Delhi District Court
Hon'Ble Supreme Court In Ritesh Sinha vs . Cbi Of 2013 [ (2013) on 12 May, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No.89/2011
R.C. No.48(A)/04
Case I.D No.02401R0710402007
Central Bureau of Investigation
Versus
1. Shri Meghraj Singh
S/o Sh. Amar Singh
R/o Village Noorpur, P.O Bair,
District Buland Sahar, U.P.
2. Shri Ram Kumar
S/o Late Sh. Jaipal Singh
R/o Village & Post Kirthal,
District Baghpat, U.P.
Date of Institution : 19.07.2007
Date of reserving Judgment : 04.02.2014
Date of Pronouncement : 03.05.2014
JUDGEMENT
PRELIMINARY The accused persons herein namely Sh. Meghraj and Sh. Ram Kumar, who were posted as Head Constable and Constable respectively, with the Excise Department of GNCT of Delhi during the year 2003, have been sent up for trial with the allegations of having committed offences under Section 120B read with Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and the substantive offences committed related thereto. The charge sheet was filed against both the accused persons after having obtained sanction for their prosecution from the competent authority. BRIEF FACTS
2. According the facts narrated in the charge sheet one Sh. Chetan Prakash son of Sh. Babu Lal had videographed several personnel of Delhi Police and Excise Department taking money from bootleggers in the area under the jurisdiction of Police Station Uttam Nagar and the areas adjacent to it, in order to expose their corrupt practices. He approached the Hon'ble High Court by way of filing a criminal Writ Petition seeking protection and direction for investigation by CBI. On the directions of Hon'ble High Court in the said Writ Petition there were three cases registered bearing nos. RC DAI2004 A0048, RC DAI2004 A0049 and RC DAI2004 A0050. The instant case has emanated from RC DAI2004 A0048.
3. During the above proceedings before the Hon'ble High Court the complainant Sh. Chetan Prakash had submitted one VHS cassette and five Hi 8 video cassettes which were received by CBI from the Hon'ble High Court. These cassettes formed the basis of investigation in this case. One of the place referred to where the complainant had prepared the video film clandestinely was in front of the residential premises of one Jasbir Sansi at C233, DDA Flats, Bindapur, Uttam Nagar, Delhi where said Jasbir Sansi and his wife used to sell liquor illegally. There were also number of cases pending against them under the Excise Act.
4. The said Hi 8 cassettes were forwarded to CFSL, Chandigarh for obtaining its opinion on the question whether they were edited or tampered with. There was a report dated 19.12.2006 received from CFSL showing that the video recordings in the said Hi 8 cassettes were camera originals and free from editing. During the course of the investigation specimen voice of Head Const. Meghraj was also taken which was sent along with the questioned Hi 8 cassettes for voice spectography examination and opinion. As per the opinion received from the CFSL, New Delhi on this aspect the specimen voice of HC Meghraj matched with the voice available in the questioned video cassette. Since in the questioned video cassette in the scene related to this case Const. Ram Kumar had not spoken any word, therefore, his voice was not subjected to voice spectographic examination.
5. Head Const. Meghraj and Const. Ram Kumar were identified by the complainant Sh. Chetan Prakash from the questioned video clipping. Head Const. Meghraj was found to be sitting in front of the residential premises of Jasbir Sansi in a chair and Const. Ram Kumar was found standing nearby. Head Const. Meghraj was caught on camera accepting a currency note of Rs.100/ as bribe from Smt. Beena Sansi. Head Const. Meghraj was thereafter seen holding the said currency note for some moment in his hand and then keeping the same in his pocket.
CHARGE
6. On the basis of the allegations there was a common charge framed against the accused persons under Section 120B IPC read with Section 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act,1988 and they were separately also charged for committing the substantive offences punishable under Section 7 and Section 13(1) (d) read with 13(2) of the Prevention of Corruption Act 1988. The charges were read over and explained to them. They had pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
7. Witness PW1 (PW6) ASI Karamvir Singh was examined on two dates one on 2.12.2010 and again on 15.02.2013. On 2.12.2010 when he was examined, he was given the number PW1 and when he was examined on 15.02.2013, inadvertently he was once given a new number PW6.
8. As per his testimony, he was posted as Head Constable during the period 200304 on deputation with Excise Department where his job was to gather intelligence with regard to selling of illicit liquor. In connection with this case he was called to the CBI office and there was a CD played before him he had identified Head Const. Meghraj from a video clipping in the said CD. He had identified the accused Head Const. Meghraj also in the Court.
9. Witness PW2 Const. Harjinder had deposed that he was posted as Constable on deputation with Excise Intelligence Bureau in the period 200203 where accused Head Const. Meghraj was also posted. There was a CD played in the Court prepared by CFSL (Ex.5) and after watching the said CD, he had deposed that the person who looks like accused Head Const. Meghraj sitting in a chair in front of a house talking to a lady and after some time this person who according to him looked like accused Head Const. Meghraj had taken a currency note of Rs.100/ denomination from a lady sitting on the cot and kept the said currency note in his pocket.
10. Witness PW3 Sh. B.K. Mishra who was posted as DCP, th th 9 Battalion and also looking after the work of DCP 8 Battalion, DAP, Delhi had deposed that he was the competent authority to remove Head Const. Meghraj from service. After having carefully examined the facts of the case and the material produced, he had applied his mind to the facts of the case and accorded sanction Ex.PW3/1 for his prosecution.
11. Witness PW4 Sh. Chetan Prakash is the complainant. He had given the background in which he had got into the act of video filming the officials of Delhi Police and Excise Department taking bribe from bootleggers operating in the area and as to how with the help of 'Sansis' of the area he had shot those videos. He also had narrated that he had taken the videostapes which he had shot to the Sr. Officers of Delhi Police. Though first they had offered to help him, but then asked him to hand over the said video cassettes to them with an offer to pay him Rs.10 lacs. When he had not responded to this offer, he was called again and asked to inform why he had not visited them to hand over the cassettes on which the complainant had informed them that he would handover the tapes not to them but would submit the same in the Court. As per the testimony of the witness the fall out of this was that his house was raided on 27.08.2003 by 5060 police officials and all the cassettes which were lying in his house were taken away. He was also taken into illegal custody and implicated in false cases.
12. The witness had further deposed that after his release on bail, he had returned to his home and searched again his house and he found 23 cassettes lying on the 'tand ' (loft) which he had earlier thought to be not useful. Thereafter he had resumed his earlier process of video filming the officials of Delhi Police while taking bribe from 'Sansis'. Finally he had approached his Advocate and filed a Writ Petition before the Hon'ble High Court and submitted five video cassettes with the Registry of the Hon'ble High Court. The witness had identified the said Writ Petition as well as the copies of the applications filed for submission of video cassettes collectively as Ex.PW4/A. He had also identified the orders passed by the Hon'ble High Court Ex.PW4/B.
13. According to his testimony during the investigation he was shown the videos clippings from a VHS Cassette having copies of various scenes copied from five Hi 8 Cassettes, he had identified the accused persons from the said clippings. He had identified his signatures on the memo prepared in this respect as Ex.PW4/C wherein the description relevant to this case was given as scene no.10 in the portion X1 to X1. Similarly he had also identified his signatures on the CD Identification Memo Ex.PW4/D prepared after showing him the scenes from the CD prepared by CFSL Chandigarh on the request of the Investigating Officer. The cassette was played in the Court. The witness had identified accused Head Const. Meghraj as well as Const. Ram Kumar from the video clipping which was played in the Court. He had also identified Smt. Beena wife of Sh. Jasbir Sansi sitting on a cot where Head Const. Meghraj was seen accepting Rs.100/ from her after a bargain. There was a transcript of the same also prepared and exhibited Ex.PW4/G for future reference.
14. Witness PW5 Dr. C.P. Singh is the Scientific Officer who had examined the five Hi 8 cassettes at CFSL, Chandigarh which were forwarded to CFSL, Chandigarh for getting the opinion on the questions :
i) As to whether the video recorded in the video cassette was in continuity ;
ii) As to whether video recorded on the video cassette was edited or otherwise ; and
iii) As to whether the video recorded in the video cassette was original master copy or copy of the master copy.
It was also requested that two sets of working copies of the video recordings in the CD form.
16. As per his testimony, he had examined the video cassette using VISAR tools, Vectorscope and Waveform monitor. On examination his findings were :
i) Video shots on the video cassette were in continuity ;
ii) There was no indication of any form of alteration in the video shots ; and
iii) Video recordings on the video cassettes were found to be original master copy and not copy of the master copy.
16. He had identified his report as Ex.PW5/A wherein he had explained the reasons for reaching his conclusions. This report was forwarded through Director CFSL, Chandigarh to CBI, ACB, New Delhi by letter Ex,PW5/B. The cassettes after being re sealed with the seal of CFSL with two working copies were also sent along with the said letter. The witness had identified the said video cassettes in the Court and also the five CDs he had prepared corresponding to the five Hi 8 cassettes.
