded the bribe and thereafter, Prem Prakash had given the bribe money to accused. For the sake of argument, even if it is assumed that initial demand of bribe being made by accused from Prem Prakash has not been proved, still it does not affect the prosecution case because demand of bribe having been made by accused from Prem Prakash at the time of delivery of bribe money on 31.05.2013 has been proved. There is no illegality in the order of Ld. CMM ordering registration of the FIR. Moreover, in the present case, FIR has been lodged on the complaint of PW­4 Mohd. Usman on the basis of the contents of the complaint apart from the directions of Ld. CMM. Recovery of bribe money is not sine qua non for proving the CC No.17/19 State Vs Sube Singh 35 offence of demand of bribe and acceptance of the bribe by the accused. The CD Ex.PW4/QC which has been proved in the court is the copy of the CD­1 which has been examined by the CFSL and has been prepared by the CFSL itself in compliance of the order of Hon'ble Court from the data available in the CFSL and CFSL witness has specifically deposed in the court that the contents of the CD Ex.PW4/QC which has been proved in the court are the same as in CD­1, which has been examined by CFSL. Concluding the arguments, Ld. Addl. PP for the State has prayed for the conviction of the accused under section 7/13 of POC Act and section 388/389 of IPC.

47. Ld. Defence counsel has filed written arguments which would be discussed one by one hereinafter and has relied upon the following judgments :

1) State of Punjab Vs Madan Mohan Lal Verma, 2013 LRC 34 SC.

2) Ashok Tshering Bhutia Vs State of Sikkim, 2011(3)LRC 93 SC.

3) Rajat Prasad Vs CBI, 2014 (6) SCC 495.

4) Ram Chander Vs State, 2009 (4) RCR Crl. 880.

5) Subhash Parbat Sonwane Vs State, AIR 2003 SC 2169.

6) Banarsi Dass Vs State of Haryana, AIR 2010 SC 1589.

7) Gireesan A. Vs State, Crl. Appeal no. 123/1998, DHC.

8) S.A. Khan Vs Ch. Bhajan Lal, 199 (3) SCC 151.

9) Quamarul Islam Vs S.K. Kanta, 1994 Supp 3 SCC 5.

10) G.V. Nanjudiah Vs State, AIR 1987 SC 2402.

11) Anvar P.V. Vs P.K. Basheer & Ors., VIII 2014 SLT 223 SC.

12) Ankur Chawla & Anr. Vs CBI, 2014 (10) LRC 96 DHC.

13) Devesh Kumar Vs State, 2010 (1) JCC 762 DHC.

14) Ram Singh Vs Col. Ram Singh, 1985 Supp SCC 611.

CC No.17/19 State Vs Sube Singh 36

15) Nilesh Dinkar Paradkar Vs State of Maharashtra, (2011) 4 SCC 143.

16) T. Subramanian Vs State of Tamilnadu, AIR 2006 SC 836.

17) Dilip Vs State of M.P., AIR 2007 SC 369.

18) Anand Sarup Vs State, 1988 Crl. L.J. 756.

19) Pana Lal Damodar Rathi Vs State of Maharashtra, AIR 1979 SC 1191.

20) Bhanwar Singh & Anr. Vs State of Rajasthan, 1968 AIR 709.

21) State of Bihar Vs Basawan Singh, 1958 AIR 500.

22) Biswabhusan Naik Vs State, AIR 1952 Ori 289.

23) Pran Nath Koul & Ors. Vs State, 2008(1) Crimes 211 (J&K).

SANCTION :

48. Ld. Defence counsel has vehemently argued and has also stated so in his written arguments that there is no valid prosecution sanction against the accused and that the sanction Ex.PW20/A is not valid sanction order as PW­20 Pushpendra Kumar had admitted that he had not received the copies of FSL report dated 26.06.2015 and 02.09.2015. Also, he was aware that the original recording device was lost and was not available on record and questioned audio­video CD was not produced before him for his perusal neither he had summoned the CD, therefore, it is evident that sanctioning authority had not applied his mind and had accorded the sanction mechanically. It is argued that the sanction is thus, invalid.

49. Though the Ld. Counsel for the accused has stated in his written arguments that the sanctioning authority had not perused the FSL report dated 26.06.2015 and 02.09.2015. However, the fact is that the reports dated 26.06.2015 and 02.09.2015 are of CFSL and not FSL and the reports of CFSL dated 26.06.2015 and 02.09.2015 were sent alongwith CC No.17/19 State Vs Sube Singh 37 the request letter by the IO and it was the FSL report Ex.PW15/A dated 30.10.2014 which was not sent to the sanctioning authority.

50. The argument of Ld. Defence counsel is also that sanctioning authority could not have applied his mind on the material placed before him as CD­1, original spy recorder with memory card/chip, FSL report were never placed before the sanctioning authority for perusal. Perusal of the request letter for grant of sanction Ex.PW24/D reveals that CFSL reports dated 26.06.2015 and 02.09.2015 were sent by the IO. The fact that FSL authorities had expressed their inabilities to give definite opinion was also brought to the notice of sanctioning authority vide Ex.PW24/D.

51. As far as the fact that the sanctioning authority had not gone through the audio­video recording is concerned, in the judgment of State Vs R.C. Anand & Anr., (2004) 4 SCC 615, it was held that :

".............The counter­affidavit of the present appellant before the High Court clearly indicated that relevant aspects were noted by the Governing Body before arriving at its decision. The High Court seems to have proceeded on the basis that since the basic material or evidence i.e. alleged taped conversation, was not looked into by the Governing Body to form its own independent opinion to depart from the view of the President, the sanction was contrary to law. In Kalpnath Ravi Vs State, (1997) 8 SCC 732 it was clearly observed by this Court that the sanctioning authority is not required to wait for the report of the experts. The sanctioning authority has only to see whether the facts disclosed in the complaint prima facie disclose commission of an offence or not. The actual production of the tapes, etc. are matters for proof during trial and are not necessarily to be undertaken at this stage..............."

CC No.17/19 State Vs Sube Singh 38

52. In view of the above case of R.C. Anand, it is immaterial if the sanctioning authority has not gone through the audio­video recording before according sanction, as the same is matter of proof during trial.

53. In Mansukhlal Vithaldas Chauhan Vs State of Gujarat, decided on 03.09.1997 by the Hon'ble Supreme Court of India, it has been observed that :

"The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force by acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or CC No.17/19 State Vs Sube Singh 39 compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."

54. Also, in CBI Vs Ashok Kumar Aggarwal, decided on 31.10.2013 by the Hon'ble Supreme Court, it has been held that :­ "(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withheld the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

(d) The order of sanction should make it evidence that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."

CC No.17/19 State Vs Sube Singh 40

55. Certainly, it is the duty of the prosecution to send entire record of the case to the sanctioning authority. However, the accused has also not been able to show that the discretion vested in the sanctioning authority was affected by any extraneous consideration or that the mind of sanctioning authority was under pressure from any corner.

56. Relevant portion of testimony of PW­20 Sh. Pushpendra Kumar, DC­ North MCD, dated 08.08.2018 to show that the sanctioning authority had applied its mind, is reproduced hereinbelow :

".......... I perused the entire file including aforesaid documents and applied my mind and found sufficient incriminating material to accord prosecution sanction under Section 19 of POC Act to prosecute accused ASI Sube Singh therefore, I accorded prosecution sanction vide my order dated 26.10.2015, exhibited as Ex.PW20/A which bears my signature at point A ............."

".......... It is correct that the questioned audio and video CD was not put before me for perusal. I also did not summon the CD. Vol. As the CFSL result was sent to me for perusal and was sufficient alongwith other documents in my view to form an opinion, therefore, I did not summon the CD. It is wrong to suggest that the CFSL result was not sufficient for the opinion. As per the record, it was a delayed FIR. There was no reason explained for the delay. Vol. Considering all the other factors and documents, I still deemed it fit to accord the sanction ............."

57. As regards application of mind by sanctioning authority in 2013 (8) SCC 119 State of Maharashtra through CBI Vs Mahesh Jain, following principles were culled out :­ CC No.17/19 State Vs Sube Singh 41 "14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.

14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.

14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.

14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."

