Delhi District Court
State vs Vijay Prakash on 18 February, 2025
IN THE COURT OF DEEPALI SHARMA :
SPECIAL JUDGE (PC ACT)(ACB-01):
ROUSE AVENUE COURT COMPLEX : NEW DELHI
CC No. 81/2020
CNR No. DLCT11-000374-2020
FIR No. 42/2014
U/S: 7/13 PC Act
PS: Anti Corruption Branch
State
Versus
Vijay Prakash
S/o Sh. Suresh Chandra,
R/o 36-C, Jhang Apartment,
Sector-13, Rohini, Delhi-110085.
Date of Institution : 04.12.2020
Date of Arguments : 12.02.2025
Date of Judgment : 18.02.2025
Appearance :
For the State : Sh. Sukhbeer Singh,
Ld. Chief Public Prosecutor.
For accused : Sh. H.K.Sharma, Advocate.
JUDGMENT
1) Brief facts of the case are that on 24.03.2014 an application was received at PS Anti Corruption Branch (in short ACB) from Sh. Deepak Gupta, Chief Engineer, M-III PWD, Delhi, regarding involvement of nine PWD officials in corruption and that a sting in that regard was telecast by India TV wherein the said officials were shown to be demanding and accepting CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 1 of 65 bribe. The said sting operation was stated to be aired by India TV News Channel on 22.03.2014 and was re-telecast on 23.03.2014. The names of the said nine officials were mentioned therein. Vide the said application the ACB was requested to take legal action against those officials. Accused Vijay Prakash was also mentioned as one of the PWD officials shown in the sting operation. FIR No. 25/2014 dated 24.03.2014 u/s 7/13(1)(d) PC Act was registered at PS ACB, GNCT Delhi on the complaint of Sh. Deepak Gupta against the said nine officials of PWD Electric Division M-352.
2) During the course of investigation, the raw footage of the sting operation was obtained and sent to FSL for examination. It was found that the said sting operations were conducted at different time and different places and were separate incidents. Legal opinion was sought and it was opined that separate FIRs be registered for each incident/sting operation for the purpose of further investigation. It was accordingly ordered by Addl.C.P., ACB, that separate case be registered in respect of sting of Vijay Prakash - JE, Electrical Forensics Science Lab, Madhuban Chowk, Rohini. On the basis of rukka prepared by Insp. Satender Dhull, FIR bearing no. 42/2014 was registered on 13.06.2014 u/s 7/13(1)(d) of PC Act and further investigation of the case was entrusted to Insp. B.K.Singh.
3) During investigation, on 16.01.2015, Insp. Satender Dhull handed over to Insp. B.K.Singh two DVDs in sealed condition bearing the seal of FSL, one DVD in open condition CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 2 of 65 relating to sting operation of the present case, copy of the FSL report and copy of employee data summary. The aforesaid was seized by Insp. B.K.Singh vide seizure memo Ex. PW5/A, who deposited the same in the Malkhana.
4) Thereafter the investigation of case was assigned to Insp. Raj Kumar, who recorded the statement of Farooque Newazie, Press Reporter of India TV, who had conducted the sting operation. Further investigation of the case was assigned to Insp. Rakesh Kumar, who issued notices to complainant, but he did not join the investigation. He prepared rough transcript of the audio recording available on file. He issued notice to Rahul Khanna, Press Reporter, to provide original storage media and device of the alleged recording, but it was informed that the same had already been provided to the IO of case FIR no. 25/2014 of PS ACB.
5) Thereafter investigation of present case was handed over to Inspector D. P. Singh, who made inquiries from Farooque Newazie (Journalist) and Rahul Khanna (Chief Manager) of India TV and recorded their statements U/s 161 Cr.P.C. On 19.01.2018, he recalled Sh. Deepak Ahuja, whose statement was already recorded in case FIR no. 25/2014, to ACB office and he confirmed the contents of his statement recorded therein. On 30.01.2018, accused Vijay Prakash gave his consent for Voice Sample vide memo Ex.PW6/B in the presence of Panch Witness. The CD kept in the office file was played in the office computer in the presence of Panch Witness and a transcript Ex.PW6/A was CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 3 of 65 prepared. On 01.02.2018, complainant gave his consent to give voice sample vide memo Ex.PW1/A in the presence of Panch Witness. IO again played the CD of the Sting Operation lying in the file for the purpose of investigation and again prepared the transcript Ex. PW3/B in the presence of panch witness, which was perused by the complainant and narrated by him.
6) On 09.03.2018, the voice sample of the complainant Sunil Choudhary and accused Vijay Prakash were recorded at the FSL Rohini and the sample voice cassettes of complaint Sunil Choudhary and the accused were taken into possession by IO vide memos Ex. PW4/A and PW4/B respectively and same were deposited in Malkhana of PS Civil Lines. The exhibits were sent to FSL, Rohini, for examination and subsequently the FSL result was obtained.
7) In the month of November, 2018, Satish Kumar, an employee of PWD, produced the original Agreement copies of PWD with M/s Hari Om Electronics i.e. ten files which were seized vide seizure memo Ex.PW7/A. IO called the main IO of FIR no. 25/14, Sh. Satender Vashisht and recorded his statement. IO sent a request for grant of sanction for prosecution.
8) Thereafter investigation of case was handed over to ACP Rakesh Ahuja. On 26.08.2020, sanction U/s 19 of Prevention of Corruption Act (hereinafter referred as PC Act) was granted by competent authority, which was placed on file.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 4 of 659) After completion of necessary investigation, the charge-sheet was filed before the court u/s 7/13(1)(d) PC Act against accused Vijay Prakash on 04.12.2020 and cognizance of offence was taken against the accused on 14.01.2021. Thereafter, accused was summoned and after hearing arguments, charge for the offence under Section 7 & 13 (1) (d) of POC Act punishable under Section 13 (2) of POC Act was framed against the accused on 07.09.2021, to which accused pleaded not guilty and claimed trial.
10) In order to prove its case, prosecution has examined 31 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW1 Deepak Gupta deposed that on 24.03.2014, he was posted as Chief Engineer, PWD, Zone M-3, GNCT Delhi, and he wrote a letter dated 24.03.2014 Ex. PW1/A to Sh. V. Rangnathan, IPS, Addl. C.P, ACB, Delhi to probe the role of nine officials of PWD, regarding whom telecast was made by India TV on 22.03.2014 and 23.03.2014.
ii) PW2 HC Parvinder Kumar deposed that on, 20.04.2018, on the instructions of IO/Insp. D.P. Singh, he collected FSL result and exhibits from FSL Rohini and handed over FSL result to IO while exhibits were deposited with MHC(M).
iii) PW3 Anil Kumar Piplani - panch witness. He CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 5 of 65 deposed that on 01.02.2018, in his presence, one Sh. Sunil Chaudhary gave his consent for recording his voice sample vide consent memo Ex.PW3/A. Transcription Ex. PW3/B was also prepared in his presence.
iv) PW4 Sanjay Batra was panch witness in whose presence voice sample of Sunil Chaudhary and the accused were recorded at FSL Rohini, on 09.03.2018. He proved the seizure memo of cassettes containing voice sample of Sunil Chaudhary and accused as Ex. PW4/A and Ex. PW4/B respectively. He correctly identified the accused before the court, to be the same person whose voice sample was recorded. PW4 also correctly identified one audio cassette (Ex.SVSC-I) having voice sample of Sunil Chaudhary recorded in his presence as Ex. P1 and another audio cassette (Ex.SVVP-I) having voice sample of Vijay Prakash recorded in his presence as Ex. P2.
v) PW5 Ajay Kumar Mittal identified his signatures on handing over cum seizure memo dated 16.01.2015 Ex. PW5/A. He voluntarily stated that he did not remember when he put the signature on Ex.PW5/A. PW5 further deposed that he was not in position to depose in the present case due to health reasons as he had suffered from Corona.
vi.a) PW6 Bhagwati Prasad - panch witness. He deposed that on 30.01.2018, one person namely Vijay Prakash was present in the ACB office and in his presence, one CD was played and one report/ transcription Ex.PW6/A was prepared.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 6 of 65PW6 correctly identified the accused Vijay Prakash before the Court.
vi.b) On being cross-examined by Ld. Addl. PP for the State, PW6 identified his signature on the consent memo for sample voice of accused Vijay Prakash and stated that it was prepared in his presence.
vii) PW7 Satish Kumar Kataria deposed that on 24.11.2018 he was posted as LDC at North Electrical Division, PWD, Sector-6, Rohini, New Delhi and joined the investigation of this case at PS ACB Branch, where he handed over the original agreement copies of PWD with M/s Hari Om Electricals to the IO in the presence of panch witness Nemi Chand Meena. He handed over copies of ten agreements detailed in the seizure memo Ex.PW7/A. He handed over copies of ten agreements bearing No. (1) 69/AE(E)M-3521/2012-2013 Ex.PW7/B, (2) No. 107/AE(E)M-3521/2012-2013 Ex.PW7/C, (3) No.109/AE(E)M- 3521/2012-2013 Ex.PW7/D, (4) No.09/AE(E)M-3521/2013- 2014 Ex.PW7/E, (5) No.97/AE(E) M-3521/2013-2014 Ex.PW7/F, (6) No.98/AE(E)M-3521/2013-2014 Ex.PW7/G, (7) No.124/AE(E)M-3521/2013-2014 Ex.PW7/H, (8) No.125/AE(E)M-3521/2013-2014 Ex.PW7/I, (9) No.18/EE(E)/PWD EMDM-352/2013-2014 Ex.PW7/J and (10) No.194/EE(E)/PWD EMDM-352/2013-2014 Ex.PW7/K. viii.a) PW8 Satbir Singh deposed that in March 2014, he was posted as a Conductor in Raja Garden Transport Authority, Delhi. In the month of March 2014, he visited Anti-
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 7 of 65Corruption Branch Office and from there he alongwith one Inspector Dahiya went to a TV Channel Office situated at Noida. He did not remember the name of TV channel and its complete address. In the TV channel office, one official of TV Channel handed over one CD/DVD to the IO. IO covered the said CD/DVD and he had signed the same. Thereafter, he alongwith IO returned back to the ACB office.