17. Witness PW7 Sh. Jasbir is the person at whose residence the said scene had been shot. This witness had admitted that in 200304 he used to reside at DDA Flats, Uttam Nagar with his wife where he used to sell liquor without license. He also had admitted that there were cases registered against him and his wife under Excise Act. The video clipping was played in the Court before him and he had identified his wife sitting on a charpai ( Cot) in the said scene and had also identified his daughter named Usha moving in the background. He had described that his wife had given a currency note to the person sitting in a chair in the clipping though he had not given the name of the person but had stated that this person was from the Excise Department. He had added that his wife had given Rs. 100/ to the person sitting in the chair (accused) to get the vehicle of Chetan Prakash apprehended who was in the business of supplying liquor. According to him he was not present at that time.
18. In the crossexamination by the Ld. Defence Counsel the witness had submitted that the accused Head Const. Meghraj on that day had given him money for getting the vehicle transporting liquor apprehended. Since on that day he could not get any vehicle apprehended, he had phoned his wife to return Rs.100/ to the accused. The witness was thereafter cross examined by Ld. PP for CBI on the ground that the witness had introduced a completely new angle in the crossexamination which was earlier not there in his statement under Section 161 Cr.P.C.
19. Witness PW8 Sh. Deepak Kumar Tanwar who was posted as Scientific Officer with CFSL, New Delhi had deposed that there was a letter received dated 16.03.2007 from the CBI along with four sealed parcels, five unsealed CDs and other related material. Subsequently by another letter dated 22.3.2007 there was one sealed parcel received along with the specimen seal impression.
20. He had examined the cassette Mark S19 and S20, having the specimen voice of accused Megh Raj on side A and that of Sh. Satish Constable (accused in one another case) on side B. He had identified certain common clue words/sentences from the specimen voice recording for spectographic analysis. Similarly, he had selected the video clipping relating to this scene from the cassette marked Ex.Q5 and further marked some common clue words and sentences for comparison with respect to the specimen voice of accused Head Const. Meghraj for voice spectographic analysis. He had also conducted auditory examination of the specimen voice and questioned voice.
21. The conclusion which was reached by him was that there were similarities in the linguistic characters and phonetic features in the two voices and also similarities in terms of number of formants, formants frequency distribution, intonation pattern and other general visual features in their voicegram. On the basis of the above findings he had concluded that the questioned voice was the probable voice of the person named Head Const. Meghraj to which the specimen voice belonged. He had identified the questioned cassette as well as the specimen audio cassette, Inlay cards therein, their packing etc. as well as his report Ex.PW8/A and the letter Ex.PW8/B which was received from SP CBI ACB, New Delhi related to this case.
22. Witness PW9 Sh. Rakesh Kumar Saini who was posted as UDC with Trade and Tax Department, Govt. of NCT at Vyapar Bhawan, ITO, Delhi had identified the Voice Recording Memo Ex.PW9/A prepared relating to recording of Specimen voice of the accused herein Head Const. Meghraj and Sh. Satish Kumar (accused in another case). As per his testimony after he had reached the CBI office on that day, he had met Inspector D.K. Thakur. There was a blank audio cassette shown to him. The voice of the accused Head Const. Meghraj herein and that of said Sh. Satish Kumar had been recorded in the said cassette in his presence. He had identified the accused also in the Court. He had added that the two accused persons had also put their signatures on the said memo in his presence. The witness had identified his signatures on the audio cassette in which the specimen voice had been recorded, Inlay card related thereto and cloth wrapper in which they were sealed .
23. Witness PW10 Sh. Gurdeep Singh had deposed that he was on deputation with Delhi Excise Department during the period 200304 and was posted as Inspector Excise. According to him one of his job was to detect and prevent sale of illicit liquor in Delhi and to collect intelligence for this purpose.
24. He had also deposed that he had been called to identify certain persons from the video clippings during the course of the inquiry conducted by the Vigilance Department where he had identified the accused HC Megh Raj from one of the video clippings.
25. Witness PW11 Sh. Jia Lal Sawhney who was posted as ACP, Vigilance Department in the year 2004 had deposed that he was entrusted with an inquiry against some police officials and excise officials who were involved in corrupt practices of accepting money from bootleggers. During the course of the inquiry the video cassette containing various video clippings wherein the officials of Delhi Police and Excise Department were seen accepting money from bootleggers was received by him along with the other documents from his Sr. Officers. He had shown the video clippings to the officials of Delhi Police and Excise Department for the purpose of identification of the officials of Delhi Police and Excise Department allegedly appearing to be accepting bribe from bootleggers. In this process there were many such officials identified. He had got the transcript of the video clippings describing the scenes prepared and also stills from the video clippings. He had examined witnesses including complainant Chetan Prakash. He had also collected documents from various offices of Delhi Police and Excise Department with regard to their postings and deployment who had been identified from the said video clippings. He had submitted a detailed report Ex.PW11/A in this regard along with the annexures to his senior officers. According to him accused Head Const. Meghraj had been identified by one Inspector Gurdeep Singh of Excise Department in the said video clipping. He had also identified the accused persons from the photographs at pages no.102 and 103 of his report.
26. Witness PW12 Sh. Ajay Kumar who was posted as DCP (PCR) in July, 2007 had identified the sanction order Ex.PW12/A with regard to the sanction for prosecution of the accused Const. Ram Kumar. According to him he was competent to remove the accused Const. Ram Kumar from service.
27. As per his testimony, he had passed the said sanction order after having gone through the documents and the material supplied by the CBI in this regard.
28. Witness PW13 Inspector Mukesh Kumar to whom the investigation was handed over after the registration of the case had identified the FIR Ex.PW13/A which was registered by Sh. D.C Jain, the then S.P, CBI, ACBI, New Delhi, wherein there were allegations as against the officials of Delhi Police and Excise Department indulging in demand and acceptance of illegal gratification from bootleggers operating in the jurisdiction of P.S Uttam Nagar. This FIR was registered on the basis of directions of the Hon'ble High Court on the Writ Petition filed by the complainant Sh. Chetan Prakash. The witness had identified the copy of the Writ Petition and copy of the order received from the Hon'ble High Court i.e Ex.PW4/A and Ex.PW2/B respectively. The witness had also identified the letter Ex.PW13/B received from the Registry of the Hon'ble High Court by which the copy of the order passed by the Hon'ble High Court and the petition filed by the complainant Sh. Chetan Prakash had been forwarded.
29. The witness also referred to having received the Inquiry Report Ex.PW11/A which was forwarded by GNCT (Vigilance) to CBI by letter Ex.PW13/C.
30. According to this witness during the course of the investigation a VHS cassette in an unsealed condition was also received from GNCT (Vigilance) purported to have been handed over to them by the complainant Sh. Chetan Prakash. This VHS cassette was sent by him to CFSL Delhi for forensic examination after sealing it and getting the video CD prepared from it with the assistance of S.I Prem Nath Inspector posted in the same branch for the purpose of investigation. He had identified the VHS cassette, cloth wrapper and also the cover in which the said VHS cassette had been kept as Ex.P1, Ex.P3 and Ex.P2 respectively. He had admitted that as far as this case is concerned he had recorded the specimen voice of the accused Head Const. Meghraj.
31. As per the testimony of this witness he had recorded the statement of the complainant Sh. Chetan Prakash, Sh. Jasbir Sansi and his wife Smt. Beena Sansi, Sh. Surender Choudhary, Sh. Satyawan and others. He had also obtained specimen voice samples of suspected officials named in the FIR but so far as the accused herein Head Const. Meghraj is concerned, his voice sample was not taken by him. He also stated to have visited along with complainant the places where the bootleggers were operating in the Uttam Nagar area and where he stated to have shot the video clippings.
32. Witness PW14 Sh. Deepak Purohit who was posted as ACP (Excise Intelligence Bureau) in the year 2006 with the Excise Department had deposed that on 28.11.2006 he had been called by his immediate superior, Collector Excise Sh. B.L Sharma and shown him a letter of S.P, Anti Corruption Branch, CBI asking for certain information. Based on the records available, he had prepared a reply to the said letter and carried with him personally on the next date i.e 29.11.2006 to the CBI office and handed over to the S.P, CBI, ACB, New Delhi. He had also carried along with him the rules and regulations relating to giving licenses in Delhi.
33. The witness had identified the letter Ex.PW14/A received in the Excise Department and the reply Ex.PW14/B which he had carried with him to the CBI. He had also identified the rules and regulations Ex.PW14/C which he had supplied to CBI.
34. As per the testimony of this witness the liquor could not be sold from residential premises in Delhi. He had further deposed with regard to the source money/reward money that there was a scheme in the Department whereby post recovery of liquor there was some reward given depending upon the quantity and quality of liquor seized to the District Incharges, who were of the level of Sub Inspectors. He had clarified that this money was not given in advance for development of intelligence.
35. Witness PW15 Sh. Dhirender Nath who was posted as Sub Inspector in the Excise Department in the year 200204 on deputation had deposed that during the investigation of this case he had been called by the Investigating Officer of this case Sh. D.K. Thakur for the identification of officials of Excise Department by playing the CD on the computer. During those proceedings he had identified accused Head Const. Meghraj as he was posted with him during the same period in the Excise Department.
