Delhi District Court
Madras High Court In ( Wa 69 Of 2010) ... vs Shri Prahlad Singh on 3 May, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No.31/2011
R.C. No.48(A)/04
Case I.D No.02401R0623492007
Central Bureau of Investigation
Versus
Shri Prahlad Singh
S/o Sh. Balbir Singh
R/o H87, Mohan Garden
Uttam Nagar,
New Delhi.
Date of Institution : 29.06.2007
Date of reserving Judgment : 23.10.2013
Date of Pronouncement : 03.05.2014
JUDGEMENT
Preliminary The accused in this case was sent up for trial for having committed offences punishable under Section 7 and under C.C. No.31/11 1 of 68 Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 after getting the sanction for his prosecution u/s 19 of the P.C. Act from the Competent Authority. Brief Facts
2. As per the allegations in the charge sheet complainant Sh. Chetan Prakash S/o Sh. Babu Lal had videographed several persons of Delhi Police and Excise Department of GNCT of Delhi taking bribe from bootleggers in areas under the jurisdiction of Police Station Uttam Nagar in order to expose their corrupt practice. He had approached the Hon'ble High Court through a Writ Petition seeking protection and direction from the CBI. By the orders dated 04.10.2004 the Hon'ble High Court directed the CBI to investigate this matter. In compliance thereof the CBI had registered three cases viz., RC DAI 2004 A0048, RC DAI 2004 A 0049 and RC DAI 2004 A 0050. The instance case i.e. RC No. 2004 A 0048 relating to the incident falling under the territorial jurisdiction of Police Station Uttam Nagar.
C.C. No.31/11 2 of 68
3. Shri Chetan Prakash, complainant had provided one VHS cassette and five Hi8 cassettes to the Hon'ble High Court, which was received by CBI from the Hon'ble High Court, which formed the basis of the investigation in the present case. One of the places where the complainant Shri Chetan Prakash had prepared the video film clandestinely was in front of the residential premises of Shri Jasbir Sansi residing at C233, DDA Flats, Bindapur, Police Station, Uttam Nagar, New Delhi from where the said Jasbir Sansi and his wife Smt. Beena Sansi used to sell liquor illegally. There were several cases pending against them under Excise Act at Police Station Uttam Nagar. This video film was prepared by the complainant during the year 2003.
4. Shri Chetan Prakash had copied the contents of Hi8 video cassettes in the VHS video cassette. The five original Hi8 cassettes were forwarded to CFSL, Chandigarh seeking its report on the editing and tampering aspects of the said cassettes. The report was received from CFSL, Chandigarh C.C. No.31/11 3 of 68 dated 19.12.2006 giving the opinion that the video recording in the said Hi8 cassettes were camera original and were not edited or tampered. CFSL, Chandigarh had also provided copies of the said Hi8 cassettes in CDs for the purpose of investigation.
5. During the course of investigation the said CDs and video films were shown to the complainant and other personnels of Delhi Police for identifying the persons in the questioned video clippings. The accused herein Const. Prahlad Singh was found visible in one video clipping which has been marked as Ex. 1 by CFSL, Chandigarh. This scene started at 30.53 minute and concluded at 34.57 minutes in the CD. The accused Const. Prahlad Singh could be seen conversing with Shri Jasbir Sansi and Smt. Beena Sansi and also accepting currency notes from Shri Jasbir Sansi. Complainant had identified Const. Prahlad Singh in the said scene.
6. Specimen voice of accused Const. Prahlad Singh was obtained and the questioned video cassettes alongwith the C.C. No.31/11 4 of 68 specimen voices of the identified accused persons were sent to CFSL, New Delhi for voice spectrography report. CFSL, New Delhi had given the report dated 16.04.2007 giving the opinion that the specimen voice of accused Cosnt. Prahlad Singh matched with the voice in the questioned video cassette. Charge
7. On the basis of the allegations, the charge under Section 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against the accused to which the accused pleaded not guilty and claimed trial.
Prosecution Evidence
8. Witness PW1 Shri Chetan Prakash in his testimony before the Court had given the background that as to how he had got into videographing the officials of Delhi Police and C.C. No.31/11 5 of 68 officials of Excise Department accepting bribe from bootleggers selling liquor illegally and thereafter his approaching the senior officers of Special Cell of Delhi Police with the copies of the same who instead of helping him had raided his house and taken away all the video cassettes and also according to this witness falsely implicated him in two criminal cases and detained him illegally for six days.
9. He had further deposed that after being released on bail he had returned to home and on search at loft (Taand) he had found some video tapes, which he had considered earlier to be of no use. He had found on playing the said cassettes that there were video clippings therein showing police officials taking money from bootleggers. He had thereafter resumed shooting the videos at the residence of Shri Jasbir Sansi for catching the police officials of visiting and accepting the money from them. He had approached one Ms. Sunila Choudhary, Advocate alongwith cassettes and narrated all the facts to her. She had filed a Writ Petition before the Hon'ble High Court with an C.C. No.31/11 6 of 68 application for depositing the video cassettes in the High Court. As per the directions he had deposited the same in the Hon'ble High Court. The witness had identified the copy of the Writ Petition, copy of the application and also the orders passed by the Hon'ble High Court giving directions to CBI to investigate this matter as Ex. PW1/A1, Ex. PW1/A2 and Ex. PW1/A3 respectively.
10. After the cases had been registered as per the directions of the Hon'ble High Court he was called to participate in the investigation. He was shown a CD to identify the police officials therein. He had identified his signatures on CD Identification Memo Ex. PW1/B wherein the scene related to this accused was recorded in the portion X1 to X1. The Hi8 cassette played in the Court related to this case was identified by the complainant in the Court including the Inlay Card therein as Ex. P1 and Ex. P1A respectively. He had identified his handwriting on the said cassette giving the time and recording of the clippings.
C.C. No.31/11 7 of 68
11. The video clipping was played in the Court. He had identified the place where the said video was shot and also the accused therein. As per his testimony it was shot on 11.11.2003. The portion related to this incident was from 21:02:10 to 21:02:42. He had identified the accused in the Court as well as in the said video cassette. In the video clipping the accused Const. Prahlad Singh was seen receiving currency notes from Jasbir Sansi. The witness had prepared a note of what was being herd by him when the said cassette was played. The same was taken on record alongwith a fair copy made therefrom as Ex. PW1/C and PW1/CA.
