Delhi District Court
Cbi vs (1) Ramesh Chand, Nala Beldar, on 23 January, 2019
IN THE COURT OF ANIL KUMAR SISODIA
SPECIAL JUDGE (PC ACT)(CBI)-04: TIS HAZARI COURTS:
DELHI
CNR No. DLCT01-012174-2016
New CC No. 532383/2016
RC No. 7 (A)/2014/CBI/ACB/ND
U/s 7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988
r/w Section 34 IPC or in the alternative
Section 11 of P.C. Act, 1988 r/w Section 34 IPC
CBI Versus (1) Ramesh Chand, Nala Beldar,
in office of EE, South Delhi
Municipal Corporation, Najafgarh
Zone, New Delhi
R/o H.No. RZ:C-3-211, Gali No.
12 Mahavir Enclave, Part-I
Gurdwara Road, tilak Nagar, near
SBI ATM New Delhi.
(2) Rajpal, Nala Beldar,
Municipal Corporation
R/o Village Mandothi, District
Jhajjar, Tehsil, Bahadurgarh,
Haryana.
Date of Institution : 07.09.2016
Judgment reserved on : 11.01.2019
Date of Judgment :23.01.2019
Memo of Appearance:
Sh. A.K.Rao, learned Sr.PP for CBI,
Sh. J. S. Mishra, Ld. Legal Aid Cousnel for A-1.
Sh. Manoj Kumar Duggal, Learned counsel for A-2
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 1 of 51
JUDGMENT
1. This is one of the six cases registered by CBI on the directions of Hon'ble High Court of Delhi vide order dated 14.02.2014 in criminal writ petition no. 1823/2012 filed by the complainant Chetan Prakash.
PROSECUTION VERSION
2. A sting operation was conducted by complainant Chetan Prakash Sharma on accused Ramesh Chand and Rajpal with the help of his friend Daya Shankar. On the writ petition filed by the complainant, Hon'ble High Court directed CBI to investigate the complaint vide its order dated 14.02.2014.
3. Chetan Prakash has produced five hard disks and five memory cards before the Hon'ble High Court. These hard disks and memory cards were kept in sealed container in safe custody of Ms. Anita Malhotra, Assistant Registrar (Criminal), High Court of Delhi in compliance of the order dated 05.02.2013 of the court.
4. These hard disks and memory cards were taken by CBI from the Hon'ble High Court and were sent to CFSL, New Delhi with the request to opine as to whether any hard disks or memory card has been tampered with or not. On request of CBI, CFSL has provided copies of data recovered from the five memory/micro SD cards in a compact disk to CBI and opined that the clippings are continuous and no form of tampering has been detected therein.
5. Investigation has revealed that folder "Ex. 6-1 KINGSTON 2 GB"
= "MyRecord" = 'V0109001.AVI" pertains to this case was played, seen CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 2 of 51 and heard in the presence of Sh. Chetan Prakash and independent witness Sh. Dinesh Kumar, Assistant Administrative Officer, LIC of India, Connaught Place on 15.12.2014. Sh. Chetan Prakash identified his voice and voice of Sh. Daya Shankar. He also confirmed that said audio-video has been prepared by him at his house at plot No. G-248, Vishwas Park, PS Dabri, New Delhi which was under repair during December, 2010. He also identified both accused Ramesh Chand and Rajpal in the audio video transcription of the recorded conversation.
6. Ramesh Chand (A-1), daily wager Nala Beldar accompanied with Rajpal (A-2), Nala Beldar is visible accepting Rs. 600/- as illegal gratification from Daya Shankar, friend of complainant Chetan Prakash, who was also present there. Accused Ramesh Chand is also visible in the said recording keeping Rs. 600/- in his purse. The said bribe amount was taken by accused persons for construction/repair work being carried out at H. No. G-248, Uttam Nagar, New Delhi belonging to the complainant. Sh. Dilbagh Singh, Hoshiar Singh and Sh. M.S.Yadav, the officials of SDMC have identified both accused in the aforesaid video clipping. Sh. Ranvir Singh, EE, M-IV, Central Zone, SDMC, Lajpat Nagar has stated that plot No. G-248, Vishwas Park, Uttam Nagar, Delhi falls under the jurisdiction of Ward No. 148, Najafgarh Zone, SDMC. Sh. Suman Tokas, JE, Najafgarh Zone, SDMC has stated that both accused were posted and working in Ward No. 148 at the relevant period.
7. Investigation has revealed that photographs of both the accused were obtained from their office and were sent to CFSL for comparison of the same with the persons visible in the recorded video clipping. CFSL vide its report dated 12.05.2016 confirmed that persons visible in CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 3 of 51 sample photograph to be same who are visible in the audio-video.
8. The specimen voice of both accused was recorded in two separate memory cards in the presence of two independent witnesses and was sent to CFSL for comparison with memory card (Ex. 6/1) pertaining to this case. CFSL in its report dated 17.04.2015 opined that voice contained in Ex. 6/1 is probable voice of both the accused persons. Specimen voice of complainant was also recorded in memory card S-7 in the presence of two independent witnesses and sent to CFSL for comparison with memory card Ex. 6/1. CFSL vide its report dated 17.04.2015 opined that it contains probable voice of Chetan Prakash.
9. Complainant Chetan Prakash has also issued certificate under Section 65-B of Indian Evidence Act regarding the recording of audio- video Ex. 6/1. On the request of CBI, the disciplinary/competent authority of Rajpal (A-2) has granted sanction for prosecution against him. It was also informed by SDMC that Ramesh Chand (A-1) was not permanent employee of SDMC and was working as daily wager, hence, no sanction for his prosecution was required.
10. After completion of investigation, chargesheet was submitted before the court on 07.09.2016.
COGNIZANCE AND CHARGES
11. Cognizance was taken by the court on 23.09.2016 and the accused persons were directed to be summoned.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 4 of 5112. Arguments on charge were heard and vide order dated 30.11.2016, charge for commission of offences under Sections 7 of Prevention of Corruption Act, 1988 and 13(1) (d) r/w Section 13(2) PC Act and further r/w Section 34 IPC or in alternative under Section 11 of PC Act r/w Section 34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
13. It will be also not out of place to mention here that the accused were also directed to admit or deny the documents relied upon by the prosecution and number of documents were admitted by both the accused on 07.12.2016.
14. Following documents were admitted by accused Ramesh Chand(A-1) and Rajpal(A-2) :-
Sl. No. Document Exhibit Number Brief Description of Document Number 1 D-2 Ex. AD-1 (colly) Forwarding letter dated 18.02.2014 along with certified copy of Hon'ble High Court order dated 14.02.2014 in Writ Petition (Criminal) 1823/2012.
2 D-3 Ex. AD-2 (colly) Certified copy of Writ Petition (Criminal) 1823/2012 3 D-4 Ex. AD-3 (colly) Certified copy of court orders dated:-
21.12.2012, 16.01.2013, 05.02.2013, 13.02.2013, 17.04.2013, 03.07.2013, 27.07.2013, 19.08.2013, 16.09.2013, 01.10.2013, 30.10.2013, 21.11.2013, 17.12.2013, 15.01.2014, 14.02.2014.
PROSECUTION EVIDENCE
15. Prosecution has examined 21 witnesses in support of its case. These witnesses can be broadly classified as under:-
(A) OFFICIALS FROM MCD 15.1 PW1 Sh. Virender Singh Chauhan has deposed that he was CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 5 of 51 posted as JE in MCD from 2009 to 2015 and had worked in Ward No.148 from July, 2009 to 2011. He further deposed that jurisdiction of Ward No. 148 of MCD was Vishwas Park, Raja Puri, Madhu Vihar etc. He also identified both the accused present in the court and deposed that they were nala beldar in Ward No.148 which comes under Najafgarh Zone. He proved the attendance copy of monthly attendance register in bunch A and bunch B of office of AE-C 147 (M-III) and Building department of Ward No. 148 pertaining to the beldars etc. He identified the signatures of Mahavir Singh Yadav, the then EE-III Maintenance on each page and attestation of then AE Sh. Jagbir Singh. Bunch A and Bunch B in D-15 were exhibited as Ex. PW1/A (colly.) and Ex. PW 1/B (colly.) respectively. He also identified the signatures of Mahavir Singh Yadav, the then EE-III Maintenance at point 'A' and attestation of the then AE Jagbir Singh at point 'B' on the certified copies of muster-roll of daily wager beldars/daily wager nala beldars and daily wager works nala beldars. He proved the bunch 'C' as Ex. PW 1/C (colly.) and bunch 'D' as Ex. PW 1/D (colly.). He also proved the letter dated 17.10.2014 by Sh. M. S. Yadav as Ex. PW 1/E. He further identified the photograph S-16 on bio-data of accused Ramesh Chand (A-1) Ex. PW 1/F and photograph S-19 on bio-data of accused Rajpal (A-2) Ex. PW 1/G in the court and the signatures of Sh.
