Delhi District Court
Cc No.9/15 (532350/16) State vs Raj Kumar Yadav & Anr. 1 on 29 November, 2017
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
CC No.9/15 (532350/2016)
State (Govt. of NCT of Delhi)
VERSUS
1. Raj Kumar Yadav
S/o Ram Janak Yadav
R/o D557, J.J. Colony
Tigri Khanpur, Delhi.
2. Rajbir Singh
S/o Sh. Mavasi Ram
R/o C3, Village, Gazipur
Delhi110096.
FIR No. : 18/10
U/S : 120b IPC read with Section 7/13(1)(d), 13(2) PC Act
PS : Anti Corruption Branch
Date of institution : 27.05.2015
Judgment reserved on : 29.11.2017
Judgment delivered on : 29.11.2017
JUDGMENT
1. Brief facts of the case as per the chargesheet are that an undated anonymous complaint alongwith a CD and transcript was received in the office of the Central Vigilance Commission, Government of CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 1 India. The Central Vigilance Commission sent the complaint alongwith the transcript and the CD to the Director of Vigilance, Govt. of NCT, Delhi and the Directorate of Vigilance sent the same to the Anti Corruption Branch. In the complaint, it was alleged that the same was being sent on behalf of villager of village Lado Sarai. It was further stated in the complaint that all the villagers were plagued due to conduct and corrupt practices of the Patwari Raj Kumar Yadav and Naib Tehsildar Rajbir of DDA. It is further stated that above two persons alongwith certain corrupt persons were threatening to demolish the legal construction/houses and were extorting money from the people. It is further stated that the above two persons were making false complaint with the DDA and on the basis of these complaints they were threatening the villagers as well as extorting money from them. These two persons were openly stating that if they were not given money then they would obtain orders for demolition of the houses. It is further stated that one of the video tapes is with the complaint in which Patwari Raj Kumar Yadav and Naib Tehsildar Rajbir are seen to be accepting money. The video CD as well as transcript of the conversation were also sent alongwith the complaint and a prayer was made to take strict action against the corrupt officers.
2. On receiving of the complaint in the ACB, Insp. V.K. Singh examined the complainant Sh. Ravinder Kumar Sejwal, owner of Musclemania Gym, Lado Sarai on 21.04.2010 and at that time he CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 2 was accompanied by a panch witness. The complaint was shown to the complainant in presence of the panch witness and the complainant in presence of the panch witness put his signatures. Insp. V.K. Singh thereafter, recorded the statement of the complainant wherein the complainant stated that he was living at Khasra No. 225, Lado Sarai, Delhi alongwith his family and was running a gym under the name of Musclemania Gym. He further stated that adjoining to his gym, there was some vacant land of DDA and in September 2009 he came to know that DDA would be carrying out demolition at several places and whosoever bribes the officials of DDA, would be safe. The complainant further stated that he was against giving of bribe. Therefore, he procured a secret pen camera and on 22.09.2009 Patwari Raj Kumar Yadav and Naib Tehsildar Rajbir came to his gym. Complainant used his secret camera and during conversation, Raj Kumar Yadav, Patwari demanded Rs.10,000/ for not carrying out demolition and the complainant under duress paid him Rs.7,000/ (14 currency notes of Rs.500/ each). Thereafter, both the accused persons i.e. Patwari Raj Kumar Yadav and Naib Tehsildar Rajbir assured him that no demolition would be carried out in his building. The complainant has further stated that he prepared a CD of the video recording and also prepared a transcript and sent a complaint to the Central Vigilance Commission. In the complaint sent to Central Vigilance Commission, he did not want to give his name, therefore, he stated that the complaint was on behalf of the villagers. He further stated CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 3 that he has not gone to the office of ACB when he was called as he was not well. He further stated in presence of panch witness Sh. Surender and Ct. Kuldeep that he had sent the complaint as well as CD alongwith transcript. The complaint and the transcript were thereafter, signed by the complainant Sh. Ravinder Kumar Sejwal. He also handed over two more copies of the CD to Insp. V.K. Singh and stated that he has no personal enmity with Patwari Raj Kumar Yadav and Naib Tehsildar Rajbir. The statement of the complainant was also signed by him as well as panch witness. The two CDs which were produced by the complainant were also signed by the complainant as well as panch witness. The complainant and the panch witness also signed on the CDs which were sent alongwith the complaint. Insp. V.K. Singh also signed on all the three CDs. The CD which was sent alongwith the complaint as well as one of the CD produced by the complainant on 21.04.2010 were sealed separately in a Pulanda and the seal of VKS was affixed on them. One of the CD produced by the complainant on 21.04.2010 was kept unsealed to be used for the purpose of investigation. The CD which was sent alongwith complaint was marked as CDI and the CDs which were produced on 21.04.2010 were marked as CDII and CDIII. The seal after use was handed over to panch witness Sh. Surender. The CDI, CDII as well as transcript were also seized vide separate seizure memo and CDIII was kept on file for investigation purpose in unsealed condition. Thereafter, the complaint was endorsed for registration of case.