36. Witness PW16 Shri Satyawan had deposed that he had submitted to CBI the copies of the FIRs attested by Shri Prakash Chand Mann the then S.H.O. Registered at P.S. Uttam Nagar against Shri Jasbir Sansi, Smt. Bina Sansi and Shri Devraj Diwan registered under Punjab Excise Act alongwith a list. He had identified the list as EX PW 16/A and the copies as EX. PW16/A1 to A10.
37. Witness PW17 Sh. Dilip Kumar Thakur is the Investigating Officer who had taken over the investigation from Inspector Sh. Mukesh Kumar and then after the conclusion of the investigation filed the charge sheet.
38. As per his testimony this case involved five Hi 8 cassettes which were allegedly recorded by Sh. Chetan Prakash showing some officials of Delhi Police and Excise Department accepting money from bootleggers. With the assistance of the complainant Sh. Chetan Prakash and some officials of Delhi Police and Excise Department, he had made efforts to identify the persons visible in the video clippings. He had also sent the said video cassettes to CFSL, Chandigarh to obtain expert opinion regarding the genuineness of the video recordings and that the same were not tampered with.
39. During the course of the time he had received the report Ex.PW5/A from CFSL, Chandigarh with regard to the genuineness of the video recordings and that the same had not been tampered with. Along with the said report he had also received copies of the video cassettes in five CDs corresponding to each Hi 8 video cassette for the purpose of investigation.
40. With regard to the identification proceedings, he had carried out with the assistance of the complainant, he had prepared a Video Identification Memo Ex.PW14/C from the VHS cassette indicating the scenes, durations and the persons seen in the video cassette. According to him the scene no.10 in the said Video Identification Memo related to this case. He had also prepared a CD Identification Memo with the help of the complainant Sh. Chetan Prakash Ex.PW4/D wherein the scene no.1 in the CD no.5 related to the present case.
41. As per his testimony during the investigation he had also taken the voice specimen of different accused persons including the accused Head Const. Meghraj herein by the memo Ex.PW9/A. He had sent the said cassette wherein the specimen voice of the accused Head Const. Meghraj was recorded to the CFSL, New Delhi along with the questioned video cassettes for getting the voice spectrography report. He had sent the same by forwarding letter Ex.PW8/B signed by Sh. S.K. Palsania, the then S.P, CBI, ACB, New Delhi. Later CFSL, New Delhi had provided Spectography Report dated 16.4.2007 Ex.PW8/A to CBI.
42. Thereafter he had obtained certain documents and clarifications from the Excise Department, New Delhi. The same had been received by the Department by letter Ex.PW14/B. As per this report the liquor could not be sold in Delhi from residential premises. He had further obtained the details of the cases pending against the bootleggers namely Jasbir Sansi and his wife Smt. Beena Sansi and Sh. Devraj Diwan which had been supplied to the CBI vide letter Ex.PW16/A along with list and the FIRs Ex.PW10/A1 to A10.
43. This witness had further deposed about having obtained the sanction for prosecution of the accused persons Ex.PW3/1 and Ex.PW12/A from the competent authorities.
44. Witness had given some clarifications with regard to the fact that as to why on the report of the CFSL FIR RC 49/2004 appears and not FIR RC no.48/2004 of this case. He had explained that on the basis of the orders received from the Hon'ble High Court there were three FIRs registered based on the jurisdiction to which the said incidents related viz. P.S Uttam Nagar, P.S Rohini and probably Nangloi. Meaning thereby that the FIR RC no.48/2004 related to the occurrences falling under the jurisdiction of P.S Uttam Nagar, RC no.49/2004 related to the occurrences falling under the jurisdiction of P.S Rohini and the FIR RC no.50/2004 related to the occurrences falling under the jurisdiction of P.S Nangloi. The Hi 8 cassettes, however, which were received from the Hon'ble High Court were only in one single sealed envelope. These five Hi 8 cassettes were related to all the three FIRs registered. The five Hi 8 cassettes were sent to CFSL, Chandigarh to obtain the expert opinion with regard to the authenticity of the contents writing FIR no. RC 49/2004 by SP Sh. N.M. Singh. Accordingly the report was also received referring to the FIR RC no.49/2004, though the report related to all the FIRs including the FIR herein. STATEMENT UNDER SECTION 313 CR.P.C.
45. All the incriminating evidence which had come on record was put to the accused and his statement under Section 313 Cr.P.C had been recorded.
DEFENCE EVIDENCE
46. On behalf of accused Head Const. Meghraj there was one defence witness examined namely Inspector Vijay Nagar as DW1. This witness had deposed that from 1.9.2001 to 25.7.2004 he was posted as Sub Inspector in the Excise Department in Delhi Government on deputation. He had further deposed that he was In charge of NorthEast and East District. They were given reward/source money by the Department based on the quantity and quality of seizure of liquor. Out of the money so given after deducting their expenses incurred in the intelligence collection the remaining money was utilized for making payment to informers/intelligence network for gathering further intelligence for the catches to be made in future. He had also stated that HC Meghraj was part of his team. He had informed that there was a 'Sansi' by the name of Jasbir who was willing to provide information that he would get the liquor being transported in a three wheeler or a four wheeler apprehended which was of Sripal, Diwan, Gunga, Chetan or Panditayin and for this there would be some source money required to be paid to Jasbir Sansi.
ARGUMENTS
47. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsel. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution.
Integrity of the recording :
48. As the above evidence would show that there were five Hi 8 cassettes which were deposited by the complainant with the Hon'ble High Court which were during the course of the investigation sent by the Investigating officer Sh. D K Thakur for forensic Examination to CFSL Chandigarh to examine as deposed by the PW 5 Dr. C P Singh:
(i) Whether the video recorded on the video cassettes were in continuity or otherwise;
(ii) Whether the video recorded on the video cassettes were edited and or otherwise ; and
(ii) Whether video recorded on the video cassette were original master copy or copy of the master copy;
49. The answer to all the above questions given Dr C P Singh were positive. They were :
(i) Video shots on the video cassettes were in continuity;
(ii) There was no indication of any form of alteration in the video shots; and
(iii) The video recordings on the video cassettes were found to be original master copy and not copy of the master copy.
50. His finding related all the cassettes including the cassette Ex P5 ( number given to the cassette in the Lab by Dr. C. P. Singh and Ex P5 in the Court).
51. There was detailed crossexamination of this witness and I find that he had explained everything to the satisfaction of the Court. His crossexamination also sufficiently clarifies that there were cases of video shots being shot over previous recorded material that would not still make it any way less then the original. The entire crossexamination of the witness is material to throw light as to why witness thought that the video shots were camera original and not edited. I feel it will be of benefit to reproduce the entire crossexamination here. It reads as under:
"Q: As to how many times would you play a video cassette in order to determine as to whether it has been tampered with or not?
A: There cannot be any exact number as to how many times a video cassette would be required to be played to reach such a conclusion, but it would be correct that a cassette is required to be played repeatedly for frame by frame examination, examination on waveform monitor, vectroscope and on VISAR to give a finding of this nature.
I cannot give the number as to how many times these cassettes may have been played during the course of examination.
Q: In case number of copies are prepared from one cassette, what would be the effect thereof on the original cassette?
A: There won't be much difference after being subjected to the process of copying from the original cassette by playing the original cassette until there is wear and tear on the tape of the video cassette.
Q: Can you say with certainty that the video cassette which was sent to you was a copy or an original master copy as claimed by you?
A: I have already mentioned in my examination in chief that the cassettes were camera original.
Q: Did you prepare your rough notes during the course of the examination?
A: I had prepared my work sheet. The same would be available in the CFSL file related to this case. It is, however, correct that the same is not on the judicial record and it was also not forwarded to the CBI, ACB, New Delhi, with my report.
Q: Would it be correct to say that while making the examination by the way of waveform monitor and vectorscope, you must have also prepared graphs?
A: It is correct. The same, however, is not available on the judicial file and it had also not been forwarded to the S.P., CBI, ACB, New Delhi.
Q: Please inform the Court as to whether it is possible to prefix the date and time while operating the camera as per the choice of the person shooting the video?
A: The time and date of recording depend on the clock set on the camcorder and it is very difficult to prefix a particular date and time, if not impossible. I would like to further explain that if someone desires to record a video shot for fifteen minutes staring from let us say 2:15 P.M. When he would start recording with the preset time, camera may record video shot either before 2:15 P.M or after 2:15 P.M. Thus the exact desired time may not be the date and time of the particular video shot. It would require repeated trails to have the desired time and date of recording which is difficult to achieve.
Q: Is it possible that a video shot may be inserted on another video shot, so as to introduce new material in between a recording which may not be there in the original recording which is sometimes referred to as film editing?
A: For post production editing in linear editing process, it is possible to insert after some original shots in the video cassette, however, the video recording after inserting in linear ediing process subsequent shots throughout will be of second generation video recording. In this case the original time code will not be present.