M. S. Yadav on the bio-data. He also identified accused Ramesh Chand and accused Rajpal in the video file no.V0109001 contained in Ex. 6/1 when it was played in the court but he could not identify their voices due to lapse of time. He further deposed that besides the ordinary duty of nala beldar/beldar, they were also entrusted with the work of construction and existing high rise building in the area and to report to JE concerned. These instructions were given verbally by senior officers in view of the incident of Lalita Park, Laxmi Nagar where CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 6 of 51 there were high number of casualties due to collapse of a building.
15.2 PW6 Suman Tokas, JE Ward No. 148 & 147, EEM-III, Najafgarh Zone has deposed that he joined as JE in Najafgarh Zone MCD in the year 2000 and remained posted there till 2008 and thereafter was posted in the building department of West Zone SDMC from August, 2008 to 2010. He has deposed that plot no. 248, Vishwas Park PS Dabari fell under the jurisdiction of Ward no.148, Madhu Vihar of Najafgarh Zone. He further deposed that he knew both the accused as they had worked under him in Ward no.148 under the jurisdiction of E.E. M.-III Division, Najafgarh Zone. Accused no.1 Ramesh Chand was daily wager nala beldar and accused no. 2 Rajpal was permanent nala beldar. He identified both the accused present in the court. He also identified the endorsement of Sh. Lekh Ram and his signatures on production-cum-seizure memo D-14 which was exhibited as Ex. PW 6/A. He also identified the attendance sheet of accused no.2 Rajpal and identified the signatures of Sh. M. S. Yadav and Sh. Jagbir Singh at point 'A' and 'B' respectively and deposed that page no. 20 to 43 of bunch 'A' were regarding attendance of accused Rajpal and another beldar Bijender Singh and identified his initials on those pages. He also identified the signatures of Sh. M. S. Yadav and AE Sh. Jagbir Singh at point 'A' and 'B' respectively of muster roll of daily wagers nala beldars for the period 2010 and 2011 which was already exhibited as Ex. PW 1/C (colly.). He further deposed that name of accused Ramesh Chand is mentioned in bunch 'C' master roll. He also identified his signatures on each page at point 'C'. He further deposed that attendance sheet of permanent beldars used to remain in his custody whereas muster roll pertaining to daily wagers used to go to accounts department of the division. He further deposed that CBI had visited CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 7 of 51 their office and showed them audio video clipping in which accused Ramesh Chand was seen talking with some unknown person and taking money from him whereas accused Rajpal was found standing nearby. He further deposed that he had identified both the accused in the video clipping in the CBI office. He also identified the area visible in the CD as that of Vishwas park and identified both accused when the video file no. V0109001 was played in the court. He also identified the voice of accused Ramesh Chand in the said video clipping. He further identified photograph S-16 on the bio-data of accused Ramesh Chand Ex. PW 1/F and photograph S-19 on the bio-data of accused Rajpal Ex. PW 1/G. 15.3 PW8 Lekh Ram, beldar at office of EE M-III, MCD, Najafgarh Zone, has deposed that in March, 2015, he had handed over some documents to CBI. He identified his signatures at point 'A', 'A-1', and 'A-2' on production-cum-seizure memo dated 24.03.2015 already exhibited as Ex. PW 6/A and deposed that the documents handed over by him to CBI are annexed with this memo.
15.4 PW9 Hoshiyar Singh, MCD Beldar at Rajapuri, Madhu Vihar area, Ward No.148 has deposed that he is posted in Ward No. 148 from its formation, i.e. around 2007 and he knew both accused as they had worked with him and were still working with him in Ward no. 148. He further deposed that CBI officials had visited their office in May, 2016 and played the video clippings containing the pictures of both the accused and in the said video clippings accused Rajpal was standing behind accused Ramesh Chand and money was seen in the hands of Ramesh Chand and he had identified both the accused in the video clipping. The witness also identified both the accused persons in video CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 8 of 51 file no. VO109001 when it was played in the court.
15.5 PW10 Raj Karan Singh, Head Clerk in office of EEM-III, Najafgarh Zone, SDMC has identified the signatures of Sh. M. S. Yadav, then EE on letter dated 17.10.2014 already exhibited as Ex. PW 1/E. He further identified the photograph of Ramesh Chand on the bio-data at point 'A' already exhibited as Ex. PW 1/F. 15.6 PW12 Rajender Kumar, beldar, EEM-III, Najafgarh Zone has deposed that he came in Ward No. 148 as beldar in last of year 2012 and he knew accused Ramesh Chand who was working in the same ward as nala beldar (kachha). The witness correctly identified the accused Ramesh Chand in the court. He also identified accused Rajpal in the court as deposed that he was working in Ward No. 148 as nala beldar (pakka). This witness was declared hostile as he was resiling from previous statement and was cross-examined by Ld. PP for CBI. The witness denied the suggestions that his statement was recorded by CBI or that he was shown the video clipping and he had identified both the accused. However, he identified both the accused in the video file VO109001 when it was played in the court.
15.7 PW13 M. S. Yadav, EE Planning, Department, Civic Center, MCD, New Delhi has deposed that he was posted as Executive Engineer in M-III, Najafgarh Zone, SDMC from 2008 to 2014-15 and both the accused were beldars in M-III, Najafgarh Zone and were working under him in his tenure. He has proved his signature at point 'A' on the letter dated 17.10.2014 already Ex. PW 1/E and has deposed that vide this letter he had sent details of both the accused to CBI officer who had come to his office. He identified the photograph S-16 CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 9 of 51 of accused Ramesh Chand at point 'A' on his bio-data Ex. PW 1/F and photograph S-19 of accused Rajpal at point 'A' on his bio-data Ex. PW 1/G. He also deposed that the certified copies of the Bunch 'A', 'B', 'C' and 'D' already exhibited as Ex. PW 1/A to PW 1/D were attested by him at point 'A' and the same were prepared from the record maintained with the JE and AE of the particular ward and they were attendance registers of beldars and nala beldars. He further deposed that CBI Inspector Sahu came to his office and showed some video clippings containing the activities of both the accused and he had identified both the accused visible in the video clippings. He also identified both the accused in the video file VO109001 when it was played in the court.
15.8 PW16 Sanjeev Kumar, Deputy Commissioner, Najafgarh Zone, SDMC, Delhi has deposed that he had received the documents related to this case, i.e. CD, CFSL report, copy of FIR, transcript etc. with the request to grant prosecution sanction against accused Rajpal, nala beldar. After going through the documents and after applying his mind and scrutinizing the documents he passed sanction order Ex. PW-16/A. He further deposed that the sanction order was sent to Director (Vig.), SDMC who had sent the sanction order to SP, CBI, ACB vide his letter dated 24.8.2016 Ex. PW 16/B. (B) COMPLAINANT AND OTHER PUBLIC WITNESSES 15.9 PW2 Sh. Dinesh Kumar, Asstt. Branch Manager (Sales) LIC of India, Shimla has deposed that on 15.12.2014 he reached CBI office, CGO Complex on the directions of his office. He proved the letter containing the order as Ex.PW-2/A. He further deposed that in the CBI office, an officer namely Mr. Sahu and complainant Chetan CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 10 of 51 Prakash were present and they showed him the clipping and also the transcription of the conversation in the clipping. On the instructions of the I.O., he verified the transcription with conversation recorded in the clipping and signed the same. He proved the copy of transcription as Ex. PW-2/B. He also proved the transcription-cum-voice identification memo prepared at CBI office as Ex. PW-2/C. He also deposed that Chetan Prakash had identified the pictures of the persons appearing in the clippings.
15.10 PW3 Sh. Raman Kumar Sharma, Deputy Manager, House & Urban Development Corporation has deposed that he reached CBI office on 25.11.2014 along with Sh. Kishan Dutt on the instructions of his department. In the CBI office they witnessed the voice recording of Chetan Prakash and one Sh. Shukla which was subsequently sealed and seal after use was given to him. Inspector Sahu had directed him to bring the seal as and when required but he could not bring the seal as the same was lying in his house and he can bring the same on the next date. He identified his signatures on sample voice recording memo at point 'A' and signatures of Kishan Dutt at point 'B' and the said memo was proved as Ex. PW-3/A. He identified the envelope S- 7 in which memory card containing specimen voice of Chetan Prakash was sealed by CBI in his presence. The brown envelope was exhibited as Ex.PW-3/B. He also identified his signatures at point 'A' and signature of Kishan Dutt at point 'B' on the Sandisk packing Ex.PW-3/C containing the memory card having the specimen voice of Chetan Prakash Sharma and the white colour plastic envelope and memory card as Ex.PW-3/D (colly.). He further identified the brown envelope containing the memory card having specimen voice of Swarndeep Shukla as Ex.PW-3/E and Sandisk packing bearing his signatures at CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 11 of 51 point 'A' and that of Kishan Dutt at point 'B' as Ex.PW-3/F and the white plastic envelope and memory card as Ex.PW-3/G collectively. On the next date of hearing, i.e. 1.2.2017, witness stated that he had deposited the brass seal used in the proceedings in connected case, i.e. CBI Vs. Laxman on 23.1.2017.