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 4
3. After completion of investigation challan was filed in the court and charge for the offence punishable under section 120B IPC read with section 7 & 13 (1)(d) read with section 13(2) of the Prevention of Corruption Act framed against both the accused persons to which they pleaded not guilty and claimed trial, vide order dated 01.03.2016.
4. Thereafter prosecution in order to prove its case examined 19 witnesses. PW1 HC Satdev Singh was Duty Officer who registered the FIR no. 18/10 Ex.PW1/A on 21.04.2010 on the basis of Rukka Ex.PW1/B brought by Ct. Kuldeep. After registration of the case, copy of FIR and original Rukka was handed over to Ct. Kuldeep for handing over the same to Insp. V.K. Singh.
5. PW2 Ram Sewak was posted as Public Relation Officer, Transport Department, Government of NCT of Delhi on 01.07.2010 and he was deputed as panch witness in the Anti Corruption Branch. He deposed that on 01.07.2010 in his presence one pen camera was handed over to the IO by one counselor whose name he did not remember, which was taken into possession vide seizure memo Ex.PW2/A. During the course of his deposition he correctly identified the pen camera Ex.P1 as the same which was seized in his presence.
6. PW3 Satish Prakash, Estate Manager, Department of Industries, Government of NCT of Delhi was also on duty as panch witness on CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 5 19.05.2010 at Vikas Bhawan. PW3 deposed that in his presence the consent of accused Raj Kumar Yadav was obtained for taking his voice and the accused was taken to Forensic Lab to obtain his voice sample and two CDs were prepared in FSL which were signed by PW3 and one constable. PW3 was crossexamined by Ld. Addl. PP for the State and during crossexamination he admitted that Insp. B.K. Singh had introduced him to the accused Raj Kumar Yadav. It is also admitted by PW3 during his cross examination that notice Ex.PW3/A was given to accused Raj Kumar Yadav for his consent for taking his voice sample which bears signatures of PW3 at point A and the consent of the accused is at point B. It is further admitted by PW3 that he alongwith Insp. V.K. Singh, Ct. Jai Krishnan and accused Raj Kumar Yadav went to FSL, Rohini and the IO handed over two audio cassettes to the officials of FSL. The said audio cassettes were signed by PW3 and the accused which were marked as ASV1 and ASV2 which were sealed separately with the seal of VKS, the same were taken into possession vide seizure memo Ex.PW3/B which bears signatures of PW3 at point A. PW3 was recalled for further examination in terms of order dated 07.11.2016. Pen camera was already Ex.P1 and its Pullanda was Ex.P2 and inadvertently audio cassette and its Pullanda were also exhibited as Ex.P1 and Ex.P2 respectively. During his deposition on 21.12.2016, he deposed that one audio cassette containing voice sample of accused Raj Kumar Yadav alongwith one cut of pulanda bearing the seal impression 'VKS' CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 6 which was sent to FSL were inadvertently marked as P1 (audio cassette), P2 (cut of pulanda), P3 (audio cassette) and P4 (cut of pulanda ) on 08.04.2016, which were correctly exhibited as Ex.P3 (audio cassette) and Ex.P4 (cut of pullanda), Ex.P10 (audio cassette) and Ex.P11 (pulanda).