It was further held that :

"True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become CC No.17/19 State Vs Sube Singh 42 tools in the hands of an accused."

58. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.

59. In view of the above discussion, it cannot be said that the order of sanction for prosecution of accused is not valid or illegal.

MOTIVE FOR BRIBE :

60. It is argued that the DD entry was filed on the intervening night of 30/31.05.2013 itself in the PS and therefore, the accused had become functus officio and had no motive for demand for bribe, after the case had been closed with remarks "no police action is required".

61. In this context judgment Dr. V. Sebastian Vs State, 1988 Cri. L.J. 1150, is relevant wherein it was observed as :

"A public servant may have power to do certain official acts by virtue of the rank he holds as a public servant. He may get other powers by virtue of the office which he holds. When he exercises either of the powers, his act is official. No line of distinction need be made as between the acts in exercise of a particular office and acts in exercise of his position as a public servant. If the act is done in his official capacity as distinguished from his purely private capacity, it amounts to official act. Even if it does not come within the scope of the functions of his office, the act does not cease to become official act"

CC No.17/19 State Vs Sube Singh 43

62. Also, in Inder Dayaldas Advani Vs State of Bombay, AIR 1952 Bom 58, Hon'ble High Court observed as :

"It is not necessary that the act for which the bribe is given, be actually performed. A representation by a public servant that he has done or he will do an act, impliedly includes a representation that it was or is within his power to do that act"

63. In view of the above two case laws, it is irrelevant, if the accused had no official role after the DD entry was closed as a public servant, as the accused did not inform this fact to Sh. Prem Prakash and his son Vishal @ Vicky that the DD entry was filed/closed and rather told them that a case could be registered against them and represented to the complainant that he could get the DD entry closed/withdrawn, if his demands are met.

64. PW­5 Vishal Kumar @ Vicky has categorically stated that he was asked to come again in the morning of 31.05.2013 at 10:00 am and has stood to the ground despite lengthy cross­examination on this point. If the DD entry was filed or closed in the night itself, then why PW­5 Vishal @ Vicky was asked to come again, remains unexplained. PW­5 alongwith his family members would not have gone to the PS on his own if he was not asked to come again.

65. Relevant portion of testimony of PW­5 Vishal Kumar @ Vicky, dated 17.01.2018 in this regard are reproduced below :

".......... It is correct that on the intervening night of 30.05.2013 and 31.05.2013, the accused had told me that he would implicate me in the case of attempted suicide by my wife if I will not pay him Rs.50,000/­ and we i.e. me and my father were made to sit in the PS till 05:00 am in the morning.............."

CC No.17/19 State Vs Sube Singh 44

".......... My father had taken Rs.15,000/­ alongwith him and I had seen my father taking Rs.15,000/­ from our home..............."

"..........I was let off from the PS on the next day i.e. in the morning of 31.05.2013 at 05:00 am. My father and my brother had come to the PS and they were also let off at 05:00 am............."

"..........It is correct that my wife returned to our residence from PS alongwith me and other family members on 31.05.2013............."

66. PW­5 has also categorically stated during his cross­examination that the fact DD entry was filed/closed at the night itself, was not told to them by the accused and rather he alongwith his brother and father were made to sit in the PS till 05:00 am.

67. It is further argued that PW­4 Mohd. Usman has written to PS Hari Nagar on 08.08.2013 that he did not want any action in the present case as he did not have any evidence, which shows that the evidence has been cooked up by the police. However, this argument is not sustainable in view of the fact that it is the duty of the investigating agency to collect the evidence once a cognizable offence is disclosed to them. It is also argued that as PW­5 had gone to the PS in the vehicle of SHO and the accused had left the spot soon after SHO reached, in such a case accused would not get any occasion to demand any bribe. However, it has been proved on the record that the accused had reached in the PS at 02:15 am, when he had filed/closed the DD entry and he was also present in the PS thereafter and PW­5, his brother and father were present in the PS till 05:00 am. The accused thus, had ample opportunity to demand illegal gratification.

CC No.17/19 State Vs Sube Singh 45

NO PRELIMINARY ENQUIRY :

68. It is argued that a preliminary enquiry must be held before registration of case in case of a public servant and in the present case no preliminary enquiry was conducted. No explanation has also been furnished for not complying with the mandate of the directions of Hon'ble Supreme Court in this regard. Ld. Counsel for the accused has placed relied upon Para­6 of the judgment in Ashok Kumar Tshering Bhutia Vs State of Sikkin 2011(3) LRC 93(SC), which is reproduced hereinbelow :

".....a public servant is charged with an act of dishonesty which amounts to serious mis­demeanor and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C. and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C....."

69. However, in the Para­6 itself, the Hon'ble Supreme Court has observed that the aforesaid observation do not lay down law of universal application and thus, though it may be desirable that a preliminary enquiry is conducted before lodging of FIR against a public servant, it is not a mandatory law and entire trial would not stand vitiated merely because IO did not conduct any preliminary enquiry. In fact in the judgment relied upon by the Ld. Defence counsel of Ashok Tshering Bhutia Vs State of Sikkim itself, Hon'ble Supreme Court observed that a defect or irregularity in investigation, however serious, has no direct bearing on the competence or procedure relating to CC No.17/19 State Vs Sube Singh 46 cognizance or trial. It was further observed by Hon'ble Supreme Court that invalidity of the investigation does not vitiate the judgment unless a miscarriage of justice has been caused thereby.

70. In Crl. Application No. 6739/2013, Shrimant Shekha Gaikwad Vs State of Maharashtra, it was argued that the trap could not have been laid before registration of the FIR and therefore, any investigation conducted or evidence collected such as written complaint of the complainant, pre­trap proceedings and post­trap proceedings before registration of the FIR deserves to be set aside. It was further argued that prior to commission of offence as contemplated in section 154 Cr.P.C., no investigation can take place and the Hon'ble High Court of Bombay after relying upon judgment Lalita Kumar Vs State of U.P., observed as follows :

"The leading Judgment on the subject is in the case of Lalita Kumari Versus Govt. of U.P. & others (2012 (4)Bom.C.R.(Cri.)680). This is a Judgment of a Constitution Bench for deciding following issues :

(i) Whether the immediate non­registration FIR leads to scope for manipulation by the police which affects the right of the victim/complaint to have a complaint immediately investigated upon allegations being made; and

(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused. The Constitution Bench for deciding the above issues took into account not only various judgments on the subjects but also historical background of this provision in earlier Courts of Criminal Procedure. The Court ultimately came to following conclusion :

(i) Registration of FIR is mandatory under section 154 of the Code, if the information discloses CC No.17/19 State Vs Sube Singh 47 commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In the cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

(iv) The Police Officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

(vi ) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under :

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry CC No.17/19 State Vs Sube Singh 48 should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a Police Station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Clause (vi) mentioned above clearly indicates that in corruption cases preliminary inquiry is allowed to be conducted depending on facts and circumstances of each case."

71. Thus, preliminary enquiry in cases of corruption against public servants may be conducted, if the facts and circumstances of the case so desire but is not mandatory. In the present case also, the FIR was registered on 29.06.2013 and the complaint of the complainant was received on 21.06.2013. As per the DD entry Ex.PW3/C, accused was suspended on 21.06.2013. As per the status report filed on 28.06.2013 before the court of Ld. CMM, departmental enquiry was also initiated against the accused on 22.06.2013 itself, even before registration of FIR. Moreover, the entire prosecution case cannot be brushed aside merely on the ground that preliminary enquiry was not conducted before registration of FIR.

ADMISSIBILITY OF CD EX.PW4/QC :

72. It is argued that the CD examined by CFSL has not been proved in the court as it could not be played when brought in the court. Further the copy of CD­I i.e. CD Ex.PW4/QC was brought in unsealed condition and being in unsealed condition, tampering with its contents cannot be CC No.17/19 State Vs Sube Singh 49 ruled out. It is further argued that otherwise also, it has not been proved as to when, where, how and by whom the said CD i.e. CD Ex.PW4/QC, was prepared. In this respect, Ld. Counsel for the accused has relied upon Ram Singh Vs Col. Ram Singh, 1985 Supp. SCC 611. It is further submitted that Ex.PW4/QC is inadmissible by virtue of Section 63(2), Indian Evidence Act, since the said copy of CD was not compared and thus, cannot be treated as valid secondary evidence.