12. Witness PW2 Shri Deepak Kumar Tanwar, Sr. Scientific Officer from CFSL, Delhi had deposed that five Hi8 cassettes mark Q 1 to Q5 which were received from CBI by CFSL, New Delhi had been examined by him including the cassette Q1 related to this matter and also the audio cassette and the specimen voice of the accused. He had subjected them to Voice C.C. No.31/11 8 of 68 spectographic analysis by selecting some common clue words from both the questioned voice in the cassette Q1 and the specimen voice and also subjected them to auditory examination. In conclusion, he had found that the common clue words / sentences selected from questioned as well as specimen voice recordings were similar in respect of their number of formants, formant frequency distribution, intonation pattern and other general visual features in the voicegrams. Similarly, there were similarities in the linguistic characters and phonetic features in the two. He had submitted a consolidated report in respect of all the cassettes Ex. PW2/A which were sent for examination. The result specific to this case was identified to be in the portion X1 to X1 on page No. 28 and 29 of the report. As per this report the questioned voice was the probable voice of the person Shri Prahald Singh whose specimen voice had been supplied for comparison. The witness had identified the Hi8 audio video cassette which was examined by him and also the audio cassette containing the specimen voice of Shri Prahalad Singh accused.
C.C. No.31/11 9 of 68
13. Witness PW3 Shri Rajender Prasad, UDC in Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi had deposed that on 21.03.2007 he had visited the CBI office where he had met the Investigating Officer Shri Thakur who was sitting with two persons. In his presence there was a new cassette which was taken out from its plastic cover / wrapper. It was played to ensure that it was blank in which his voice and the voices of two persons sitting with the Investigating Officer were recorded. He had identified the said cassette as well as the cloth in which it was sealed and also the Inlay Card bearing his signatures. The cassette was played in his presence in the Court and after hearing the same he had identified his introductory voice in the beginning of the cassette where he had given the entire details of his designation and the date and place where the said statement was being recorded. Similarly, at the end also he had identified his voice. He had added that the statement was given by the person voluntarily. He had identified his signatures on the specimen voice recording memo Ex. PW3/A. C.C. No.31/11 10 of 68
14. Witness PW4 S.B.S. Tyagi, Sanctioning Authority had deposed that in the year 2007 he had accorded sanction for the prosecution of accused Const. Prahlad Singh under section 19 of the P.C. Act. He had identified the same as Ex. PW4/A. According to him he was competent to remove Const. Prahlad Singh from service, therefore, competent to accord the said sanction. He had further deposed that all the relevant material had been placed before him such as copy of FIR, statement of witnesses, CFSL report, seizure memo, site plan and after having some through the same he had accorded the sanction.
15. Witness PW5 Dr. C.P. Singh is the Scientific Officer who was posted in the year 2006 at CFSL, Chandigarh and had examined five Hi8 cassettes including the Hi8 cassettes in question on a request being received from CBI, ACB, New Delhi to answer the queries as to whether the video recordings in video cassettes were in continuity or otherwise; whether the video recorded in video cassettes were edited or otherwise and whether the video recorded in these video cassettes were C.C. No.31/11 11 of 68 original master copy or copy of the master copy and also to prepare two working copies of the video recordings on CDs.
16. He had examined the said video cassettes by using VISAR Tool, Vectorscope and Waveform monitor. His findings on the said queries were (1) All the shots in all the cassettes in continuity; (2) The above finding also indicated that there was no indication of editing of the said cassettes and (3) As there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that the video recordings were camera originals. He had concluded that the said video cassettes were original master copy and not copy of the original master copy. As per the request made he had prepared two separate CDs for the investigation agency.
17. The detailed reasons had been given by him in his report. His report Ex. PW5/A had been forwarded to the CBI by the Director, CFSL, Chandigarh by letter Ex. PW5/B. The witness C.C. No.31/11 12 of 68 had identified the cassettes which he had examined as well as corresponding CDs he had prepared from the said cassettes.
18. Witness PW6 Shri Mukesh Kumar is the first Investigating Officer of this case who had been assigned this case after the registration of the FIR Ex. PW6/A on the directions of the Hon'ble High Court given in the Writ Petition No. 367/2004 by Shri D.C. Jain the then S.P.
19. As per his testimony after the registration of the case documents pertaining to vigilance inquiry conducted by GNCT of Delhi, which were forwarded to CBI had been handed over to him. He had gone through the said inquiry report. Later on he had also received a VHS cassette containing the recordings made by the complainant Shri Chetan Prakash in an unsealed condition. He had then recorded the statement of Shri Chetan Prakash as well as the statement of witnesses including Shri Jasbir Sansi and his wife Smt. Beena Sansi under section 161 Cr.P.C. Thereafter the investigation was transferred from him to Shri D.K. Thakur.
C.C. No.31/11 13 of 68
20. Witness PW7 Shri Jia Lal Sawhney was posted as DCP (Vigilance) in the year 2004with the Vigilance Branch of Delhi Police. As per his testimony he had received a complaint of Shri Chetan Prakash against the officials of Delhi Police and Excise Department with the allegation of their accepting bribe from bootleggers selling illicit liquor in Delhi who had video graphed several of such officials accepting bribe. In the course of inquiry he had contacted the complainant Shri Chetan Prakash and had also visited the places where he had video graphed the acts of the police officials accepting bribe. He had contacted the officials of Delhi Polcie and Excise Department to identify the staff seen the video clippings in the video films. He had prepared the transcript of the same during the inquiry and in the end he had prepared the detailed report and submitted the same to his senior officers alongwith enclosure. He had identified the said report Ex. PW7/A.
21. One video cassette was played before him in the Court. He had stated that the video clipping in the said video cassette C.C. No.31/11 14 of 68 from timing 20:59:31 to 21:06:54 with date 11.11.2003 related to this case as the accused was visible in the said clipping. He had, however, added that in his report the name of accused Const. Prahlad Singh does not appear as he had named only those officials in his report who had been identified during the course of inquiry before him.
22. Witness PW8 Shri Jasbir Sansi had deposed that he had been residing in Uttam Nagar in the year 20032004 in C Block, DDA Flats alongwith his wife. He had admitted that in those days he used to sell liquor from his residence. He had also admitted that there were cases registered against him under the Excise Act because he belong to 'sansi' community. He had admitted that couple of cases had also been registered against his wife.