viii.b) In the ACB office, IO told him that he was preparing the copy of said CD/DVD. Thereafter, IO prepared the copy of said CD/DVD and at that time PW8 was sitting at some distance from there. The CD/DVD handed over by the official of TV channel was covered and signed by PW8. PW8 deposed that during the aforesaid proceedings, no document was prepared in his presence nor he signed any of the documents. He volunteered that he only signed on the CD/DVD. He did not remember whether any seal was affixed or not on the pullanda of the CD/DVD. PW8 identified DVD on which "Copy of DVD4" of set 1 was written.
viii.c) PW8 identified his signatures on the envelop Ex.PW8/A, containing DVD Ex.P3. PW8 also identified his signature on DVD Ex. P-3 and stated that the said DVD was handed over by official of TV Channel office situated at Noida.
viii.d) In his cross-examination by Ld. Addl. PP for the State, PW8 affirmed that on 31.03.2014, he alongwith the IO Insp. Satender Dhull visited the office of India TV situated at Sector-85, Noida, where they met with Sh. Rahul Khanna, Chief Manager (HR & Legal Head), India TV; that Sh. Rahul Khanna had handed over one SONY DVD containing raw footage of the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 8 of 65 sting operation alongwith covering letter and that the said DVD was marked as Exhibit-1. PW8 denied that in his presence Insp. Satender Dhull prepared a copy of the DVD Exhibit-1 and the same was marked by him as Exhibit-1A. PW8 volunteered that he was sitting at a distance in the said room; that he had seen both the original footage and the copy prepared by the IO and after that certified it to be correct. PW8 affirmed that CD marked as Exhibit-1 was kept in a yellow colour envelope and converted into a pulanda and sealed with the seal of SK by the IO and both the DVDs i.e. Exhibit-1 and Exhibit-1A were taken into police possession after preparing a seizure memo Ex.PW8/B.
ix) PW9 Insp. Raj Kumar deposed that on 26.09.2016 further investigation of the present case was marked to him. On 13.02.17, he recorded statement of Sh. Farooque Newazie, Press Reporter of India TV under Sec. 161 Cr.P.C. After making inquiries from him. On 25.03.2017 he was transferred from ACB Office and he handed over the case file to SO Branch of ACB.
x) PW10 Nemi Chand Meena deposed that on 24.11.2018 he was on duty as panch witness in ACB. In his presence Sh.Satish Kumar Kataria of PWD handed over original agreement copies to the IO of the present case, which were seized vide seizure memo Ex.PW7/A.
xi) PW11 Sunil Kumar deposed that on 28.02.2017 while he was posted as LDC in PWD North-Electrical Division, CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 9 of 65 BSA Hospital, Sector-6, Rohini, Delhi, on the directions of Sh. V.K. Gupta, Exe. Eng., he handed over the chart Ex. PW11/A mentioning details of agreement of M/s Hari Om Electronics for the period of 2012-2013 and 2013-2014 in respect of FSL, Sub- Div.(AE(E)1/M352) to the IO alongwith the photocopy of front page of all ten agreements and identified his signatures thereon i.e. agreement No.69/AE(E)M-3521/2012-2013 Ex.PW11/B(colly) ; agreement No.107/AE(E)M-3521/2012- 2013 Ex.PW11/C (colly); agreement No.109/AE(E)M- 3521/2012-2013 Ex.PW11/D (colly); agreement No.09/AE(E)M-3521/2013-2014 Ex.PW11/E (colly); agreement No.97/AE(E)M-3521/2013-2014 Ex.PW11/F (colly); agreement No.98/AE(E)M-3521/2013-2014 Ex.PW11/G (colly); agreement No.124/AE(E)M-3521/2013-2014 Ex.PW11/H (colly); agreement No.125/AE(E)M-3521/2013-2014 Ex.PW11/I (colly); agreement No.18/EE(E)/PWD EMDM-352/2013-2014 Ex.PW11/J (colly) and agreement No.194/EE(E)/PWD EMDM- 352/2013-2014 Ex.PW11/K (colly).
xii) PW12 HC Sanjay Malik - part of investigation on 11.12.2014 at FSL Rohini, Delhi and a witness to the identification memo of the accused persons which was prepared upon identification of nine PWD officials in the sting operation by Sh. Deepak Ahuja. PW12 deposed that Sh. Deepak Ahuja, Superintendent, PWD had brought a printed bio-data containing details of officials and handed over the same to IO. Deepak Ahuja also told that he could recognize all the nine officials in the sting as they used to regularly interact with him in connection with official work. PW12 stated that the scientist had prepared CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 10 of 65 nine separate DVDs, each containing sting operation of nine officials. All the DVDs were played one by one in the computer system installed there in the lab for the identification of the accused persons and Sh. Deepak identified the officials after seeing all the footages separately. A chart namely identification memo was also prepared there in which the particulars of the accused persons alongwith the other details were mentioned and PW12 had signed the said memo Ex.PW12/A. PW12 further deposed that Sh. Deepak Ahuja had also identified the voice of the contractor Sunil Chaudhary, Proprietor of Hariom Electronics.
xiii) PW13 Gopal Krishan Gulati, Branch Manager, Punjab National Bank, Sector-15, Rohini, Delhi, produced certified copies of account opening form of account no. 0605002100032250 in the name of M/s Hariom Electronics alongwith certified copies of account statement from 01.01.2016 to 21.03.2022. He had also brought the certified copy of Form- 60 dated 23.06.2000 and also the copy of ration card of Sh. Sunil Chaudhary, proprietor of M/s Hariom Electronics, collectively Ex.PW13/A.
xiv) PW14 Farooque Newazie - Principal Correspondent, India TV, Sector-85, Noida, U.P. in the year 2014, who conducted the sting operation.
xv.a) PW15 Dr. C.P. Singh, Assistant Director (Physics), FSL, Rohini, Delhi, deposed that on 22.04.2014, one sealed envelope was received in the office of FSL, Rohini through Ct.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 11 of 65Jagdish Kumar. The seals on the parcel was intact and were tallied with the specimen seal. On opening the sealed envelope sealed with the seal of SK at five places, one DVD of SONY make containing video file in DVD format was taken out. xv.b) On laboratory examination of video file in DVD marked "Exhibit-1", it was observed that video files contain "28" identified video shots. These video shots were found connected by using software for capturing on screen display. There was no indication of alteration in the identified video shots on the basis of frame by frame examination. Authorized judicial edit of the video footage in DVD marked Exhibit-1 was performed. 12 relevant video footages identified by the stinger team member were split serially from the video footages in DVD marked Exhibit-1. Segregated shots were given file names as AVF1 to AVF12 (Extended name P1 & P2 were given to the file for same accused). These authorized edited video footages were produced in DVD marked "DVD1 to DVD9" containing video files as (1) DVD1 having assigned video file as AVF1, (2) DVD2 having assigned video file as AVF2, (3) DVD3 having assigned video file as AVF3_P2 and AVF7_P1, (4) DVD4 having assigned video file as AVF4, (5) DVD5 having assigned video file as AVF5_P1 and AVF10_P2, (6) DVD6 having assigned video file as AVF6_P1 and AVF11_P2, (7) DVD7 having assigned video file as AVF8, (8) DVD8 having assigned video file as AVF9 and (9) DVD9 having assigned video file as AVF12. Two set of copy of DVD1 to DVD9 were prepared in DVDs marked as Copy of DVD1 to copy of DVD9. In this regard he prepared report dated 23.02.2014 Ex.PW15/A. xv.c) PW15 further deposed that on 13.03.2018, three CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 12 of 65 sealed envelopes were received in case FIR No.42/14, PS ACB in the office of FSL, Rohini through ASI Sanjay Yadav. The seals on the parcels were intact and tallied with the specimen seal impression. First parcel was containing a DVD make 'Moserbaer' marked as DVD-4 and same was marked as Exhibit-
1. The speaker starts with "....tabhi to..... intzar kar raha hu"
was marked as Exhibit-Q1 and the speaker starts with " ....kya baat hai...." was marked as Exhibit-Q3 in the file namely AVF4 in the laboratory. Second parcel was containing one audio cassette marked as SVVP-1 of 'Maxwell' make containing specimen speech sample. The speaker (Vijay Prakash) of the specimen speech sample was marked as Exhibit-S1. Third parcel was containing one audio cassette found marked as SVSC-1 of 'Maxwell" make containing specimen speech sample. The speaker (Sunil Chaudhary) of the specimen speech sample was marked as Exhibit-S2.
xv.d) PW15 further deposed that the auditory analysis of recorded speech samples of speakers marked "Exhibit-Q-1" and Exhibit-S1" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-Q1" were similar to the voice exhibits of speaker marked "Exhibit-S1" in respect of their acoustic cues and other linquistic and phonetic features. xv.e) PW15 further deposed that the auditory analysis of recorded speech samples of speakers marked "Exhibit-Q-2" and Exhibit-S2" and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit-Q2" were similar to the voice exhibits of speaker marked "Exhibit-S2" in respect of their CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 13 of 65 acoustic cues and other linquistic and phonetic features. xv.f) The voice exhibit of speakers marked "Exhibit-Q1"
and "Exhibit-S1" were voice of the same person (i.e. Sh. Vijay Prakash). The voice exhibit of speakers marked "Exhibit-Q2"
and "Exhibit-S2" were voice of the same person (i.e. Sh. Sunil Chaudhary). In this regard he prepared report Ex.PW15/B. PW15 correctly identified the case property i.e. DVD marked a DVD-4 Ex.PW15/Article-1, an audio cassette make Maxwell on which FSL number and SVSC-I and Exhibit-SVSC-I were written as Ex.P-1, an audio Cassette voice sample of Vijay Prakash Ex.P2 and an audio cassette make maxwell on which Exhibit-SVVP-I was written as Ex.P2.
xv.g) PW15 further deposed that the specimen voice sample of Sunil Chaudhary and Vijay Prakash in audio cassettes Ex.P1 and Ex.P2 were in original and were compared with the questioned conversation in DVD-4 which was Ex.PW15/Article-
1. After the comparison, he had prepared the detailed report Ex.PW15/B. xv.h) The DVD containing raw footage as file namely AVF4 having relevant video in the present matter Ex.P3 was played on the computer of the court and after seeing the same PW15 deposed that the DVD4 was prepared from the raw footage as file namely AVF4 having relevant video in the present matter. The DVD4 was also exhibited as Ex.P4.
xvi) PW16 V.K.Gupta deposed that in the year 2017, he was posted at North Maintenance, Electrical Division, PWD, BSA Hospital Campus, Rohini, Delhi, as Executive Engineer (Electrical). A letter no. 832-RC No.42/14/RKT/ACB dated CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 14 of 65 31.01.2017 from ACB was received in their office regarding details to be provided in case FIR No. 42/14, PS ACB. He had authorized Sh. Sunil Kumar, LDC, vide authorization dated 18.02.2017 Ex. PW16/A to provide the details asked by the ACB in the aforesaid case. Vide letter alongwith the required information dated 01.06.2018 Ex.PW16/B, he had furnished information to the Inspector, ACB in respect of Sh. Vijay Prakash, J.E. (Electrical), Forensic Science Lab, Rohini, Delhi.