In this regard, relevant ordersheets are reproduced below :

Ordersheet dated 17.08.2017 :

"........Present: Sh. Balbir Singh, Ld. Addl. PP for State. Accused on bail with proxy counsel Sh. Abhimanyu Kampani. PW­4 Mohd. Usman present, he has been partly examined, his remaining examination­in­chief deferred at the request of Ld. Addl. PP since the CD could not be played as there was a scratch on it. IO is directed to obtain a copy of CD from CFSL Lodhi Road, New Delhi. PW­4 is bound down for next date of hearing. Summons issued to PW Sh. Prem Prakash received back with the report that he has expired, his death be verified by the IO/ SHO PS Hari Nagar and report be filed on next date of hearing. PWs at serial No.3 and 6 be summoned for the next date of hearing.

To come up for PE on 06.09.2017.

MHCM, PS Hari Nagar be summoned with case property. SHO PS Hari Nagar to send laptop on the date fixed. At request of Ld. Addl. PP, IO be summoned for the date fixed........."

" ordersheet dated 06.09.2017 :

"........Present: Sh. Balbir Singh, Ld. Addl. PP for State alongwith IO/ACP Aalap Patel.

Accused on bail with counsel, Sh. Abhishek Shrivastava. IO seeks time to obtain a copy of CD from CFSL as directed vide previous order.

CC No.17/19 State Vs Sube Singh 50

Examination­in­chief of PW­5 Vishal Kumar has been partly recorded. His remaining examination­in­chief deferred at the request of Ld. Addl.PP. He is bound down for next date of hearing.

PW­Usman is present, he is also discharged unexamined at request of Ld. Addl. PP, he is bound down for the next date. Sh. Shyam Sunder, Assistant Ahlmad in the Court of Ms. Charu Aggarwal, Ld. CMM(West) present but is discharged at the request of Ld. Addl. PP as he is not the concerned Ahlmad, who has to depose regarding the record. Main Ahlmad of the Court of Ms. Charu Aggarwal, Ld. CMM (West) be summoned for next date.

IO to verify the death of PW Sh. Prem Prakash and file report on the next date.

IO is also directed to obtain the copy of CD from CFSL, Lodhi Road since the CD/case property, which had been brought from the Malkhana could not be played as there was scratch on it. IO to be present on the next date of hearing. SHO, PS Hari Nagar to send laptop on the next date. To come up for PE on 11.10.2017. ........."

Orderhseet dated 11.10.2017 :

"........Present: Sh. Balbir Singh, Ld. Addl. PP for State with IO/ACP Aalap Patel.

Accused on bail.

IO has produced an envelope sealed with the seal of AK SSO­ II(PHY) CFSL CBI NEW DELHI alongwith a letter of Director, CFSL/CBI, New Delhi.

The envelope has been opened from which CD bearing the endorsement 'True copy of Q1' is taken out and played on the Laptop.

PW­4 Mohd. Usman partly examined, his further examination­in­ chief deferred for want of audibility of the recordings. PW­5 Sh.Vishal Kumar @ Vicky present, his further examination­ in­chief also deferred at request of Ld. Addl. PP for want of audibility of the recordings.

Both PWs Mohd. Usman and Vishal Kumar @ Vicky are bound down for the next date of hearing.

Examination­in­chief of PW6 Sh.Suresh Kumar, Ahlmad in the Court of Sh.Ajay Singh Shekhawat, Ld.CMM, West District, Tis CC No.17/19 State Vs Sube Singh 51 Hazari Court, Delhi recorded, his cross examination deferred at the request of accused, since his counsel is not available today. He be summoned for next date.

The death of witness Prem Prakash has been verified, report filed. In view thereof, his name stands deleted from the list of witnesses. At request of Ld. Addl. PP, IO be summoned for next date. SHO, PS Hari Nagar is directed to send Laptop alongwith speakers on the next date.

MHC(M) be summoned with the case property. To come up for PE on 25.10.2017. ........."

73. As far as argument that the CD Ex.PW4/AC was brought in unsealed condition is concerned, the ordersheet dated 11.10.2017 reveals that the same was produced in sealed condition with the seal of "AK SSO­ II(PHY)CFSL CBI NEW DELHI" and was opened in the presence of accused. Thus, the arguments of Ld. Defence counsel that the CD Ex.PW4/QC was brought in unsealed condition is not based on the correct facts and is contrary to the record.

74. As far as the next arguments that the CD Ex.PW4/QC being not compared with the CD­I (Q­1) examined by the CFSL is concerned, the copy of the CD was obtained from the CFSL as revealed from the above ordersheet. In the letter dated 20.09.2017 of N. Ravi, I/C Director, CFSL, CBI, New Delhi, it is mentioned that one true copy of exhibit marked as "Q­1" was prepared in one separate compact disc marked exhibit 'True Copy of exhibit Q­1' and kept in one envelope marked 'True Copy of exhibit Q­1' sealed with the seal of "AK SSO­II(PHY) CFSL CBI NEW DELHI". When the copy of the CD was obtained on the direction of the court from the CFSL itself and CFSL has sent the same in the sealed condition and the seal was opened in the presence of the accused on 11.10.2017, then the argument that it has been not compared, is totally baseless. Moreover, the testimony of following CC No.17/19 State Vs Sube Singh 52 witnesses have also substantiated this fact that the contents of the CD­I and contents of CD Ex.PW4/QC are the same :

Portion of testimony of PW­4 Mohd. Usman (complainant) dated 11.10.2017 recorded in the court :

"..........At this stage, the true copy of CD of Ex.Q1 produced from Malkhana which is now Ex.PW4/QC has been played on the laptop. The witness after seeing the recording states that the recordings are the same which were made by him regarding obtaining the bribe by ASI Sube Singh from Prem Prakash, the same was recorded by him in his wrist watch camera. The witness further states that the recording of accepting of bribe is reflected in the file no.

1............."

Relevant portion of testimony of PW­19 Pradeep Kumar Gottam, Principal Scientific Officer, (Photo), CFSL, CBI, Delhi dated 08.08.2018 :

"..........On viewing the contents of the CD and after perusing the case file, which witness has brought today itself, witness submits that he had examined the CD­1 which was having the same contents which has been played today in the court in my presence and the true copy of the CD is already exhibited as Ex.PW4/QC............."

Relevant portion of testimony of PW­24 Retired ACP Samay Singh Meena, dated 12.09.2018 :

"..........At this stage, MHC(M) produced another parcel sealed with court seal. With the permission of the court, seal is removed. One CD already Ex.PW4/QC is taken out and played on the court computer. On viewing the contents/all the video files, witness submits that it is the copy of CD­1 which he had viewed and prepared transcription of the same............."

CC No.17/19 State Vs Sube Singh 53

Relevant portion of testimony of PW­5 Vishal Kumar @ Vicky, dated 17.01.2018 :

"..........After opening the envelope, one CD already Ex.PW4/QC is taken out and same is played on the computer. The three video clips have been played one after the other. In the first video clip, the accused can be seen holding bundle of currency notes and the witness submits that the person who is pleading with folded hands in front of accused is his father late Sh. Prem Prakash. The other person in the first video clip with striped shirt is his brother Sh. Sunil Kumar. He further submits that the person with purple shirt in the 2nd and 3rd video clip is himself i.e. PW­5. In the 2nd video clip, wife of PW­5 can be seen to be coming out of a room. In the first video clip, PW­5 cannot be seen............"

".......... Q. When did you earlier saw the CD played today in the court ?

Ans. I was shown video clip earlier in the PS during investigation. The same video clips have been shown today in the court. However, I cannot say if the CD containing the video clips is same or not. ............"

Relevant portion of testimony of PW­25 Retired ACP Jagjeet Sangwan, dated 29.09.2018 is reproduced hereinbelow :

"..........At this stage, MHC(M) further produced one parcel sealed with the court seal. With the permission of the court, seal is removed. On opening the parcel, one CD bearing particulars of this FIR and CFSL alongwith cut off pulandas is taken out. The CD is already Ex.PW4/QC. The video files contained in the CD are played on the computer of the court.