7. PW4 Surender Kumar was posted as UDC in Government Girls Senior Secondary School, Ram Nagar, Paharganj, Delhi and was on panch witness duty on 21.04.2010 in the Anti Corruption Branch. PW4 deposed that he alongwith Insp. V.K. Singh and one constable went to a gym in Lado Sarai and Insp. V.K. Singh had shown one CD and letter to the owner of the gym who stated that the letter and the CD are the same which was sent by owner of gym. PW4 deposed that the letter and CD were signed by Sejwal and PW4 and the CD was seized. He further deposed that Sejwal also handed over two more CDs to the IO which were signed by PW4 and Sejwal and they were seized vide seizure memo Ex.PW4/A. PW4 was also crossexamined by Ld. Addl. PP for the State. During his crossexamination PW4 admitted that on 21.04.2010 he alongwih Insp. V.K. Singh and Ct. Kuldeep went to Musclemania gym, Lado Sarai in vehicle no. DL1YB1033 alongwith driver. PW4 further admitted that the name of the owner of gym was Ravinder Kumar Sejwal. It is further admitted by PW4 that the complainant admitted that he had sent the complaint, VCD and transcript to Central Vigilance Commission and the complainant also admitted the contents of the complaint as CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 7 well as the transcript and genuineness of VCD, vide complaint Ex.PW4/B which bears signatures of PW4 at pint A and that of complainant at point B, the complaint was also attested by the IO Insp. V.K. Singh at point C. The transcript running in five pages is Ex.PW4/C which bears signatures of PW4 at point A and that of complainant at point B. All the VCDs and transcript were seized vide seizure memo Ex.PW4/A. PW4 has further admitted that the statement of complainant was recorded by IO in his presence wherein complainant stated that two officials of DDA namely Raj Kumar Patwari and Tehsildar Rajbir had demanded Rs.10,000/ from the complainant for not carrying out demolition of the gym of complainant and for the said purpose they obtained Rs.7,000/ as bribe from him which was recorded by complainant in his camera and thereafter VCD was prepared. It is further admitted by PW4 that at the instance of complainant IO prepared the site plan Ex.PW4/D of the place where the bribe was taken and the video recording was done. It is further admitted by PW4 that he could not narrate the facts stated in his crossexamination, in his examination in chief as he could not remember them due to lapse of time. PW4 has also identified the VCDI as Ex.P5, cut off pullanda Ex.P6, VCDII as Ex.P7, cut off pulanda Ex.P8 and VCD III as Ex.P9.
8. PW5 Yogender Singh Sejwal deposed in his examination in chief that he was Counselor from Ward no. 169, Lado Sarai during the year 2007 to 2012. However, PW5 turned hostile and was cross CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 8 examined by Ld. Addl. PP for the State wherein he denied all the suggestion put to him by Ld. Addl. PP for the State except one that PW5 had visited the office of Anti Corruption Branch on 01.07.2010 and the seizure memo Ex.PW2/A bears his signatures at point B on both sides. During crossexamination, PW5 has not identified the pen camera and also denied that he handed over the said pen camera which is Ex.P1 in the ACB to the IO Insp. V.K. Singh. He also denied that the pen camera was taken by his uncle late Sh. Ravinder Kumar Sejwal from him in the month of September 2009 on the pretext that he wanted to record sting of DDA officials and returned the camera to him after 23 days. He rather stated that he never possessed a pen camera recorder and his uncle Sh. Ravinder Kumar Sejwal had not asked him for a pen camera.
9. PW6 S.C. Sinha, Director, Central Vigilance Commission deposed that on 17.12.2009, a complaint alongwith a transcript and CD was received against the officials of DDA regarding allegations of bribe which was sent to Secretary of GNCT (Delhi) through office memorandum dated 13.01.2010 Ex.PW6/A with the direction that the case be given to PS Anti Corruption Branch for discreet inquiry.
10. PW7 Anand Kishore Meena, Assistant Electoral Registration Officer on 26.04.2010 was on panch witness duty in Anti Corruption Branch. PW7 deposed that he joined the investigation of this case with Insp. V.K. Singh who introduced him to Sh.
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 9 Kanhiya Lal Mehtro, Assistant Director, DDA. He further deposed that in his presence, VCD was played by the IO and a copy of transcript was supplied to them, Sh. Kanhiya Lal identified both the accused/officials appearing in the VCD as their employees namely Raj Kumar and Rajbir over demanding bribe. He further stated that the IO had prepared an observation memo Ex.PW7/A which bears signatures of PW7 at point A and that of Mr. Kanhiya Lal Mehtro at point B. PW7 confirms the footages and the conversation took place in the CD Ex.P5 which was played in the court.
11. PW8 Ms. Asma Manzar, Retired Commissioner, Housing DDA accorded sanctions Ex.PW8/A and Ex.PW8/B under section 19 (1)
(c) of the Prevention of Corruption Act for the prosecution of accused Rajbir Singh, Naib Tehsildar and Raj Kumar Yadav, Patwari. She deposed that both the sanction orders were sent to the investigating agency vide forwarding letter Ex.PW8/C through Deputy Director, Vigilance.