Vide letter dated 05.09.2018 Ex. PW16/C, he had furnished information to the Inspector, ACB. Vide reply dated 16.11.2018 Ex.PW16/D he had furnished information to the Inspector, ACB. The original contract documents, as mentioned in his reply dated 16.11.2018 Ex. PW16/D, from serial no. 1 to 10 Ex.PW7/B to Ex.PW7/K were handed over to the IO by Sh. Satish Kumar Kataria, who was posted as LDC at NED, PWD, Sector-6, Rohini at that time.
xvii) PW17 Sunil Chaudhary - victim. xviii) PW18 ASI Jitender Kumar was the Duty Officer at
PS ACB. He deposed that on 13.06.2014 at about 01.50 pm, Insp. Satender Dhull handed over a rukka to him on the basis of which the present FIR was registered. He proved the FIR Ex.PW18/A, his endorsement on the rukka Ex.PW18/B and DD No. 20 Ex. PW18/C regarding lodging of FIR. He further deposed that after registration of the case, the original rukka and carbon copy of FIR was handed over to Insp. B.K. Singh for further investigation.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 15 of 65xix) PW19 SI Sanjay Yadav deposed that on 13.03.2018, he collected forwarding letter from IO Insp. D.P. Singh and on his instructions he collected three sealed pulandas alongwith the sample seals from the Malkhana of PS Civil Lines and deposited the same at FSL, Rohini vide RC no. 54/21/18. He handed over the acknowledgment of case acceptance to the MHC(M).
xx) PW20 Rahul Khanna - posted as Chief Manager (HR & Legal) in India TV, who handed over the raw footage of sting operation in a DVD to IO/Insp. Satender Dhull on 31.03.2014.
xxi.a) PW21 Insp. Satender Dhull - first IO of the case. He deposed that on 24.03.2014, an application was received from Sh. Deepak Gupta, Chief Engineer, M-III, PWD, Delhi regarding involvement of PWD officials in corruption and telecast of sting in respect of same on India TV. After a preliminary enquiry, case FIR no.25/14 was registered at PS ACB and further investigation was conducted by him. He sent an email to India TV to provide raw footage of the entire sting and other instruments used in the recording. India TV office sent him a CD alongwith covering letter on 27.03.2014 alongwith certificate U/s 65B of Indian Evidence Act and other documents containing sting which was telecast earlier on India TV.
xxi.b) On 31.03.2014, PW21 alongwith panch witness Sh. Satbir Singh went to India TV office to procure raw footage of sting operation and they met Sh. Rahul Khanna, Head, Legal and HR Division of India TV, who presented a DVD make SONY CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 16 of 65 containing the entire raw footage of the sting alongwith certificate U/s 65B of Indian Evidence Act alongwith a covering letter. PW21 and panch witness Satbir reached office of ACB and PW21 made a second copy of the DVD containing raw footage of sting operation and marked the same as Exhibit-1A. The original DVD containing the raw footage, which was brought from the office of India TV, was marked as Exhibit-1 and put in an envelope and sealed with the seal of SK while the second DVD marked as Exhibit-1A was kept open for the purpose of investigation. Both the DVDs were taken into police possession vide seizure memo Ex.PW8/B. Thereupon, Exhibit-1 was deposited in the Malkhana of PS Civil Lines.
xxi.c) Thereafter, he sent the Exhibit-1 to the FSL, Rohini and took permission for "authorized judicial edit of the raw footage" from the court vide his request Ex.PW21/A. xxi.d) On 27.11.2014, PW21 called the correspondent of India TV Sh. Farooque Newazie, who conducted the sting alongwith Sh. R.P. Gupta, Executive Engineer, PWD, in the FSL, Rohini and got identified the starting time and finishing time of each sting in respect of each officer. PW21 prepared an observation-cum-judicial edit memo Ex. PW21/B in this regard in the presence of Sh. Farooque Newazie, panch witness Sh. Santoshi Lal and Sh. R.P. Gupta, Executive Engineer, PWD. xxi.e) On 11.12.2014, PW21 alongwith Ct. Sanjay Malik and Sh. Deepak Ahuja, office Superintendent, PWD again visited the FSL, Rohini for identification of the PWD officials seen in the sting operation. The DVD was played at the FSL and Sh. Deepak Ahuja identified the officials seen in the sting operation. After that nine separate DVDs were prepared by the FSL CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 17 of 65 officials in respect of each official of PWD seen in the sting. PW21 requested the FSL to make three copies of each DVD. He prepared the identification memo Ex. PW12/A after identification of officials seen in the sting by Deepak Ahuja. All the nine DVDs in sealed condition alongwith their copies in sealed condition were handed over to him and he later handed over the DVDs of the PWD officials to the concerned IO for further investigation through handing over memo alongwith the bio-data of each official of PWD which were provided to him by Sh. Deepak Ahuja, Office Superintendent, vide handing over cum seizure memo Ex.PW5/A. PW21 correctly identified the DVD Ex. P-3 and its envelope Ex. PW8/A. xxi.f) With the permission of the court, Ld. Addl. PP for the State put a leading question to PW21, on which PW21 affirmed that the rukka dated 13.06.2014 was prepared by him with respect to the present case and FIR Ex. PW8/A was got registered.
xxii) PW22 Vinit Kumar Jayaswal, deposed that on 26.08.2020, he was the Director General, CPWD. On receipt of letter dated 02.06.2020, and a subsequent letter dated 18.08.2020, the facts of the present case relating to investigation conducted by ACB, Delhi, was placed before him and applying his mind, he being the competent authority to accord sanction against accused Vijay Parkash accorded sanction U/s 19(1)(c) of PC Act for his prosecution vide sanction order dated 26.08.2020 Ex.PW22/A and same was sent to the ACB vide letter dated 28.08.2020 Ex.PW22/B. CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 18 of 65 xxiii) PW23 Deepak Ahuja deposed that in the year 2014 he was posted as Office Superintendent in M-352, Electrical Division. On 11.12.2014 he joined investigation alongwith Insp. Satender Dhull at FSL Rohini. He had brought attested copy of bio-data of accused Vijay Prakash Ex. PW23/A and other eight accused persons containing details like rank, PIMS, ID etc. Nine DVDs each containing sting operation in respect of nine officials were played one by one in the computer lab at FSL and PW23 identified the accused persons with the help of PIMS data and identification memo Ex. PW12/A was prepared with regard to individual accused, who were seen in the DVDs played at FSL. He identified accused Vijay Prakash in DVD-4 Ex. P-4 containing file name AVF4 relating to present accused. PW23 proved the PIMS bio-data of the accused downloaded from official website of CPWD alongwith certificate U/s 65B of Indian Evidence Act Ex.PW23/B (colly).
xxiv) PW24 Santoshi Lal - panch witness. He went to FSL, Rohini alongwith Insp. Satender Dhull, where he met Sh. R.P. Gupta and Sh. Farooque Newazie. One film (CD) was played on the computer of FSL and the entire sting operation was of 4 hours and 20 minutes in respect of nine employees which was segregated in 12 slots. The start and the end time of each sting was segregated at the instance of Farooque Newazie. He identified his signature on observation-cum-judicial edit memo Ex.PW21/B. xxv.a) PW25 Ramayan Prasad Gupta deposed that he was posted as Executive Engineer in PWD in the year 2014 and he CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 19 of 65 was given additional charge of M-352 Electrical Division, PWD. On 27.11.2014, he was called at FSL, Rohini, to identify the officers who were seen in the CD but he was unable to identify them. PW25 deputed Sh. Deepak Ahuja, Office Superintendent, to identify those persons who were seen in the CD. He signed observation-cum-judicial edit memo Ex.PW21/B. xxv.b) On being cross-examined by Ld. Chief P.P. for the State, PW25 affirmed that the CD was in respect of 9 employees of PWD and entire sting was of 4 hours 20 minutes in 12 slots. PW25 affirmed that Sh. Farooque Newazie identified the start time and end time of each sting related to individual official of CPWD. He voluntarily stated that the CD was not played for entire period of 4 hours 20 minutes but the sting operation related to 9 officials of PWD was shown after forwarding the clips of the CD.
xxvi) PW26 Retired SI Krishan Kumar was the duty Officer on 24.03.2014. He deposed that at about 06.00 pm Insp. Vinay Malik handed over a rukka to him on the basis of which he recorded FIR no. 25/14 Ex.PW26/A. He also made his endorsement on the rukka Ex.PW26/B and DD No. 37, regarding registration of FIR no. 25/14, Ex.PW26/C. PW26 deposed that after registration of FIR, investigation of case was handed over to Insp. Satender Dhull as per directions of senior officers.
xxvii) PW27 Retired Insp. B.K.Singh - second IO of the case.
xxviii) PW28 Insp. Rakesh Kumar - fourth IO of the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 20 of 65 case.