The CD was found containing three video files, out of which third video file bearing name 2009­4­1 23­9­

52.AVI could not be played on the computer due to CC No.17/19 State Vs Sube Singh 54 some error. Witness submits that the contents of the two video files played today are the same which he had viewed in Ex.CD­1............."

"..........It is wrong to suggest that I did not view any CD or for this reason, I was not in a position to say that Ex.PW4/QC was having same recording of Ex.CD­1. It is wrong to suggest that I have made a false statement in this regard. It is wrong to suggest that my statement to the effect that the video recordings played in the CD are the same which I viewed in CD­1 is false............."

75. In view of the above testimony of PW­4, PW­5, PW­19, PW­24 and PW­25, it has been proved on record that the contents of both the CDs i.e. CD­I and Ex.PW4/QC are same.

76. It is also argued by Ld. Counsel for the accused that the CFSL is not notified under section 79A of I.T. Act and therefore, the report of the CFSL experts Ex.PW19/A and Ex.PW24/F are not admissible in evidence and cannot be relied upon by the court. Ld. defence counsel further argued that PW19 Sh. Pradeep Gottam and PW­26 Sh. Amitosh Kumar are not experts, in view of Section 79­A of Information Technology Act. He submitted that, the term 'may' in Section 79­A of Information Technology Act should be read as 'shall' and it is a mandatory provision.

77. The electronic evidence is explained in Section 29­A IPC :­ The words "electronic record" shall have the meaning assigned to them in clause (t) of Sub­section (1) of section 2 of the Information Technology Act, 2002.

78. Sec. 2 (1)(t) I.T. Act :

""Electronic record" means data, record or data generated, image or sound stored, received or sent in CC No.17/19 State Vs Sube Singh 55 an Electronic Form or Micro Film or computer generate micro fiche.

Similarly qualification of expert is defined under section 45­A Evidence Act and Section 79­A I.T. Act.

Section 45A Evidence Act :

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer recourse or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79­A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.

Section 79A I.T. Act :

Central Government to Notify Examiner of Electronic Evidence­ The Central Government may, for the purposes of providing expert opinion on Electronic form evidence before any court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as a Examiner of Electronic Evidence."

79.

80. The issue as to whether in absence of notification under section 79A of Information Technology Act, the report given by an expert from CFSL, New Delhi regarding examination of electronic evidence, would be admissible in evidence, is a legal issue.

81. The relevant law provisions in this regard Section 79 A of I.T. Act was enacted in the year 2000, which came into force w.e.f. 17.10.2000. This provision provides that the Central Government may for the purposes of providing expert opinion on electronic form evidence, specify, by notification, any department, body or agency as an examiner of electronic evidence.

CC No.17/19 State Vs Sube Singh 56

82. Moreover, the provision under section 79A I.T. Act or provision under section 45A Evidence Act do not provide that in absence of such notification, opinion based on scientific examination given by a person well versed or skilled in such science, would not be admissible in evidence. Unless such bar is created in law, it cannot be read as an extension of section 79A of I.T. Act, that the report given by any other authority/lab would be inadmissible in evidence. Therefore, the court does not find any occasion to go into the question of intention of legislature while using the term 'may' in Section 79 A.

83. Hon'ble High Court at Madras in the case of K. Ramajayam v. Inspector of Police, Chennai 2016 Cr.LJ 1542, on the issue of Section 79A of I.T. Act, observed that­ "It is axiomatic that the opinion of an expert, which is relevant under Section 45 of the Indian Evidence Act, 1872, when accepted by the Court graduates into the opinion of the Court. The Central Government has not yet issued notification under Section 79A of the Information Technology Act, 2000 on account of which Section 45A of the Indian Evidence Act, 1872 remains mute. Therefore, the methods evolved by Kala (PW­ 23) and Pushparani (PW­24), Scientific Officers of the Tamil Nadu Forensic Sciences Department to analyze and give their opinions on the electronic data, are correct and cannot be faulted."

84. It is also pertinent to mention that the Information Technology Act was enacted in the year 2000, after much advancement in the use of electronic data, transactions being carried out by means of electronic data and other means of electronic communication. It was so enacted to provide safeguards necessary for legal recognition to such transactions. However, recorded conversations were being produced during criminal trial of a case since long and much prior to 2000 and same were duly CC No.17/19 State Vs Sube Singh 57 relied upon by the courts, subject to certain precautionary measures, for the purpose of giving decision in such cases.

85. Also, section 293 Cr.P.C. refers to certain government scientific experts and provides that report of such experts may be used as evidence even without calling such expert to formally prove their reports before the court. Thus, report of certain experts were given special status and were admissible without formally calling such expert in the witness box to prove the same. In the year 2005, legislature added one more category in section 293 (4) Cr.P.C. to include any other government scientific expert specified by notification by the Central Government for this purpose. This addition took effect from 23.06.2006. Thereafter, w.e.f. 27.10.2009, legislature again came up with section 45A Indian Evidence Act, which provided that opinion of examiner of electronic evidence referred in Section 79 A of I.T. Act shall be a relevant fact in respect of any information stored in any computer resource or any other electronic devise. Thus, it is clear that legislature has been taking steps one after another for the purpose of due legal recognition of electronic evidence in formal manner.

86. It cannot be said that prior to 2009, opinion of any scientific expert qua recorded conversations was irrelevant or not admissible in any court proceedings. Section 45 of Evidence Act in itself is enabling provision to accept opinion of such expert in the court proceedings. Obviously, the courts over the passage of time, have evolved certain precautionary measures for the purpose of appreciation of expert opinion. Notification under section 79A of I.T. Act may further lay down a basis to accept report of such notified expert under Section 293(4)(g) Cr.P.C., without formal proof of the same. It is also to be appreciated that other experts CC No.17/19 State Vs Sube Singh 58 viz. handwriting experts have to prove their opinion or report before the court, after appearing as witness. Their opinion/reports are evaluated and appreciated by court on merits rather than being rejected on the grounds that they are not notified experts. As the CFSL was not notified under section 79A of the I.T. Act, the formal proof of report of such experts cannot be dispensed with under section 293(4)(g) of Cr.P.C. and the prosecution would have to prove their report by calling such experts as witnesses.

87. In the present case, PW­19 and PW­26 examined the contents of CD­I and compared the same with sample voice contained in audio cassettes Ex.PW24/C. They also appeared in the court for their evidence and proved their respective reports and were subjected to lengthy cross­ examination also by the defence. They adopted prevalent scientific instrument and method of audiography and spectrography. Their opinion/report is based on scientific examination, rather than personal opinion. Therefore, same would be admissible in evidence.

88. As regards the question of credibility of the audio­video recordings, Ld. defence counsel disputed recorded specimen voice of accused. He submitted that no witness has deposed about specimen voice being recorded in his presence. He also alleged that all these recordings are tampered and fabricated recordings, which do not contain voice of accused. It is also argued that the voice quality in the audio­video recordings is very poor. Consent of the accused was taken for recording of sample voice vide Ex.PW24/A. The audio cassettes containing sample voices are Ex.PW24/G. PW­28 and PW­17 are the witnesses in whose presence sample voices were recorded. As regards the poor voice quality, the court while hearing the conversation in the audio­video CC No.17/19 State Vs Sube Singh 59 recording with the help of earphone made the following observations while comparing the transcript Ex.PW4/B with the conversations in the audio­video recording contained in CD Ex.PW4/QC :

"In the first video clip played the accused can be seen holding bundle of currency notes. In the documents attached with the chargesheet, page no. 38 and 39 are stated to be of 2nd conversation whereas page no. 40 and 41 are stated to be of 3 rd conversation. Whereas after hearing the conversation with the help of the earphone it is felt that page no. 39 is of 3rdconversation and page no. 41 is of 2nd conversation. Also on page no. 39 the conversation is between ASI Sube Singh and Prem Prakash and on page no. 38 the conversation is between ASI Sube Singh and Poonam. Similarly, on page no. 40 the conversation is between ASI Sube Singh and Prem Prakash and on page no. 41 the conversation is between ASI Sube Singh and Poonam. It seems that page no. 38 and 41 are the transcript of the 2nd conversation and page no. 39 and 40 are the transcript of 3rd conversation."