23. The witness had stated that he knew Shri Chetan Prakash. According to him Shri Chetan Prakash was also involved in the business of supplying illicit liquor and he had also C.C. No.31/11 15 of 68 alleged that he had been framed in the said cases by Chetan Prakash. He had denied that he had staed that he did not know if Chetan Prakash had shot any film at his residence.
24. He had further deposed that he knew accused as he was the friend of his son Jitender. The accused, according to him, used to visit his residence to give him medicines for "Sugar" (Diabetics) as he was a patient of "Sugar". The video clipping was played before him in the Court. He had identified his house in the said clipping. He had further identified himself, his wife, his daugher and also the accused Const. Prahlad Singh visible in the clipping. He had also identified the voices in the clipping of his wife, his and that of the accused Const. Prahlad Singh. The witness had described that in the scene he could be seen handed over 'slip of medicine' to Const. Prahlad Singh for purchasing the said medicines. He had added that accused Const. Prahlad used to bring desi medicines for him. He was crossexamined by Ld. PP for CBI and he denied one of the suggestion that in one of the vide clipping he could be C.C. No.31/11 16 of 68 clearly seen handing over the one to the accused.
25. Witness PW9 Shri D.K. Thakur is the Investigating Officer of the case who had ultiamtely filed the charge sheet. He had deposed that after taking over the investigation from Inspector Mukesh Kumar he had gone through the record and he had found that this case revolved around five Hi8 cassettes, which had been stated to be prepared by complainant Shri Chetan Prakash. He had sent the said cassettes for forensic examination to CFSL, Chandigarh to get the opinion if the same were genuine and not tampered and to also get the copies made thereof for the purpose of investigation. He had received a positive report from CFSL, Chandigarh.
26. In the course of investigation he had taken the help of some personnel of Delhi Police staff to identify the persons visible in the Hi8 cassettes. He had also taken the help of complainant Shri Chetan Prakash to identify the officials, the scenes and the places where the video clippings had been shot C.C. No.31/11 17 of 68 by playing the CD before him which had been received from CFSL, Chandigarh prepared from Hi8 cassettes. He had prepared the Identification Memo Ex. PW1/B in this regard.
27. He had also during the investigation obtained specimen voice sample of accused persons including the accused herein and sent the same to CFSL, Delhi for voice spectographic analysis. He had prepared the memo Ex. PW3/A at the time of taking the specimen voice of the accused herein and one another Const. Pramod Kumar in the presence of independent witnesses.
28. As per his testimony he had sought clarification from Delhi Excise Department through his S.P. Shri S.K. Palsania as to whether it was permissible to sell liquor in Delhi from the residential premises and all other connected issues. He had identified the said letter having been written to the Excise Department by Shri S.K. Palsania as Ex. PW9/A. He had further identified the letter Ex. PW9/B, which was received C.C. No.31/11 18 of 68 from Shri B.L. Sharma, Dy. Commissioner, Delhi Excise Department in response to the said letter. Alongwith the said letter there was also the Excise Policy Ex. PW9/B1 of the Excise Department sent. As per the said reply it was not legal to sell liquor in Delhi from residential premises.
29. He had identified the letter Ex. PW9/C, which was written to DCP, West to provide detailed information of the FIRs registered against bootleggers in the area of Police Station Uttam Nagar and to also supply the photocopies of the same. The said copies Ex. PW9/C1 (colly.) had been identified by him.
30. He had deposed that he had filed the charge sheet only in relation to the scenes where the accused could be seen accepting money and had been identified by the witnesses and thereafter positive report had been received with regard to the voice of the accused persons appearing in the said clippings. As per his testimony he had filed the charges sheet in this case after obtaining the sanction for his prosecution.
C.C. No.31/11 19 of 68 Statement under Section 313 Cr.P.C.
31. All the incriminating evidence, which had come on record was put to the accused and his statement under Section 313 Cr.P.C had been recorded.
Arguments
32. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsel. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution as well as defence. Sanction for Prosecution
33. Witness PW4 Shri SBS Tyagi had appeared in the Court and proved the sanction EX PW4/A accorded by him for the prosecution of accused Constable Prahlad Singh under the provisions of Prevention of Corruption Act. He had deposed that C.C. No.31/11 20 of 68 before according sanction he had gone through all the relevant material placed before him such as copy of FIR, statements of witnesses, seizure memos, site plan etc.
34. It has been submitted on behalf of the accused that the sanction was granted for the prosecution of the accused without going through the entire material. It was pointed out during the crossexamination witness had stated that he did not remember if there was any cassette or CD received from CBI and further at least clearly admitted that he had not personally seen the video clipping as may have been recorded in the cassettes or CDs. It has been further pointed out that in the examination in chief the witness had referred to having gone through 'site plan' but when he was asked to go through the record he admitted that the record did not show any site plan being filed along with the Charge Sheet. On the basis of the above it was submitted that there had been no application of mind by the sanctioning authority before according the sanction for prosecution.
C.C. No.31/11 21 of 68
35. One may mention here that according sanction of prosecution is an administrative act and while evaluating such an act the Court does not sit in appeal so as to examine the sanction from the point of view as to whether the sanction could be accorded on the basis of the material before the sanctioning authority so long as it is possible to say that there was some material before the sanctioning authority on the basis of which sanction could be awarded. The Court per se is not concerned with the ultimate decision taken but the decision making process. One may here refer to the observation of the Hon'ble Madras High Court in ( WA 69 of 2010) M.S.Vijayakumar vs The Chairman And Managing Director, Indian Overseas Bank decided on 12 March, 2012: "While dealing with the same Section 6(1) of the Prevention of Corruption Act, 1947 in Mansukhlal Vithaldas Chauhan V. State of Gujarat, (1997) 7 SCC 622, the Hon'ble Supreme Court, while referring to the hierarchy of the judgments on granting of sanction, has held that grant of sanction is not an idle formality or an acrimonious exercise C.C. No.31/11 22 of 68 but a solemn and sacrosanct act which affords protection to the government servants against frivolous prosecutions. The Hon'ble Supreme Court in that case has held that the grant of sanction is based on the application of mind and the materials and evidence collected during investigation and it was also further held that the High Court by exercising its power under Article 226 of the Constitution of India is entitled to take a decision if the Sanctioning Authority has not made its decision on the materials. Of course, it is not the sufficiency of materials which has to be considered by the High Court, but the availability of the materials that have been considered to the satisfaction of the Sanctioning Authority. It is not the decision making process, which can be the subject matter under Article 226 of the Constitution of India. The categoric pronouncement of the judgment by the Hon'ble Apex Court is reflected in the following paragraphs. From a perusal of Section 6, it would appear that the Central or the State Government or any other authority (depending upon the category of the public servant) has the right to consider the facts of each case and to decide whether that public servant is to be prosecuted or not. Since the section clearly prohibits the courts from taking cognizance of the offences specified therein, it envisages that C.C. No.31/11 23 of 68 the Central or the State Government or the other authority has not only the right to consider the question of grant of sanction, it has also the discretion to grant or not to grant sanction.