xxix) PW29 HC Jitender produced Register no. 19 of PS Civil Lines and proved relevant entries at Serial no. 930 dated 16.01.2015 Ex.PW29/A; at serial no. 1040 dated 09.03.2018 Ex.PW29/B; RC no. 54/21/18 Ex. PW29/C, copy of acknowledgment of FSL Ex.PW29/D and entry dated 20.04.2018 Ex.PW29/E. xxx.a) PW30 Inspector D. P. Singh - fifth IO of the case. He deposed that in January, 2018, present case file was received by him for further investigation. On 17.01.2018, he made inquiries from Farooque Newazie (Journalist) and Rahul Khanna (Chief Manager) of India TV and recorded their statements U/s 161 Cr. P. C. On 19.01.2018, he recalled Sh. Deepak Ahuja, whose statement was already recorded in case FIR no. 25/2014, to the ACB office and he confirmed about the contents of his statement recorded therein. On 30.01.2018, accused Vijay Prakash in the presence of Panch Witness gave his consent for Voice Sample vide memo Ex.PW6/B. PW30 played the CD, which was kept in office file for the purpose of investigation, in the office computer in the presence of Panch Witness and prepared the transcript Ex.PW6/A. xxx.b) On 01.02.2018, complainant Sunil Choudhary was called at ACB and in the presence of Panch Witness Anil Piplani, complainant gave his consent to give voice sample vide memo Ex.PW1/A. xxx.c) After recollecting his memory from the judicial record, PW30 stated that he had also played the CD of CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 21 of 65 the Sting Operation, which was lying in the file for the purpose of investigation, in the office computer in the presence of the Panch Witness. He again prepared the transcript Ex. PW3/B which was perused by the complainant and narrated by him. xxx.d) On 09.03.2018, PW30 asked the complainant Sunil Choudhary as well as accused Vijay Prakash to be present at FSL for recording their voice sample. PW30 alongwith Panch Witness reached at the FSL Rohini where the FSL officials recorded the voice sample of the complainant and accused. He gave a request letter and four blank audio cassettes to FSL Authorities for the purpose of recording voice sample of the complainant and accused. The FSL authorities recorded the voice sample and handed over to PW30 one original cassette and one copy of the voice sample recordings of the complainant and accused. PW30 seized the Sample voice cassettes of complaint Sunil Choudhary after keeping the same in a plastic cover and sealed the same with the seal of DPS after marking the cassettes 'SVSC-I' and 'SVSC-II' and PW30 seized the same vide memo Ex. PW4/A. xxx.e) The voice sample cassettes of accused Vijay Prakash were converted into a pulanda and sealed with the seal of DPS and the after marking the original cassette and copy thereof as 'SVVP-I' and 'SVVP-II', PW30 seized the same vide memo already Ex.PW4/B. PW30 got deposited the sealed pulandas in the malkhana of PS Civil Lines. After 3-4 days, PW30 sent the Voice Sample Cassettes of complainant Sunil Choudhary and accused Vijay Prakash through ASI Sanjay. After about one month, one Head Constable brought the FSL result from FSL. xxx.f) In the month of November, 2018, Satish Kumar, an CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 22 of 65 employee of PWD, brought the original Agreement copies of PWD with M/s Hari Om Electronics i.e. ten files and PW10 took the same in police possession vide memo Ex.PW7/A. The details of the files were also mentioned in the letter Ex.PW16/B written by the Executive Engineer of PWD. PW30 called the main IO of FIR no. 25/14, Sh. Satender Vashisht and recorded his statement. xxx.g) In the month of June, 2020, PW30 had sent a request for grant of Sanction for Prosecution to the DG CPWD against the accused alongwith the draft charge-sheet. Thereafter, PW30 was transferred and he handed over the file to the SO Branch.
xxx.h) PW30 correctly identified accused Vijay Prakash before court. PW30 also correctly identified audio cassette containing the voice sample of Sunil Choudhary Ex.P1; audio cassette containing voice sample of accused Vijay Prakash Ex.P2; copy of the voice sample of Sunil Choudhary Ex. PW17/A1; copy of the voice sample of accused Vijay Prakash Ex.PW30/Article 2 and DVD Ex.P4 (on which DVD-4 and FSL no. was written) which was played by PW30 in the office and on the basis of which transcripts were prepared in the presence of complainant and accused on different dates.
xxxi) PW31 ACP Rakesh Ahuja - sixth IO of the case. He deposed that in July 2020, case file of present case was received by him for further investigation. He obtained the sanction U/s 19 of PC Act and placed the same on file. He prepared the chargesheet and filed the same before the court.
Statement of accused :
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 23 of 6511.a) After conclusion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C wherein he denied the correctness of all the incriminating circumstances appearing in evidence against him and stated that he was innocent and had been falsely implicated in the present case at the instance of complainant. Accused further stated that Sunil Chaudhary and Farooque Newazie did not visit his office on 26.02.2014 and no sting operation was conducted. They had falsely deposed against him in order to justify their fabricated video clip. He further stated that he had neither demanded nor accepted any money and fabricated video clips were telecast. He further stated that no raw footage had been brought on record.
The annotations given in the transcription about the speakers were incorrect. The bio-data provided by witnesses during investigation does not bear his photograph. He further stated that he was forced to give voice sample by reading out sentences, which were already typed by the policed officials, under the threat of being arrested on the said day and he was asked to read those sentences in a particular fashion and therefore, the specimen voice was not his true normal voice in which he would converse. Accused further stated that during the course of his duties, he had dealt with a large number of files, thus he could not identify the respective files by memory or otherwise. He stated that the report Ex. PW15/A identified that video shots had been connected by using software for capturing on screen display, which was a sign of fabrication of video clips. The video clip did not contain his voice and merely upon viewing and listening the video clips, the superimposition of the audio files was apparent. Accused further stated that Ex. P-2 contained CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 24 of 65 voice which he had been forced to utter and was not his natural voice. He stated that Ex. P-3 and DVD4 Ex. P-4 contained fabricated video clips. He further stated that the expert Dr. C.P.Singh had categorically established the fabrication of the video clips, be it in Ex. P-3 and Ex. P-4. He further stated that he was discharging his duties diligently, which was evident from the official files brought from his office. He stated that people have animosity towards a public servant, who does not work according to their whims and who followed the rules and therefore, the present case had been fastened upon him.
11.b) Accused further stated that he had not committed any offence. The entire case against him was instituted on the basis of false and fabricated allegation made by the complainant in collusion with Farooque Newazie. The investigating agency had also not conducted the investigation in a fair and impartial manner, despite of having received a specific report from the expert that video files contained "28" identified video shots. Those video shots were found connected by using software for capturing on screen display. This fact alongwith the fact that original raw footage on micro SD card, was never produced by India TV despite a letter dated 27.03.2014 being sent by IO for its production, within few days of the respective alleged telecasts. Accused did not prefer to lead defence evidence.
Arguments :
12) It is contended on behalf of Ld. Counsel for the accused that the accused has been falsely implicated in this case.
It is urged that purportedly a sting operation was conducted without informing law enforcement agencies and even the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 25 of 65 guidelines as laid down by court in Court its own motion vs. State, ILR (2008) II Delhi 44, were not followed while conducting the sting operation. It is urged that PW14 Farooque Newazie and PW17 complainant at the best were accomplice and had sought to unsuccessfully entrap the accused by their acts. The sting operation was conducted solely for the purposes of increasing the TRP of the television channel. It is urged that there are contradictions in the testimony of PW14 and PW17, who were even otherwise accomplices to the alleged offence. It is argued that even the alleged video recording contained in DVD Ex. P-3 and Ex. P-4 have not been proved in accordance with law and hence are inadmissible in evidence. It is argued that the original recording and the device/micro SD card with which the recording was made have not been produced before the court. It is urged that the video recording as contained in DVD Ex. P-3 and DVD Ex. P-4 qua the accused are edited /sliced and have been tampered with and no evidentiary value can be attached to them. Moreover no proper certificate u/s 65B(4) of Indian Evidence Act has been furnished in support of either DVD Ex. P- 3 or DVD Ex. P-4. It is contended that the prosecution has failed to prove the allegations of demand of bribe or of any pecuniary advantage to the accused, hence, the accused is liable to be acquitted in the present case. In support of his submissions, the accused has relied upon the following judgments :
(i) Shiv Dutt Bakshi vs. CBI, 2023 SCC Online Del 1298 (Para 11); (ii) State vs. Mukesh Kumar Singh, 2018 SCC OnLine Del 8136; (iii) Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke & Ors., (2015) 3 SCC 123; (iv) CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 26 of 65 Anvar PV vs. P.K.Basheer, (2014) 10 SCC 473;
(v) Rajat Prasad vs. CBI, (2014) 6 SCC 495; (vi) Amitbhai Anilchandra Shah vs. CBI, (2013) 6 SCC 348; (vii) Nilesh Dinkar Paradkar vs. State of Maharashtra, (2011) 4 SCC 143; (viii) Court on its own motion vs. State, 2007 SCC Online Del 1662; (ix) Srichand P.Hinduja vs. State, Thr. CBI , 2005 SCC Online Del 676; (x) Narbada Devi Gupta vs. Birendra Kumar Jaiswal , (2003) 8 SCC 745; (xi) T.T.Antony vs. State of Kerala, (2001) 6 SCC 181; (xii) Ragina vs. Stevenson, (1971) 1 WLR 1 and (xiii) Sait Taraji Khimchand vs. Yelamarti Satyam, AIR 1971 SC 1865.
13) On the other hand, it is contended by the Ld. Chief P.P. for the State that the testimony of PW14 and PW17 categorically reveals demand of bribe by accused Vijay Prakash from PW17 and its acceptance thereof by the accused. It is urged that their testimony is also corroborated by the audio-video recording contained in DVD Ex. P-3 and DVD Ex. P-4. It is stated that the certificate u/s 65B of Indian Evidence Act, Ex.
PW20/A filed in support of the DVD Ex. P-3 was supplied by Sh. Rahul Khanna PW20, who had got downloaded the raw footage in his computer under his supervision and he had provided the said certificate u/s 65B Indian Evidence Act in respect of the raw footage contained in DVD Ex. P-3. It is contended that the FSL report Ex. PW15/A in respect of DVD Ex. P-3, clearly indicates that there was no indication of alteration in the identified video shots on the basis of frame-by-
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 27 of 65frame examination and hence there was no tampering found in the said DVD Ex. P-3 containing raw footage from which DVD Ex. P-4 was prepared. It is urged that as per the FSL result Ex. PW15/B, upon auditory analysis the voice of Sunil Chaudhary and the accused stood identified in the video recording of the sting operation contained in DVD-4 i.e. Ex. P-4 qua the accused in file namely AVF4.
14) It is accordingly prayed that the testimony of the PW14, PW17 alongwith other witnesses coupled with the electronic evidence in the form of the DVDs supported by certificate u/s 65B of the Indian Evidence Act clearly proves the culpability of the accused in the offence in issue. Hence, it is prayed that the accused is liable to be held guilty of the offences he is charged with.
15) I have heard ld. Counsel for the parties and perused the record.
16) Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 28 of 65 explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
17) In State of Punjab v. Madan Mohan Lal Verma , (2013) 14 SCC 15 , the Hon'ble Supreme court made the following observations as regards the burden of proof upon the prosecution and the accused in light of presumption under section 20 PC Act.:
"11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 29 of 65 displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] ,T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 :
(2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)" (emphasis supplied)
18) The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)( d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
19) The Constitution Bench of Hon'ble Supreme Court CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 30 of 65 in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no. 1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 31 of 65 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis supplied) CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 32 of 65
20) Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused persons.
Testimony of Material Public Witnesses:
21) PW14 Farooque Newazie deposed that in the year 2014, he was working as Principal Correspondent, India TV, Sector-85, Noida, U.P. One contractor Sh. Sunil Chaudhary had contacted their office at Noida and had apprised that the engineers of PWD, who passed their bills, used to demand commission for the said purpose. At that time, PW14 was doing investigative reporting. The aforesaid matter was assigned to him by the office. He met with contractor Sh. Sunil Chaudhary in their office and verified the facts told by him in their office.
After that PW14 apprised his seniors about the facts stated by contractor Sh. Sunil Chaudhary and PW14 was directed to conduct a sting regarding the aforesaid matter. PW14 made enquiries for 2-3 days from the contractor Sunil Chaudhary regarding details of the officers and the offices where it was to be done and also about his business. PW14 got issued a spy camera from his office and started visiting the office of junior engineers one by one. PW14 did not remember the exact date but he alongwith contractor Sunil Chaudhary visited the PWD office of accused Vijay Prakash. Accused Vijay Prakash was correctly identified in court by PW14. PW14 deposed that the office of accused was inside the premises of FSL, Rohini. Contractor Sunil Chaudhary introduced PW14 to accused Vijay Prakash as Marketing Manager. PW14 deposed that Sunil Chaudhary sat in CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 33 of 65 front of the accused in his office and PW14 sat on his side. PW14 deposed that contractor Sunil Chaudhary started talking to accused and requested him to pass the bills which were pending. PW14 stated that the spy camera was installed with Sunil Chaudhary and the proceedings were recorded. Accused and Sunil Chaudhary started calculating arrears of bills and the talks continued for about 15 minutes. PW14 deposed that accused demanded Rs.15,000/- in lieu of commission from Sunil Chaudhary and Sunil Chaudhary took out Rs.15,000/- and handed over the same to the accused and accused accepted the same. Further talks continued for other future contracts with regard to affixing watch tower at Rohini Jail. The entire proceedings were recorded in the spy camera and after that they both left the office of the accused and reached at their office at Noida. PW14 apprised his seniors about the entire incident and also submitted the spy camera alongwith the footage in the office.
22) DVD Ex.P4 was played before the court and after seeing the audio-video clip, PW14 deposed that the sting was conducted by him and the accused present in the court today could be seen in the footage accepting money from Sunil Chaudhary. PW14 further stated that the sting was conducted by him on 26.02.2014 at M-352, PWD Office inside the premises of FSL Building, Rohini. He also deposed that the sting operation i.e. the footage was telecast on 22.03.2014 and 23.03.2014 on India TV.
23) PW17 Sunil Chaudhary deposed that from the year CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 34 of 65 2000 till 2015, he was running a firm in the name and style of M/s Hari Om Electronics. His firm used to work on government contracts of various departments. In the year 2013-2014, he got contracts of PWD, Delhi Government, relating to supply and installation of electrical goods. He used to visit various offices of PWD and found that although they used to get tender online but the officials used to ask for a certain percentage of contract amount as bribe for passing the bills. He was against the practice of giving bribe to the officials for getting his bills passed and he was harassed by the officials relating to the work which he had performed. The said practice continued and he tried hard to stop the aforesaid practice but none of the officials were ready to listen to him. He met with a reporter Farooq Niyazi of India TV at his office at Noida. PW17 apprised him regarding the aforesaid facts and that none of the officials were listening to him or ready to change the practice of seeking bribe for clearing the bills. Some other persons were also present in the office of Farooq Niyazi and they advised him that a sting operation be conducted regarding corruption at PWD office and Farooq Niyazi would assist and help in conducting the sting operation. PW17 visited several PWD offices in Delhi alongwith Farooq Niyazi for conducting sting operation in the year 2013 and 2014 and Farooq Niyazi used to record the conversations with the spy camera which he used to fix besides the button of his shirt. PW17 correctly identified accused present in the court and stated that he was J.E. at that time in the office of the Electrical Department, situated inside FSL Building (Basement), Madhuban Chowk, Delhi. PW17 stated that he had obtained some tenders from the aforesaid office and the work related to CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 35 of 65 some electrical maintenance was continuing. He used to talk to the accused regarding the work and also for clearance of his pending bills. The accused used to demand some percentage i.e. sometimes 2%, sometimes 3% and sometimes 5% to 7 % depending upon the nature of tender and amount of the bills. The accused also used to state that it was a general practice to pay the aforesaid percentage for clearance of the bills and other contractors also used to pay bribe for clearance of their bills.
24) PW17 further stated that in the month of January or February, 2014, he alongwith Farooq Niyazi had visited the office of the accused at FSL, Madhuban Chowk where the accused met with them. PW17 deposed that he was discussing with the accused regarding clearance of his pending bills and Farooq Niyazi was recording the conversation between him and the accused in the spy camera which he had affixed beside the button of his shirt. The calculations were made by the accused regarding his pending bills and he demanded Rs.24,000/- - Rs.25,000/- from PW17 for clearance of his pending bills. PW17 had Rs.20,000/- with him and he took out the same and handed over them to the accused. The accused further stated that "baaki kal parso aa kar de dena". The entire conversation and the video was recorded by Farooq Niyazi. After that they left the office.
25) PW17 further deposed that the sting operation pertaining to present accused was conducted on 26.02.2014. After the sting operation he received a letter from ACB to join the investigation and on 01.02.2018, he visited the office of ACB CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 36 of 65 where IO played the contents of the sting operation relating to the present accused in the office computer and after seeing and hearing the audio-video footage, PW17 certified that the said sting operation was done regarding the present accused on 26.02.14. Thereafter IO prepared the transcription of the aforesaid audio-video footage Ex. PW3/B and PW17 went through the same and signed it. Thereafter IO asked him to give his voice sample, at which PW17 gave his consent and IO prepared a consent memo Ex. PW-3/A. On 09.03.2018, he reached at FSL Rohini, where his voice sample was recorded by FSL officials in audio cassettes and he had signed on the audio cassettes. After hearing the contents of the said audio cassette before court, PW17 stated that it was his voice. The audio cassette containing voice sample of PW17 is Ex. PW-17/Article- 1 and the envelope containing said audio cassette is Ex. PW-17/Article-2. PW17 also identified his voice and signature in the audio cassette Ex. P-1 as well the cut envelop Ex. PW17/Article-3 from which the cassette Ex. P-1 was taken out. PW17 also identified his signature on the seizure memo of the aforesaid audio cassettes Ex. PW-4/A.
26) PW17 also identified the sting operation contained in DVD Ex. P-3 as well as the audio-video clip contained in DVD Ex. P4 regarding the sting of the present case wherein the accused could be seen accepting the money from PW17.
27) PW17 further stated that on the day of sting i.e. 26.02.2014, the spy camera which was used for recording the sting was affixed in the button of his shirt and the amount which CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 37 of 65 was paid to the accused was between Rs.15,000/- to Rs.20,000/-. PW17 further stated that earlier he had stated that the spy camera was with Faruq on the date of sting in the present matter due to some confusion as sometimes the spy camera was used by Faruq Niwazi and sometimes it was used by him during the sting operation of PWD officials.
28) PW20 Rahul Khanna deposed that on 31.03.2014 when he was working as Chief Manager (HR & Legal) in India TV, Insp. Satender Kumar visited his office alongwith panch witness Sh. Satbir Singh and asked for the raw footage of the sting operation conducted by Farooque Newazie which was aired on 22/23.03.2014 on India TV. PW20 gave a written reply dated 31.03.2014 Mark-X alongwith the DVD containing the raw footage of the sting operation which was aired on 22/23.03.2014 to the IO. PW20 further stated that Farooque Newazie had provided the memory card in which the footage of sting operation was available and it was copied in the office computer of I.T. Department under his supervision and from the office computer, the footage was transferred in a DVD under his supervision and said DVD containing the raw footage, was handed over to the IO on 31.03.2014. PW20 further stated that the computer from which the footage was transferred was password protected and it was under his strict control and supervision. He had also provided certificate U/s 65B of Indian Evidence Act dated 24.08.2018 Ex. PW20/A regarding the genuineness and authenticity of the DVD.
29) PW20 further deposed that on 24.01.2018, he had CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 38 of 65 furnished the reply Ex. PW20/B in response to a letter given by investigating agency. The investigating agency had asked for the memory card from which the raw footage was transferred in the office computer in the present case. As per his reply Ex. PW20/B, the contents of the memory card containing the original raw footage was first transferred to the computer in their office and thereafter erased for future recordings.
30) PW20 identified his signature on DVD Ex. P3 ( on which Exhibit-1& FSL no. were written) and he stated that it was the same DVD in which the raw footage was transferred from his office computer and later on handed over to the IO Insp. Satender Kumar alongwith the certificate U/s 65B Indian Evidence Act regarding the genuineness and authenticity of the said DVD.
Electronic Evidence :
31) It is the case of the prosecution that a sting operation was conducted by PW14 Farooque Newazie and PW17 Sunil Chaudhary in which the accused is seen demanding and accepting bribe from PW17 Sunil Chaudhary for clearing his pending bills. The said sting operation is stated to be conducted with the help of a spy camera belonging to PW14 which he got issued from his office. The said video recording is stated to have been conducted by PW14 alongwith PW17 at the office of accused at Electrical Forensics Science Lab, Madhuban Chowk, Rohini, New Delhi. The spy camera / the memory card has not been brought on record.
32) DVD Ex. P-3 containing raw footage and DVD i.e. CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 39 of 65 DVD-4 containing file namely AVF4 relating to the present accused, Ex. P-4 i.e. the audio-video recording have been relied upon by the prosecution to corroborate the version of Sunil Chaudhary and Farooque Newazie. The law laid down by the Hon'ble Supreme court may be referred to, in order to test the evidentiary value of the DVDs Ex. P-3 and Ex. P-4 containing the video recording pertaining to the present accused in file namely AVF4 contained in DVD Ex. P-4 prepared from DVD Ex. P-3.