89. Relevant portion of the testimony of PW­24 Retired ACP Samay Singh Meena is also reproduced hereinbelow :

"................At this stage, witness submits that inadvertently the pages of the transcription of video files were not placed sequentially and he now submits that page no. 39 is of the 3rd conversation and page no. 41 is of the 2nd conversation. I further clarify that 1st conversation is between Sube Singh, Prem Prakash and Mohd. Usman. 2Nd Conversation is between Sube Singh and Poonam. 3rd conversation is between ASI Sube Singh and Prem Prakash and Mohd. Usman. Page no. 38 and 41 are the part of 2nd conversation. Page no. 39 and 40 are the transcript of 3rd conversation.............."

90. If the voice quality would have been poor, how the court could have concluded that the pages of transcript were not placed correctly by the IO. True that the voice quality is not very excellent but was still audible CC No.17/19 State Vs Sube Singh 60 with little effort.

91. It is further argued that PW­4 Mohd. Usman does not know English language and therefore, did not know the contents of Ex.PW4/C i.e. certificate under section 65B Indian Evidence Act and rather he had gone to an advocate to get the documents prepared regarding settlement and regarding withdrawal of his complaint. PW­4 in his chief examination has deposed about the certificate under section 65B Indian Evidence Act Ex.PW4/C being given by him but during his cross­ examination, he made half­hearted attempt to support the accused, when he deposed that he had gone to an advocate for getting the documents prepared for withdrawal of his complaint and was given Ex.PW4/C by the advocate. This version of PW­4 Mohd. Usman does not appeal to the judicial mind and has to be discarded as the court does not comprehend any reason as to why an advocate would prepare a certificate under section 65B Indian Evidence Act for his client, who had instructed him to draft an application for withdrawal of the complaint.

92. It is the duty of the court to separate the grain from the chaff and while doing so in the present case, this version of PW­4 during his cross­ examination that he had not gone to an advocate to get prepared certificate under section 65B Indian Evidence Act but had gone to get prepared an application for closing the case, is to be discarded. It is therefore held, that certificate under section 65B of Indian Evidence Act Ex.PW4/C is a valid certificate qua CD­I. Moreover, in a case involving corruption or extortion it is not at the whims and fancies of the complainant to set into motion the State or Law Enforcement Machinery and thereafter withdraw or get the case closed at his discretion.

93. The defence has also relied upon the judgment of Hon'ble Supreme CC No.17/19 State Vs Sube Singh 61 Court in case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015, SC 180, wherein it has been observed that :

"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub­section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act :

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the CC No.17/19 State Vs Sube Singh 62 accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

CC No.17/19 State Vs Sube Singh 63

Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A­ Opinion of examiner of electronic evidence.

The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."

94. The above judgment was again discussed in the case Shafhi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :

"We may, however, also refer to judgment of this Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three­Judge Bench. In the said judgement in para 24 it was observed that :

"Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65 B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sindh (supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act.

Though in view of Three­Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Section 65A and 65B of the Evidence Act are by way of a clarification and are CC No.17/19 State Vs Sube Singh 64 procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B (h). Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act.

The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.

Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so CC No.17/19 State Vs Sube Singh 65 justifies."

95. Thus, the Hon'ble Supreme Court in the above case of Shafhi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies. Though, one of the situation where requirement of certificate can be dispensed, as discussed by the Hon'ble Supreme Court in the above judgment, is where electronic evidence is produced by a party who is not in possession of original device. However, the Hon'ble Supreme Court has not stated that it is only in such a case, where a party is not in possession of original device that the requirement of certificate under section 65B can be dispensed with and thus, person producing electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. In the present case, the primary device i.e. the spy wrist watch was not available with the complainant and he had got lodged an NCR to this effect. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65B Evidence Act is not always mandatory and the applicability of the requirement of certificate under section 65B can be relaxed whenever interest of justice so justifies. Therefore, in view of the above judgment, let us analyze the evidence brought on record in the present case to see whether the requirement of certificate under section 65B(H) should be relaxed in the present case in the interest of justice.

96. The requirement of certificate under section 65B Evidence Act is to rule out any tampering with the electronic evidence produced on record.

CC No.17/19 State Vs Sube Singh 66

Source and authenticity are the two hallmarks pertaining to any electronic record sought to be used as evidence. The CD­I in the present case was examined in the CFSL to match the sample voice of the complainant, the accused, Poonam and Sh. Prem Prakash with the questioned voices in the audio­video recording and to rule out any tempering or alteration. PW­19 after examining the audio­video recordings contained in the CD opined that there was no alteration or editing.

97. It is also argued that PW­19 admitted that he had not taken any screenshots during the examination of audio­video recording and had not generated any worksheet and therefore, he had not examined the files. However, perusal of testimony of PW­19 reveals that the PW­19 deposed that he did not take the screenshots as there was no continuity break and there was no evidence of alteration in audio­video recordings being doctored and therefore, he had not taken the screenshots.

98. It is also argued by Ld. Defence counsel that PW­19 had not mentioned in his file that the audio­video recordings were run frame by frame but this is really immaterial in view of the fact that PW­19 had mentioned the same in his report Ex.PW19/A. It is also argued that there is no certificate under section 65B Indian Evidence Act for the purpose of issuance of Ex.PW4/QC. The authenticity of the audio­video recordings have been proved by the experts PW­19 and PW­26. As far as the source of the CD is concerned, PW­4 complainant has clearly stated that he had annexed the CD­I alongwith his complaint Ex.PW4/A. CD Ex.PW4/QC is the true copy of CD­I got prepared from CFSL by court order. Thus, in view of the fact that authenticity and source : two hallmarks, of the same have been clearly established on record, CC No.17/19 State Vs Sube Singh 67 certificate under section 65B Indian Evidence Act qua CD Ex.PW4/QC is dispensed with in view of the judgment of Hon'ble Supreme Court in case of Shafhi Mohammad and it is held that the audio­video recordings contained in CD Ex.PW4/QC are admissible in evidence.

DEMAND & ACCEPTANCE :

99. Ingredients of Section­7 being relevant are reproduced hereinbelow :

"7. Public servant taking gratification other than legal remuneration in respect of an official act - whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, 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 his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."

100. Ingredients of Section­13 (1)(d) being relevant are reproduced hereinbelow :

"(1) A public servant is said to commit the offence of criminal misconduct ­

(d) if he ­

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or CC No.17/19 State Vs Sube Singh 68 pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

101. As regard Section 7 and 13(1)(d) of the P.C. Act, Hon'ble Supreme Court in C.K. Damodaran Nair Vs Govt. of India, (1997) 9 SCC 477, observed as below :

"Before we proceed to consider whether the prosecution has, in fact, succeeded in proving that the appellant demanded bribe from the Hospital authorities it will be necessary to ascertain whether such demand is an essential ingredient of the offences in question. To sustain the charge under Section 161 IPC [since omitted from the IPC and incorporated in Section 7 of the Prevention of Corruption Act, 1988 ('1988 Act' for short) with certain modifications] against the appellant the prosecution was required to prove that :

(i) the appellant was a public servant at the material time;

(ii) the appellant accepted or obtained from PW9 and gratification other than legal remuneration; and

(iii) the gratification was for exempting the Hospital in question from its liability to pay statutory provident fund contributions.

So far as the other offence is concerned, section 5(1)

(d) of the Act (now replaced by Section 13(1)(d) of the 1988 Act) lays down that if a public servant, by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advantage he would be guilty of 'criminal misconduct' and Section 5(2) thereof (which corresponds to Section 13(2) of the 1988 Act) speaks of the punishment for such misconduct. The other Section CC No.17/19 State Vs Sube Singh 69 which requires reproduction is Section 4(1) of the Act (it corresponds to Section 20(1) of the 1988 Act). It reads as under :

"Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or of an offence referred in clause (a) or clause (b) of sub­section (1) of Section 5 of this Act punishable under sub­section (2) thereof it is proved that an accused person has accepted or obtained or has agreed to accept or attempt to obtain for himself, or for any other person any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be as a motive or reward such as is mentioned in the said Section 161 or as the case may be without consideration or for consideration which he knows to be inadequate."