15.11 PW5 Sh. Parmeet Kumar Junior Court Assistant at Supreme Court of India has deposed that he had reached the office of CBI pursuant to his office order on 20.11.2014 and 21.11.2014 along with his colleague Sunny Attri. On 21.11.2014, specimen voices of four MCD employees, i.e. beldars was recorded in his presence. He also identified both the accused present in the court whose specimen voices were recorded on 21.11.2014 but was unable to tell their names. He further deposed that initially their specimen voices were taken in the memory cards and thereafter specimen voices of accused present in the court were taken and after the completion of recording of specimen voices of both the accused, their voices were again recorded. He further deposed that in CBI office before recording of specimen voices, CBI officials had also played the audio-video clippings in which accused persons were seen taking bribe from unknown persons. He identified his signatures on the specimen voice recording memo Ex. PW-5/A at point 'A', signatures of Sunny Attri at point 'B' and the accused had also signed on the said memos in their presence. He further deposed that the transcription of their introductory voice as well as the text spoken by them, the accused persons was also annexed with the specimen voice recording memo. He further deposed that after obtaining the voice samples of the accused persons the same were separately sealed which was signed by him and Sunni Attri and the seal was handed over to him. He also identified the CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 12 of 51 envelope S-2 containing the specimen voice of accused Ramesh Chand and identified his signatures on the envelope and the envelope as exhibited as Ex.PW-5/B. He also identified red colour Sandisk envelope bearing his signature at point 'A' and signatures of Sunni Attri at point 'B' and the same was exhibited as Ex.PW-5/C. The white plastic colour along with the memory card containing the voice of Ramesh Chand was collectively exhibited as Ex.PW-5/D. PW-5 further identified the envelope S-5 containing the specimen voice of accused Rajpal and identified his signatures on the envelope and the envelope was exhibited as Ex.PW-5/K. He also identified red colour Sandisk packing bearing his signature at point 'A' and signatures of Sunni Attri at point 'B' and the same was exhibited as Ex.PW-5/L. The white plastic envelop along with the memory card containing the voice of Rajpal was collectively exhibited as Ex.PW-5/M. 15.12 PW7 Sunil Kumar is the neighbour of the complainant Chetan Prakash and his house was in front of the complainant's house. He deposed that his house comes under Rajapuri and the house of Chetan Prakash comes under Vishwas Park and there is one gali separating Rajapuri and Vishwas Park. He also deposed that in the year 2010-11, Chetan Prakash was constructing his house with basement but he could not recall the house number of Chetan Prakash.
15.13 PW11 Suman Kumar Rawat has deposed that about two years ago he was instructed by his boss to reach CBI office to witness some facts. After he reached CBI office, a CD was played in which 4-5 persons were seen and conversation was taking place but he could not understand properly, thereafter, one person came in the CBI office and CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 13 of 51 the CBI official asked him to give specimen voice but he declined on the ground that he is not well. The said person was also asked to sign on some papers which the witness had also signed. The witness identified his signatures at point 'A' on Ex.PW-11/A. He further deposed that the CD was not played and shown to the said person. The witness was declared hostile and was cross-examined by Ld. PP for CBI. In his cross-examination he could not recall if he had signed Ex.PW-11/A after reading it carefully. He also could not admit or deny if one video file named VO109001.AVI was played and seen by one Daya Shankar who declined his specimen voice.
15.14 PW14 Dashrath Singh is another neighbour of the complainant Chetan Prakash who has deposed that his house was adjoining to the house of complainant and in the year 2010, complainant was re-constructing his house after demolishing the earlier structure and he was also making basement in his house.
15.15 PW4 Sh. Chetan Prakash is the complainant of the case. He deposed that he had filed Writ Petition (Crl.) 1823/12 before the Hon'ble High Court seeking CBI enquiry on the sting operations conducted by him. He proved the certified copy of the Writ Petition as Ex.AD-2 (colly.). He also deposed that he had mentioned the mobile number of Sanuj Shukla as 9968203180 in para 2 of the petition and Sanuj Shukla was using this number at the time of sting operation. He further deposed that he was repairing his house situated at G-248, Vishwas Park, Uttam Nagar, Delhi in the year 2010 and several MCD officials had visited his house during the period of construction. Both the accused also visited his house in December, 2010 and demanded bribe but the amount was not specified and he told that the house CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 14 of 51 belongs to his relative/friend and had asked as to why he should pay the money but the accused insisted on taking the money and told him that construction material was lying on the road and if money is not paid, they will not allow the construction complete and would challan him for keeping the construction material on road and he would have to pay fine in thousands. PW-4 further deposed that he asked both the accused to come on the next and he will call his relative who is owner of the house. Thereafter, he called his friend Daya Shankar who had conducted various sting operations with the complainant and asked him to pay money on behalf of the complainant to which he agreed. Next day, Daya Shankar came to the house of complainant and complainant explained him every thing and they started waiting for the accused persons. PW-4 has further deposed that both the accused came there at about 11 AM and he switched on his camera and signalled Daya Shankar who came near to him. He introduced Daya Shankar the owner of the house and both the accused demanded money from him and Daya Shankar and Daya Shankar paid Rs. 500/- on his instructions but both the accused started demanding more money and Daya Shankar paid Rs. 100/- more. Thereafter, both the accused left the place after taking money.
He further stated that in 2013, he came to know that Daya Shankar had either taken money from those police officials or under some pressure was not supporting the allegations in the court and he also came to know that Daya Shankar was also negotiating with both the accused in this case and, therefore, he has not made statement before CBI. He also deposed that he came to know the names of the accused persons when they had initially visited his house. The complainant also identified the accused present in the court and also in the video file no. V0109001 contained in Ex.6/1 when the same were CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 15 of 51 played in the court. He also identified voices of accused in the video recording. He identified the transcript Ex.PW-2/B. PW-4 further testified that he had carried out various sting operations against different public servants from Delhi Police, MCD etc. and had made complaints to the police authorities but when no action was taken, he made recourse to the court. He proved the order dated 14.2.2014 passed in his Writ Petition as Ex.AD-1 (Colly.) and certified copies of various orders and court proceedings as Ex.AD-3 (Colly.). He deposed that on 11.2.2013 he had handed over five hard disks and five memory cards in the office of Registrar General vide forwarding letter dated 11.2.2013. He also identified the yellow colour envelope bearing his signatures and signature of his advocate and the same was exhibited as Ex.PW-4/A and it contains five plastic containers, containing five memory cards. He also identified the memory card Ex. 6/1 along with its plastic container and same was proved as Ex.PW- 4/B. He further testified that the sting operation against the accused person was done by him through button camera along with DVR make PV 500 Soni which was handed over by him to Crime Branch, Delhi Police in another case and it was not returned to him. During the investigation of the case, sample voice of Chetan and specimen voice of Swarndeep Shukla was taken by CBI officials in the presence of independent witnesses. PW4 identified the memory card Ex.PW-3/D in which his specimen voice was recorded. He further identified his signatures on transcription-cum-voice identification memo already Ex. PW-2/C at point 'B'. He also identified his signatures on specimen voice recording memo Ex.PW-3/A at point 'C'. He also proved certificate under Section 65-B of Indian Evidence Act Ex.PW-4/C. 15.16 PW15 Swarandeep Shukla is the friend of the complainant CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 16 of 51 and he has deposed that he knew Chetan Prakash through Daya Shankar who was indulged in sale of illicit liquor along with him. He used to bring illicit liquor from Haryana and supply it to the Sansis. He further deposed that repairing of house of Chetan Prakash was going on in the year around 2012-13 but he does not remember the exact year. Chetan Prakash called him on phone and informed that he had to come as some officials of MCD were demanding money from the complainant to allow the repair of the house. He further deposed that complainant had called him for the purpose of sting operation. He assisted complainant in recording of sting operation in many cases involving Delhi Police officials and MCD officials. PW-15 further deposed that complainant had told him on phone that both the accused had come one day prior to the visit of PW-15 and he had told the accused persons that the house belongs to his relative. Both the accused were supposed to visit during the construction of the house of the complainant. He further deposed that on next one or two days of talking with complainant, he visited Raja Puri house of the complainant initially for 10-15 minutes but accused had not come. Thereafter, he had gone somewhere for his personal work and returned after about two hours. The accused persons visited the house of the complainant after about half an hour of his arrival on the second time. The complainant introduced him to the accused persons as his relative and told them that the house under repair belongs to him. Thereafter, accused Ramesh demanded money for allowing construction of the house and he further stated that otherwise construction would be demolished and PW-15 told them that he was not having money and asked them to come on some other day so that he could handover the money to Chetan Prakash from whom they can take. Thereafter, the accused persons went away without taking any money on that day and CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 17 of 51 PW-15 also left the house of Chetan Prakash and did not meet the accused persons and he was also not aware as to what happened thereafter. He further deposed that the names of the accused persons after seeing the video clipping in which they had murmured their names. PW-15 further deposed that he was called by CBI officials for the purpose of investigation in another case and he had visited CBI office two times. On the first occasion, CBI officials asked certain queries from him and on second occasion video clippings were shown to him and his specimen voice was recorded. PW-15 identified one of the accused as Ramesh Chand but he showed ignorance about the presence of other accused in the court. He was cross-examined by Ld. PP for the CBI and in the cross-examination he admitted that when he had gone to CBI he was shown six clippings and specimen voice of Chetan Prakash was also recorded. He identified his signatures on the specimen voice recording memo Ex.PW-3/A at point 'D' but he denied that two independent witnesses had also signed in his presence. He also admitted that his two statements were recorded on 25.11.2014 and 2.5.2016 and his sample voice was recorded on first visit and stated that due to confusion he had deposed in the examination-in- chief that his specimen voice was recorded on the second visit. The witness also admitted the contents of his statement recorded by CBI which was marked as Mark PW-15/A and Mark PW-15/B. He identified accused Ramesh Chand, Daya Shankar and accused Rajpal in the video clippings in file no. VO109001 when it was played in the court.