33) In case titled as Anvar P. V. Vs P. K. Basheer (supra), the Hon'ble Supreme Court has observed as follows :
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 40 of 65 computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 41 of 6517. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A - opinion of Examiner of Electronic Evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India."
34) The judgment in the matter of Anvar P.V. (Supra) was duly considered with approval by the Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its decision dated 14.07.2020, on the issue of certificate under section 65B Indian Evidence Act, 1872 observed as under:
"............We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose...
84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65- A refers to the procedure prescribed in Section 65-B for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 42 of 65 checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled".
35) Source and authenticity are thus the two hallmarks pertaining to electronic record which is sought to be used in evidence. For the admissibility of any secondary evidence in digital form, a certificate under section 65B of Indian Evidence Act is a mandatory requirement. The requirement of certificate u/s 65-B of Indian Evidence Act is to rule out any tampering of the electronic record and it is the threshold to be crossed in order to render the secondary evidence of electronic record admissible in evidence.
36) Firstly, the source of the original electronic record has to be proved. In the present case, the original electronic record i.e. a video-recording is stated to be made by PW14 Farooque Newazie with the help of a spy camera which he got issued from his office i.e. India TV where he was working a Principal Correspondent and he conducted the sting operations with the said spy camera. Admittedly, the spy camera/ memory card containing the original recording have not been brought on record. In this regard PW14 deposed that he returned the spy camera to the store room of India TV on the day when the sting operation was conducted. There was a chip in the spy camera used by them in the present sting operation. He affirmed that the data in the chip remained intact for a period of one year if the chip is not tampered with or not used. He stated that between 26.02.2014 till 31.03.2014 the same spy camera and same micro CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 43 of 65 SD Card was used by him in 4-5 other sting operations. Since he had used to same spy camera and micro SD card for other sting operations, therefore the data contained in the micro SD card on 26.02.2014 was transferred to other media and the data in micro SD card was deleted and thereafter it was re-used. He affirmed that between 26.02.2014 till 31.03.2014 there was only one spy camera and one micro SD Card with India TV and that he was the only person in India T.V. who was using the same for conducting sting operation. PW14 Farooque Newazie did not remember the make, number or other details of the spy camera used during the sting operation.
37) In this regard PW20 Rahul Khanna, Chief Manager (HR & Legal) India TV, deposed that the memory card containing the sting operation was provided by Farooque Newazie and it was copied in the office computer of IT Department under his supervision. He further stated that the contents of the memory card containing the original raw footage was first transferred to the computer in their office and thereafter erased for future recording.
38) From the aforesaid testimonies of PW14 and PW20 it is manifest that neither the spy camera nor the memory card containing the original raw footage were handed over to the IO. The spy camera was returned to the store of India TV from where it was got issued by PW14 and the memory card was erased for future recordings. The original device i.e. memory card /spy camera was thus not brought on record. Moreover, the details i.e. CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 44 of 65 the make, number or other details of the spy camera or the memory card used during the sting operation, have not been brought on record.
39) PW20 deposed that the contents of the memory card containing the original raw footage of the sting operations were copied in the office computer of IT Department under his supervision and from the office computer the footage was transferred in a DVD under his supervision and the said DVD containing the raw footage Ex. P-3 was handed over to the IO on 31.03.2014. He also stated that the computer from which the footage was transferred was password protected and it was under
his strict control and supervision. He stated that he had also provided a certificate u/s 65B of Indian Evidence Act Ex. PW20/A which is dated 24.08.2018 to the IO regarding genuineness and authenticity of the DVD. The certificate u/s 65B of Indian Evidence Act was objected to on the ground that the same was not in accordance with Section 65B(4) of Indian Evidence Act.
40) In this regard, IO/Insp. Satender Dull deposed that on 31.03.2014 PW20 Rahul Khanna presented a DVD make 'SONY' containing entire raw footage of the sting alongwith certificate u/s 65B of Indian Evidence Act. The said DVD containing raw footage was brought from the office of India TV and marked as Exhibit-1. A second copy of the DVD containing raw footage of the sting operation was prepared at the office of ACB in the presence of panch witness Satbir and marked as CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 45 of 65 Exhibit-1A and the same was kept open for the purpose of investigation. Exhibit-1 was sent to FSL Rohini and the IO took permission for 'authorized judicial edit of the raw footage' from the Court vide order dated 25.11.2014.
41) As regards the authorized judicial edit, FSL expert PW15 Dr. C.P.Singh deposed that on 24.04.2014 he received a sealed parcel containing one DVD of 'Sony' make containing video file. The DVD was marked Exhibit-1 and it was observed that the video file contained 28 identified video shots. These video shots were found connected by using software for capturing on-screen display. There was no indication of alteration in the identified video shots on the basis of frame-by-
frame examination. Authorized judicial edit of the video footage in DVD marked Exhibits-1 was performed. 12 relevant video footages identified by the stinger team member were split serially from the video footages in DVD marked Exhibit-1. Segregated shots were given file names as AVF1 to AVF12 (Extended name P1 & P2 were given to the file for same accused). These authorized edited video footages were produced in DVD marked "DVD1 to DVD9" containing video files pertaining to nine accused persons. Two sets of copy of DVD1 to DVD9 were prepared in DVDs marked as Copy of DVD1 to Copy of DVD9. In this regard PW15 prepared a report dated 23.12.2014 Ex.PW15/A.
42) Meanwhile, on 27.11.2014 an observation-cum- judicial edit memo Ex. PW21/B was prepared when the IO called CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 46 of 65 Farooque Newazie PW14 alongwith Sh. R.P.Gupta PW25 at FSL, Rohini, and the start time and finish time of each sting in respect of each official was prepared in their presence. Since R.P.Gupta, PW25 failed to identify those officials being new to the office, he deputed Sh. Deepak Ahuja PW23 to identify the officials seen in the video files.
43) On 11.12.2014 Deepak Ahuja PW23, Const.
Sanjay Malik alongwith IO/Insp. Satender Dhul-PW21 reached FSL where the DVDs containing the sting operations in respect of officials were played and PW23 identified the accused persons with the help of PIMS Data and identification memo Ex. PW12/A was prepared. PW23 deposed that DVD-4 containing file name AVF4 related to the present accused. The said DVD-4 containing file name AVF4 is Ex. P-4.
44) PW15 Dr. C.P.Singh identified DVD Ex. P-3 as well as DVD-4 Ex. P-4 while stating that the said DVD-4 was prepared from the raw footage containing video file namely AVF4 which was relevant in the present case.
45) Accordingly, from the aforesaid testimonies of PW21, PW15, PW23 and PW25 it emerges that the DVD Ex. P-3 containing raw footage of the sting operation was in respect of nine officials. During investigation, authorized judicial edit of the sting operations in respect of each official was conducted at FSL by PW15, who also prepared a report in that regard i.e. Ex.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 47 of 65PW15/A. In order to aid the judicial edit of DVD Ex. P-3, Farooque Newazie PW14 and PW25 R.P.Gupta prepared observation-cum-judicial edit memo Ex. PW21/B and subsequently each official was identified in the 9 DVDs prepared by FSL, Rohini vide identification memo Ex. PW12/A. PW23 Deepak Ahuja identified DVD-4 Ex. P-4 containing file AVF4 as the one pertaining to the present accused Vijay Prakash.
46) It is therefore to be seen as to whether it is proved that the DVD Ex. P-3 and DVD i.e. DVD-4 Ex. P-4 containing the sting operation regarding the present accused, are the secondary evidence of the original electronic record as contained in the spy camera/memory card, in terms of Section 65-B of Indian Evidence Act.
47) It is pertinent to note that no certificate u/s 65B Indian Evidence Act has been given by PW15 while carrying out the authorized judicial edit of the sting operation and hence, there is no certificate u/s 65B of Indian Evidence Act in support of DVD Ex. P-4 relied upon by the prosecution in connection with the present accused. Admittedly, the spy camera and the memory card containing the original recording are not produced before the court and they were stated to be not available. The IO was supplied the video recording contained in a CD/DVD by PW20 during investigation on 31.03.2014 vide letter Mark-X. The said CD/DVD is stated to contain raw footage of the sting operation which was telecast on 22.03.2014 and 23.03.2014.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 48 of 6548) PW20 in his cross-examination denied that they had not provided the raw footage of the video clip. He also stated that the dialog box were inserted in the video footage before / during its telecast and therefore they were appearing during the telecast. He stated that the activity of insertion of dialog box was not done by him. He could not tell by which department the dialog box were inserted i.e. if they were inserted by IT Department or Graphics Department, if they were appearing in DVD Ex. P-3. He did not remember whether the dialog box were inserted at the time of saving the contents of memory card in the office computer. PW20 further stated that the screen was displaying the contents of memory card when it was saved in the office computer and he prepared DVD Ex. P-3 from the said office computer only and the contents of footage were visible when it was being copied. He further stated that the date and time stamp was also visible when they were copying the data in the DVD from the office computer. After seeing the dialog box appearing in Ex. P-3 at time stamp 14:54:29, PW20 stated that he did not remember if the dialog box was appearing when the data was copied from his computer in DVD Ex. P-3. He could not tell if the dialog box were appearing in DVD Ex. P-3 after the time stamp of 14:54:29 also.
49) PW20 stated that he had never done video recording through camera in a micro chip. He could not comment if no dialog box would appear in a recording if it is done directly from the camera on a micro chip. He denied that he had fabricated the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 49 of 65 contents of DVD Ex. P-3 with the help of officials of IT Section and Graphics Section of India TV. He denied that a fabricated audio video footage was telecast for the purpose of generating TRP. He further stated that he did not know with whom the custody of micro chip and camera remained between 26.02.2014 to 31.03.2014 but it was with the company.