36. I am of the view it cannot be said that without having gone through the video clipping he could not have reached the conclusion of according sanction for the prosecution.
37. The issue that in the examination in chief the witness had referred to having gone through the site plan and the site plan not being found on record is a very minor issue and on its basis it would not be justified to jump to the conclusion that there had been no application of mind in according sanction for prosecution.
38. I accordingly hold that the sanction in this case was not without the application of mind and it cannot be held to be improper.
C.C. No.31/11 24 of 68 Integrity of video clipping
39. Witness PW 9 Sh. D K Thakur investigating officer had sent the five Hi 8 cassettes to CFSL Chandigarh precisely for the purpose to seek the opinion as to whether "the recordings in the said cassettes were genuine and they had not be tempered with and also to get copies thereof made for the purpose of investigation."
40. The said queries raised by the Investigating officer have been more clearly stated in the statement of Dr C P Singh. He had deposed that the cassettes were sent to CFSL Chandigarh by SP CBI ACB New Delhi to examination " as to whether the video recorded on these cassettes were in continuity or otherwise, whether the video recorded in video cassettes were edited or otherwise, whether the video recorded in these cassettes were original master copy". His findings were :
C.C. No.31/11 25 of 68 "1) I had found all the shots in all the cassettes in continuity;
2) The above finding also indicated that there was no indication of editing of the said cassettes;
and
3) As there were no second generation
deterioration in the image quality and there was
significant evidence to support the contention that the video recordings were camera originals, I had concluded that the said video cassettes were original master copy and not copy of the original master copy."
41. I have seen the crossexamination of this witness. There were questions put to him like how times he had to play the cassettes to reach the conclusion that they had not been tempered with. His answer was that though it had been played repeatedly for frame to frame to examination on waveform monitor, vectroscope and on VISAR but could not say as to how many times it was played. He was then asked would making copies from the orginal would have any effect on the original. He C.C. No.31/11 26 of 68 had replied there won't been any difference until there is some wear and tear on the tape. He had admitted that there were rough notes prepared and also graphs while examining the cassettes with help of waveform monitor and vectorscope and they were not on judicial file and also not sent to CBI. To the question was he certain about his result video shots in the cassettes were camera original he had stated that he had already stated ( referring to the examination in chief ) that the cassettes were ' camera original' in other words he was certain that the video shots therein were camera original.
42. This is the end of the crossexamination. I couldn't find in the crossexamination anything which may make me doubt the report Ex PW5/A i.e the originality of video shots in the video cassettes or that they could be said to have been tempered with or edited. In the written arguments filed there is reference made to para no. 10 Sub para II where in it was explained by Dr. C. P Singh PW5 that at many placed he could find over recording in order to delete some portions it was, however, qualified that the C.C. No.31/11 27 of 68 observation that these deletions were made in camera meaning thereby that there was some material already recording in the cassette over which there was fresh recording made. It may also be noted that these observations are specifically in reference to the video cassette Ex.2 which was exhibited in court as Ex. P2. In any case these observations cannot be read in respect of the video cassette Ex.1, (exhibited in the court as Ex. P1) which has the video clipping relating to this case. The said observations, therefore, would have no applicability as far as this case is concerned. Moreover, if the defence had any issue with regard to these observations they should have been put to the witness PW5 Dr. C. P. Singh in the crossexamination. So that he could have clarified the same if the said act of over recording on an already used cassette would affect the integrity of such recording. In the absence of any question being put to him in the crossexamination the reference to the said observation in the report would be in my opinion unfair.
C.C. No.31/11 28 of 68
43. I am, therefore, of the view that there is no reason to doubt the integrity of the cassette Ex.1 as referred to in the report. (exhibited as Ex P1 in court) Contradiction as to the date of incident
44. There are certain contradictions pointed out by the defence with regard to the timing of the video clipping having been shown related to this case to submit that these contradictions would create doubt about the authenticity of the cassettes. It is submitted that in the charge sheet the date given of acceptance of illegal gratification is 30/03/2003. The witness Chetan Prakash in his examination in chief has deposed that the said video shot was shot by him on 11/11/2003. The same was the date also given by the witness PW8 Sh. J. L. Sawhney who had conducted the fact finding enquiry in this matter. It is submitted in the written submission on behalf of the defence "on perusal of CD Identification Memo Ex. PW1/B, it reveals that scene no. 1 and 2 are allegedly shot at Mahipal Sansi ka Adda C.C. No.31/11 29 of 68 where as the Scene no. 3 allegedly relating to this case was also shot on the same day in front of the house of Jasbir Sansi ka Adda which creates doubt on the authenticity of the alleged video cassette as it cannot be rulled out that the complainant had clubbed the video shots taken at different locations on different dates or otherwise he has doctored or tampered the date on the video cassettes".
45. First of all I would like to clarify that some error with regard to the date in the charge sheet would not really make any difference in so far as the present case is concerned considering the nature of evidence (video clipping) being relied upon to establish the case against the accused. Moreover, I would have appreciated this contradiction if this had been shown that as a result of some error in terms of the date mentioned in the charge sheet any prejudice has been caused to the accused. It has no where been pleaded or stated that the mentioning of the date of 30/03/2003 had prejudiced the defence of the accused. In fact the defence of the accused is C.C. No.31/11 30 of 68 that the accused was at the house of Jasbir Sansi as he was the friend of his son Shri Jitender and he could be seen in the video clipping receiving slips of medicines from Jasbir Sansi (the prosecution claims the same to be money). Meaning there by that the 'date' really does not form part of the defence of the accused.