In my report I have mentioned that in the course of the examination I had found in Ex. 2 there were 47 video shots. "The first sot of 30 seconds is indicated to be of rerecorded (over recording in order to delete some portion that too in camera) and thereafter next shot of 3 seconds is indicated to have been left. Subsequently, third and fourth shots of one second and seven seconds were also indicated to be of rerecorded (over recording in order to delete some portion that too in camera). The indicated date, time of over recordings are 21.11.03 at 9:43 P.M, 21.11.03 at 7:10P.M and 21.11.03 at 9:45 P.M. The 5th to 35th video shots are indicated to have been recorded during 2.11.02 to 7.11.02. There are indications that these shots are being over recorded on a previously used tape. The subsequent shots i.e. shot 36 to shot 40 are indicated to have been recorded on 28.3.02 (between 9:10 P.M to (9:20 P.M). Thereafter shots 41 to 47 are indicated to have been recorded during 9.11.03 to 19.11.03. Some of the shots are taken with supernightshot option on."
Q: Would it not indicate that the shots which were found to be rerecorded were not inserted later on with its date and time?
A: As already mentioned that the shots are over recorded in camera which means that the video cassettes were inserted to the camera and some sots were over recorded with later dates of recording. I would like to clarify that it is not as if the video cassettes had been taken out and thereafter subjected to editing process to introduce new content.
It is incorrect to suggest that I have given a false report and that is why the work sheet or the graphs had not been sent to the CBI or filed in the Court. It is incorrect to suggest that I am deposing falsely.
XXXX by Sh. R.K Thakur, Ld. Counsel for accused Sh. Ram Kumar.
Q: Is it correct that you did not receive the camera from CBI by which the said recordings were made? A: It is correct, Q: Let us say on 15.08.2012 there is a video shot, is it possible that while shootng the video on 15.08.2012 the person shooting the video may show as if the video was being shot on 17.08.2012 or say 13.08.2012 ?
A: As mentioned in my above examination, the date and time extracted from time code of the video recording is related to the clock set on the camcorder which means that the clock can be set as desired by the camera operator.
Ld. Defence Counsel submits that for the rest he is adopting the crossexamination of the other accused Sh. Meghraj."
52. At the end, I would like to clarify the question of video shot that being shot on already recorded material is more of academic nature, as that is something, which related to cassette Ex. 2, what we are concerned here is cassette Ex. P5. As already noted above, I find nothing in the crossexamination of this witness on the basis of which the opinion arrived at by him can be doubted.
There is no serious dispute as to the originality or the genuineness of the video clipping in question
53. The line of crossexamination which has been taken in this case of witnesses, PW Chetan Prakash and PW Jasbir Sansi would show that the accused Head Const. Meghraj has not seriously disputed the genuineness of the video shot in question. The line of his crossexamination had been that accused was an official from the excise department, he had given Jagdish Sansi Rs.100/ to get the vehicle of Chetan Prakash apprehended used for transporting liquor. ( His defence would further show that his department used to give money for gathering intelligence.) Accused had visited the house of Jasbir Sansi as could be seen in the video shot. The Rs 100/ currency note accused seen receiving from Beena Sansi wife of Jasbir Sansi is the money she was returning to the Accused on a telephonic instruction received from her husband as he had failed to get the vehicle of the complainant Chetan Prakash apprehended. The video clipping was shown to the witness Jasbir Sansi in the Court. He was asked to identify the persons in video clipping and also explain as to what could seen transpiring therein. He had deposed:
" The house being seen in the video clipping is my flat. I do not know the name of the person sitting in the chair in the clipping but he is from Excise Department. The female sitting on the charpai is my wife Beena. I cannot identify the other person seen smoking cigarette. One female seen moving in the background in one of the scene is my daughter named Usha. My wife had given a currency note of Rs. 100/ to the person sitting in the chair to get the vehicle of Chetan Prakash apprehended who was in the business of supplying liquor. At that time I was not at home when what is being seen in the picture was happening".
54. In the Crossexamination on behalf of the Accused Head Const. Meghraj just an affirmation was sought of what he had stated in the examination in chief. The same reads as under:
" The officials of the Excise Department used to visit us to say that I may provide information to them for getting the vehicles transporting liquor illegally apprehended.
It is correct that the person present in the Court (the witness has pointed at the accused Meghraj) on that day had given money to me for getting the vehicle transporting liquor illegally apprehended. On that day since we could not get any vehicle apprehended, I had phoned my wife to return Rs. 100/ to him".
55. The witness was then crossexamined on behalf of the prosecution for having introduced a new story of witness having been paid first by accused Head Const. Meghraj for getting the vehicle of the Complainant apprehended and then on his failure to do so the money being returned to the accused by his wife.
56. The fact remains that he does not seriously dispute the contents of the video shot and in turn its genuineness. Speaker Identification
57. The question of speaker identification is only related to the accused Megh Raj and not to the other accused Const. Ram Kumar. (The other accused cannot be heard saying anything) Question of collection of voice sample
58. One of the questions raised by the Ld defence Counsel is that the case of the collection of specimen voice of the Accused is itself illegal. According to him first of all before taking the specimen voice sample of the Accused no permission of the Court had been taken and secondly even if CBI wanted it could not have been granted such a permission in the light of Section 311 A of Cr PC. He had made reference to the Judgment of the Hon'ble Supreme Court in Ritesh Sinha vs. CBI of 2013 [ (2013) 2 SCC 357] to point out that this matter is pending before the Hon'ble Supreme Court as being referred to a larger bench that as to whether "voice samples" can be taken during investigation or not.
59. There is also one more judgment of Hon'ble High Court of Delhi Rakesh Bist v CBI (Crl. Rev. P 461/2006 dated 03/01/2007) which had been referred to in one another connected case.
60. Before proceeding further it may noted here that in both the case there had been per se no dispute that taking "voice sample" of an accused is not violative of Article 20 (3) of the Constitution of India. The question as to whether " voice sample"
can or cannot be taken during the course of investigation, however, remained inconclusive in Ritesh Sinha's Judgment.
Since it is a matter referred to a larger bench by the Hon'ble Supreme Court and no final view has been taken, judgment of the Hon'ble High Court in Rakesh Bist case, would be binding on this Court. This judgment makes it clear that the Magistrate neither with the aid of Section 73 of the Indian Evidence Act or section 311 A CrPC can grant permission to take voice sample of an accused during the investigation of a case.
61. It may be noted that the question of approaching the Court would arise where the accused has refused to give voice sample or in other words he is compelled to give voice sample. The question, therefore, would be is there any prohibition in law to utilize the voice samples which may have been given by an accused voluntarily without any compulsion during the course of investigation. In Rakesh Bist Hon'ble High Court had made reference to one judgment of Hon'ble Supreme Court in the case of Amrit Singh v. State of Punjab 2006 AIR SCW 5712 wherein the question of obtaining a hair specimen of the accused was in issue.
62. Following portion from para 19 of the said judgment was quoted:
"Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will."
63. I am of the view words "Appellant had a right to give or not to give sample of his hair" are significant. It only shows in the context of the present case that the accused had the choice to give or to not give sample of his voice and if had given it by his choice he cannot now turn around and say that even if it had been given voice sample by choice it could not have been used for the purpose of comparison. I have closely examined the crossexamination PW13 Inspector Mukesh Kumar and PW 17 Inspector D K Thakur who had taken the voice samples of the Accused vide PW13/DX1 and PW9/A respectively and have not been able to find a single line in their crossexamination to suggest that accused Head Const. Meghraj was compelled to give his voice sample. I find one line in the crossexamination of the witness PW9 Sh. Rakesh Kumar Saini in whose presence the voice of the sample of the Accused Head Const. Meghraj had been taken Inspector D K Thakur, which reads "In my presence they had not volunteered to get their specimen voice recorded"( at the time voice of this accused was recorded the voice of one Satish Kumar accused in one other case had also been recorded , therefore the expression used is 'they' and 'their' ) . I am of the view only from this single line no conclusion can be reached that Accused Head Const. Meghraj was under
any compulsion to give sample of his voice. Moreover specimen voice of this accused had been taken not once but twice, I am sure if he had objection to it he would not have turned up for the second time to give sample of his voice.
No Speaker Identification Report of CFSL and no serious dispute that the voice is not of the Accused Head Const. Meghraj
64. The " voice sample" collected during the investigation and the questioned voice were put to auditory and spectrographic examination by PW 8 Sh. Deepak Tanwar Sr Scientific' Officer of CFSL Delhi. His report would show that it was " on the basis of consolidated effects of similarities in the linguistic characters and phonetic features using auditory and voice spectrographic analysis, it is concluded that the vice marked exhibit Q5 (I) (A) is the probable voice of the person (Shri Meghraj Singh, HC No. 9149/DAP) whose specimen voice is marked exhibit S19(A)". In any case there is no serious dispute as to part of the conversation attributed to the accused Head Const. Meghraj. One may go through the crossexamination of the complainant PW 4 Chetan Prakash who had deposed as to what accused Head Const. Meghraj could be heard saying when the cassette was played in the Court.
65. The relevant part of the examination in chief and the crossexamination reads as under:
" I have heard the conversation recorded in the video clipping. It matches the transcript which has been shown to me except that there is an addition to be made at point X1 which has just been recorded in the transcript. The transcript for future reference is EX 4/G."
66. In the above transcript the witness had attributed the relevant parts in the conversation to the accused Head Const. Meghraj. Though the witness was crossexamined on many aspects but there was no suggestion given to him that the sentences in the conversation attributed to him in the transcript are not of the accused Head Const. Meghraj. On the contrary the emphasis was that in the entire conversation accused Head Const. Meghaj could not be heard asking for bribe. The relevant part of the crossexamination reads as under :
" Q. It is my suggestion to you that you knew about this fact that HC Meghraj was not posted in any police station but was posted in the Excise Department at the time you had started shooting the video. What have you to say?