15.17 PW18 Daya Shankar has deposed that he was living in Delhi since 2004 except for a period of one or two years in between. He knew PW-4 Chetan Prakash who was resident of Rajapuri and his house No. was 248. He came in contact with PW-4 through one CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 18 of 51 contractor Jaswant Singh and also remained as a tenant in the house of PW-4 for 5-6 months. He further deposed that at the asking of both PW-4 and Jawant, he had given some money to someone but he could not recall if it was Rs. 400/- or 500/- and also did not know about the person to whom the money was to be given but he gave the money to some person at the instance of PW-4 and Jaswant Singh. He also deposed that he was not aware that said transaction of handing over of money was being captured on the camera by PW-4 and he was kept about this think in dark and he later on learnt about it from Jaswant but he was not shown any such video file. He also could not identify the accused persons present in the court. PW-18 was shown the video file in Ex. 6/1 and after seeing the footage he deposed that he had seen the video footage for the first time and he did not know as to who prepared the same. He identified the voice of PW-4 Chetan Prakash in the background but failed to identify the two persons (accused) in the video footage. He identified himself in the video footage at some places and was also seen giving money to one such person wearing orange/black sweater. PW-18 was declared hostile and he was cross examined by Ld. Sr. PP for CBI. In his cross-examination by Ld. Sr. PP he admitted that he had requested CBI officials not to take his voice specimen as he used to remain ill. He could not recall if one CD containing video file V0109001.AVI was shown to him in the CBI office. He deposed that it might be correct that he might have been Rs. 600/- by Chetan Prakash but he denied the suggestion that there was no involvement of Jaswant in the matter. He volunteered that he has been used by Chetan as well as Jaswant. He further denied the suggestion that he was deliberately not identifying the accused persons as he has colluded with them or that PW-4 Chetan had apprised him that illegal gratification was being demanded by MCD officials and that PW-4 CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 19 of 51 wanted to catch them red handed and, therefore, had sought his help.
(C) EXPERTS FROM CFSL 15.18 PW19 Dr. Subrat Kumar Choudhary, Sr. Scientific Officer, Gr-II-cum-Asstt. Chemical Examiner to Govt. of India, CFSL, CBI, New Delhi has proved his report No. CFSL-2014/P1779 dated 17.4.2015 as Ex.PW-17/I. He deposed that he had examined the specimen voices of Ramesh Chander, Rajpal, Chetan Prakash and Swarandeep Shukla in the video clipping and had compared the same with the specimen voices of these persons and has observed that the voices in the video clipping are similar to the specimen voices of these persons.
15.19 PW20 Sh. P.K. Gottam, Sr. Scientific Officer-I (Photo) CFSL, CBI, New Delhi has compared the photograph of accused Ramesh Chander (S-16) and Rajpal (S-19) with video file no.V0109001.AVI and came to the conclusion that the persons appearing in the sample photographs (S-16 & S-19) appeared to be similar with the person visible in the aforesaid video files. He also proved his report dated 12.5.2016 as Ex.PW-17/B (D-11).
15.20 PW21 Sh. Gautam Roy Retd. Sr. Scientific Officer and Head of the Department in the computer forensic and head of the department in the computer Forensic Division & Photo Division in CFSL CBI New Delhi examined the memory cards and micro SD cards Ex.6/1 to 6/5 and came to the conclusion that there was continuous flow of video and there was no stoppage, pause etc. and, therefore, there was no tampering on the aforesaid five memory cards. He proved his report as Ex.PW-21/A. CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 20 of 51 (D) CBI OFFICIALS 15.21 PW17 Sanjay Upadhayay is the second IO of the case. He deposed that the initial investigation had been carried out by Inspector Kailash Sahu and he was handed over the investigation after Inspector Kailash Sahu was posted out from ACB branch. He deposed that most of the witnesses had already been examined by the previous IO and he recorded supplementary statements of some such witnesses and also recorded statements of few more witnesses. He further deposed that during the investigation 11 photographs Marked S-10 to S-20 were sent to CFSL for the purpose of comparison with the persons visible in the video files of the sting operation. The SD cards had already been sent to CFSL. He proved the forwarding letter along with annexures as Ex.PW-17/A. The report of Sh. P. K. Gottam, Sr. Scientific Officer was proved as Ex.PW-17/B. He also deposed that other reports were also received from CFSL and he had collected documents from MCD and Delhi Police. He received letter Mark PW-6/1 (D-20) from EE (Building) Najafgarh Zone in response to his letter Ex.PW-17/C (Part of D-20). He also collected certificate under Section 65-B from Chetan Prakash contained in D-13 which was seized vide memo Ex. PW-17/D (D-12). He further deposed that vide memo Ex.6/A (D-14) he had collected the posting/attendance details of MCD officials and the details have already been exhibited as Ex.PW-1/A to PW-1/D colly. (D-15). He also deposed that he had also received letter from EE M-III/NGZ dated 07.06.2016 along with appointment details of daily wages. The said letter along with its annexures was exhibited as Ex.PW-17/E (colly.) and all such documents were taken into possession vide memo Ex.PW-17/F. He also proved the statement of Rajinder Kumar Ex.PW- 12/A and Swarndeep Shukla Mark PW-15/B. He testified that sanction order Ex. PW-16/A was received from Sh. Sanjiv Kumar, the then CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 21 of 51 Deputy Commissioner, Najafgarh Zone. After completion of investigation he filed the charge sheet.
He further identified the signatures of Inspector Kailash Sahu at point 'C' on transcription-cum-voice identification memo Ex.PW-2/C. He also deposed that during investigation specimen voice samples had been given by both the accused vide common specimen voice recording memo Ex.PW-5/A. Sh. Vivek Priyadarshi, the then SP, CBI ACB had sent sealed pullanda containing 5 hard disks and 5 memory cards along with specimen seal to CFSL vide letter Ex.PW-17/G. Specimen voice was also sent to Director CFSL vide forwarding letter Ex.PW-17/H under the signatures of Sh. Anis Prasad. He proved the report of CFSL regarding specimen voice as Ex.PW-17/I(D-10) and FIR as Ex.PW-17/J(D-1). Receipt memo vide which Inspector Kailash Sahu handed over sealed parcels containing seal of Registrar of High Court of Delhi besides specimen seal impression was proved as Ex.PW-17/K (D-5).
Thereafter, PE was closed.
Statements of accused & Defence evidence
16. Accused no.1 Ramesh Chand pleaded ignorance as to why he has been falsely implicated when he was examined u/s 313 Cr.P.C. He further stated that he had never gone to the house of PW4 Chetan Prakash and was not aware about the address of his house. He along with his co-accused have been falsely implicated and there was no such demand. He never demanded any money and no bribe was ac- cepted by him and his co-accused. He also denied the report of CFSL as false and claimed that video footage is manufactured and fabricated. He did not prefer to lead any evidence in his defence.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 22 of 51In reply to the questions in supplementary statement u/s 313 Cr.P.C recorded on 25.09.2018, accused no.1 stated that PW16 was not competent person to prove the noting and noting was done in me- chanical manner. He also stated that the report Ex.PW-21/A given by Sh. Gautam Roy is inadmissible as it does not contain any reason and has been prepared without examination of memory cards.
17. Accused no.2 Raj Pal also pleaded ignorance as to why he has been falsely implicated when he was examined u/s 313 Cr.P.C. He stated that he never went to the house of PW4 Chetan Prakash and was not even aware about the address of his house. He along with his co-accused have been falsely implicated and there was no such demand. He never demanded any money and no bribe was accepted by him and his co-accused. He also denied the report of CFSL as false and claimed that video footage is manufactured and fabricated. He did not prefer to lead any evidence in his defence.
In reply to the questions in supplementary statement u/s 313 Cr.P.C recorded on 25.09.2018, accused no.2 stated that PW16 was not competent person to prove the noting and noting was done in me- chanical manner. He also stated that the report Ex.PW-21/A given by Sh. Gautam Roy is inadmissible as it does not contain any reason and has been prepared without examination of memory cards.