50) In his cross-examination PW20 further stated that the footage recorded on 26.02.2014 was transferred in his presence by IT Section. He did not inform about the configuration, properties and other details of the computer on which the data was stored on 26.02.2014 at any point of time as he was nor asked about it. He denied that the identifying features of the computer had been deliberately withheld by him not only on 31.03.2014 but also while preparing certificate u/s 65B of Indian Evidence Act dated 24.08.2018 as the same would have indicated explicit tampering of electronic data in the computer hardware. He denied that it was in his personal knowledge that the entire audio-video data forming part of DVD Ex. P-3 was fabricated. He denied that multiple random video clips were merged together, by using a software and thereafter, they were superimposed with human sound by the IT Section and Graphics Section of their company. He also denied that by using computer software, multiple false continuous video clips were prepared or that they were telecast by India TV. He denied that some of those false continuous video clips, were burnt on a DVD by using software, used to show a continuous recording. He also denied that knowingly the mirror image of the contents of the CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 50 of 65 hard disk containing the video footage was not given to the officials of ACB which would have shown the explicit slicing, insertion/additions made in the audio-video contents which was subsequently telecast by India TV.
51) It is thus contended by the accused that the original recording was never produced before the court and the recording contained in DVD Ex. P-3 is not copy of the original recording in as much as it contains dialog boxes at intervals in the recording, thereby indicating that it was not an original recording and the dialog boxes etc. had been inserted in the recording showing that it had been edited by slicing / insertions / additions. It is contended that even the certificate u/s 65B of Indian Evidence Act dated 24.08.2018 is not in accordance with law. It is also urged that the original recording has been deliberately withheld and recording has been manufactured by the IT Section and Graphics Section of India TV by merging multiple random video clips by using a software and thereafter human sound was also super-impossed and a fabricated video recording i.e. DVD Ex. P- 3 was created for the purpose of generating TRP.
52) Regarding the authenticity and source of video recording, PW15 Dr. C.P.Singh was also cross-examined. In his cross-examination he deposed that the DVD which was given to him contained footage which was purportedly recorded on different recording sessions, however, he could not comment if those recorded sessions were of the same day.
CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 51 of 6553) PW15 also deposed in his cross-examination that in the present case the screen content had been captured by using software, as indicated in the video recording, and therefore the dialog box were shown in-between. He stated that the contents of the DVD i.e. video footage were not video recorded from a display screen. On a question being put to him, he stated that it was correct that neither a spy camera nor a micro SD card have any display to show what was being recorded. Significantly, PW15 also deposed that the video recording captured by a spy camera and stored directly on a micro SD card shall not show any dialog box in the video stream. He stated that the audio- video file in DVD Ex. P-4 showed dialog box at multiple places and at one place it showed a notification on the bottom right side of the screen. The attention of the witness PW15 was also drawn to audio-video clip at 42:54, 43:58, 44:12 alongwith 44:29 to 45:00 (VLC time frame), and PW15 confirmed that dialog boxes were visible in all those video frames. It was also visible that between 44:29 to 45:00 (VLC time frame), a dialog box pointer was used to drag the progress bar. PW15 stated that when in a dialog box pointer was used to drag the progress bar, the same would reflect that some data was being skipped and the frame was being taken to some other further point.
54) PW15 also deposed in his cross-examination that the dialog boxes, notifications, pointers showing dragging of the progress bar etc. had not been done at FSL while processing the original DVD or preparing the present DVD Ex.P4. PW15 CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 52 of 65 affirmed that when the screen captures a video by using a software shows a dialogue box with pointer which is used to drag the progress bar, the same indicates that some already recorded data is being skipped during the recording of screen display. He further affirmed that it cannot be ascertained as to what was the content of the skipped recorded portion.
55) Pertinently, PW15 admitted that since the data which was given to him in the form of DVD marked Exhibit-X1 (i.e. Ex. P-3) in his report Ex.PW15/A, was containing video shots which were found connected by using software for capturing the screen display, the genuineness of the original recording which was being displayed on the screen at the relevant point of time when the software was used to capture the same, could not be ascertained. He stated that he could not tell which software had been used to capturing the screen display in DVDs Ex. P-3 and P-4.
56) From perusal of testimony of PW20 Rahul Khanna and Dr. C.P. Singh PW15 it is manifest that dialog boxes were appearing in video recording of present case in DVD Ex. P-3 at time stamp of 14:54:29 and even thereafter. Dialog boxes were also appearing in DVDs at 42:54, 43:58, 44:12, 44:29 to 45:00 (VLC time frame). Between 44:29 to 45:00 (VLC time frame) the dialog box pointer was used to drag the progress bar, thereby reflecting that some data was being skipped and the frame was taken to some further point. It may be noted that in this regard PW14 Farooque Newazie stated that when raw footage was separated, pursuant to directions of court, for different sting CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 53 of 65 operations, the dialog boxes appeared for 3-4 seconds in the video recording by pressing enter key. PW14 further stated that the movement of pointer in the dialog box was done at the FSL lab. He affirmed that the time stamp on the visual frame at 43:56 VLC time is visible immediately before the time stamp of 45:28 in the audio video frame. He stated that at that time the accused left his chair in the room where the sting operation was going on and the FSL authority cut that portion as the chair of the accused was vacant at that time and when the accused came back and sat on the chair, the same was shown in the DVD prepared by FSL from the raw footage supplied to them. He further deposed that the video frame showing time stamp of 50:40 is followed by next video frame showing time stamp of 53:35 as the sting operation came to an end. He denied that the variation in the time stamp reflected manipulation including slicing and editing done before telecast of the audio-video clip on 22.03.2014 and 23.03.2014. Accordingly, as per the testimony of PW14 the cursor, dialog boxes, the jump in the video recording was done at the end of FSL while separating the sting operations for each accused persons pursuant to court orders.
57) On the other hand, FSL expert PW15 Dr. C.P.Singh stated that the dialog boxes notifications, pointers showing dragging of progress bars had not been done at FSL while processing the original DVD Ex. P-3 or preparing DVD Ex. P-4 qua the present accused. PW15 stated that the content of the skipped portion cannot be ascertained if the pointer was used to skip the video recording and go to a further point. Additionally he also stated that if the video recording was captured by a spy CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 54 of 65 camera and stored directly on a micro SD Card, it shall not contain any dialog boxes, however, in the present case the dialog boxes were appearing at intervals in DVD Ex. P-3 and Ex. P-4 in the recording qua the present accused. As discussed, PW20 stated that the dialog boxes were inserted in video footage before/during its telecast and therefore they were appearing during telecast. Hence, the fact that the recordings contained in DVD Ex. P-3 and Ex. P-4 qua the present accused contained dialog boxes indicates that those recordings were not the recordings which were directly stored in the spy camera / micro SD card and the said recording had been edited/altered. Similarly, the video recording qua the present accused in DVD Ex. PW3 and Ex. P-4 also showed pointers which were used to drag the progress bar indicating that certain recording was skipped while preparing them. The content of the skipped recorded portion could not be ascertained, which also indicates that editing/alteration was done in the recordings. Accordingly, prosecution has not been able to prove that the integrity of the original recording as contained in the spy camera/micro SD card was maintained.
58) In his examination-in-chief PW15 stated that Exhibit-1 (i.e. DVD Ex. P-3) contained 28 identified video shots which were found connected by using software for capturing on screen display. He also opined in his report Ex. PW15/A that there was no indication of alteration in the identified video shots on the basis of frame-by-frame examination. Significantly, PW15 also admitted in his cross-examination that the genuineness of the original recording could not be ascertained where the video shots CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 55 of 65 were found connected by using software for capturing the on screen display. Moreover, as discussed the recording qua the present accused in DVD Ex. P-3 and DVD Ex. P-4 showed dialog boxes/pointers/jumps, thereby indicating editing/alteration in the original recording, hence, the genuineness of the said video recording is not established on record.
59) The original device has not been produced during investigation and PW14 Farooque Newazie despite doing investigative reporting at India TV and having got issued spy camera from the office for the purpose of conducting the sting operation, claimed ignorance of the make and other details of the spy camera and even the recordings contained in the memory card were erased. Admittedly, there is no certificate u/s 65B of Indian Evidence Act in support of the DVD Ex. P-4 and hence the same is inadmissible in evidence. The certificate u/s 65B of Indian Evidence Act dated 24.08.2018 Ex. PW20/A stated to be in support of DVD Ex. P-3 reads as follows :-
"To the best of my knowledge and belief, the complete, unedited & CD recording of the sting operation on PWD officials telecasted on our channel on 22 March 2014 provided by us to Inspector Satender Dhull of ACB has been produced from the computer which was regularly used to process information. The computer system in which the footage was received and was downloaded was functioning in order at the time when the said footage was received and downloaded."
60) A perusal of the aforesaid certificate Ex. PW20/A reveals that that it is a sketchy certificate bereft of the necessary particulars as envisaged u/s 65B(4) Indian Evidence Act. No description or other details of the device used in the production CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 56 of 65 of the electronic record have been mentioned therein besides other essential details. For the said reason also, the electronic evidence in the present case as contained in DVD Ex. P-3 and DVD Ex. P-4 qua the present accused cannot be stated to have been proved in accordance with law.
61) The prosecution has thus failed to prove beyond reasonable doubt that the integrity of the recording qua accused Vijay Prakash was maintained and that the said recording was not altered before handing over of DVD Ex. P-3 which also contained sting recording of the present case, to the IO on the basis of which DVD Ex. P-4 was prepared. In these circumstances, neither the source nor authenticity of the original recording of the present case has been proved by the prosecution beyond reasonable doubt. Hence, the FSL report Ex. PW15/B regarding auditory analysis of the voices of the speakers in DVD- 4 i.e. Ex. P-4 as well as the transcript, which is based on the said video recording, cannot be relied upon by the prosecution to further its case against the accused.
Oral Evidence :
62) The prosecution has also relied upon the oral testimony of PW14 Farooque Newazie and PW17 Sunil Chaudhary to prove demand and acceptance of bribe by accused Vijay Prakash. As regards prior demand, PW17 stated that the accused used to demand a percentage of the bill amount for clearing the bills. He has made only vague and general allegations regarding the same and they are devoid of any specific details and hence cannot be treated as a proof of prior CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 57 of 65 demand by the accused.