46. Secondly, coming to the other allegation of scenes being mentioned in the CD Identification Memo one may note that these questions/doubts raised now were neither put to the Investigating Officer or the complainant Chetan Prakash who may have given clarification regarding the same. In any case after having examined the CD Identification Memo and also the report Ex 5/A of Dr. C. P. Singh it is clear that the scene in question is of 11/11/2003 and not of 30/03/2003. It may further be noted that the CD Identification Memo does not say that the scene in question is of the same date as that of scene no. 1 & 2. In fact there is no date mentioned of scene no. 3. In any case as submitted above without any witness being crossexamined C.C. No.31/11 31 of 68 on these lines, in my opinion, such a defence at this stage suddenly cannot be taken up by the defence. Not placing of original device used for shooting videos.
47. It is submitted that the original device with which the videos were shot was not placed on record. It has not been explained as to what difference it would have made. There is no scientific principle explained as to what difference it would have made if the video had been shot by one or the other video camera. I find no merit in this submission. CD/Cassettes not proved in accordance with section 65B of Indian Evidence Act
48. It is submitted that the CD's/cassettes were not proved in accordance with Section 65B of the Indian Evidence Act and the same cannot be relied upon. It does not appear to me that section 65B of Indian Evidence Act has any application here.
C.C. No.31/11 32 of 68 The said section comes in to the picture only in cases of electronic records produced by a computer. An electronic record not produced by a computer is not governed by the said section. It is not anyone's case that Hi8 cassettes in question were 1 produced by a computer.
Non identification of the accused by the complainant Chetan Prakash during the course of the Inquiry conducted by Sh. J. l. Sawhney, ACP, Vigilance, GNCT
49. It is submitted by the Ld. Defence Counsel that during the entire proceeding before Sh. J. L Sawhney, ACP, Vigilance, GNCT, the accused could not be identified. The complainant Chetan Prakash also admitted that he could not identify the accused from the VHS cassette, which was prepared by him after copying clippings from the Hi8 cassettes. According to the Ld. Defence Counsel it shows that the name of accused had 1 65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a pa- per, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a docu- ment, if the conditions mentioned in this section are satisfied in relation to the informa - tion and computer in question and shall be admissible in any proceedings, without fur- ther proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
C.C. No.31/11 33 of 68 been added later on meaning thereby Hi8 cassettes in question had been subsequently edited/tampered/doctored. I am of the view that there is no basis to jump to such a conclusion. It is quite possible that in the VHS cassette this scene may not have been copied. In any case I find it to be of not much significance as what is being relied upon in this case is the Hi8 cassette Ex. P1 and not VHS cassette in respect of which there is a clear forensic report that the video shots there in were camera original and not edited or doctored or tampered with. No serious challenge to the authenticity of the video scene in question.
50. Though there are various objections raised with regard to the integrity of the video clipping in question which have already been referred above but the ground reality is that the defence has not seriously disputed the authenticity of the video clipping infact it relies upon it it say that the accused is innocent and the scene would show that he had visited the house of Jasbir Sansi because he was the friend of his son Jitender and was there to C.C. No.31/11 34 of 68 collect the slips (prescription) of medicines for purchasing the same. In other words he had not disputed that what is being seen in the video clipping actually never happened. CFSL report relates to RC 49(A)/04 and not the present case RC 48(A)/04.
51. As per the submissions made by the Ld. Defence Counsel that though there were three RC registered by the CBI on the direction of the Hon'ble High Court i.e. 48(A)/04(present case), 49(A)/04 and 50(A)/04. The Hi8 cassettes, however were sent for forensic examination to CFSL Chandigarh only in the case RC 49(A)/04 and not in the present case RC 48(A)/04 and the report received also related to 49(A)/04. As far as the cases related to RC 49(A)/04 and RC 50(A)/04 are concerned, closure reports have already been filed in the said cases.
52. This is an issue which was adequately clarified by the Investigating Officer in his examination in the court. He had deposed that CBI had received 5 Hi8 cassettes in one sealed C.C. No.31/11 35 of 68 envelope and it was not clear at that time which of the cassettes have video clippings related to which of the case and, therefore, for the sake of record while sending the said envelope sealed with the seal of Hon'ble High Court containing 5 Hi8 cassettes one of the FIR i.e. 49(A)/04 was mentioned. Accordingly the report which was received also had the same RC No. though it related to all the 5 Hi8 cassettes including the Hi8 cassette Ex. P1 related to this case. The relevant part of the testimony of the witness Sh. D. K Thakur reads as under: "There were three cases registered on the directions of the Hon'ble High Court viz. RC48, RC 49 and RC 50 of 2004. Though the cases were of similar nature involving similar evidence but there were three cases registered on the basis of the territorial jurisdiction of the incidents. The incidents related to three police stations namely P.S. Uttam Nagar, P. S Nangloi and P. S Rohini."
53. The video cassettes were received from Hon'ble High Court in one single sealed envelope. The video clippings in the C.C. No.31/11 36 of 68 said video cassettes five in number related to all the three FIRs. The Five cassettes were sent to CFSL, Chandigarh to obtain expert opinion to know the authenticity of the contents of the said cassettes in FIR no. RC 49(A)/04 by S.P Sh. N. M Singh and accordingly report was also received in the said FIR. Since the cassettes were related to all the FIRs registered, the same report was utilized in the investigation of all the FIR's registered including the FIR related to the present case i.e. FIR no. 48(A)/04. One would therefore find that in the report of CFSL from Chandigarh the FIR number noted is 49/2004 and not 48(A)/2004 or 50(A)/2004. As I have explained that the report received giving the FIR number as 49/2004 also relates to the cassette/video clipping which is the subject matter of this case."
54. I find nothing in the crossexamination of this witness to doubt the explanation given by him.
55. The submission made by the Ld. Defence Counsel in this respect has no merit.
C.C. No.31/11 37 of 68 Conclusion
56. In view of the above discussion, I am of the view that the prosecution has been able to establish that the video clipping in question in the video cassette Ex. P1 is not edited or doctored and the same are camera original.