RIVAL CONTENTIONS
18. Ld. Sr. PP CBI has argued that the prosecution has proved its case against both the accused beyond reasonable doubts. He has argued that the present case was registered on the directions of Hon'ble High Court of Delhi in Criminal Writ Petition filed by CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 23 of 51 complainant Chetan Prakash. It has further been submitted that the complainant had deposited five memory cards and five hard disks with the High Court registry which were received by the IO and the same were sent to CFSL. The memory card relevant to the present case is Ex.6/1 which contains the video footage of the offence involved in this case. He has argued that in the video footage accused persons are visible demanding and accepting bribe of Rs. 600/- from Daya Shankar. It has been argued that the expert from the CFSL, i.e. PW-19, PW-20 and PW-21 have examined the video footage and have given their reports which clearly indicate that the accused persons were involved in the offence.
19. He has also argued that during the course of investigation IO had collected the posting details of the accused from their office and their specimen voice was also recorded. The photographs on the bio- data of the accused have matched with the persons seen in the video footage and similarly specimen voices of accused persons have matched with the voices in the video footage. It was also argued that complainant Chetan Prakash was examined as PW-4 and Swarndeep Shukla was examined as PW-15 and they have narrated the incident which stands corroborated by the video footage. Although PW18 Daya Shankar has not identified the accused persons in the video clipping or in the court but he had corroborated the case of the prosecution to the extent that he had given money to some person at the instance of PW4 Chetan Prakash and had also identified himself in the video footage. It was also argued that the officials from MCD, i.e. PW-1 Virender Singh Chauhan, PW-6 Suman Tokas, PW-9 Hoshiyar Singh, PW-12 Rajinder Kumar and PW-13 M.S. Yadav have also identified both the accused persons in the video footage when it was played in the court. He has CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 24 of 51 argued that CBI has taken all the precautions during investigation and have also obtained sanction for prosecution against accused no.2 Raj Pal which has been proved by PW-16 Sanjeev Kumar, Deputy Commissioner as Ex.PW-16/A. He further submitted that no sanction for prosecution was required against accused no.1 Ramesh Chand as he was a daily wager beldar and was not a permanent employee.
20. Ld. Sr. PP for CBI also relied upon the judgment of Hon'ble Supreme Court in State of Bihar Vs Rajmangal Ram, AIR 2014 SC 1674 and argued that as per Section 19(3)(b) of PC Act,1988 mere omission, error or irregularities in the matter of according sanction does not affect the validity of the proceedings unless the court records the satisfaction that such error, omission or irregularities has resulted in failure of justice. It was also argued that as per the case of Prakash Singh Badal Vs State of Punjab & Ors., AIR 2007 SC 1274, it was held that Section 19(1) of PC Act,1988 is a matter of procedure and does not go to the root of jurisdiction. He also relied upon the judgment of Anirudh Behal Vs. State in Crl. M.C. 2793/2009 decided on 24.9.2010 by High Court of Delhi to argue that sting operation conducted by a citizen of India to expose corruption is fundamental duty of a citizen under Article 51-A (h) and (j) of the Constitution of India and the same cannot be outrightly rejected.
21. Ld. LAC for accused no.1 has argued that the case of prosecution is liable to fail on account of lack of sanction for prosecution. It was argued that accused no.1 was working in SDMC continuously since 2003 on regular basis and was terminated in 2017 vide order dated 20.03.2017 after holding departmental inquiry which shows that accused no.1 was permanent employee. However, no CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 25 of 51 sanction for prosecution has been obtained by CBI from the competent authority. It was further argued that the main witness of the prosecution i.e., PW18 Daya Shankar has not supported the case of the prosecution and has turned hostile. He has neither identified the accused persons in the court nor has corroborated the prosecution story. It was further argued that PW15 Swarandeep Shukla was not an eye witness to the incident and he was also not present at the time of recording of the video footage as has been admitted by him in his cross examination dated 02.02.2017. He has argued that no original recordings or recording device (camera) were sent to CFSL. The IO also failed to examine the owner of Pal Movies where PW4 Chetan Prakash had admittedly prepared the copies of the video footage. It was also argued that there was no complaint regarding the incident from 2010 to 2012 either to the police or to the higher officials of the MCD and the writ petition was filed after delay of two years and even in the writ petition names of the accused persons was not mentioned.
22. Ld. Counsel for accused no.2 has also argued on the same lines as that of accused no.1 and has submitted that the prosecution has not been able to establish demand by the accused persons. The allegations of demand are vague and no amount has been specified. Even in the video footage there is no demand by accused no.2 Rajpal. He argued that there are only three material witnesses to the case of the prosecution namely PW4 Chetan Prakash, PW15 Swarandeep Shukla and PW18 Daya Shankar. PW18 is hostile and has not supported the case of prosecution on material particulars. He has neither identified the accused persons nor has corroborated the prosecution story. It was argued that the prosecution cannot derive any benefit from his bald statement that he had given money to some CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 26 of 51 person at the instance of the complainant when he could not disclose the purpose for which the money had been given. It was also argued that PW15 was not present at the scene of crime when the video footage was recorded by PW4 Chetan Prakash. Further there are material contradictions in the testimony of PW4 and PW15 and their statements cannot be relied upon. He has further argued that accused no.2 Rajpal was a regular employee and the sanction in this case was given by Deputy Commissioner who was not competent to accord sanction for prosecution. It was also argued that a bare perusal of the testimony of PW16 recorded on 04.07.2018 when he was recalled in terms of order dated 07.06.2018 would show that he was not even aware whether he was competent to grant sanction for prosecution qua accused no.2 or not. Counsel for accused no.2 has placed reliance on the judgment of Omprakash Shankarlal Sharma Vs The State of Maharashtra, 1993 Crl. L.J. 3175 (Bombay High Court) wherein it was held that where the sanction for prosecution was not given by competent authority, trial court was not competent to cure lacuna by prosecution.
23. Ld. Sr. PP for CBI, in rebuttal, has argued that CBI had sent request seeking sanction for prosecution against both the accused which is established from noting on page 4/N and page 5/N of Ex. PW- 16/C-1. However, the letter was dealt by the Commissioner of MCD and it was marked to the Vigilance Department which noted that accused Ramesh Chand was working on daily wages and as such no sanction was required for his prosecution. It is also argued that the sanction qua accused no.2 has been given by Deputy Commissioner but the same cannot be discarded in view of explanation to Section 19 of PC Act, 1988 as accused no.2 has failed to show any failure of CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 27 of 51 justice. It was also argued that the conduct of the complainant is not relevant in criminal proceedings. As regards delay in filing the writ petition, it was argued that the complainant in his cross examination has explained the reason for not taking any action against the accused persons immediately after the sting operation. It was also argued that presence of accused no.2 at the spot has not been denied and accused no.1 had accepted the money from Daya Shankar in his presence and therefore, the complicity of the accused no.2 in the offence stands established. He has also argued that the CFSL experts have supported the case of the prosecution and there is no reason or motive available with them for filing false report against the accused persons.
APPRECIATION OF EVIDENCE
24. At the outset, accused Ramesh Chand and Rajpal have not dis- puted the fact that they were posted as nala beldar in ward no.148, Na- jafgarh Zone under the office of Executive Engineer M-III (Maintenance Department), Najafgarh Zone at the relevant period i.e., December, 2010. This fact has also been established by PW1 Virender Singh Chauhan who was the JE of the said ward. PW6 Suman Kumar Tokas JE of ward no.148 has also deposed that plot no. G-248, Vishwas Park, PS Dabri, New Delhi falls under the jurisdiction of Ward no.148, Madhu Vihar of Najafgarh Zone. There is no cross examination of the witness by the counsels for the accused persons on this aspect. Hence, his testimony on this aspect remains unrebutted. PW7 Sunil Kumar and PW14 Dashrath Singh who were the neighbours of PW4 Chetan Prakash have deposed that Chetan Prakash was the owner of plot no. G-248, Vishwas Park on which he was reconstructing his CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 28 of 51 house along with basement after demolishing earlier structure.
SANCTION FOR PROSECUTION OF ACCUSED
25. Ld. Addl. PP for CBI has submitted that CBI had applied for sanction for prosecution for both accused to SDMC. However, sanc- tion for prosecution was received only qua accused no. 2 vide sanction order Ex.PW-16/A from PW16 Sh. Sanjeev Kumar, Deputy Commis- sioner and no sanction was accorded qua accused no. 1 Ramesh Chand and it was observed that no sanction for prosecution is re- quired since accused Ramesh Chand was working on daily wages. Ld. Sr. PP has also placed reliance on the file notings of SDMC Ex. PW- 16/C-1 (colly) in this regard.
26. Although, counsel for accused no.1 has argued that accused no. 1 was working continuously since 2003 and even departmental inquiry was also held against him and he was terminated in 2017 vide order dated 20.03.2017 but there is nothing on record to show that A-1 Ramesh Chand was working in the capacity of permanent employee of SDMC. The personal bio-data of accused Ramesh Chand Ex.PW- 1/F shows that he was working as a daily wager nala beldar. PW1 Virender Singh Chauhan has also confirmed this fact and has proved the muster roll of daily wager nala beldars as Ex.PW-1/C (Bunch C) which reflects the name of accused no.1 Ramesh. Mere fact that a de- partmental inquiry was conducted against accused Ramesh before his services were terminated does not mean that he had become perma- nent employee of SDMC. No appointment letter/confirmation letter showing that accused Ramesh had been made permanent employee by SDMC, has been placed on record by the accused. Hence, in the CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 29 of 51 absence of any such documentary evidence, the contention of Ld. LAC for accused Ramesh that he was a permanent employee of SDMC and he could not be prosecuted without sanction for prosecution from the competent authority is rejected being devoid of any merits.