12. PW9 Sachin Sharma, Superintendent, Directorate of Vigilance brought the summoned record i.e. letter no. F43(1)/10/DOB/CVC Ref. 1168 dated 25.02.2010 which is Ex. PW9/A and deposed that as per record the complaint against Rajbir, Naib Tehsildar and Raj Kumar Patwari of DDA, CD was received from the CVC and the same was forwarded to DCP, Anti Corruption Branch for taking action.
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 10
13. PW10 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini deposed that he had received four sealed parcels on 26.08.2010 in the present FIR and parcels were intact and were sealed. The first parcel contained CDI. The second parcel contained CDII. In the third parcel there was an audio cassette which was the specimen voice sample of the accused Raj Kumar Yadav and in the fourth parcel there was one pen camera. He further deposed that on examination of the audio recordings in the audio file on Ex.1 and Ex.2 there was no indication of any form of alteration in audio recording. He further deposed that audio/video CD marked Ex.1 is same as recorded in CD marked Ex.2. He also stated that the sample voice Ex.S1 was similar to the questioned voice in respect of mark Ex.Q1 in respect of their acoustic cues and other linguistic and phonetic features. He deposed that on examining the CD marked as Ex.1, he observed as follows :
(i) The video clip in CD marked Ex1 contain identified video shot. (ii) The video recording in video file, namely "RY207118114550.avi"
in CD marked Ex1 is in digital video format and there is no indication of alteration in the identified vide shot on the basis of examination using NonLinear Video Editing Storage System and Video Analyst System. He further deposed that on marked Ex.4 it was found that pen camera marked Ex.4 was having audio/video recording facility. He further deposed that after examination of exhibits, the same were sealed and returned to the investigating agency. The FSL report of PW10 is Ex.PW10/A. He identified the CD Ex.5 to be the same CD which was CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 11 examined by him. CD Ex.P7 (which is Ex.2 as per the report of PW2 could not be played in the Court as the same had developed crack). The audio cassette containing sample voice of the accused was marked as Ex.P3. The pen camera was already marked as Ex.P1 (P4 as per report of PW10). During his crossexamination, he deposed that it is not possible to establish direct link between the video recording and the source camera. He further deposed that he had not examined the pen camera in respect of its capacity of memory as it was not the query of the investigating agency and that in the pen camera there were no relevant recordings related to this case.
PW10 was recalled for further examination by the Ld. Addl. PP. During his further deposition, he admitted that the file which were in the pen camera were not examined individually nor there complete data was prepared. PW10 also did not attempt to retrieve the deleted file. He admitted in his crossexamination that in the pen camera only audio sound was played and the video could not be played.
14. PW11 ASI Suresh Chand proved the DD entry no. 22B dated 22.09.2009, PS Saket with regard to nonproviding of police protection for demolition drive in the Lado Sarai Area, vide Ex.PW11/A.
15. PW12 HC Anil Kumar deposed that on 13.12.2011 he went to FSL Rohini from where he had brought four sealed envelopes alongwith FSL report in sealed envelope and all the four exhibits CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 12 were deposited by him in the Malkhana, Civil Lines and the FSL report was handed over to the IO.
16. PW13 Shyam Prakash Vajpayee, UDC, Directorate of Vigilance, Govt. of NCT Delhi brought the original notification no. 99DOV F1 (10)/99/15551561 dated 15.03.1999 issued by Sh. S.K. Srivastava, Special Secretary, Vigilance on behalf of Hon'ble LG, Delhi, photocopy of which is Ex.PW13/A. He further deposed that as per notification Inspector of police working in the Anti Corruption Branch, GNCT Delhi was authorised to investigate any offences punishable under Prevention of Corruption Act.
17. PW14 Anil Sahni, Director (Nazarat) proved the biodata of accused Rajbir Singh, Naib Tehsildar and Raj Kumar Yadav, Patwari which are Ex.PW14/A and Ex.PW14/B respectively.
18. PW15 S.P. Auluck, Dy. Director, SouthEast Zone, DDA, Vikas Sadan brought the original record of letter no.
F11(75)09/LM/SCZ/310 dated 09.09.2009 regarding providing police assistance to DDA staff for demolition/clearance/sealing operation at Khasra no. 331A of village Lado Sarai, copy of the same is Ex.PW15/A which bears the signatures of Sh. Paramjeet Singh, Dy. Director (LM) SCZ at point A. PW15 deposed that the letter Ex.PW15/B was written by the then Dy. Director (LM)/SCZ to the IO.