A. I did not know whether he was working with Excise Department or not. (Vol.) I was informed by Jasbir Sansi, Beena Sansi and other Sansis that he was a police officer.
Q. It is my suggestion to you that it was the job of the officials of the Excise Department to collect information from their sources including "Sansis" that as to where the liquor was being sold for collecting this information they also used to give money from secret fund to such resources. What have you to say?
A. I have no knowledge about it.
Q. Would it be correct to say that in none of the shots in the video clipping HC Meghraj is heard asking for bribe?
A. I will not be able to say anything about it off hand without hearing the video clipping.
( At this stage Ld. Defence Counsel submits that the witness may hear the conversation and answer the question.) (At this stage one sealed envelope has been produced from which a Hi8 video cassette is taken out. The instruments have been set up by Sh. P.K. Gottam from CFSL and the video is played. The witness is asked to hear the conversation and answer the question. The Ld. Defence Counsel states that he would like to rephrase the question which the witness may answer. Heard. Allowed.) Q. Please hear the cassette and inform the Court if there is any sentence being uttered by HC Meghraj stating that he should be paid "bribe" either for himself or for anyone else or "monthly"?
A. Although there is no specific words like "bribe" or "monthly" used, but there are words like "la de phir chalenge", "jaldi thele main se nikal", and "sau rupay se kya hoga" uttered by accused Meghraj".
Conclusion:
67. I would therefore conclude that the voice in the conversation between the Accused and Beena Sansi w/o Jasbir Sansi attributed to the Accused and Beena Sansi are their voices.
What is being seen in the cassette and heard
68. The complainant had identified the place visible in the video clipping as the residence of Jasbir Sansi. The lady appearing in the video clipping sitting on the cot as Beena wife of Jasbir Sansi. Both the accused could also be seen in the clipping, though the Counsel for the Const. Ram Kumar had objected to identity of accused Const. Ram Kumar . After some bargain accused HC Meghraj had accepted Rs.100/ from Beena Sansi and thereafter had left.
69. It is only accused Head Const. Meghraj who could be heard. The transcript of his conversation with Beena Sansi reads as under:
*M POLICE - KYA HAAL HAI, KYA HUA LADY - ASPASTH (NOT CLEAR) M - POLICE - AYE, DARU NA BIK RAHI, LE AA JALDI KAR, BUKHAR HO RAHA HAI KYA LADY - ASPASTH (NOT CLEAR) M - POLICE - UTH JA CHAL, LA DE, CHALEN PHIR LA LADY EK DOH PAWWA BECH RAHEN HAIN, CHOWKI WALON KO BHI NAHI DIYE M - POLICE - NA HAI TO THEEK, NAHI TOH KEH DE NAHI HAI, LA LE AA PHIR JALDI CHALEN LADY - ASPASTH (NOT CLEAR) LE JAIYO EKDOH DIN MAIN M - POLICE - AAYE, HAI TUJHE PATA HAI YAHAN PHIR AAYA JAYE KYA JALDI LE AA JALDI KAR, JALDI, THAILI MAIN SE NIKAL LA - ASPASTH (NOT CLEAR) - TUJHE PATA HAI HAMARE PAAS.......
LADY - LE USHA LADY 2 - HAAN LADY - LE 100 RUPAYE DE DE M - POLICE - NAHI 100 RUPAYE NAHI LADY - AREY 100 RUPAYE MAIN DE RAHI HOON TERE NAHI TOH YAHAN GADI WALE CHALE GAYE KHALI M - POLICE - GADI WALE AUR, WEY GADIWALE MAIN KYA PHARAK HAI LADY - MATA RANI KASAM, EK DOH PAWWE BECH RAHI HOON, KAL PARSO SE WOH BHI CHORI DIYE, MERA TOH BEDA GARK ISNE KAR DIYA, MAIN TOH PLOT KE CHAKKAR MAIN BAITHI HOON, AAJ BIK JAYE TOH AAJ CHALE JAYEN M - POLICE - AB TU BECH RAHI HOGI DARU KE SATH LADY - ASPASTH (NOT CLEAR) M - POLICE - BECH RAHI HOON MAIN TOH BACCHON KI KASAM AUR KAHIN LUNGI YAHAN TOH CHOWKI CHOWKI KE SADHE ATHARAH HAZAR RUPAYE HAIN M - POLICE - CHOWKI KI TOH BAAT HUI THI NAU HAZAR RUPAYE MAIN HI TOH BAAT HUI THI TERI.
*M - Stands for Meghraj."
What is defence of the accused and as what has he stated in his statement under section 313 Cr.P.C.
70. As has already been stated above that the case of the Accused is not that what is being seen in the video clipping is not correct but what could be seen as money being given to him is in fact money being returned to him by Smt. Beena Sansi on the instructions of Jasbir Sansi, which was given by Accused to Jasbir Sansi to get the vehicle of Complainant apprehended while transporting liquor but Jasbir Sansi failed to provide such intelligence. The same defence also comes out clearly in his statement recorded under section 313 Cr.P.C and also in the additional statement submitted by him under section 313(5) Cr.P.C. The relevant part of his statement recorded under section 313 reads a under:
" Q.17 It has further come in evidence against you that the witness PW4 Shri Chetan Prakash as the video clipping was played had identified the place where the said video clipping was shoot as the residence of Jasbir Sansis. He had also identified lady appearing in the video clipping sitting on a cot as Beena wife of Jasbir sansi, who used to sell liquor illegally from the said residence in connivance with the local police. He had seen at the time of shooting the video clipping you had come to collect "monthly" from the Beena Sansi and you at that time were accompanied by your co accused Const. Ram Kumar. Smt. Beena Sansi had bargained with you and after the bargain you had accepted Rs.100/ from her and thereafter left. What have you to say?
A.: It is incorrect. Infact I had taken back the money from Smt. Beena Sansi as she could not provide the required information.
Q.20:It has further come in evidence against you that the video clipping in a Hi 8 video cassette was played in the Court in the presence of the witness PW7 Sh. Jasbir and he had identified the house visible in the clipping as his house and also identified the woman sitting on a charpai as his wife Beena. He had also identified one other female in the clipping moving in the background as his daughter named Usha. He had identified one of the person (you) as the person from the Excise Department sitting on a chair and his wife Beena handing over a currency note of Rs.100/ to that person i.e you. What have you to say? A.: It is a matter of record."
71. The relevant part of his statement recorded under section 313 (5) Cr.P.C submitted by him also reads as under:
" 2. That on the regular basis, meetings of Inspector, Excise and ACP, Excise were held wherein the illegal activities relating to sale and supply of illicit liquor were discussed. We were also directed to collect information regarding illegal activities of Sasis, Gunga, Sripal, Deewan alias Deva, Chetan Prakash etc. Thereafter I met one Sansi namely Jasbir Singh who was residing in Bindapur DDA Flats. I offered said Sh. Jasbir Sansi some money in case he provide me information about the supply of illicit liquor by Chetan Prakash or otherwise if he assist in apprehending Chetan Prakash's 4 wheeler or two wheeler with illegal liquor. Jasbir Sansi accepted my offer and I gave him Rs.100/ for giving me the requisite information.
3. That thereafter when I visited Jasbir's House, Jasbir Sansi was not present there and I met his wife namely Beena Sansi who informed me that the vehicle with illicit liquor arrived but had already left and I was late. (Gaadi wale aaye they aur chale gaye. Tum ab aye ho?) Then Jasbir Sansi also made a call to his wife and told her to return Rs.100/ given to him by me because Chetan Prakash's vehicle could not be apprehended by us on his information. Thereafter I left their place. I had already informed my team incharge and other team members about the said incident that I had given Rs.100 to Jasbir Sansi for giving information about Chetan Prakash and that the said amount was returned to me by Jasbir's wife.
4. That it is also submitted that we used to get some money from Excise Intelligence Bureau through our team in charge which we used to give to the informers for providing us secret informations. In case the informers failed to provide us correct information or requisite information, the informers used to return the money to us."
72. To sum up his defence is that he had visited the house of Jasbir Sansi and also received a sum of Rs.100 from her but it was not bribe but the money being returned to him by her which was given to her husband.
Is this defence believable or it is an after thought
73. In order to establish the defence there are two statements referred to. One is the statement of Jasbir Sansi as PW7 and the other is of one Inspector Vijay Sagar DW1.
74. According to the submission made by the Ld defence Counsel the testimony of the witness DW 1 would show that the accused Head Const. Meghraj had given money to Jasbir Sansi with the knowledge of this witness.
75. Witness DW1 had deposed during the period from 01/09/2001 to 25/07/2004 he was posted as Sub Inspector with Excise Department of Delhi Govt on deputation. He had deposed "HC Meghraj was also part of my team. He had informed me that there is a Sansi by the name of Jasbir who was wiling to provide us information that he would get liquor being transported in a three wheeler or a four wheeler which was of Sripal, Diwan, Gunga, Chetan or Panditayin and for this there would be some source of money required to be Jasbir Sansi."