Speaker Identification
57. The prosecution had examine PW2 Sh. Deepak Kumar Tanwar, Senior Scientific Officer, CFSL, New Delhi. This witness had identified the letters which had been received from the S.P, CBI, New Delhi along with sealed parcels of the 5 Hi8 cassettes and the specimen voice recorded during the course of the investigation. The witness for the purpose of carrying out the examination had selected the common clue words from the questioned audio video clipping and also from the specimen voice of the accused herein Const. Prahlad Singh and had given the finding as under: C.C. No.31/11 38 of 68 "The auditory examination of questioned voice marked exhibit Q1(I)(A) and specimen voice of Shri Prahlad Singh, Constable no. 115/RB marked exhibit S23(A) recorded on side A of the audio cassette marked exhibit 'S23 & S24' reveal that the questioned voice marked exhibit Q1(I)(A) is similar to the specimen voice marked exhibit S23(A)..................."
Accordingly, on the basis of consolidated effects of similarities in the linguistic characters and phonetic features using auditory and voice spectrographic analysis, it is concluded that the voice marked exhibit Q1(I)(A) is the probable voice of the person (Sh. Prahlad Singh, Constable No. 115/RB) whose specimen voice is marked exhibit S23(A)."
58. I have seen the crossexamination of this witness and I find no serious questions being asked on the issue that the voice identified in the clipping was not of the accused Const. Prahlad Singh. The crossexamination was confined to only two aspects. First, whether he had carried out any independent test to rule out the possibility that the questioned cassette being C.C. No.31/11 39 of 68 doctored / tampered and secondly that the spectrogram prepared to demonstrate the similarities or dissimilarities in the questioned and the specimen voice did not form part of the record.
59. As far as the first question is concerned I am of the view that he cannot be blamed for not carrying out the test to rule out the possibility of the video cassette being tampered with or not because it was not his mandate. It was not necessary for the Investigating Officer to have once again asked for the report to be given with regard to the said cassette being tampered with or not. The report of witness PW2 Ex. PW2/A would reveal that the cassettes were forwarded to CFSL, Delhi for speaker identification as they were received from CFSL, Chandigarh. Thus ruling out any possibility of the same being tampered with before being forwarded to CFSL, Delhi after being received from CFSL, Chandigarh.
C.C. No.31/11 40 of 68
60. As far as the second aspect is concerned it may be noted that before a final report is prepared forensic examination may go through different stages and it is not necessary that every thing prepared should form part of the final report. If the Ld. Defence Counsel had any doubt about it he could have called for the spectrogram.
61. In any case I find that from the side of the defence, as noted above, there is no serious dispute as to the fact that the voice attributed to the accused in the video clipping is not of the accused. In the court while recording the statement of the complainant Sh. Chetan Prakash there was a transcript referred to wherein the voice of the accused had been identified as the video clipping in question had been played. There was no question raised at that point of time also by the defence that the voice being attributed to the accused Const. Prahlad Singh in the conversation reduced into a transcript was not of the accused.
C.C. No.31/11 41 of 68
62. In view of the above I conclude that on the basis of this CFSL report Ex. PW2/A and the testimony of the witness PW2 and also the transcript prepared at the time of the recording the statement of the witness Chetan Prakash it can be said without any doubt that the voice attributed to the accused in the questioned video clipping is that of the accused. Testimonies of Complainant Chetan Prakash and Jasbir Sansi.
63. As far as the witness Shri Jasbir Sansi is concerned he has not supported the case of prosecution. According to him what he could be seen as handing over to the accused were slips of medicines and not money. According to him he was a patient of "sugar" and the accused had brought medicines for him. He had denied the suggestion that the accused had visited him to collect "hafta". He also had claimed that accused was friend of his son Jitender.
C.C. No.31/11 42 of 68
64. It is submitted by the defence that complainant Chetan Prakash was an interested witness and no reliance can be placed on his testimony in the absence of any corroborative evidence. It can be in a way said that he is an interested witness since definitely he would be interested in the outcome of this case against the accused.
65. In any case the examination of the testimonies of Shri Jasbir Sansi as well as that of Shri Chetan Prakash is concerned they both are based on what could be seen and heard from the video clipping which was played in the Court in their presence. Therefore, instead of going by their testimony I would go by in totality what can be made out from the video clipping which was played in the Court.
Video clipping is standalone admissible in evidence
66. Once the evidence has come on record that the video clipping in question is free from any tempering and it is camera C.C. No.31/11 43 of 68 original and since there is no doubt as to it being relevant, it can be said that the video clipping is admissible in evidence. There is a detailed discussion in the connected CBI V Vijaypal [CC 92/11] that video clipping once admitted in evidence can be standalone evidence of the events captured therein. Not just that it can also be considered to be preferred evidence. I am reproducing the said discussion herein below:
SILENT EVIDENCE RULE
26. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent are "worth thousand words".
More often than not in case of a videography the words and the acts of the accused herself/ himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually the court depends on the account of events which had taken place in the commission of offence who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court C.C. No.31/11 44 of 68 may not have been present at the time the offence was committed but it is as good as the court having seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what 1 witnesses have to say about it. In R M Malkani " s case Hon'ble Supreme Court had described a tape recorded evidence as " real evidence". It was stated " When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."
27. There is another factor may be referred here that human memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.
28. I am of the view this evidence is not only substantive evidence but can be also a preferred 1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 C.C. No.31/11 45 of 68 evidence in case of difference in the testimony of witness have may claim to have seen an incident and the a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. N Sri 1 Rama Reddy Vs Sh. V V Giri in reference to a tape recorded conversation, while approving the 2 decision in one Scottish case " From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.
29. This "silent witness" though is "worth thousand words" but still cannot be subjected to crossexamination. Thus the only way it can be defeated is to question its admissibility and relevancy.
1 1971 AIR SC 1162 2 Hope & Another V H M Advocate (1) Scots Law Times 264 C.C. No.31/11 46 of 68
30. American jurisprudence would define it as " 1
Silent Witness Theory" . In brief it means " A theory or Rule in the Law of Evidence : Photographic evidence ( as photograph or videotapes) produced by a process whose reliability is established may be admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify the accuracy of its depiction." One can find the elaboration of this rule and applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State of 2 Arkansas [ 7 Ark. App. 1 (1982)] . The relevant part of the Judgment reads as under:
"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the 1 dictionary.findlaw.com/definition/silentwitnesstheory.html 2 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx C.C. No.31/11 47 of 68 photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation.
A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photographic evidence is a "silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).
In Arkansas, photographic evidence is admissible under the "pictorial testimony"
theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter.
Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); Ballew v. State, 246 Ark.