From a combined reading of Section 161 IPC and Section 4(1) of the Act it is evident that if, in the instant case, the prosecution has succeeded in proving that the appellant was a public servant at the material time and that he had 'accepted' or 'obtained' Rs.1,000/­ from PW9 as gratification not only the first two ingredients of the former would stand proved but also the third, in view of the presumption under the latter which the Court is bound to draw unless, of course, the appellant, in his turn, has succeeded in rebutting that presumption. According to Shorter Oxford Dictionary 'accept' means to take or receive with a 'consenting mind'. Obviously such a 'consent' can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, he would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to 'acceptance' CC No.17/19 State Vs Sube Singh 70 within the meaning of Section 161 IPC. It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be 'acceptance' The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b) - and not under Section 5(1)(c), (d) or

(e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' - or 'obtainment'.

102. In Ram Krishan & Anr. Vs State of Delhi, 1956 SCR 183, Hon'ble Supreme Court has observed that :

"...............The word "obtains", on which much stress was laid does not eliminate the idea of acceptance or what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary advantage by abusing his position as a public servant............."

103. In M.W. Mohiuddin Vs State of Maharashtra, (1995) 3 SCC 567, Hon'ble Supreme Court has observed that :

"...............The word "obtains", observed whether there was an acceptance of what is given as a bribe CC No.17/19 State Vs Sube Singh 71 and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case. Hon'ble Supreme Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same on the bag which was brought by the accused and as asked by him; these steps have been taken into consideration in arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification............"

104. It is argued that the version of PW­4 Mohd. Usman that he was told by Vishal @ Vicky and his father about the demand made by the accused is inadmissible in evidence as the same is hearsay and thus, the version of PW­4 Mohd. Usman qua the transaction is without there being any initial demand. It is argued that PW­5 Vishal @ Vicky has not deposed about any demand made by the accused on the intervening night of 30/.31.05.2013. It is a settled law that every demand constitutes a separate offence. PW­4 has categorically deposed that the accused had demanded illegal gratification even in his presence in the morning of 31.05.2013. The court had heard the conversation in the audio­video recordings in the CD Ex.PW4/QC. The relevant portion of the transcript of the recorded conversation Ex.PW4/B, is reproduced hereinbelow :

"ASI Sube Singh : Maine to kahte hi .............. pass kar du maine thaare naam kar diya 20 to do.......... paanch aur maang lo.

Sh. Prem Prakash : Badi Muskil se paaji badi muskil se maang kar laaye hai.

CC No.17/19 State Vs Sube Singh 72

ASI Sube Singh : Yaar ek baat batau aapko kal tu kahega tu baant te rahiyo. Teen mahine bad makaan uthata rahunga to kya fayda, unko niptana tha nipta diya 2000 rupaiye lage wo to apne 2000 rupaiye mein kuch nahi kaha humne usko kaha tha ki ek aadmi laa kar de dena, wo humne use lakar de diya wo usne daba di. Meri baat suno........... itne baje batlaya pahli bar discuss.......... yahi aadmi thoda­thoda ikatha karte karte 5000 rupaiye aur manga le aapka kaam niptaane me main hi jhaad kha lunga........ abi­abi.

Mohd. Usman : Janab 5 to maine de diye.

ASI Sube Singh : Ye lena saare le lena, le le le le, saare lene ki jarurat kya hai.

ASI Sube Singh : .......... maine kahi thi na.........kis ne le liya."

105. Though the version of PW­4 Mohd. Usman regarding demand made by the accused from Vishal @ Vicky and his father on the intervening night of 30/31.05.2013 is hearsay but once PW­4 has deposed that he had seen the accused accepting Rs.20,000/­ i.e. Rs.15,000/­ and Rs.5,000/­ more from Sh. Prem Prakash, father of Vicky, the presumption under section 20 of the P.C. Act would be attracted and it was upon the accused to rebut that presumption by leading cogent evidence at least to the extent of preponderance of probability. Also, PW­4 has categorically deposed that accused had demanded illegal gratification even in his presence in the morning of 31.05.2013.

106. As regards raising of presumption under section 20 of the PC Act, it was held in Mukut Bihari Vs State of Rajasthan 2012 (11) CC No.17/19 State Vs Sube Singh 73 SCC 645 as under :­ The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interest and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused persons."

107. Section 20 of the Prevention of Corruption Act, 1988 reads as under:­ "Section 20. Presumption where public servant accepts gratification other than legal remuneration.

CC No.17/19 State Vs Sube Singh 74

- (1) Where, in any trial of an offence punishable under section 7 or Section 11 or clause (a) or clause (b) of sub­section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other persons, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub­sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub­ sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."

108. As regards drawing of presumption, it has been held in Madhukar Bhaskarrao Joshi Vs State of Maharashtra (2000) 8 SCC 571 as under:­ "The premise to be established on the facts for drawing the presumption is that there was payment CC No.17/19 State Vs Sube Singh 75 or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification of any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."

109. The presumption under section 20 of the PC Act is rebuttable either through cross­examination of witnesses of prosecution or by adducing reliable evidence as held in C. M. Girish Babu vs CBI, Cochin High Court of Kerala (2009) 3 SCC 779. The facts remains that prosecution established through the evidence of complainant that the accused had accepted Rs.20,000/­ given by Prem Prakash. Thus, the question for further consideration is whether the acceptance of Rs.20,000/­ along with other evidence could establish that it was illegal gratification.

110. On careful scrutiny of the evidence on record, it transpires that there is a direct evidence regarding demand and acceptance of bribe amount by accused which gives rise to the presumption under section 20 of the PC Act.

111. In my view, in the facts and circumstances of the present case, the events which followed in quick succession lead to the inference that CC No.17/19 State Vs Sube Singh 76 money was obtained by accused from Sh. Prem Prakash and prosecution succeeded in proving that accused had obtained the money from Sh. Prem Prakash and presumption under section 20 of the PC Act is thus, attracted in the present case.

PW­4 MOHD. USMAN (complainant) : WHETHER AN ACCOMPLICE :

112. It is argued by Ld. Defence counsel that PW­4 Mohd. Usman did not report the alleged demand of bribe to police, took it up to himself to collect evidence against the accused and this act of PW­4 places him in the category of an accomplice and therefore, it would be unsafe and hazardous to base a conviction on the testimony of such a witness. It is further argued that a distinction should be drawn between an accomplice and a decoy witness; the former being a person who joins another with the intention of aiding the commission of an offence and the latter is instrumental in provoking the commission of the offence with the object of discovering the offence and detecting the offender. It is further argued that an accomplice is an associate in crime and PW­4 does not qualify to be a decoy/spy and is an accomplice and in this respect, Ld. Defence counsel has relied upon (i) State Vs Bashamber Dayal, Naib­ Tehsildar, AIR 1953 Pepsu 82, 1953 Cri. LJ 986, (ii) King Vs S.N. Singh, AIR 1951 Orissa 299 52 Cri.LJ 852 and (iii) Bhanwar Singh Vs State of Rajasthan, 2000(I) Raj LR 625.

113. Ld. defence counsel has also relied upon the illustration B of Section 114 of Indian Evidence Act wherein it is stated that an accomplice is unworthy of credit, unless he is corroborated in material particulars.

CC No.17/19 State Vs Sube Singh 77

114. In M.O. Shamsudhin Vs State of Kerala, (1995) 3 SCC 351, Hon'ble Supreme Court observed as under :

".................The word 'accomplice' is not defined in the Indian Evidence Act, 1872. it is used in its ordinary sense which means and signifies a guilty partner or associate in a crime. Reading Section 133 and Illustration (b) to Section 114 of the Evidence Act together, the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice, the rule of prudence so universally followed has to amount to rule of law that is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects so as to implicate the accused.

The person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe­givers are generally treated to be in the nature of accomplices but among them there are various types and gradations................"

"....................When there is such a demand by the public servant from a person who is unwilling, and if to do public good, he approaches authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe­giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here is particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat CC No.17/19 State Vs Sube Singh 78 of loss or harm, that is to say, under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of 'accomplices' by reason of their being bribe­ givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances..............."

"...................It is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only person who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribe­giver has to be scrutinized very carefully and it is for the court to consider CC No.17/19 State Vs Sube Singh 79 and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon it or not in those given circumstances................."