27. Accused no.2 Rajpal was admittedly a permanent employee/nala beldar in the SDMC and sanction for prosecution Ex.PW-16/A has been accorded against him by PW16 Sh. Sanjeev Ku- mar, Deputy Commissioner. Counsel for accused no.2 has vehemently argued that the aforesaid sanction was illegal as PW16 was not com- petent to grant sanction for his prosecution. It was argued that the personal bio-data of Rajpal Ex.PW-1/G shows that the appointing au- thority and removal authority for beldars was Additional Commissioner. Hence, sanction accorded by PW16 who was Deputy Commissioner at the relevant time is not a valid sanction.
28. Ld. Sr. PP for CBI has argued that in view of Section 19 (3) (b) of Prevention of Corruption Act, sanction does not become vitiated merely because there is any omission, error or irregularities in the mat- ter of according sanction, that does not affect the validity of the pro- ceedings unless the court records the satisfaction that such error, omission or irregularities has resulted in failure of justice. It was also argued that the Explanation (a) to Section 19 makes it clear that error includes competency of the authority to grant sanction. Reliance has been placed on the judgment of State of Bihar & Ors. Vs Rajmangal Ram (supra).
29. The object behind the requirement of grant of sanction to prose- cute a public servant need not detain the court save and except to reit-
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 30 of 51erate that the provisions in this regard either under the Code of Crimi- nal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of the discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always is whether the act complained of has a reasonable connection with the discharge of official duties by the Government or the public servant. If such connection exists and the discharge or exercise of the govern- mental function is, prima facie, founded on the bona fide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivo- lous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is not, may, at times, get blurred thereby enabling certain unjusti- fied claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provi- sions have been incorporated in Section 19 (3) of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Proce- dure which, inter alia, make it clear that any error, omission or irregular- ity in the grant of sanction will not affect any finding, sentence or order passed by a competent court unless in the opinion of the court a failure of justice has been occasioned.
30. In the present case PW16 Sh. Sanjeev Kumar has appeared in the witness box to prove the sanction accorded by him against ac- cused no. 2 Rajpal. In his cross examination, he has deposed that as per his knowledge appointing authority of accused being nala beldar was Deputy Commissioner. He also deposed that he had not seen the CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 31 of 51 appointment letter of accused Rajpal before giving sanction and that he had verified that he was competent to give sanction. He denied the suggestion that he was not competent to give sanction as he was not the appointing authority. PW16 was further recalled for clarifications in terms of order dated 07.06.2018 and he deposed that he had received the matter from Vigilance Section and therefore, he had dealt with the matter regarding grant of sanction. In reply to a court question, he could not answer that the bio-data of the accused mentioned the fact that Additional Commissioner was the appointing authority and remov- ing authority for nala beldar as well as daily wager nala beldar and de- posed that since the matter came to him from Vigilance Section of the MCD, he assumed that they must have satisfied themselves regarding his competence to grant sanction and he himself did not check his competency in this regard. He further deposed that he had given the sanction for prosecution qua accused Rajpal in his individual capacity as Deputy Commissioner and not while exercising any delegated power conferred on him by the Additional Commissioner.
31. As noted above, perusal of the bio-data Ex.PW-1/G of accused Rajpal shows that Additional Commissioner was the competent officer to remove him from the services and not Deputy Commissioner. Hence, the Deputy Commissioner was clearly lacking competence to accord sanction for prosecution of the accused Rajpal.
32. However, in view of the judgment of Hon'ble Supreme Court in State of Bihar & Ors. Vs Rajmangal Ram (supra), sanction order does not become invalid merely because PW16 lacked competence to accord sanction in view of Section 19(3)(b) unless the court is satisfied that such error, omission or irregularity has resulted in failure of justice.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 32 of 51It was further held by Hon'ble Supreme Court in this case that in deter- mining whether any error, omission or irregularity in any proceeding un- der this court or any error or irregularity in any sanction for the prosecu- tion has occasioned the failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hon'ble Supreme Court placed re- liance on judgment of Police Inspector Vs T. Venkatesh Murti, AIR 2004 Supreme Court 5117 and same view was reiterated in Prakash Singh Badal & Anr. Vs State of Punjab & Ors (supra) wherein it was held that mere omission error or irregularity in sanction is not to be con- sidered fatal unless it has resulted in failure of justice. In Prakash Singh Badal'case it was further held that Section 19 (1) of Pct Act is a matter of procedure and does not go to the root of jurisdiction.
33. In the present case accused no.2 Rajpal never raised any ob- jection at the earlier stages of the proceedings and there is no explana- tion forthcoming in this regard. Even at the stage of final arguments, accused no.2 has failed to show as to how this error, omission or irreg- ularity has resulted in a failure of justice. Hence, I am not inclined to reject the case of prosecution merely on the ground that sanction was not granted by competent authority.
34. Now Coming to the merits of the case, prosecution in the present case has relied upon two sets of evidence i.e., the video footage contained in memory card Ex.6/1 [Ex. PW-4/B] recorded by PW4 Chetan Prakash at the time of the incident and oral testimonies of the witnesses PW4 Chetan Prakash and PW15 Swarandeep Shukla @ Sanuj Shukla and PW18 Daya Shankar who were the main witnesses of the prosecution. Firstly, I shall discuss the electronic evidence pro-
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 33 of 51duced by the prosecution and thereafter the oral testimonies of the wit- nesses.
ELECTRONIC EVIDENCE
35. As per the case of prosecution, PW4 Chetan Prakash con- ducted a sting operation along with PW18 Daya Shankar and made a video recording of the accused accepting the bribe money from PW18 Daya Shankar. As per the case of prosecution, the sting operation was recorded with the help of a DVR PV500. It is further the case of the prosecution that on the directions of Hon'ble High Court PW4 de- posited five hard disks and five memory cards in the registry of Hon'ble High Court and the same were sent to CFSL for forensic examination. Three reports were received from the CFSL.
In the first report Ex. PW-17/I given by PW19 Dr. Subrat Kumar Choudhary it was observed that the questioned voice marked exhibit 6/1(R) is the probable voice of the person Ramesh Chand whose spec- imen voice is marked Ex. S-2(3)(R). It was further observed that ques- tion voice marked Ex. 6/1(P) is the probable voice of the person Rajpal whose specimen voice is marked as Ex. S-5(3)(P). The questioned voice marked Ex.6-1(C) was the probable voice of Chetan Prakash Sharma whose specimen voice was marked Ex.S-7(4)(C). PW18 Daya Shankar had not given his specimen voice on the pretext that he was not well.
In the second report Ex.PW-17/B given by PW20 P.K. Gautam, it was observed that the person in the sample photograph S-16 on the bio-data of accused Ramesh Chand which is Ex.PW-1/F appears to be similar with a person visible in the audio/video file V0109001.AVI (Ex.6/1) and the person in sample photograph S-19 on the bio-data of CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 34 of 51 accused Rajpal which is Ex.PW-1/G appears to be similar with a per- son visible in the audio/video file V0109001.AVI (Ex.6/1).
In the third report Ex.PW-21/A given by PW21 Sh. Gautam Roy, it was observed that the memory cards Ex. 6/1 to Ex.6/5 are not being tampered.
36. Ld. Sr. PP for CBI has submitted that the aforesaid reports clearly show that there was no tampering, editing or morphing in the video footage contained in memory card Ex. 6/1 [Ex.PW-4/B] and PW4 Chetan Prakash has also given his certificate u/s 65-B of Evidence Act already Ex.PW-4/C in this regard and the same can be safely relied upon.
37. Ld. Counsels for accused have vehemently argued that the video footage in memory card Ex.6/1 [Ex.PW-4/B] is edited, morphed and is full of suspicion. PW4 did not produce the original recording de- vice for examination by CFSL. It was also argued that the recording re- mained with PW4 for almost two years and in unsealed condition and therefore, the chances of tampering cannot be ruled out. It was also argued that DVR was having internal memory and it has not been proved by the prosecution whether the recording was originally done on the internal memory of the DVR and thereafter transferred to the memory card or it was done directly on the memory card. It was ar- gued that the electronic record produced by the prosecution does not inspire confidence and cannot be safely relied upon.
38. When a party produces a documentary evidence in support of its case, two questions are required to be determined before it can be relied upon:- (i)Whether it is admissible in evidence?; (ii)If answer to CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 35 of 51 question (i) is in affirmative, whether the document is genuine and au- thentic and is without any blemish. Hence, first of all I shall look into the question of admissibility of the memory cards produced by the prose- cution.
