Delhi District Court
State vs Rakesh Vaid on 7 November, 2023
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000257-2021
CC No. 35/2021
FIR No. 09/2009
U/S: 7/8/13 PC Act R/W 120B IPC
PS: Anti Corruption Branch
State
Versus
1) Rakesh Vaid,
S/o Roshan Lal Vaid,
R/o H.No. A-94, Saraswati Vihar,
Delhi-34.
2) Sanjay Kumar,
S/o Late Sh. Ashok Kumar,
R/o H.No. B-58, Gali No. 7,
Tomar Colony, Burari,
Kamalpur, Delhi.
Date of Institution : 12.08.2021
Date of Arguments : 30.10.2023
Date of Judgment : 07.11.2023
Appearance :
For the State : Mohd. Iqrar,
Ld. Chief Public Prosecutor.
For accused persons : Sh. Lovkesh Sawhney, Senior
Advocate, along with Sh. Rajeev
Rathee, Advocate, Ld. Counsel
for accused Rakesh Vaid.
Sh. R.K.Rathee, Advocate,
Ld. Counsel for accused Sanjay
Kumar.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 1 of 93
JUDGMENT
1. Brief facts of the case as per the complaint/rukka dated 27.03.2009, filed by IO Insp. Santosh Kumar Singh vide Ex.PW37/A, are that Insp. Santosh Kumar Singh was assigned a matter relating to corruption in the Transport Authority, Burari. During inquiry Jitender Sharma s/o Nand Lal Sharma was contacted. He revealed that he was dealing with sale/purchase of auto rickshaw and and he had to get his 25 files cleared from Transport Authority, Burari so he went there and enquired from the officials of Transport Authority. There he came to know that without giving advance money as bribe, his work regarding transfer/clearance of auto rickshaw files would not be done. He went to ACB and met the Senior Officials, who advised him to make a sting operation of the Transport Authority, Burari. Jitender Sharma conducted the sting operation and he submitted the recording at ACB. As per the said video recording it was evident that Jitender Sharma met one PLT Inspector namely Rakesh Vaid regarding clearance/transfer of 25 auto rickshaw files. He was advised by Rakesh Vaid to meet one person/tout namely Sanjay and he also introduced him to Sanjay at that time as Sanjay had entered his room at the relevant time. Sanjay was also advised accordingly by Rakesh Vaid. Thereafter Jitender Sharma met Sanjay outside the office of Insp. Rakesh Vaid and explained his problem again to him. Thereafter tout Sanjay telephonically talked to Insp. Rakesh Vaid and upon receiving instructions he asked Jitender Sharma to deliver whatever money CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 2 of 93 he had brought as an advance for his work. Jitender Sharma delivered Rs. 5000/- to him as token bribe money as advance for his work, which was accepted by Sanjay which had been recorded in the sting operation. It is further mentioned in the complaint/rukka Ex.PW37/A that as per the complainant's version the amount demanded was Rs. 6000/- per file/auto. On 27.03.2009 SI Karnail Singh handed over to the IO Insp. Santosh Singh two CDs containing the sting operation conducted by Jitender Sharma, which was played on the office computer in ACB for verifying the contents of the CD and allegations of the Jitender Sharma. The contents of both the CDs i.e. CD-I and CD-II were identical. CD-I was kept in sealed condition and CD-II was kept open for the purposes of investigation. Both the CDs were taken into police possession through seizure memo prepared separately. It was noted that from the contents of the video CD recorded during sting operation and inquiry conducted, it was revealed that there was clear evidence of corruption against PLTI Insp. Rakesh Vaid posted at Burari Transport Authority and his tout Sanjay, who had accepted bribe of Rs. 5000/- as advance on the directions of Insp. Rakesh Vaid from Jitender Sharma for his work. The rukka was handed over at 08.05 am on 27.03.2009. On the basis of the same FIR bearing no. 9/2009 dated 27.03.2009 was registered u/s 7/8/13 of Prevention of Corruption Act (hereinafter referred to as PC Act) r/w Section 120B IPC vide Ex.PW2/B.
2. After registration of the case the investigation was assigned to Insp. Santosh Kumar on 27.03.2009 itself. IO CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 3 of 93 recorded statement of Jitender Sharma and other witnesses. Thereafter the IO went to the Transport Authority, Burari, and met accused Rakesh Vaid at his office and accused Sanjay, who was found present outside the office, and they were brought to the office of ACB. They were interrogated and arrested vide arrest memo Ex. PW32/B and PW32/D respectively. Their personal search was conducted vide Ex. PW32/C and PW32/E respectively. IO deposited the case property in the malkhana. The CDRs and the CAF of the accused persons were obtained. Two days PC remand of the accused persons was granted. On 29.03.2009 the accused persons were interrogated in the presence of panch witness Rajesh Batra and they gave a consent for giving their specimen voice sample and their consent memos were prepared in the presence of panch witness vide Ex. PW16/A and PW16/B respectively. IO prepared a transcript of the conversation from CD-II at the office of ACB vide Ex. PW37/D. On 30.03.2009, both the accused persons were taken to FSL Rohini and the panch witness Sushil Kumar also reached there. The voice sample of the accused persons was taken in four cassettes i.e. two original and two copies, the cassettes were marked as 1A, 1B, 2B and 2C. Cassettes 1A and 2B were kept in a sealed cloth pullanda and 1B and 2C were kept a separate sealed cloth pullanda and IO seized the sealed pullandas of cassettes vide memo Ex. PW13/A. IO recorded statement of panch witness. The exhibits were deposited in the malkhana. IO obtained the CDRs and also obtained the Bio-data and posting details of accused Rakesh Vaid. The sealed exhibits were deposited in the FSL for their evaluation on 28.07.2009 and the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 4 of 93 FSL report Ex. PW7/A dated 09.06.2012 was got collected dated 09.06.2012. IO sought sanction u/s 19 of the PC Act against accused Rakesh Vaid and the same was received on 26.07.2010. On 26.03.2011 investigation of the case was assigned to Insp. Kailash Chandra, who received the report from Transport Department vide Ex. PW34/A. The said report also enclosed a list regarding the registration numbers of the TSRs owned by Jitender Sharma. IO recorded supplementary statement of Jitender Sharma on 17.02.2012. IO also received the details of the ownership of the three mobile numbers vide Ex. PW34/B. IO recorded statement of MLO Auto Rickshaw Unit. On 02.04.2012 the voice sample of Jitender Sharma was taken at FSL Rohini in two empty audio cassettes of make 'Sony', one containing the original (3A) and the other containing the copy (3B), which were kept in separate sealed pullandas and seized by the IO vide seizure memo Ex. PW9/C. CD marked as CD-II, which was kept in open condition in the file, was played on the computer installed at FSL and shown to Jitender Sharma. The said CD is Ex. P-2. IO prepared an observation memo in this regard vide Ex. PW9/D. IO recorded the supplementary statement of Jitender Sharma and also statement of the panch witness in this regard. The exhibits were deposited in the malkhana. On 03.04.2012 the exhibits were got deposited at FSL Rohini for evaluation and analysis.