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 13
19. PW16 ASI Jai Krishnan deposed in his deposition that on 19.05.2010 he joined the investigation of this case alongwith Insp. V.K. Singh. He further deposed that accused Raj Kumar Yadav was arrested by the IO with the permission of the court of Sh. Rakesh Sidharth, vide arrest memo and personal search memo Ex.PW16/A and Ex.PW16/B respectively. He further deposed that disclosure statement of accused Ex.PW16/C was recorded which bears signatures of PW16 at point A and signatures of Insp. V.K. Singh at point B. He further deposed that the accused was taken to FSL alongwith panch witness where voice sample of accused was taken vide notice Ex.PW3/A served upon the accused to give his consent for giving his voice sample. The voice sample was taken in audio cassette which was sealed and taken into possession vide seizure memo Ex.PW3/B and the sealed pulandas were deposited by PW16 in the Malkhana, PS Civil Lines. During the course of his deposition before the court he correctly identified the cassettes Ex.P3, Ex.P10 and cut off pulandas Ex.P4 and Ex.P11 to be the same containing the voice sample of accused.
20. PW17 Ct. Dinesh deposed that on 02.06.2010 he joined the investigation of this case alongwith Insp. V.K. Singh and reached the court of Sh. Rakesh Sidharth, Special Judge, Tis Hazari Court where with the permission of the court, accused Rajbir Singh was arrested by the IO in the presence of PW17 vide arrest memo Ex.PW17/A. He further deposed that disclosure statement of accused was recorded vide memo Ex.PW17/B which bears CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 14 signatures of PW17 and that of Insp. V.K. Singh at point B.
21. PW18 Ct. Kuldeep Singh deposed in his examination in chief that on 21.04.2010 he alongwith Insp. V.K. Singh and panch witness Surender Kumar went to Lado Sarai in Musclemania gym where the complainant Ravinder Kumar Sejwal met them and complaint Ex.PW4/B, transcript Ex.PW4/C and one CD were shown to the complainant which signed by the complainant in the presence of PW18 at point B. PW18 further deposed that the IO recorded the detailed statement Ex.PW4/E of the complainant in which he stated that the DDA officials namely Raj Kumari Patwari and Rajbir Naib Tehsildar have demanded money not to carry out demolition at his gym and the conversation was recorded by the complainant. PW 18 further deposed that the accused Raj Kumar had demanded Rs.10,000/ and the bribe amount of Rs.7,000/ were accepted by accused Raj Kumar. PW18 further deposed that Insp. V.K. Singh prepared a rukka Ex.PW4/F which bears the signatures of complainant at point B and that of Insp. V.K. Singh at point C. The complainant also haded over two more CDs of the same recording which were marked as I, II and III, two of the CDs were sealed with the seal of VKS and the third CD was kept open for investigation. He further deposed that the CDs and transcript were seized vide seizure memo Ex.PW4/A and PW18 had taken the Rukka to ACB and handed over the same to the Duty Officer for registration of case. PW18 further deposed that on 26.08.2010 he had taken four exhibits from Malkhana, PS Civil Lines to FSL Rohini and after CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 15 depositing the case property, copy of RC was given to MHC(M). During his examination in chief, PW18 correctly identified the cut of pulandas Ex.P6, Ex.P8 and CDs Ex.P5 and Ex.P7.
22. PW19 Insp. Pankaj Sharma is the second IO who had collected the prosecution sanction of both the accused persons vide Ex.PW8/A and Ex.PW8/B. PW19 deposed that he also obtained the biodata of both the accused vide Ex.PW14/A and Ex.PW14/B. He also obtained the certificate under section 65B of Evidence Act from the complainant Ex.PW19/A which bears the signatures of the complainant at point A. He also recorded the detailed statement of the complainant Sh. Ravinder Kumar Sejwal and prepared the chargesheet after completion of investigation.
23. Statements of accused persons were recorded under section 313 Cr.P.C. The accused Raj Kumar Yadav stated that the complainant late Sh. Ravinder Sejwal was having grievances against him as he had deposed against the complainant in the court of law in a case filed by the complainant against DDA for claiming a right of way in the government land. He further stated that he had testified in the year 2006 in the court of Sh. Babu Lal, the then ADJ against the complainant and requested for seeking permission to file certified copy of the evidence given by him in the court of Sh. Babu Lal, the then ADJ. He however, chose not to lead any defence evidence. Accused Rajbir Singh during his statement stated that he being a government servant was duty bound to protect the interest of the CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 16 government land and in that process some public persons were against him and due to that grievance, the complaint has been lodged against him. He also chose not to lead any defence evidence.