63) As regards demand on the date of incident, both PW14 and PW17 deposed that they went to the office of the accused and some discussions ensued between them regarding the pending bills. PW14 Farooque Newazie deposed that accused demanded Rs. 15,000/- as commission from Sunil Chaudhary PW17, whereas PW17 deposed that accused demanded Rs. 24,000/- - Rs. 25,000/- from him for clearing his pending bills. Furthermore PW14 deposed that Sunil Chaudhary took out Rs. 15,000/- and handed them over to the accused, who accepted the same whereas PW17 stated that he had Rs. 20,000/-
with him and he handed them over to the accused. Additionally, PW17 stated that accused asked him to give the remaining amount the next day or the day thereafter, which fact is not stated by PW14. It may be noted that both PW14 and PW17 have not deposed regarding the manner of demand by the accused though they have stated that money was handed over to the accused on demand. Details regarding manner of demand are also missing in the statement of PW14 Farooque Newazie and PW17 Sunil Chaudhary recorded u/s 161 Cr.P.C.
64) In his statement recorded u/s 161 Cr.P.C., Sunil Chaudhary stated that he used to work as a contractor for PWD through his firm M/s Hari Om Electronics. PWD officials used to take bribe for clearing the bills which used to be percentage of the amount and they used to put objections to delay the payment of bill due to which he was troubled and faced losses. He also stated that many of his bills used to remain stuck in PWD CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 58 of 65 Department and the officials used to demand bribe for clearing them. As he was against corruption, therefore, he sought help from Farooque Newazie, who was reporter of India TV Channel and he told him the entire facts. Sunil Chaudhary further stated in his statement u/s 161 Cr.P.C. recorded on 01.02.2018 that he had conducted a sting operation of nine PWD officials while taking bribe, one of which was Vijay Prakash - JE Electrical, FSL, Rohini, who was demanding money for ten work orders with him and he was not clearing the bills expeditiously and was asking money for the same. Sunil Chaudhary further stated that he made a recording of the accused taking money on 26.02.2014 alongwith Farooque Newazie. He stated that accused Vijay Prakash - JE Electrical posted at FSL Rohini used to demand bribe to clear his bills and on that day he took Rs. 20,000/- as bribe and the sting operation was telecast on 22.03.2014 and 23.03.2014 on India News Channel. In the said recording, JE Vijay Prakash can be seen and on that day he also saw the recording and the transcription.
65) Accordingly, in his statement recorded u/s 161 Cr.P.C. PW17 has essentially narrated the circumstances under which the sting operation was conducted and that he had handed over Rs. 20,000/- as bribe to the accused on 26.02.2014 on his demand. No specific details of the incident have been mentioned therein by him. PW17 was not confronted with the relevant portion of his statement and hence, his testimony before the court has to be scrutinized in accordance with law.
66) Farooque Newazie in his statement recorded u/s 161 CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 59 of 65 Cr.P.C. stated that on the day of sting he had accompanied Sh. Sunil Arya as an Assistant and the meeting went on for about 30- 45 minutes and after some talks in the meeting, the commission amount was handed over to JE - Vijay Prakash for the work under him and after the sting, he returned and deposited the camera at his office at India TV Noida. Accordingly, even PW14 did not state anything regarding the manner of demand in his statement recorded u/s 161 Cr.P.C. and has narrated the circumstances under which the sting operation was conducted. It may also be noted that no specific bribe amount has been mentioned by PW14 in his statement recorded u/s 161 Cr.P.C., however, he has not been confronted with the said statement, therefore, his testimony recorded before the court has to be taken into account.
67) However, as discussed, it may be noted that even the testimony of PW14 and PW17 are not corroborative of each other in material particulars. Their testimonies are only consistent on the basic facts that they had gone to the office of accused to conduct a sting operation and that some discussions ensued between them and the accused regarding the pending bills and the accused demanded some amount from PW17, which he handed over to the accused. Their testimonies are inconsistent on the point of the amount demanded, the amount handed over to the accused as well as the fact that the accused had asked PW17 to give the remaining amount the next day, which fact is not stated by PW14. It may be noted that in Court in its own motion vs. State, ILR (2008) II Delhi 44, the Hon'ble Delhi High Court laid down certain guidelines before conducting any sting CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 60 of 65 operation, which apparently have not been followed in the present case. In the said judgment, the Hon'ble Delhi High Court also observed that the right to freedom of press is a valuable right, but the right carries with it responsibility and duty to be truthful and to protect rights of others. The guidelines were laid down as safeguards against use of false and fabricated sting operations that are used to earn more and to have higher TRP ratings. It was also observed that truth is required to be shown in public interest and the same can be shown whether in the nature of a sting operation or otherwise, however, entrapment of any person ought not to be resorted to and should not be permitted.
68) Similarly, the Hon'ble Supreme Court in Rajat Prasad vs. CBI, 2014 6 SCC 495, made the following observations:
"Thus, sting operations conducted by the law enforcement agencies themselves in the above jurisdictions have not been [1980] AC 402 ([2001] UKHL 53) recognized as absolute principles of crime detection and proof of criminal acts. Such operations by the enforcement agencies are yet to be experimented and tested in India and legal acceptance thereof by our legal system is yet to be answered. Nonetheless, the question that arises in the present case is what would be the position of such operations if conducted not by a State agency but by a private individual and the liability, not of the principal offender honey trapped into committing the crime, but that of the sting operator who had stained his own hands while entrapping what he considers to be the main crime and the main offender. Should such an individual i.e. the sting operator be held to be criminally liable for commission of the offence that is inhere nt and inseparable from the process by which commission of another offence is sought to be established? Should the commission of the first offence be understood to be obliterated and extinguished in the face of claims of larger public interest that the sting operator seeks to make, namely, CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 61 of 65 to expose the main offender of a serious crime injurious to public interest? Can the commission of the initial offence by the sting operator be understood to be witho ut any criminal intent and only to facilitate the commission of the other offence by the "main culprit" and its exposure before the public? These are some of the ancillary questions that arise for our answer in the present appeals and that too at the threshold of the prosecution i.e. before the commencement of the trial."
69) In the aforesaid case, the Hon'ble Supreme Court refused to quash the charges u/s 120B IPC and Section 12 of PC Act relating to conspiracy and abetment of the offence u/s 7 of PC Act framed against the persons, who had conducted the sting operations. Be that as it may, it is the case of the prosecution that they had also prepared a transcript of the conversation that took place between the accused, PW14 Farooque Newazie and PW17 Sunil Chaudhary at the time of incident from the audio-video footage of the sting operation pertaining to the accused. The said transcripts are Ex. PW3/B and Ex. PW6/A and they are identical.
70) PW17 Sunil Chaudhary deposed that on 01.02.2018 he visited the office of ACB where the IO played the content of sting operation relating to the present accused in the office computer. PW17 viewed the said audio-video footage and certified that the said sting operation was done regarding the present accused on 26.02.2014. Thereafter IO prepared the transcription of the audio-video footage regarding the sting operation of the accused conducted on 26.02.2014 and after going through the said transcription, PW17 found it to be correct and he signed each page of the transcription. Hence, PW17 also proved the contents of the transcription Ex. PW3/B, which was CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 62 of 65 prepared from the audio-video footage of the sting operation conducted by him and Farooque Newazie on 26.02.2014. It may be noted that as discussed hereinabove, the transcript Ex. PW3/B and Ex. PW6/A are inadmissible in evidence as they are based upon DVD Ex. P-3 and Ex. P-4 containing the video recording of the sting operation qua the accused and have been held to have not been proved as admissible in the present case. However, the contents of the same are perused as the conversation contained therein has been stated by the complainant to have occurred at the time of incident. Since the manner of demand has neither been deposed by PW14 or PW17, therefore the said transaction is perused to decipher the manner of demand in the present case since the said transcription would be the best case of the prosecution to prove demand by the accused.
71) Perusal of the transcript Ex. PW3/B, running into eight pages, reveals that it is essentially conversation regarding calculations of the electrical fittings and fixtures to be put by Sunil Chaudhary PW17. Pertinently, it does not contain any conversation relating to any demand made by the accused. Moreover, there is no direct or indirect request made to the accused by Sunil Chaudhary to clear any pending bills in the entire transcript. At one point during discussion regarding voltage and MRP of the lights, where Sunil Chaudhary has stated to the accused that twenty thousand was for him, at which the accused states that it was fine and subsequently the conversation continues regarding discount on wires etc. Hence, by mere use of the words by Sunil Chaudhary that twenty thousand was for him (i.e. the accused), without any context, does not imply that CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 63 of 65 there was any demand by the accused and in fact at that point there was discussion going on regarding MRP of 150 volt lights. The fact that the accused stated that it was fine, does not lead to an inference that it was in the context of obtainment of bribe or that the accused had demanded or agreed to accept any bribe amount.
72) It is the case of prosecution that the accused had demanded illegal gratification for the purpose of processing the bills of M/s Hari Om Electronics i.e. the firm of Sunil Chaudhary PW17 and the complainant handed over Rs. 20,000/- to the accused which was accepted by him as illegal gratification. As discussed hereinabove, the aforesaid conversation does not reveal any demand by the accused of any illegal gratification. Moreover, there is no discussion regarding any pending bills or any request by the complainant to clear the bills, which has been stated to be the motive for demand of bribe.
73) From the aforesaid it is revealed that there is no independent evidence to corroborate the version of PW17 Sunil Chaudhary and PW14 Farooque Newazie which also are inconsistent on material points with each other. The transcript Ex. PW3/B which is stated to be narration of the conversation that took place at the time of incident also does not support the case of the prosecution as it is devoid of any talk of demand having been made by the accused or any request having been made by PW17 Sunil Chaudhary and thereby the said transcript also does not corroborate the version of the prosecution. Hence, there is no oral evidence to prove that the accused committed an CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 64 of 65 offence of obtainment of illegal gratification from PW17.
74) Accordingly, the prosecution has failed to prove beyond reasonable doubt the basic foundational facts that the accused demanded bribe from PW17 for clearing the pending bills or that the accused obtained the amount from him as illegal gratification.
75) In view of the aforesaid discussion, the prosecution has thus, failed to prove its case against the accused for the offences he is charged with and to bring home the guilt of the accused beyond reasonable doubt. Accused Vijay Prakash is thus entitled to benefit of doubt and therefore, acquitted of the charged offences.
76) Bail bond of accused stands cancelled and surety stands discharged.
77) File be consigned to record room after due compliance.
Digitally signedDEEPALI by DEEPALI SHARMA SHARMA Date: 2025.02.18 16:26:34 +0530 Announced in the open court on 18th February, 2025 (Deepali Sharma) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No.81/2020 FIR No. 42/2014, PS ACB State v. Vijay Prakash Page 65 of 65