76. It is being corelated by the defence with the testimony of Jasbir Sansi PW 7 , who had deposed " It is correct that the person present in Court ( the witness has pointed at the accused Meghraj) on that had given money to me for getting the vehicle transporting liquor apprehended. On that day since we could not get any vehicle apprehended, I had phoned my wife to return Rs.100/ to him."
77. I find the testimony of these witnesses not believable first because of inherent contradiction in their own statements and secondly because what could be heard and seen in the video clipping would not go by the defence that the wife of the Jasbir Sansi i.e Beena sansi visiible in the clipping was not returning the money but it was being given on the demand of the Accused and does not qualify for legal remuneration.
78. Let us first look at the testimony of the witness PW 7 Jasbir Sansi. He had introduced this story of money being received by him to prove intelligence input and on failure money being returned by his wife on his instructions for the first time in Court. It was not part of his statement Ex PW 7/DX1 given to CBI. He had stated " I do not remember if in my statement to CBI, I had informed that the accuse Megharj had given me RS.100/ for collecting the intelligence inputs and later on since I could not provide any such input. I had phoned my wife to return the said Rs.100/ to Meghraj." It may also be noted that he deposed about the money being given to him by Megharj for getting the vehicle transporting liquor apprehended not in his examination in chief but on a suggestion given from the side of defence. More importantly in his examination in chief he does not say that he had phoned his wife to return the money what he had said was that she was giving the money to get the vehicle of Chetan Prakash apprehended. He had deposed " The house being seen in the video clipping is my flat. I do not know the name of the person sitting in the chair in the clipping but he is from Excise Department. The female sitting on the charpai is my wife Beena. I cannot identify the other person seen smoking cigarette. One female seen moving in the background in one of the scene is my daughter named Usha. My wife had given a currency note of Rs. 100/ to the person sitting in the chair to get the vehicle of Chetan Prakash apprehended who was in the business of supplying liquor. At that time I was not at home when what is being seen in the picture was happening". ( emphasis supplied) If we look at the testimony of DW 1 he too appears have introduced the angle of being informed by the accused Head Const. Meghraj about Jasbir Sansi just to save the accused Head Const. Meghraj. His testimony would show that he was never posted in the west District except during 19891990. He had first deposed that from 01/09/2001 to 25/07/2004 he had remained posed as subinspector with excise department of Govt of NCT and then deposed " While I was posted as Sub Inspector with Excise Department, I was the in charge of NorthEast and East District." The incident is clearly not of east or north east district but of west district. Though he had tried to cover up by saying that he had team of head constables and constables and they were deployed for collection of evidence within the district and also all over Delhi but I find it hardly convincing that he had so much of resources that he would make deployment of the staff to far away places like Uttam Nagar. One may also notice that it was not such a matter where HC Meghraj was to be personally handover the money. The objective could be achieved sharing this information with the local District. Thus his testimony appears to be highly improbable that for getting the information he was informed by the Accused that some source money would be required to be paid by him to the Jasbir Sansi. He does not, however, claim that he had paid any money to Head Cosnt. Megh Raj to pay to Jasbir Sansi.
80. I am also of the view of the defence can be outrightly disbelieved in the light what could be heard and seen in the video clipping. One may note that the entire conversation would show that the accused is in a hurry to get the money and there is reluctance on the part of lady to pay .
81. The conversation goes like this:
Accused says - is liquor not selling .... bring it fast... do you have fever , ( AYE, DARU NA BIK RAHI, LE AA JALDI KAR, BUKHAR HO RAHA HAI KYA) Thereafter Lady says something which is not clear [identified by witnesses as Beena Sansi wife of Jasbir Sansi by witness who sitting on a charpai ( cot) ] The accused then asks her to get up and pay, by saying get up... pay now... give then we leave...
( UTH JA CHAL, LA DE, CHALEN PHIR LA) On this Lady replies we are selling one or two quarters, we haven't even paid the local police , by saying - selling one or two quarters........ not even paid to Chowkiwalans.
( EK DOH PAWWA BECH RAHEN HAIN, CHOWKI WALON KO BHI NAHI DIYE) He then goes on to say - if don't have it, its alright.. if don't have it, say so... go get it so that we leave fast..
[ NA HAI TO THEEK, NAHI TOH KEH DE NAHI HAI, LA LE AA PHIR JALDI CHALEN] Lady asks for time, she says ( some portion not clear) Take it, in one or two days...
[ LE JAIYO EKDOH DIN MAIN] He reasons with her to pay right away because it won't be possible for him to return so soon and then asks her to give her the money fast by taking out from her pouch.
[AAYE, HAI TUJHE PATA HAI YAHAN PHIR AAYA JAYE KYA JALDI LE AA JALDI KAR, JALDI, THAILI MAIN SE NIKAL LA ] Finally she ( Lady) relents calls her daughter Usha ( Lady 2) who is also visible in the clipping to give Rs. 100/ to the Accused.
LADY - LE USHA LADY 2 - HAAN LADY - LE 100 RUPAYE DE DE Accused is not willing to accept Rs. 100/ . He says No, 100 Rupees No. [NAHIN 100 RUPAYE NAHIN] Lady attempts to convince him to accept Rs.100/ by saying that she is paying Rs.100/, other wise even the Gadiwalas have gone empty handed.
[AREY 100 RUPAYE MAIN DE RAHI HOON TERE NAHI TOH YAHAN GADI WALE CHALE GAYE KHALI ] Accused says what is the difference between (this) Gadi wala and other Gadiwala [GADI WALE AUR, WEY GADIWALE MAIN KYA PHARAK HAI] At this Lady swears in the name of Mother Goddess that she is selling only one or two quarters and she is staying there just to sell her plot and says that if she could sell it today she will leave today.
[MATA RANI KASAM, EK DOH PAWWE BECH RAHI HOON, KAL PARSO SE WOH BHI CHORI DIYE, MERA TOH BEDA GARK ISNE KAR DIYA, MAIN TOH PLOT KE CHAKKAR MAIN BAITHI HOON, AAJ BIK JAYE TOH AAJ CHALE JAYEN] From the next two lines it is bit not clear what is being referred to [ Accused AB TU BECH RAHI HOGI DARU KE SATH LADY - ASPASTH (NOT CLEAR)] Thereafter Lady speaks about selling off her plot, she also swears in the name of her children and complains that the Local police demands Rs.18500/ from her . The accused tells her that what was settled with her by local police was Rs. 9000/] Lady BECH RAHI HOON MAIN TOH BACCHON KI KASAM AUR KAHIN LUNGI YAHAN TOH CHOWKI CHOWKI KE SADHE ATHARAH HAZAR RUPAYE HAIN Accused CHOWKI KI TOH BAAT HUI THI NAU HAZAR RUPAYE MAIN HI TOH BAAT HUI THI TERI.
81. Form the above conversation it is absolutely clear that there was reluctance on the part of Lady to pay the money to the accused and the lady being coxed to get up and pay and also that there was reluctance on the part of accused to accept Rs.100/ ( being less) and the lady making constant reference to her being able to sell only one or two quarters in a way expressing her inability to pay. If what is claimed by the accused had been true she would have paid the money not thinking twice because she had already been asked by her husband to return the money and the accused would have kept the money and left and not reacted by saying " No, Not Rs 100/". [ NAHIN 100 RUPAYE NAHIN]
82. It is stated in written statement submitted under section 313(5) Crpc by the accused " when I visited Jasbir's House, Jasbir Sansi was not present there and I met his wife namely Beena Sansi who informed me that the vehicle with illicit liquor arrived but had already left and I was late. (Gaadi wale aaye they aur chale gaye. Tum ab aye ho?)". I have not been able find anything of this sort in the entire transcript.
83. I , accordingly, conclude that the accused Head Const.
Megh Raj has not been able to establish his defence that the what could be seen in the video clipping was nothing but the money being returned to the accused by Beena Sansi which had been given as advance to Jasbir Sansi the husband of Beena Sansi to provide intelligence inputs for apprehending Cheten Prakash while transporting liquor. Video stand alone acceptable even if not supported by other witnesses.
84. There is one more question which has been raised about the Smt Beena not being examined in this case and its impact for it was she, who according to the case of prosecution, had paid the bribe. In her absence according to defence the said allegation cannot be said to have been proved. As far the Complainant is concerned, according to the Ld Defence Counsel, he is a man of dubious character and is not a reliable witness .
85. I am of the view that the absence of Beena Sansi and the question about the complainant being an interested witness or of dubious character, as claimed by the defence would not matter as we have formidable evidence in this case in the form of a video clipping which speaks volumes about the actual events taking place and they are not at the mercy of some other witness repeating or recounting the same events before the court. I have discussed in detail that a Video Clipping can be a stand alone witness in the connected case of CBI Vs Vijay Pal 92/11. The said discussion clinches the issue that even if there is no witness or no independent witness video clipping it self can be sufficient to prove the facts could be seen or heard therein. I am reproducing the said discussion herein below:
"SILENT WITNESS THEORY
26. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent are "worth thousand words".