24. Heard Sh. Balbir Singh, Ld. Addl. PP for the State and Sh. V.C. Gautam, Ld. Counsel for both the accused persons. Perused the record.
25. In the present case, two very important witnesses could not be examined. The complainant Sh. Ravinder Kumar Sejwal was reported to have expired on 29.01.2016 and copy of his death certificate is available on record. The main IO Insp. V.K. Singh was also reported to have expired on 14.03.2015 and copy of his death certificate is also available on record and thus, two very vital witnesses could not be examined on behalf of prosecution as they were reported to have expired. In the present case, an anonymous complaint was received in the office of CVC and therefore, none of the panch witnesses were present at the time of the alleged demand and receiving of the bribe amount. The complainant Sh. Ravinder Kumar Sejwal was the only person present alongwith accused persons when the alleged demand of bribe was made and the same was accepted and thus, it was only the complainant who could have deposed about the demand and acceptance of the bribe amount by the accused persons. The accused persons also had a right and should have been given an opportunity to crossexamine the CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 17 complainant. However, due to the death of the complainant and the IO Insp. V.K. Singh neither the complainant nor the IO could be examined in chief and the accused persons also could not avail the opportunity to crossexamine the complainant and the IO.
26. Ld. Addl. PP for the State has argued that as per the FSL result/report Ex.PW10/A, sample voice of the accused is similar to the questioned voice and also there was no indication of any form of alteration in audio recording. He has further argued that the pen camera Ex.P1 was having audio/video facility as per the FSL report as per the testimony of PW10 and therefore, on the basis of the CD Ex.P5 and the FSL result Ex.PW10/A, the prosecution has been able to prove their case beyond any doubt. The guidance relevant to the issue are reflected in the statutory provisions below :
27. Section 22A of the Evidence Act reads as follows :
"22A. When oral admission as to contents of electronic records are relevant Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
28. Section 45A of the Evidence Act reads as follows :
"45A. Opinion of Examiner of Electronic Evidence When in a proceeding the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 18 of Electronic Evidence referred to in section 78A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact. Explanation For the purpose of this section, an Examiner of Electronic Evidence shall be an expert."
29. Section 59 under PartII of the Evidence Act dealing with proof, reads as follows :
"59. Proof of facts by oral evidence All facts, except the contents of documents or electronic records, may be proved by oral evidence."
30. Section 65A reads as follows :
"65A. Special provisions as to evidence relating to electronic record : The contents of electronic records may be proved in accordance with the provisions of section 65B."
31. Section 65B reads as follows :
"65B. Admissibility of electronic records :
(i) Notwithstanding anything contained in this 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 (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 19 any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(ii) The conditions referred to in subsection (i) in respect of a computer output shall be in following, namely :
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(iii) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (ii) was regularly performed by computers, whether CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 20
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operating over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(iv) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say :
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (II) relate, and purporting to be signed by a person occupying a responsible official position in relating to the CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 21 operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purpose of this sub section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(v) For the purposes of this section :
(a) information shall be taken to be supplied to a computer if it is supplied there to in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation : For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 22
32. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015, SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under 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;
CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 23
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved i 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 CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 24 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.
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.
Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 25 Section 65A of the Evidence Act, read with Section 59 and 65B is sufficient to hold that the special provision on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law under Section 63 and 65 has to yield."
33.In the present case, the certificate under section 65B of the Indian Evidence Act is exhibited as Ex.PW19/A during the testimony of 2nd IO PW19 Insp. Pankaj Sharma. It is a settled law that mere exhibiting of document does not mean that the same has been proved in accordance with law. It is also a settled law that the maker of the document only can validly testify regarding execution of the same and therefore, only the complainant Ravinder Kumar Sejwal could have validly proved the certificate under section 65B of the Indian Evidence Act. As the executor of the document Ex.PW19/A i.e. certificate under section 65B of the Indian Evidence Act, Sh. Ravinder Kumar Sejwal could not be examined during prosecution evidence, as he was reported to have expired, certificate under section 65B of the Indian Evidence Act though exhibited as Ex.PW19/A cannot be said to have been duly proved on record.