1191, 441 S.W.2d 453 (1969); Gross v.
State, 246 Ark. 909, 440 S.W.2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959); Reaves v. State, 229 Ark. 453, 316 S.W.2d 824 C.C. No.31/11 48 of 68 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v.
State, 219 Ark. 367, 242 S.W.2d 701 (1951); Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910) The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases.
However, the precise objection made in the case at bar was not raised in either case. See, French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).
This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness" theory. We hold that the trial court correctly ruled that the video tape recording was admissible.
The Uniform Rules of Evidence, Rule 901
(a), Ark. Stat. Ann. § 281001 (Repl.
1979), provides that authentication is a condition precedent to the admissibility of C.C. No.31/11 49 of 68 evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims.
Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 281001 (Repl. 1979), provides that "photographs" includes photographs, xray films, video tapes, and motion pictures. Xray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark. 83, 163 S.W. 180 (1914); Miller v. Minturn, 73 Ark. 183,83 S.W. 918 (1904).
Obviously, it is impossible for a witness to testify that an xray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, xrays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.
1969). Every jurisdiction admits xray films C.C. No.31/11 50 of 68 as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally.2 We note that Rule 1001 (2) treats xrays, photographs, video tapes, and motion pictures, as one and the same.
Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 4154 (2d ed.1969).
Photographic evidence can observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word.
We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be C.C. No.31/11 51 of 68 admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness" theory are fundamentally different from the foundational requirements under the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness" theory, .since. the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion."
The reflection of the Rule in the Indian Law
31. As it may seem the expression " silent witness theory" in this form or any other form does not find C.C. No.31/11 52 of 68 reference in the Indian Jurisprudence but the expression like " Real Evidence" in R M Malkani ( supra) and expression like "primary and direct evidence" in Sh. N Rama Reddy v. V V Giri ( supra) take us in the same direction.
32. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in 1 terms of appreciation of such evidences. Even if it assumed that that the technology has made it easier to doctor or morph video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same.
33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.
34. It was laid down by the Hon'ble Supreme Court in R M Malkani as under:
"Just as a photograph taken without the 1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 C.C. No.31/11 53 of 68 knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."
35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with " care and caution".
36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Cri. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been C.C. No.31/11 54 of 68 referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:
a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
37. The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to C.C. No.31/11 55 of 68 relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions ( b)
(c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done by resorting i.e speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with.
38. One may conclude that once it is established that the videograph is not tempered or edited and that it is relevant, it can be admitted in evidence as an independent evidence of its contents even if not supported by any other witness."
What can be heard and seen in the said clipping
67. As to whether the accused can be said to have committed the offence would depend upon what can be seen and heard in C.C. No.31/11 56 of 68 the said video clipping. It is therefore important to understand what is being heard and seen in the clipping.
68. Before proceeding further I would like to note that the video clipping has been shot in very poor light and also that the picture is grainy. At time it is difficult to hear what was being said. Thus first thing we may say is that the audio and video quality of the picture is poor.
69. The accused can be seen receiving something from Jasbir Sansi. It has been submitted by the Ld defence counsel that it is not money but slips of medicine. It was also so deposed by Jasbir Sansi in Court. He had deposed:
" What is being seen there are the slips of medicines which I was handing over to Prahalad for purchasing the said medicines again for me, as I have already stated I was a patient of "sugar" and Prahlad had brought Desi medicines for me."
C.C. No.31/11 57 of 68
70. In the crossexamination by the Ld Prosecutor also he had stuck to the same line. He had deposed that :
" At present I am taking medicines for 'sugar' from a local doctor. I do not recollect now but Prahalad had visited me three four times just to hand over medicines to me. I do not know from where he was bringing the medicines, but he was getting those medicines from a ' Vaid". I used to ask my son to get medicines and he used to communicate to Prahalad for the said medicines and then Prahalad used to bring the medicines. He was in police but he used to come in plain clothes. Again said, I did not know that he was in police and was posted in Uttam Nagar Police Station. He always used to come in plain clothes."
71. The complainant Chetan Prakash , however, claimed it to be money. In the crossexamination question was put to him, as to whether he was in a position to say with certainty that what is being handed over is money. He had replied to it in positive. The question and answer read as under:
C.C. No.31/11 58 of 68
"Q : Can you say with certainty from the video
clipping seen that as to whether what was handed over to the accused Prahlad Singh was actually notes or just some papers?
Ans : They were currency notes only as he was counting the same. Since it was dark I will not be able to say as to what were the denomination of these notes."
72. Thus Chetan Prakash could say as to what had been received the accused was money not because the money could be seen but the way he was counting what he had received from Jasbir Sansi was money.
73. I have seen the said clipping repeatedly and I can say the way he was counting it in his hand and subsequently kept in his pocket, it was unmistakably nothing but money, no one counts slips of medicines that way, though nothing can be said about the denomination of the said currency notes.
C.C. No.31/11 59 of 68
74. There is one thing more, during the course of the cross examination of witness PW1 complainant Chetain Prakash it was suggested by the ld defence counsel that in the clipping the Jasbir can be seen as giving money to the Accused before the Accused could be seen receiving the money as claimed by the Complainant. The witness, disputed the same. I had made an observation at that point of time that I was reserving my comments on the same and examine the cassette at the time of writing of judgment. I had viewed the cassette and on repeatedly viewing I could not see money being handed over by Accused to Jasbir Sansi. The sequence is like this. In between the conversation Accused was having the family of Jasbir Sansi, he moves out to attend a phone call. He returns after attending the telephone call, stands on the left of Jasbir Sansi for a moment, Jasbir could be seen putting his hand in the pocket, the accused then goes past his back comes on his right and Jasbir gives the money, Accused counts the same and as he leaves he keeps it in his pocket.
C.C. No.31/11 60 of 68
75. But that is not the end of the matter, the prosecution is still required to prove he had received this money as a motive or reward for doing or forbearing to to do any official act or for showing or forbearing to show, in exercise of his official functions favor or disfavor to any person or rendering or attempting to render any service or disservice to any person, to attract section 7 of the Act and to also show that he had abused his position, as public servant, to receive this money from Jasbir Sansi.