More often than not in case of a videography the words and the acts of the accused herself/ himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually the court depends on the account of events which had taken place in the commission of offence who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court may not have been present at the time the offence was committed but it is as good as the court having seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what witnesses have to say about it. In R M Malkani " s 1 case Hon'ble Supreme Court had described a tape 1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 recorded evidence as " real evidence". It was stated "When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."
27. There is another factor may be referred here that human memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.
28. I am of the view this evidence is not only substantive evidence but can be also a preferred evidence in case of difference in the testimony of witness have may claim to have seen an incident and the a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. N Sri Rama Reddy Vs Sh. V V Giri 1 in reference to a tape recorded conversation, while approving the decision in one Scottish case2 " From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.
29. This "silent witness" though is "worth thousand words" but still cannot be subjected to crossexamination. Thus the only way it can be defeated is to question its admissibility and relevancy.
30. American jurisprudence would define it as "
Silent Witness Theory" . In brief it means " A theory 3 or Rule in the Law of Evidence : Photographic evidence ( as photograph or videotapes) produced by a process whose reliability is established may be admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify 1 1971 AIR SC 1162 2 Hope & Another V H M Advocate (1) Scots Law Times 264 3 dictionary.findlaw.com/definition/silentwitnesstheory.html the accuracy of its depiction." One can find the elaboration of this rule and applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State of Arkansas [ 7 Ark. App. 1 (1982)]1 . The relevant part of the Judgment reads as under:
"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation.
A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photographic evidence is a 1 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx "silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).
In Arkansas, photographic evidence is admissible under the "pictorial testimony"
theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter.
Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); Ballew v. State, 246 Ark.
1191, 441 S.W.2d 453 (1969); Gross v.
State, 246 Ark. 909, 440 S.W.2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark. 731, 324 S.W.2d 520 (1959); Reaves v. State, 229 Ark. 453, 316 S.W.2d 824 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v.
State, 219 Ark. 367, 242 S.W.2d 701 (1951); Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910).
The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases.
However, the precise objection made in the case at bar was not raised in either case. See, French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).
This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness" theory. We hold that the trial court correctly ruled that the video tape recording was admissible.
The Uniform Rules of Evidence, Rule 901
(a), Ark. Stat. Ann. § 281001 (Repl.
1979), provides that authentication is a condition precedent to the admissibility of evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims.
Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 281001 (Repl. 1979), provides that "photographs" includes photographs, xray films, video tapes, and motion pictures.
Xray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark. 83, 163 S.W. 180 (1914); Miller v.
Minturn, 73 Ark. 183,83 S.W. 918 (1904).
Obviously, it is impossible for a witness to testify that an xray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, xrays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.
1969). Every jurisdiction admits xray films as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally.2 We note that Rule 1001 (2) treats xrays, photographs, video tapes, and motion pictures, as one and the same.
Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 4154 (2d ed.1969).
Photographic evidence can observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word.
We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness" theory are fundamentally different from the foundational requirements under the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness" theory, .since.
the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion."
The reflection of the Rule in the Indian Law
31. As it may seem the expression " silent witness theory" in this form or any other form does not find reference in the Indian Jurisprudence but the expression like " Real Evidence" in R M Malkani ( supra) and expression like "primary and direct evidence" in Sh. N Rama Reddy v. V V Giri ( supra) take us in the same direction.
32. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in terms of appreciation of such evidences.1 Even if it assumed that that the technology has made it easier to doctor or morph video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same.
33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.
34. It was laid down by the Hon'ble Supreme Court in R M Malkani as under:
"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct 1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."
35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with " care and caution".
36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Cri. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:
a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
37. The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions ( b)
(c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done by resorting i.e speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with."
86. One may conclude that once it is established that the videograph is not tempered or edited and that it is relevant, it can be admitted in evidence as an independent evidence of its contents even if not supported by any other witness."
87. Thus only question which can be asked has the integrity of the video clipping been established once the said said question has been answered in affirmative and the video clipping has been admitted in evidence it can standalone without the support of any witness. It has already been discussed above that the integrity of video clipping is not in doubt. Thus in my view even if Beena Sansi has not been examined or there is question raised that the testimony of witness Cheten Prakash cannot accepted without corroboration, the same would not impact the testimony of this silent witness " Video clipping" as to what could be seen and heard therein."
Commission of Offence by Accused Meghraj under section 7 and section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act.
88. As stated above, it has been submitted by the Ld Defence Counsel that in order to prove the allegation of the prosecution was required to prove that there had been demand from the side of accused and he had abused his official position to obtain Rs. 100/ from Beena Sansi. According to him prosecution has failed to examine Beena Sansi to prove the allegations and also witness Chetan Prakash had not said anything specifically in this respect except that he presumed from the photographs ( read video clipping) that there was a demand from the side of the accused Megh Raj and pursuant thereto there was gratification paid to him by Smt. Beena Sansi. Presumption under section 20 of the Prevention of Corruption Act and 114 of the Indian Evidence Act Presumption under section 20 of PC Act and commission of offence under section 7 of the Act
89. It is clear from the video clipping that the accused Head Const. Meghraj had accepted the money from Beena Sansi, it is writ large from what could be heard and seen that Rs.100/ received by the Accused from Beena Sansi was not legal remuneration. As already discussed that the accused has failed to establish its defence that it was a case of return of money to him, given by him to Jasbir Sansi the husband of Beena Sansi as source money for providing intelligence inputs. Meaning thereby the receipt of Rs.100/ by him cannot be termed as "legal remuneration" within the meaning of Section 7 of the Act. Once the conclusion is reached that the Accused had accepted the money which was not legal remuneration, it can be presumed under section 20 that he had accepted this money "as a motive or reward for forbearing to do any official act or for showing or forbearing to show in exercise of his official functions to favour" Beena Sansi as envisaged under section 7 of the Act. Even otherwise the entire conversation would show that he knew that Beena Sansi was in the business of selling liquor illegally and the money which he was taking was to forebear from taking action against her.
90. Thus in my opinion the prosecution has been able to prove that the accused Head Const. Meghraj has committed offence under section 7 of the Act .
Commission of Of fence under section 13(1)(d) of the Act.
91. It is not in dispute that the accused was working as H/C constable with the Excise department of Delhi police at the relevant time. If he was there at the residence of the Beena Sansi who was in the business of selling liquor and taken money from her, there is nothing more required to be said to reach the conclusion that he had done so by abusing his position as public servant and thus committed offence under section 13(1)(d) of the Act punishable under section 13(2) of the Act. Sanction of prosecution of the Accused Head Const. Meghraj
92. I have seen the examination of the witness PW 3 Sh. B K Mishra, who had accorded the sanction for the prosecution of the accused Head Const. Meghraj. He had clearly deposed that he was competent to remove accused Head Const. Meghraj from service and he had carefully examined the facts of the case and the material produced and after having applied his mind accorded the sanction. I have not been able to find anything significant in the crossexamination of this witness, which may create any doubt either as to the competence of this witness to accord sanction for the prosecution of the accused HC Meghraj or that he had accorded sanction without application of mind. His entire crossexamination reads as under:
" The relevant file including the materials pertaining to the sanction in question, was on my table but I do not know whether the same was received in my office through Dak or through Special Messenger. It is correct that all the letters despatched from my office, used to be diarised. The aforesaid materials comprised of the entire case file including documents and statements of witnesses. I do not remember whether there was any cassette produced before me or not. It is wrong to suggest that I have deposed falsely."
93. In view of above I conclude that the witness PW3 Shri B.K. Mishra was competent to accord sanction for the prosecution of the accused HC Meghraj and he had done so having gone through the entire material relating to this case and satisfying himself. It cannot be said that the sanction accorded by him was without the application of mind. Case of other Accused Ct Sh. Ram Kumar
94. There are two issues involved in the context of the accused Const. Ram Kumar. First relates to his identity as to if he is the other person in the video clipping and second if he is the other person then what is his involvement in the commission of the offence.
95. It is a matter of record that during the inquiry conducted by the Vigilance Department of Delhi Police the person referred to as accompanying Head Const. Megh Raj was identified as Ct Vijay Pal . The investigating officer was specifically examined on this aspect of the matter to clarify as to how and at what stage the other person came to be identified as Ct. Ram Kumar. He had deposed that during the investigation he had called Ct Vijay Pal, it could be seen he was not the person who could be seen in the video clipping. Complainant Cheten Prakash also could not identify him. Finally it was one Gurdeep Singh who could identify this other person as Ct. Ram Kumar. He had recorded his statement under section 161 CrPC. There has been long crossexamination of this witness on this question to suggest that Ct. Ram Kumar has been falsely implicated in this case. I am of the view this line of argument was pointless. If the person is or is not the accused seen in the video clipping could be settled just by viewing the video clipping. Fact of the matter is that the person in the video clipping is seen for just a few seconds. I had kept his photograph prepared from the video clipping on record EX PW4/F . There can be no mistake that he is none other then the Ct. Ram Kumar before the Court.
96. It is, however, clear that he is visible for just a few second at the end. He is not seen playing any active or passive role in the taking of money. I am of the view the evidence available is grossly insufficient to reach the conclusion that he was in conspiracy with the other accused Head Const. Meghraj or that he had abused his position or that he he had received any money from Smt Beens Sansi. As was submitted by the Ld defence counsel his mere accompanying cannot be termed as an offence. Accordingly in my opinion he cannot be punished for having committed offences punishable under section 7 or under section 13(2) read with section 13(1)(d) of the Act or that he was in conspiracy with the other accused to commit the said offences.