34. In the present case, as per the prosecution case the recordings were done through the pen camera Ex.P1. However, PW10 Dr. C.P. Singh, FSL Rohini who had examined the pen camera and the CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 26 questioned CD as well as sample voice as clearly stated that he had not examined the pen camera in respect of its memory and there was no relevant recordings regarding the present case. He has also stated that it is not possible to establish a direct link between the video recording and the source camera. The recordings in the pen camera were relevant piece of evidence. However, it has not been established that any recordings relevant to the present case were available in the pen camera. The other relevant evidence is the CD Ex.P5. However, before looking into the contents of Ex.P5, it is necessary that Ex.P5 is proved as per law. To take into consideration Ex.P5 i.e. CD which was allegedly prepared by the complainant from the pen camera it was necessary that the certificate under section 65B of the Indian Evidence Act (exhibited as Ex.PW19/A) should have been duly proved. As the certificate was issued by the complainant, only the complainant could have proved the certificate in his evidence and also the accused should have been given an opportunity to crossexamine the complainant in respect of certificate under section 65B of the Indian Evidence Act, Ex.PW19/A. Therefore, as the certificate under section 65B of the Indian Evidence Act has not been duly proved, the contents of the CD Ex.P5 cannot be taken into account to establish the guilt of the accused persons. Even otherwise CD Ex.P5 was played in the court also at the time of hearing the final arguments and it is seen that the person who was speaking to the accused persons had gone out for some time to allegedly bring the money to be paid to the CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 27 accused persons. However, when he had gone out of the room, he had spoken to one Vijay Pal from whom he had received something (as it is not visible as to what he had received from Vijay Pal) and therefore, it cannot be said with certainty that he had only received money from him. The said Vijay Pal has not been examined by the IO nor he has been cited as a prosecution witness. The face of the said person who was called by the name of Vijay Pal is clearly visible in the video recording and therefore, Vijay Pal was an important witness but he has not been cited as a PW in the chargesheet. Secondly the person who was allegedly recording the entire episode of demand and receiving the bribe had covered the camera with his fingers at the time of receiving of the amount from Vijay Pal and therefore, it has not been possible to say whether the complainant who was allegedly recording the video through pen camera had received money or something else from Vijay Pal. Similarly, in the entire recording it is not visible that the accused persons have received any amount from the complainant as at the time of alleged handing over of the amount to the accused persons also the complainant has turned face of the camera and therefore, it has not been recorded that as to what the accused persons had received from the complainant.
35. I have absolutely no hesitation in stating that the person who was recording audio/video (through the pen camera as per the case of the prosecution) had acted too smartly at two relevant points, firstly when he had received amount/money from Vijay Pal and at second CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 28 instance when the amount was handed over to the accused he turned the face of the camera so as not to record the complete incident and therefore it cannot be said that as to what the complainant has actually handed over to the accused persons. Even otherwise the CD Ex.P5 cannot be taken into account without the valid proof of the certificate under section 65 B of the Evidence Act Ex.PW19/A. Apart from the CD Ex.P5, nothing incriminating has come on record against the accused persons to establish their guilt. The PW4 panch witness Sh. Surender Kumar stated that he had accompanied the IO Insp. V.K. Singh and in his presence the complainant had given statement to the IO stating that the two officials of DDA i.e. accused persons demanded bribe of Rs.10,000/ from him for not carrying out demolition and had received Rs.7,000/ from the complainant. However, the same is only a hearsay evidence and cannot be relied upon to establish the guilt of the accused persons. The nonexamination of vital witnesses i.e. the complainant and and main IO Insp. V.K. Singh has also been fatal to the case of the prosecution.
36. PW2 has stated that the pen camera was handed over by one councilor in his presence to the IO and the same was seized by the IO and seizure memo Ex.PW2/A was prepared. However, he has failed to give name of the councilor. As per the chargesheet, Sh. Yogender Kumar Sejwal has handed over the pen camera to the IO. Sh. Yogender Kumar Sejwal has been examined as PW5. Though he has admitted his signatures on the seizure memo Ex.PW2/A but CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 29 he has denied the fact that he has handed over the camera to the officers of ACB in the presence of PW2. PW5 has also denied the suggestion that he had handed over the pen camera to his uncle Ravinder Kumar Sejwal. In fact he has stated that he never possessed any pen camera recorder. Even if it is presumed for the sake of arguments that PW5 was not coming out with true facts and as he has admitted his signatures on the seizure memo of the pen camera on the Ex.PW2/A and PW2 panch witness has clearly stated that a councilor had handed over the pen camera in his presence to the IO, it would not help the case of the prosecution in as much as the pen camera was examined by the FSL expert PW10 Dr. C.P. Singh and PW10 Dr. C.P. Singh had clearly stated that it is not possible to establish direct link between the video recording and the source camera.