115. In view of the meaning of accomplice, it is rather Sh. Prem Prakash who could be termed as accomplice as he was the person who paid the bribe amount to the accused. Also, Sh. Prem Prakash was forced to give the illegal gratification and was rather victim of the threats given by the accused. The fact that he can be seen pleading with the accused with folded hands clearly place him also in the category of victim rather than an accomplice. The complainant/PW­4 had not paid the bribe amount to the accused nor he had enticed or allured the accused into committing the crime. He was merely an eye witness there who had viewed the transaction of demand and acceptance of bribe by the accused and was called by PW­5 for some financial help. In view of the fact that PW­4 was friend of PW­5 and PW­5 had called PW­4 as he needed money to pay to the accused, the complainant PW­4 cannot be termed as an accomplice. Moreover, his testimony is corroborated with the testimony of PW­5 Vishal @ Vicky, PW­13 Poonam as well as the audio­video recordings contained in the CD.

SECTION 388 IPC and 389 IPC : EXTORTION :

116. Essential ingredients of Section 388 IPC are as under :

(i) putting any person in fear of an accusation against a person (or any other);

(ii) the accusation being in respect of an offence,

(a) punishable with death;

(b) punishable with life imprisonment;

CC No.17/19 State Vs Sube Singh 80

(c) punishable for a term which may extend to ten years;

(d) punishable under section 377 IPC.

(iii) committing or attempting to commit an offence by inducing any person to commit any offence indicated in (ii);

(iv) doing so, while committing extortion.

117. Essential ingredients of Section 389 IPC are as under :

(i) putting or attempt to put fear to a person;

(ii) such fear being for accusation of an offence or an attempt to commit such offence;

(iii) such an offence being punishable with death, imprisonment for life imprisonment for ten years or punishable under Section 377 IPC;

(iv) doing of such acts to commit extortion.

118. As per Section 388 IPC, if a person commits extortion and obtains an amount after putting any person in fear of an accusation of an offence punishable with imprisonment of at least 10 years, then he is guilty of committing the crime under section 388 IPC. Whereas Section 389 IPC relates to only putting a person in fear of an accusation in order to commit an extortion. In the present case, PW­5 Vishal @ Vicky has clearly stated that the accused has demanded Rs.50,000/­ on the intervening night of 30/31.05.2013 and threatened him to implicate in a case of abetment of suicide. Testimony of PW­13 Ms. Poonam is also corroborative to the fact that PW­5 and his family members were under fear. Relevant portion of testimony of PW­13 Ms. Poonam, is reproduced hereinbelow :

"................My husband told me that, I should not say anything in the PS and should sign the documents CC No.17/19 State Vs Sube Singh 81 "aur phir hum sab bach jayenge"..........."

"................ On next day upon asking of my Bua­Saas, I visited the PS and made the statement that I did not want any action as my Bua­Saas told that if I would give the statement, all the family members would be implicated by the police............"

"................ On the day of my visit to PS, I remained at the PS only for short duration during which the incidence of my arrival, my asking to the police that no action should be taken against my in­laws and signing of a document took place. My Pinki Bua Saas persuaded me to save my in laws............"

119. In the present case, the accused has extorted the amount of Rs.20,000/­ from Prem Prakash, father of PW­5 by putting PW­5 and his father under fear to implicate them in a case of abetment of suicide, the offence under section 388 IPC is proved. In view of the fact that offence under section 388 IPC is made out, no separate findings are required on Section 389 IPC.

MISCELLANEOUS ARGUMENTS :

120. It is further argued that PW­4 Mohd. Usman has deposed that Rs.15,000/­ was given initially by Sh. Prem Prakash and Rs.5,000/­ was given by Mohd. Usman to Sh. Prem Prakash which was also given by Sh. Prem Prakash to the accused and this version of PW­4 is contrary to the contents of the complaint of the complainant Ex.PW4/A wherein it has been mentioned that PW­4 has made available the entire amount of Rs.20,000/­ to Vishal @ Vicky. Perusal of the complaint Ex.PW4/A reveals that though it is mentioned in the Ex.PW4/A that Vishal @ Vicky had asked for Rs.20,000/­ from the complainant but the complainant had only stated that he gave the amount to him but he has not specifically stated that as to how much amount he had given to his CC No.17/19 State Vs Sube Singh 82 friend Vishal @ Vicky. The complainant in his complaint has clearly stated that Rs.20,000/­ was given to the accused out of which Rs.15,000/­ was given initially and Rs.5,000/­ was given after some time. Reading of the complaint Ex.PW4/A does not give any such interpretation to the judicial mind as has been stated by Ld. Defence counsel in his written submissions and the court does not feel that the version of PW­4 is contrary to his complaint.

121. It is also argued by Ld. Defence counsel that PW­4 Mohd. Usman has stated that he was not present when Rs.5,000/­ was given to the accused and thus, how he could have deposed that the currency notes were of Rs.1,000/­ denomination qua the said Rs.5,000/­. Perusal of the testimony of PW­4 Mohd. Usman reveals that he deposed that he had seen Sh. Prem Prakash giving the balance amount of Rs.5,000/­ to the accused, from outside the room. In the transcript Ex.PW4/B also, the accused can be heard asking for Rs.5,000/­ more and PW­4 Mohd. Usman told him that Rs.5,000/­ was given by him.

122. Also, in the case Bharuda Broginbhai Harjibhai vs. State of Gujrat AIR 1983 SC 753, it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving at this conclusion :­ "1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise.

Thus mental faculties, therefore, cannot be expected CC No.17/19 State Vs Sube Singh 83 to be attuned to absorb the details.

3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.

4) By and large people cannot accurately recall a conversation and reproduce the very words used by them on heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape­recorder.

5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess­work at spur of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the time­sense of individuals which varies from person to person.

6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­examination made by counsel and out of nervousness mix­up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of the moment. The sub­conscious mind of the witness sometimes so operate on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and hones account of the occurrence witnessed by him, perhaps it is a sort of psychological moment."

123. It is also argued that there is material contradiction in the complaint Ex.PW4/A wherein it is mentioned that there was some Kahasuni between Vishal @ Vicky and his wife, whereas PW­4 Mohd. Usman deposed that "patni ne gusse me aakar phansi lagaane ki baat CC No.17/19 State Vs Sube Singh 84 kah di". To the judicial mind, there does not appear to be any material contradiction. It has been proved on record during the deposition of PW­13 Poonam as well as PW­5 Vishal @ Vicky that some dispute arose between them due to which father of Vishal @ Vicky had dialed 100 number. Whether it was only Kahasuni or Poonam had actually tried to commit suicide is not material for deciding the present case. As already observed such minor contradictions cannot be given undue importance.

124. It is also argued by Ld. Defence counsel that complaint Ex.PW4/A is undated and it does not bear any diary number and this renders the complaint questionable. This question was also put to PW­4 Mohd. Usman during his cross­examination and even at that time the court has observed that though there is no date on the complaint, however, there is a noting "C­370/SDPO/TN/21/06/13" which reveals that the complaint was received on 21.06.2013. Such frivolous argument by the Ld. Defence Counsel rather points out that the accused has absolutely no genuine defence.

125. It is further argued by Ld. Defence counsel that PW­4 has not given any identifiable feature or details of the spy camera in his statement under section 161 Cr.P.C. nor there was any investigation to verify the claim as to whether he had used any spy camera or watch. However, once there is a report of an expert that there was no editing or alteration in the audio­video conversations examined by expert PW­19 Pradeep Kumar Gottam, this argument does not survive and it is immaterial as to what was the make and model of the spy camera/watch and the memory chip or that the details of the alleged spy camera/watch was not given by PW­4 in his statement under section 161 Cr.P.C. or CC No.17/19 State Vs Sube Singh 85 complaint Ex.PW4/A. Similarly, the details of computer with the help of which the complainant had prepared the CD, being not stated, is also not material. It is also argued that the complainant is an accomplice in the crime and conviction should not be based on his sole testimony.