39. In case titled as Anvar P.V. Vs P.K. Basheer, AIR 2015 SC 180, it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e.,electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2).
Following are the specified conditions under Section 65B(2) of the Evidence Act :
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 36 of 51 electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, 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 CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 37 of 51 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."
40. The above judgment was again discussed in the case Shafi Mohammad Vs State of Himachal Pradesh, in Special Leave Petition (Crl.) No.2303 of 2017 by Hon'ble Supreme Court and vide order dated 30.01.2018 the Hon'ble Supreme Court observed as follows :
"We may, however, also refer to judgment of this Court in Anvar P.V. Vs P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgment in para 24 it was observed that : "Electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible.
However, for the secondary evidence, procedure of Section65 B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandhu(supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act. Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 38 of 51 under Section 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section65B(h). Sections 65A and 65B of the evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(4) is not always mandatory.
Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 39 of 51 certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
41. Thus, the Hon'ble Supreme Court in the above case of Shafi Mohammad, after discussing the judgment in Anvar P.V. Case held that requirement of certificate under section 65(B) is not mandatory and applicability of the requirement of certificate being procedural can be relaxed by the court wherever interest of justice so justifies. Though, one of the situation where requirement of can be as discussed by the Hon'ble Supreme Court in the above judgment is where electronic evidence is produced by a party who is not in possession of original device, then in such case applicability of Section 63 and 65 of the Evidence Act cannot be held to be excluded. However, the Hon'ble Supreme Court has not stated that it is only in case where a party is not in possession of original device that the requirement of certificate under section 65B(4) can be dispensed with and thus, person producing electronic device being not in possession of original device is one of the instances wherein the requirement of the certificate being procedural can be relaxed. The Hon'ble Supreme Court categorically held that the requirement of certificate under section 65B Evidence Act is not always mandatory and the applicability of the requirement of certificate under section 65B can be relaxed whenever interest of justice so justifies.
42. In the present case, although the original recording device has not been produced by the prosecution but it has been claimed that the memory card produced by PW4 Chetan Prakash is original and contain original recordings of the sting operations conducted by him. However, this fact has been disputed by counsels for the accused. In any case, prosecution has also proved on record certificate u/s 65-B of Indian CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 40 of 51 Evidence Act filed by PW4 Chetan Prakash as Ex.PW-4/C and the same was seized vide production-cum-seizure memo dated 30.04.2016 Ex.PW-17/D. Therefore, memory card produced by the prosecution cannot be rejected merely on the ground that the same is inadmissible in evidence for the want of certificate u/s 65-B of Evidence Act.
43. Now, the next question which requires determination is whether the aforesaid memory card (electronic record) so produced by the prosecution is genuine and authentic and whether the same can be safely relied upon or not.
44. Ld. Sr. PP for CBI has argued that PW4 Chetan Prakash has given certificate u/s 65-B Evidence Act Ex.PW-4/C that there is no tampering in the memory cards produced by him. Expert from CFSL has also certified that the memory card Ex.6/1 [Ex.PW-4/B] is not tampered and is genuine. Ld. Counsels for the accused have disputed this fact and have argued that the possibility of tampering of the memory card cannot be ruled out as it remained in unsealed condition in the custody of complainant PW4 for almost two years before it was produced and sealed before the Ld. Registrar General in compliance of the orders of Hon'ble High Court. It was also argued that PW4 himself has admitted in his cross examination that the five memory cards submitted by him in the Hon'ble High Court were having recordings from 2010 to 2012. He has also admitted that he does not remember as to after how many days CD was prepared after the sting nor he was aware of the number of CDs prepared by him. He also stated that first he had transferred the data in his personal computer at his house and thereafter he prepared the pendrive and CD was got prepared from the CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 41 of 51 pendrive from the shop and the name of the said shop was Palji Movies, Uttam Nagar. It was argued that from the testimony of PW4, possibility of tampering, manipulating or morphing of the recording in the memory card cannot be ruled out.
45. I have given by thoughtful consideration to the arguments advanced at the Bar.
46. It is pertinent to note that in the present case sting operation was carried out in Dec.2010 whereas writ petition no. 1823/12 [Ex.AD-2 (colly)] was filed before the Hon'ble High Court in December, 2012 and PW4 submitted five memory cards and five hard disks with the office of Registrar General in compliance of order dated 05.02.2013 and till then the memory card remained with him in unsealed condition. PW4 Chetan Prakash also admitted in his cross examination that he had transferred the recording to his computer and from there in a Pen Drive and had taken the same to M/s Palji Movies Uttam Nagar for preparing CDs. However, no such Pen Drive containing the data of the sting operation has been produced by PW4 either before the IO or before the Hon'ble High Court which raises serious question regarding contents of the said Pen Drive. The mere fact that the memory card remained in unsealed condition in the custody of complainant for almost two years is sufficient to give rise to a suspicion that possibility of tampering of the memory card cannot be totally ruled out and thus a doubt is created regarding genuineness of the memory card. Even though PW4 has claimed that the memory card Ex.6/1 [Ex.PW-4/B] was original and contained original recordings but except for his bald statement there is no other material to prove it.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 42 of 5147. Secondly, PW4 has admitted in his cross examination that he had taken the memory card to M/s Palji Movies for preparing the CD. This fact was also mentioned by him in para 5 of his certificate u/s 65-B of Evidence Act Ex.PW-4/C. However, during the course of investigation none of the IOs have made any attempt to examine the owner of the aforesaid studio as well as the complainant regarding the fate of the copies of the memory cards/CDs prepared at the studio and no attempts were made to recover those copies. The manner in which investigation was conducted on this aspect by both the IOs, raises serious doubts. Had they examined the owner of the Palji Movies/Pal Studio and recovered the copies of the CDs, it could have been ascertained as to what actually transpired in the studio between Chetan Prakash and the owner of the studio.
48. Non production of the original recording device i.e., DVR PV500 during the trial is another important factor which creates doubt about the genuineness of the memory card Ex.6/1 [Ex.PW-4/B]. PW4 Chetan Prakash in his examination-in-chief stated that the recordings in the memory card were made by him with the help of DVR PV500. In the examination in chief dated 18.01.2017 he deposed that the device was handed over by him to Crime Branch, Delhi Police in another case and the same was not returned to him by Delhi Police. In the cross examination by counsel for accused no. 2, he deposed that he had told this fact to the IO of this case and had also handed over the seizure memo of the crime branch to the IO of this case. PW4 further deposed that he does not know if IO had seized the original device but to his information, IO had taken the original device from the crime branch.
49. Surprisingly, no attempt seems to have been made by the IOs CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 43 of 51 of the case namely Inspector Kailash Sahu and PW17 Inspector Sanjay Upadhaya to seize the DVR used for recording the sting operation and for sending it to CFSL to ascertain whether it was in working order or not and whether it was compatible with SD card for recording the video clippings. Hence, in the absence of the original recording device i.e DVR, it cannot be said with certainty that the video files available in the memory card Ex.6/1 [Ex.PW-4/B] were recorded directly or they had been copied from some other source.
50. Ld. Sr. PP has argued that in CFSL report Ex. PW-21/A it has been observed that the memory cards are not being tampered. Hence, it would not be proper to raise doubt on the report of CFSL. Counsels for the accused have argued that the report Ex. PW-21/A is bereft of any details and does not give any reasoning for arriving at such conclusion.
51. It is well settled that the opinion given by the experts in a case is not binding on the court. The court has to apply its own mind and only when the court concurs with the opinion of the experts, the same graduates into the opinion of the court. In the present case prosecution has relied upon the three reports of CFSL. The report regarding non tampering of the memory card has been given by PW21 Sh. Gautam Roy in his report Ex.PW-21/A. He appeared in the witness box to prove his report and deposed that there was continuous flow of video and there was no stoppage, pause, etc and therefore, there was no tampering in the five memory cards examined by him.
A bare perusal of the report Ex. PW-21/A shows that there is no reasoning given in the report as to how he arrived at a conclusion that there was no tampering with the memory cards. Further, PW21 has CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 44 of 51 mentioned the hash value of hard disks sent to him in his report Ex.PW-21/A but he has not mentioned the hash value of any of the file of the memory cards examined by him. He has also not given any reason for not mentioning the hash value of the digital files contained in the memory cards Ex. 6/1 to Ex. 6/5 examined by him. PW21 has not even mentioned the date and time of creation and modification of the files in his report. The report is absolutely bereft of any reasons. Even though PW19 Dr. Subrat Kumar Chaudhary has placed on record the properties of Ex. 6/1 during his cross examination which was exhibited as Ex.PW-19/DA but the date of creation of the folder "My Record" and "Video File V0109001.AVI are different and PW19 could not give any satisfactory explanation in this regard. In the absence of original recording device, PW19 was also unable to say from which device video recording was made in the Micro SD Card Ex.6/1. He further deposed that he cannot say if the original device was compatible to make the video recording in Micro SD Card Ex.6/1 as it was not sent for examination. Hence, I do not deem it appropriate safe to place reliance on the report Ex.PW-21/A and the same is accordingly rejected.