Sanction of Prosecution of Accused Const. Ram Kumar
97. Witness PW12, Shri Ajay Kumar who was posted as D.C.P. (P.C.R.) in July 2007 had deposed that on receipt of a request from CBI and thereafter going through the documents which had been submitted by CBI and satisfying himself he had accorded the sanction for prosecution of accused Constable Ram Kumar Ex. PW12/A.
98. There are no questions raised in the crossexamination with regard to the competence of Shri Ajay Kumar for granting of sanction for prosecution of the accused Constable Ram Kumar.
99. The main thrust of the crossexamination of the witness had been that the sanction was accorded without the application of mind primarily for the reason that neither in the vigilance inquiry conducted by the Vigilance Department of Delhi Police nor in the larger part of the investigation carried by CBI the name of Constable Ram Kumar did not figure anywhere. According to the submission made by the Ld. Defence Counsel except for one statement of Shri Gurdeep Singh recorded U/s 161 Cr.P.C. name of Constable Ram Kumar did not come up anywhere. He also referred to the fact that the witness in his crossexamination kept giving vague answers whenever he was asked about the documents he had gone through before according the sanction.
100. One may appreciate the fact that according sanction under Section 19 of P.C. Act is an administrative exercise and therefore, it is to be judged on the same parameters on which a Court is supposed to evaluate an administrative act like as to whether the authority according sanction was competent to accord sanction and that while according sanction the sanctioning authority did not get swayed by the considerations which should not have influenced its decision or it had taken into account something which it should not have, while arriving at its decision [Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation. [1948] 1 KB 223]. At the same time one may also appreciate that while evaluating a sanction order Court does not sit in appeal so as to examine the case on merit from the point of view that as to in the given circumstances sanction should or should not have been granted. Though the Court may examine the order of sanction from the angle of 'perversity' i.e. if the decision was based on 'no evidence' but at same time it would not go into the question of sufficiency of evidence available with the sanctioning authority to reach its conclusion. As they say it the Court examines the process of decision making and not the decision itself.
101. The witness had repeatedly stated that his decision was based on the material which was placed before him by the CBI. It has been admitted by the Ld. Defence Counsel himself that there was one statement of Shri Gurdeep Singh under Section 161 Cr.P.C., who was also posted in the same department as Constable Ram Kumar, who had identified him during the course of the investigation. As per his own showing the suspension order of Constable Vijay Pal had been revoked which presumable was passed as he being identified as the other accused in this case. It was possible only after the case of mistaken identity had come to light.
102. In the given circumstances I am of the opinion that there is no reason to say that the sanction was accorded without application of mind.
No case of conspiracy proved against the accused Head Const. Meghraj
103. Once the conclusion is reached that the Accused Ct. Ram Kumar can be said to have committed no offence. The charge of conspiracy cannot stand against the accused Head Const. Meghraj, Const. Ram Kumar, as there is no other independent evidence available to prove this charge.
Conclusions:
104. In view of the foregoing discussions and facts and circumstances of the case, I conclude that the prosecution has not been able to prove that Const. Ram Kumar had committed an offence under sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption, Act, 1988 or committed an offence punishable under section 120B IPC read with Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The prosecution has also not been able to establish that the accused Head Const. Megh Raj has committed offence under section 120B IPC read with Section 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The prosecution, however, has been able to prove that the accused Megh Raj Singh had committed an offence punishable under section 7 of the Prevention of Corruption Act and also under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. Order:
105. In view of the conclusion reached above: I. I am acquitting the accused Const. Ram Kumar of the offence punishable under section 120B IPC read with Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act and also under section 7 and also 13(1)(d) r/w 13(2) of the said Act.
II. I am acquitting the accused Head Const. Megh Raj of the offence punishable under section 120B IPC read with Section 7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act. III. I am convicting the accused Head Const. Megh Raj of the offence punishable under section 7 and also 13(1)(d) r/w 13(2) of the Prevention of Corruption Act.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 3rd of May, 2014 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No.89/2011 R.C. No.48(A)/04 Case I.D No.02401R0710402007 Central Bureau of Investigation Versus Shri Meghraj Singh S/o Sh. Amar Singh R/o Village Noorpur, P.O Bair, District Buland Sahar, U.P. Date of Institution : 19.07.2007 Date of reserving order : 08.05.2014 Date of Pronouncement : 12.05.2014 ORDER ON SENTENCE Preliminary
1. Convict Meghraj Singh, who was posted as Head Constable with Excise Department of Govt. of NCT of Delhi on deputation from Delhi Police, has been convicted for having committed offences under section 7 and section 13(1)(d) punishable under section 13(2) of the prevention of corruption Act, 1988.
Hearing
2. I have heard Ld Defence Counsel for the convict as well as Ld. Public Prosecutor for CBI and have gone through the record of this case.
Guidelines of Sentencing
3. The broad guidelines for sentencing can be found in Rule 1 of Chapter 19 of Volume 3 of Delhi High Court Rules and Orders. The same reads as under:
"The award of suitable sentence depends on a variety of considerations-- The determination of appropriate punishment after the conviction of an offender is often a question of great difficulty and always requires careful consideration. The law prescribes the nature and the limit of the punishment permissible for an offence, but the Court has to determine in each case a sentence suited to the offence and the offender. The maximum punishment prescribed by the law for any offence is intended for the gravest of its kind and it is rarely necessary in practice to go up to the maximum. The measure of punishment in any particular instance depends upon a variety of considerations such as the motive for the crime, its gravity, the character of the offender, his age, antecedents and other extenuating or aggravating circumstances, such as sudden temptation, previous convictions, and so forth, which have all to be carefully weighed by the Court in passing the sentence."
Extenuating Circumstances
4. The following extenuating circumstances have been pointed on behalf of the defence:
(i) The convict is a sole bread earner of his family. He has aged parents to support. He has three children. His daughter is of marriageable age. His entire family and parents are financially dependent on him to support.
(ii) The amount involved in the bribe is only Rs. 100/. Aggravating circumstance
5. Ld. Public Prosecutor for CBI on the other side has made a submission that the convict is an official of police and the nature of offence he has committed does not deserves any leniency and he should be awarded sufficient deterrent punishment.
Sentence of imprisonment
6. The fact that the Convict is the sole bread earner of his family and that he has family responsibility is an extenuating factor, which needs to be taken into account as imprisonment of punishment of long duration will have have an adverse impact on his family. The amount of bribe involved is very small and, therefore, would not call for punishment on the higher side.
7. At the same time, it cannot be lost sight of the fact that the convict was posted as Head Constable with Excise Department. It was his duty to prevent to commission of such offences for which he has accepted the money.
8. The maximum punishment which has been provided in terms of imprisonment under section 7 of the Act is five years and the maximum punishment provided in terms of imprisonment under section 13(2) of the Act is seven years. It may be kept in view that this punishment which has been provided is even for the cases where highest level of Government functionaries are involved and amount involved may run into crores of rupees. If I have to balance the extenuating and aggravating circumstances and also take into account the maximum punishment provided for the above offences, in my view the ends of justice would be met if the convict is sentenced to rigorous imprisonment for a period of three years for the offence under section 7 of the P.C. Act and also to rigorous imprisonment for the same number of years for the offence under section 13(2) read with section 13(1)(d) of the Act with a direction that both the sentences shall run concurrently.
Sentence of Fine
9. Sentence of fine is an integral part of section 7 as well as section 13(2) of the Act. Imposition of fine is one of the effective ways of punishment in the economic offences. It can be meant to make the convict realise that earning through illegal means would not pay. However, while imposing the fine the Court also can not be oblivious of the fact that the fine to be imposed may ultimately not turn out to be having a ruinous effect on his family. At the same time the fine to be imposed should have correlation not only with the money earned by the illegal means but also the position the public servant was holding. I want to add that in such cases while imposing the fine, I am in favour of actually recovering the fine from the convict and not to just get away by suffering imprisonment in default of payment of fine.
10. In the light of foregoing discussion and the facts and circumstances of the case in my opinion imposing a fine of Rs. 25,000/ for having committed offence under section 7 of P.C. Act and imposition of fine of Rs. 25,000/ for having committed offence under section 13(2) read with section 13(1)(d) of the P.C. Act would serve the ends of justice.
Sentence
11. In the light of above discussion, I am sentencing the convict to undergo rigorous imprisonment for a period of three years alongwith fine of Rs. 25,000/ for having committed the offence under section 7 of the P.C. Act and to further undergo rigorous imprisonment for a period of three years alongwith a fine of Rs. 25,000/ for having committed the offence under section 13(2) read with section 13(1)(d) of the P.C. Act.
12. The sentences imposed shall run concurrently. It is noted that the convict had not remained in jail at any point of time in this case.
13. The Convict will have time of three weeks to make the payment of fine. In case of his failure to pay the fine during the said period steps would be taken for the recovery of fine in accordance with Section 421 of the Code of Criminal Procedure, 1973.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 12 of May, 2014 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.