126. It is further argued by Ld. Defence counsel that the evidence of PW­5 Vishal @ Vicky qua return of the money by the accused to his father is also hearsay evidence. PW­5 has categorically stated that on 31.05.2013, the bribe amount was not given in his presence to the accused by his father and this transaction of giving of bribe did not take place in his presence. It is also argued by Ld. Defence counsel that PW­ 5 deposed that he was called at the PS but did not know when his statement was recorded and this raises question over his veracity over his statements under section 161 Cr.P.C. Moreover, he deposed that he was shown the video recording and something was written on paper but this did not tantamount to recording of his statement. However, perusal of testimony of PW­5 as well as the audio­video recordings rather establishes that PW­5 was speaking truth rather than deposing on the line of the prosecution case. In the file no. 1 in which the accused can be seen holding bundle of currency notes, PW­5 could not be seen. Thus, when PW­5 stated that he was sitting in Samjhota Park when his father was giving bribe amount to the accused, he was deposing truthfully. Moreover, once he has deposed that he had joined the investigation, he cannot be expected to remember each and every word of his statement under section 161 Cr.P.C.

127. It is also argued that in the CD, the accused can be only seen holding the bundle of currency notes and not accepting bribe from Sh. Prem Prakash. However, if the accused had not accepted the bribe CC No.17/19 State Vs Sube Singh 86 amount from Sh. Prem Prakash then the accused should have offered an explanation during his statement under section 313 Cr.P.C. at least regarding the fact that as to how he could be seen holding currency notes in the audio­video recording. However, no such explanation had come forward from the accused, rather the accused had disputed the correctness and authenticity of the audio­video recording. The fact that the accused can be seen holding currency notes coupled with the fact that Sh. Prem Prakash is seen to be pleading in front of accused with folded hands and accused saying "paanch aur maang lo" as well as the corroborative facts that PW­5 had seen his father taking Rs.15,000/­ from home and had taken Rs.5,000/­ from Mohd. Usman, clearly established that the accused had accepted the amount of Rs.20,000/­ from Sh. Prem Prakash.

128. It is argued that sting operation has been carried out by the private individual without involving State agencies and the ulterior motive of PW­4 cannot be ruled out as a new class of blackmailers has cropped up in the society. Defence in his support, has relied upon Rajat Prasad Vs CBI, (2014)6 SCC 495, wherein it has been held that sting operations by private individuals are not recognized in India. It is further held that even in countries where sting operations are used by law enforcement agencies, the criminal jurisprudence differentiates between the trap for the unwary innocent and the trap for the unwary criminals. It is further held that where the crime is the product of the creative activities, the defence of entrapment is a valid defence. Para­10 of the judgment in Rajat Prasad Vs CBI, being relevant is quoted hereinbelow :

"....................The expression 'sting operation' seems to have emerged from the title of a popular movie called "The Sting" which was screened sometime in CC No.17/19 State Vs Sube Singh 87 the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commissions of the crime itself involves a culpable act................"

129. Therefore, sting operation is where the person is lured to commit a crime which he would not have committed otherwise but for the enticement. However, in the present case, it is not that the accused was lured into committing a crime or was enticed to make a demand so that the transaction regarding demand or acceptance of bribe money could be recorded. Rather the facts which have been proved on record are that the accused had already made a demand and when PW­4 came to know about the demand and the fact that PW­5 and his father would be going to the PS to pay the illegal gratification to the accused, then PW­4 decided to conduct the sting operation and record the said transaction. The defence of entrapment in such situation is not available to the present accused as he was not lured by PW­4, PW­5 or his family members into committing the crime.

130. It is also argued that the initial demand has not been proved on record as PW­5 has only stated that demand was made from his father and he was in a separate room. However, PW­5 during cross­ CC No.17/19 State Vs Sube Singh 88 examination by the Ld. Addl. PP stated that the accused had told him that he would implicate PW­5 in a case of abetment of suicide, if he would not pay Rs.50,000/­. In the present case, Prem Prakash the person who had paid the bribe amount to the accused had expired and therefore, his testimony could not be recorded. Ld. Defence counsel has relied upon the judgment Ram Chander Vs State (Govt. of NCT of Delhi), Crl. App.461/2007 decided on 04.05.2009 by Hon'ble Delhi High Court, on the point that the initial demand must be proved. However, in the said judgment itself it has been observed that if the complainant is unable to appear in case such as death, the demand can be proved by way of circumstantial evidence. In the present case also there is abundant circumstantial evidence to prove that the accused had made the demand from PW­5 and his father during the intervening night of 30.05.2013 and 31.05.2013. The police in India is not perceived as people friendly by even law abiding citizens and an average man avoids to approach the PS unless there are compelling circumstances. In such circumstances, why would PW­5 alongwith his wife, father, brother and his Bua would go to PS again at 10:00 am on 31.05.2013, if he was not under fear that the accused would take some action against him or would register an FIR against him and would falsely implicate him in a case.

131. It is also argued that the alleged currency notes were not recovered and there is serious lacuna in the present case as the case property has not been proved and placed reliance upon G.V. Nanjudiah Vs State, AIR 1987 SC 2402. However, the facts of the said case are different in as much as G.V. Nanjudiah's is a trap case wherein DSP of CBI had immediately rushed to the room where the bribe transaction had taken place. The testimony of the complainant was not believed by the CC No.17/19 State Vs Sube Singh 89 court and it is not the case that the amount was not recovered from the possession of the accused in the said case. The said judgment is not applicable to the present case.

132. Ld. counsel for the accused has argued that DW­2 has deposed that he was with the accused throughout the night and in his presence accused had not demanded any illegal gratification. However, in the cross­examination, he had admitted that he was not with the accused throughout and had gone for nature's call, for drinking water and for bringing Rojnamcha and therefore, he cannot say what conversation took place with the accused during that period.

133. It is further argued that in one of the audio­video recording, Sunil, the brother of PW­5 is also seen but it is not explained as to why Sunil has not been examined as a witness, therefore, adverse inference needs to be drawn against prosecution. In Takdir Samsuddin Sheikh Vs State of Gujarat & Anr., AIR 2012 SC 37, it has been held that if the testimony of solitary witness is found reliable, conviction can be based on it and evidence has to be weighed and not counted. Therefore, non­ examination of Sunil is not fatal to the case of prosecution.

134. It is also argued that tape recorded evidence is merely corroborative evidence and cannot form the basis of a finding and placed reliance upon Nilesh Dinkar Paradkar Vs State of Maharashtra, (2011) 4 SCC 143 and Mahavir Prasad Verma Vs Dr. Surinder Kaur, (1982) 2 SCC 258. The video recordings contained in the CD are certainly only corroborative evidence and they have corroborated to the testimony of PW­4 and PW­5. The oral testimony of PW­4 and PW­5 wherein there are specific allegations of demand by the accused and acceptance of Rs.20,000/­ by the accused from Prem Prakash coupled CC No.17/19 State Vs Sube Singh 90 with the corroborative testimony of PW­13 Ms. Poonam, is sufficient to bring home the guilt of the accused.

CONCLUSION :

135. It has thus, been proved that the accused has committed offence under section 7 and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988, on the basis of :

(i) testimony of complainant PW­4 Mohd. Usman;

(ii) testimony of PW­5 Vishal @ Vicky;

(iii) corroborative testimony of Ms. Poonam;

(iv) CFSL reports Ex.PW19/A and Ex.PW24/F wherein authenticity of audio video files has been proved and sample voice of the accused, the complainant, Sh. Prem Prakash & Ms. Poonam have tallied with the questioned voices.

136. Keeping in view the above discussion, this court is of the view that prosecution has succeeded in proving its case against accused Sube Singh beyond reasonable doubt for the offence under section 7 and 13(1)

(d) punishable under section 13(2) of Prevention of Corruption Act, 1988 as well as Section 388 IPC. Accused Sube Singh is accordingly held guilty for the offence under section 7 and 13(1)(d) punishable under section 13(2) of Prevention of Corruption Act, 1988 and Section 388 IPC.

137. File be consigned to record room Digitally signed by KIRAN KIRAN BANSAL Announced in the open court BANSAL Date:

2019.10.03 on this 28th September, 2019. 10:51:34 +0530 (Kiran Bansal) Special Judge (PC Act Cases) ACB­01 Rouse Avenue Court Complex, Central District, Delhi CC No.17/19 State Vs Sube Singh 91