52. Keeping in mind aforesaid inconsistencies and infirmities, I am of the considered opinion that the possibility of tampering or manipulation in the memory card Ex.6/1 [Ex.PW-4/B] cannot be absolutely ruled out as the memory card had remained in unsealed condition for almost two years in possession of the complainant Chetan Prakash and the prosecution has failed to produce the recording device i.e., DVR PV500 showing that it was in proper working condition at the time of sting operation and the device was compatible with the memory card produced by the complainant. Hence, no reliance CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 45 of 51 can be placed upon the memory card Ex.6/1 [Ex.PW-4/B] produced by the prosecution and the same is rejected.
ORAL EVIDENCE OF THE WITNESSES
53. Once the memory card Ex.6/1 [Ex.PW-4/B] is excluded from consideration, the only material evidence left with the prosecution is the testimonies of PW4 Chetan Prakash, PW15 Swarandeep Shukla and PW18 Daya Shankar who were the material witnesses for the prosecution. The remaining witnesses are either MCD officials who had handed over the documents relating to posting, sanction etc. of both the accused to CBI or had joined the investigation in recording of the specimen voices of complainant and accused persons and preparation of transcript of the videos file of memory cards. Hence, there is no need to discuss their testimonies in details.
54. At the outset, it may be mentioned that there is a delay of almost two years in filing the writ petition by PW4 Chetan Prakash before the Hon'ble High Court. It is also pertinent to note that no complaint was filed against the accused persons either by complainant or PW Daya Shankar either with the police or with the senior officials of the MCD. Although PW4 Chetan Prakash has tried to explain that he did not file any complaint against the accused persons as it would have alerted the other MCD officials who were demanding bribes but this explanation cannot be termed as a satisfactory explanation for non reporting of an offence. It is also pertinent to note herein that PW4 has himself admitted in his deposition that he had conducted sting operations and had filed number of writ petitions against different public servants including Delhi Police and MCD officials in the Hon'ble High CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 46 of 51 Court of Delhi. However, non filing of any complaint immediately after the sting operation with the police or higher officers of the MCD raises serious doubts on the real motives of the complainant.
55. Another important aspect of the matter is that the name of the accused are not mentioned in the writ petition Ex. AD-2 filed by the complainant Chetan Prakash despite the fact that he came to know about the names of both the accused when they had initially visited him. Not only this, the writ petition is totally silent about the fact that he had conducted sting operation against the MCD officials also. Neighbours of the complainant namely PW-7 Sunil Kumar and PW-14 Dashrath have proved that complainant was not merely carrying out repairs in his house in the year 2010-11, but he was reconstructing his house with basement after demolishing the earlier structure. There is no rebuttal to this fact by the complainant and he has also not placed on record any approval or permission obtained from SDMC to carry out the construction. Complainant also concealed this material fact in his writ petition before Hon'ble High Court which creates serious dent in the claim of the complainant that he had no personal interest in the said writ petition or that he was acting pro bono.
56. Perusal of the testimony of PW15 Swarandeep Shukla would show that he was not present at the time of sting operation being conducted by PW4 Chetan Prakash and PW18 Daya Shankar. This fact has also been admitted by PW4 in his cross examination. Hence, PW15 also cannot be considered as an eye witness to the commission of the offence by the accused persons. Apart from this, there are material contradictions in the testimonies of PW4 Chetan Prakash and PW15 Swarandeep Shukla which makes their testimonies unworthy of CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 47 of 51 reliance.
57. PW4 in his testimony has deposed that when the accused persons visited his house and demanded money in December, 2010 he told them that the house belonged to his relative and he asked them to come another day and thereafter he called his friend Daya Shankar and involved him in conducting sting operation against the accused persons. He has further deposed that he introduced Daya Shankar as the owner of the house to the accused persons and they demanded money from Daya Shankar. In contrast, PW15 Swarandeep Shukla has deposed that Chetan Prakash asked him to come to his house on the next day and when he went there, Chetan Prakash introduced him with the accused persons as his relatives and told them that the house belongs to him (PW15) and the accused persons demanded money from PW15 for allowing him to raise the construction. Thus, there is material contradiction in the versions given by PW4 and PW15. One is unable to comprehend as to how PW4 could have introduced both PW15 Swarandeep Shukla and PW18 Daya Shankar to be the owner of the same house to the accused persons.
Not only this, from the reading of the deposition of PW4 Chetan Prakash, an impression is gathered that the sting operation was conducted on the second visit by the accused persons at the house of PW4 whereas from the deposition of PW15, it appears that the sting operation was conducted on the third visit of the accused persons to the house of PW4 Chetan Prakash which in itself is a material contradiction. PW4 in his cross examination dated 31.07.2017 also deposed that he had submitted the original memory card in the High Court in sealed condition which is contrary to the documentary evidence on record.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 48 of 5158. Now I shall discuss the testimony of PW18 Daya Shankar, another eye witness to the offence. A bare perusal of his testimony shows that he has not supported the case of prosecution on material particulars and his testimony is also unworthy of reliance. PW18 has deposed that he knew PW4 Chetan Prakash and he came into contact with PW4 through one contractor Jaswant and he also remained as a tenant for 5-6 months in the house of PW4. He has further deposed that on the asking of Chetan and Jaswant, he had given some money to some persons at their instance but he was not aware that such transaction was being captured on camera by Chetan. He also deposed that Chetan had given money to Jaswant and Jaswant had given money to him, which is not even the case of PW4. When he was shown the video footage contained in the memory card Ex. 6/1 in the court, PW-18 deposed that he was seeing the video footage for the first time and he does not know who had captured the same. He also did not identify the accused persons in the video clipping and further deposed that he does not know why he was asked to pay the money and that he was used by Chetan. PW18 was cross examined by Ld. Sr. PP for CBI but even in his cross examination he was unable to recall if one CD containing video file V0109001.AVI was played in the CBI Office and was shown to him. He further deposed that he was used by Chetan as well as Jaswant. In the cross examination by the counsels for the accused persons he could not tell the date, month or year when he was instructed to make such payment. He also could not recall the time of payment and deposed that he was not told who were those persons to whom the money was to be paid and he did not know whether they were private persons or government officials. He also deposed that he was seeing the accused persons present in the court CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 49 of 51 for the first time.
Thus, the testimony of PW18 is of no avail to the prosecution to prove its case and apart from PW18, only PW4 Chetan Prakash remains the sole witness to the offence.
59. Hence, in view of the aforesaid discussion, I am of the considered opinion that the testimony of PW4 is contradictory to the testimony of PW15 and there is no independent corroboration to his testimony. It has also come on record that PW4, PW15 and PW18 were having criminal background and therefore, it would be unsafe to rely upon their testimonies without independent corroboration. Although Ld. Sr. PP for CBI has argued that the character of the complainant is not relevant in criminal cases. However, I am unable to accept the submission made by Ld. Sr. PP in view of the judgment of our own High Court in Sat Paul Vs Delhi Administration, AIR 1976 SC 294 wherein it was held that where the witnesses have poor moral fabric and have to their discredit a load of bad antecedents which indicate their having a possible motive to harm the accused who was an obstacle in their immoral activities, it would be hazardous to accept the testimonies of such witnesses without corroboration on crucial points from independent sources. I also find support in my views from the judgment of Hon'ble Bombay High Court dated 09.10.2015 in the case of Ravinder Mahadev Kothamkar Vs State of Maharashtra, Crl. Appeal No. 1152/2004 wherein it was held that in appreciating evidence in trap cases, the character of complainant assumes importance and where the complainant himself was a law breaker, his evidence needs to be scrutinized with due care. The facts of this case were identical to the present case as the complainant in that case was also carrying out unauthorized construction.
CC No. 532383/2016 CBI Vs. Ramesh Chand & Anr. Page 50 of 5160. In the present case PW4, PW15 & PW18 had a criminal background and a possibility cannot be ruled out that they might have conducted the sting operation to implicate the accused persons who may have been creating hurdle in running of their illegal activities. It is beyond comprehension that despite being aware about the existence of the specialized agencies like Anti Corruption Branch of Delhi Police and CBI which deal with the offences of corruption by public servants, complainant chose to conduct the sting operation himself without informing any of such agencies, which also raises doubts about his real motives behind such sting operations.
CONCLUSION
61. In view of the aforesaid discussion, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubts and accused are entitled for benefit of doubt. Accordingly, the accused Ramesh Chand and Rajpal are acquitted for the charged offences u/sec.7, 13(1)(d) r/w Section 13 (2) P.C. Act, 1988 r/w Section 34 IPC or in the alternative Section 11 of P.C. Act, 1988 r/w Section 34 IPC. The accused are directed to furnish bail bonds u/s 437A Cr.P.C.
File be consigned to Record Room after due compliance.
Digitally signed by ANIL ANIL KUMAR KUMAR SISODIA
SISODIA Date: 2019.01.23 16:25:31
+0530
Announced in the open court (ANIL KUMAR SISODIA)
On 23rd day of January, 2019 Special Judge (PC Act) (CBI)-04
Central Distt: Tis Hazari Courts
Delhi
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