76. One may say that as soon as the money is said to have been received by him there is a presumption of law under section 20 of the Act that the he did so with requisite intent as is necessary for committing an offence under section 7 of the Act. As was laid down by the Hon'ble Supreme Court in its judgment dated 06.11.2006 in criminal appeal B.Noha Vs. State of Kerala and Anr. appeal (Crl.) 1122 of 2006 arising out of SLP (Crl.) No. 952 of 2006 judgment dated 06.11.2006 " When it is proved that there was voluntary and conscious acceptance of money there C.C. No.31/11 61 of 68 is no further burden caste on prosecution to prove by direct evidence, the demand or motive." At the same time it may be noted this presumption can be discharged not necessarily by leading an independent evidence but also from the material already available on record. It was laid down by the Hon'ble Supreme Court in case Trilok Chand Jain Vs. State of Delhi 1977 AIR 666 "The presumption, however, is not absolute and is rebuttable. The quantum and nature of required to displace the presumption there is according to the circumstances of each case. Such proof may partake of the shape of defence evidence adduced by the accused or, it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise. While the mere explanation given by the accused in his examination under Section 342 Cr.P.C. may not be enough the burden on him to negate the presumption may stand discharged, if the effect of the material brought on record in its totality renders the existence of the fact to be presumed improbable. The accused may, therefore, rebut the presumption of showing a more preponderance of probability in C.C. No.31/11 62 of 68 his favor and it is not necessary for him to establish his case beyond reasonable doubt."
77. Though it is true that the story of the defence that the accused was receiving the slips of medicine does not go with what could be seen but what it also does not go with the presumption that he had received this money as reward for doing or not doing something or showing or not showing favour to Jasbir Sansi or his family. It may also be noted here that no presumption can stand if it runs counter to the facts established. There is a famous observation of Lamm J from Mackowik Vs. Kansas City James & CBR & Co. ( 94 , S.W. 256, 262) = 196 1 MO, 550 referred to in many Judgments " presumption are like bats, flitting in the twilight but disappears in the sunshine of facts". The entire conversation reads as under :
Note:
B stands for Beena Sansi who is the wife of Jasbir Sansi J Stands for Jasbir Sansi
1. Bharat Barrel & Drum Vs. Ameen Chand Pyare Lal, 3SSC 35, G. Vasu vs. Syeed Yaseen Siffuddin Quadri, AIR 1987 AP 139 Ved Prakash Kharbanda vs. Vimal Bindal, 2013(2) ADR 337 C.C. No.31/11 63 of 68 P Stands Accused Prahalad Singh "J: Bhagwan kasam abhi tujhe yaad kar rahe thay. Umar bahut badi hai teri......
P: Ab toh main lag gaya na iss beat main teri main teen chaar din se...Suresh badal diya hai udhar B: Lady: Nai bech bech ki maje maar rahe, na toh main toh pura hi adda sambhal Man: Nai ne toh julm hi P: Ek mara thappad, ek mari laat...woh uska naam le de...woh uska naam le de B: Lady: Ni bhagwan kasam wa J:Man : 11 baje woh Ni (Abuse) B:Lady2: Mare na kutte tu....yahan kya thode ghar hai Man2: Karan phir kaise karwayega P: Man1: Kal karwaunga, abhi aaj katra hoon baat, aaj toh woh bande mar gaye na wahan Man2: Haan bata toh raha tha yeh abhiabhi toh aaya hai yeh P: Man1: Haan abhi traffic jam lag raha tha, abhi nahi to aaya hoon wahan se. Abhi kal paise mujhe SHO ko dene waise bhi mere peeche laga hai phone kiya tha abhi.
Man3: Ek banda mara hai kitne mare hain
B: Lady: Naale main
P: Man1: Chaar mare hain chaar
C.C. No.31/11 64 of 68
Man3: Chaar mare hain.
B: Lady1: Aur
P: Man1: Mare toh mere khyal main 2, 3 hain. Par abhi confirm nahi hai.
B: Lady 1: O tera kaat ke ger gaye bata naale main aaj.
Man2: Pata nahi kisne ger diye
Man1: phone bajta hai
P: Man1: Hello haan bhai kaun bol raha hai Man2: (Not clear) [ at this point of time the Accused leaves the scene] B: Lady1: (Not clear) Man2: Nahi gaya tha Man 2: Toh kahan hai Raju kahan gaya tha idhar B: Lady1: Kya lega Man 4: (Not clear) Man2: Jailor B: Lady: O liya quarter, Bony ka, ek aur de de Man2: (Not clear) Man 3: Haan chaar, panch mare hain B: Lady1: Achha."
78. Following facts emerge from what could be heard (transcript) and what could be seen and they in my view are sufficient to make presumption improbable:
C.C. No.31/11 65 of 68 A. What we are seeing here is the actual conversation,
(whatever could be picked up) taking place and not something left to be inferred.
B. There is a great deal of informality in the entire conversation. It is evident from the way Accused was greeted that he was known to the family of Jasbir Sansi even before and had very good relations with them. He was greeted by Jasbir Sansi by saying " Bhagwan Kasam Abhi Tujhe Yad kar rahe thay .. Umar Bahut Badi Hai Teri... [ Swear in the name of God, we were just remembering you.. you have a long life...." ]. Even at the time when Accused leaves Jasbir Sansi comes up to his bike to see him off. One may note bribe takers are not treated with such affection. They are considered more of nuisance by people in this business for years. C. One finds no reluctance on the part of Jasbir Sansi to pay the money or may be at least strike some bargain to pay less, which sometimes is a clear indicator that what is being paid/received is a bribe.
C.C. No.31/11 66 of 68 D. Usually the conversation would have some reference to
the business of selling liquor may be by passing reference but I could not find anything of this kind.
79. I want also want to add that despite viewing the video clipping a number of times I could not gather any clue which may suggest that the money was received by the Accused to show any favour or disfavour in exercise of his official functions or to do or forebear to do any official act. It also means that it cannot be said that Accused had received money from the Accused by abusing his position as public servant.
80. Above all I would find it extremely unsafe to convict the accused on the basis of the said clipping. Conclusion:
81. In the above given circumstances, I am of the view of the prosecution has not able to establish beyond reasonable doubt C.C. No.31/11 67 of 68 that the Accused had committed the offence under section 7 or under section 13(1)(d) of the Prevention of Corruption Act,1988. I am acquitting him accordingly for the said offences, as charged.
Announced in the Open Court ( L. K. GAUR )
on 3rd of May, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
C.C. No.31/11 68 of 68