37. PW3 Sh. Satish Parkash is the witness to the proceedings of obtaining the voice sample of the accused Raj Kumar Yadav. Accused Raj Kumar Yadav in his statement under section 313 Cr.P.C. has also admitted that he had given his voice sample to the IO. The sample voice of the accused Raj Kumar Yadav is Ex.S1. As per the report of the FSL expert PW10 and the FSL report Ex.PW10/A, the voice extracts of the speakers Marked Ex.Q1 was similar to the voice exhibits of speaker marked Ex.S1 (sample voice of accused Raj Kumar Yadav). However, the questioned CD itself has not been proved legally in view of section 65B of the Indian Evidence Act and therefore, as the questioned CD Ex.P5 cannot be CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 30 taken into account for establishing the guilt of the accused persons, therefore, even the observations of the FSL expert that the sample voice of the accused tallied with the questioned voice of the questioned CD also does not help the case of the prosecution.
38. The counsel for the accused persons during the course of arguments also argued that the accused persons could not have been present on the date and time mentioned at the place of the complainant i.e. Musclemania Gym and that the plea of alibi of the defence is proved from the documents of the prosecution itself. As per the charge framed on 01.03.2016, the accused persons had demanded and accepted the bribe/illegal gratification of Rs.7,000/ on 22.09.2011 at 11:00 am at Musclemania Gym, Khasra No.225, Lado Sarai. However, as per the document Ex.PW15/A police assistance was sought for carrying out the demolition for removal of encroachment from the government land from the DCP, South District, Hauz Khas by the Deputy (LM) SEZ. As per Ex.PW15/B, the demolition could not be carried out nonavailability of the police force. As per Ex.PW11/A, Sh. K.L. Mehto, ADLM, SEZ, DDA has gone to the PS Saket alongwith both the accused persons, 15 labour persons and security guards and one Sh. S.N. Goel at 11:45 am on 22.09.2011 and they had left the PS at 12:05 am, when the police force could not be arranged. It is stated by the Ld. counsel for the accused that as the accused persons were present alongwith their Senior Sh. K.L. Mehto at PS Saket at 11:45 am, CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 31 they could not have been present at Musclemania Gym at almost same time.
39. It is settled law that the accused persons have to establish their defence only to the extent of preponderance of probability whereas the prosecution has to establish their case and the guilt of the accused beyond all reasonable doubts. The accused persons have tried to establish their plea of alibi from the prosecution document itself i.e. Ex.PW11/A, and argued that the accused persons could not have been present at the Musclemania Gym on the same day i.e. on 22.09.2009 at 11:00 am. The distance between PS Saket and village Lado Sarai is about 4 to 5 km, it cannot be said that the accused persons could not have reached from village Lado Sarai to PS Saket at 11:45 am, if they had been present at Lado Sarai at 11:00 am. Therefore, accused persons have not been able to prove their plea of alibi only on the basis of Ex.PW11/A. However, the prosecution itself has failed to establish its case and to bring home the guilt of the accused because of the following grounds :
(i) Nonexamination of complainant.
(ii) Nonexamination of IO.
(iii) Certificate under section 65B of the Indian Evidence Act Ex.PW19/A not duly proved.
(iv) Electronic evidence i.e. CD Ex.P5 not duly proved/not legally admissible in view of fact that certificate under section 65B of Indian Evidence Act, not duly proved.
(v) No relevant recordings of the present case being found in the pen CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 32 camera Ex.P1/recording device.
(vi) Nonexamination of Vijay Pal by the IO.
40. Therefore, in view of the aforesaid discussion, I am of the view that prosecution failed to prove its case against accused persons for the offences punishable under section 120B IPC read with section 7 & 13(1)(d) read with section 13(2) of the PC Act, beyond reasonable doubt, so the accused persons Raj Kumar Yadav and Rajbir Singh are given benefit of doubt and acquitted of above offences, their bail bonds are cancelled and sureties discharged. Both the accused persons are directed to furnish bail bonds with surety under section 437A Cr. P. C. File be consigned to record room.
Announced in the open court on this 29th November 2017.
(Kiran Bansal) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC, Delhi CC No.9/15 (532350/16) State Vs Raj Kumar Yadav & Anr. 33