3. On 24.04.2012 further investigation of the case was assigned to Insp. Kailash Chand and he got collected the FSL result dated. 24.04.2012 Ex.PW7/B. He obtained 23 files of TSR CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 5 of 93 from Burari Transport Authority vide Ex. P-6 (colly). He prepared the draft charge sheet. Further investigation of the case was handed over to Insp. Kishan Lal, who recorded the statement of Arvinder Singh in whose name mobile no. 9953120056 was indicated in the CAF. IO also recorded the statement of MLO Rajesh Kumar of Burari Transport Authority. He also made inquiries from Jitender Sharma regarding the original device but he could not produce the same. On 21.10.2019 IO along with Ct. Naveen and panch witness Ram Raj Meena went to the house of Jitender Sharma and prepared the transcript of the CD containing sting operation with the help of Ct. Naveen at the instance of the Jitender Sharma vide Ex. PW9/A. IO also recorded the statement of SI Karnail Singh on 31.10.2019 and SI Karnail Singh also handed over a certificate u/s 65 B of Indian Evidence Act Ex. PW3/B in respect of two CDs on that day. IO also recorded statements of witnesses.
4. Further investigation of the case was handed over to Insp. Rakesh Ahuja on 01.10.2020, who received the prosecution sanction dated 01.04.2021, Ex.PW27/A and placed the same on record. He also approached Vodafone to provide CDRs of the relevant mobile numbers, however, he was informed vide letter dated 18.06.2021 that as the case was more than ten years old, therefore they were unable to provide the CDRs of the mobile numbers vide their reply Ex. PW35/A.
5. After completion of investigation, charge-sheet was filed against the accused Rakesh Vaid and Sanjay Kumar u/s CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 6 of 93 7/8/13 PC Act, 1988 read with Section 120B IPC on 10.08.2021 and cognizance of offence was taken against the accused persons on 13.09.2021. Thereafter, accused persons were summoned and after hearing arguments, charge for the offence under Section 120B and under Sections 7 & 8 of PC Act r/w Section 120B IPC as well as under Section 13 (1) (d) and 13 (2) of PC Act was framed on 24.02.2022, to which both accused persons pleaded not guilty and claimed trial.
6. In order to prove its case, prosecution has examined 37 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW1 Sh. P.K. Sharma, Section Officer, Transport Department, who deposed that bio-data of accused Rakesh Vaid, Pollution Level Test Inspector was handed over to ACB vide transport department letter no. F-9(55) Admn./PPT/94/5873 dated 09.07.2009. He identified signature of Sh. Rajeev Kumar Arora, the then Administrative Officer/Section Officer in Transport Department, on the Bio-Data of the accused Rakesh Vaid Ex. PW1/A.
ii) PW2 SI K.L.Meena- Duty Officer. He deposed that on 27.03.2009 at about 8.05 am, Insp. Santosh Kumar had presented rukka before him at PS ACP for registration of FIR and on the basis of same he record present case FIR u/s 7/8/13 of PC Act r/w Section 120B IPC Ex. PW2/B. He also made endorsement on the rukka Ex. PW2/A. He completed DD No. 4.
Investigation of the case was assigned to Insp. Santosh Kumar CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 7 of 93 and he handed over rukka and copy of FIR to him.
iii) PW3 Karnail Singh deposed that on 27.03.2009 he was posted as SI in ACB and attached with SO Branch. On that day, in the presence of Insp. Santosh Kumar Singh and Insp. Rajesh Kumar, he had prepared two CDs in ACB, data of which was stored in office computer. He deposed that the CDs had same content and were played on office computer before Insp. Santosh Kumar and he as well as Insp. Rajesh Kumar signed both the CDs, which were of make 'Moserbaer'. CDs were marked as CD-I and CD-II by Insp. Santosh Kumar and after making pullanda of CD1, it was sealed with the seal of 'SKS'. CD2 was open for the purpose of investigation. Both the CDs were seized vide seizure memo Ex. PW3/A. On 31.10.2019 he prepared Certificate u/s 65(B) of Indian Evidence Act Ex. PW3/B in respect of said two CDs and handed over to IO. He identified CD1 as Ex. P-1 and CD-II as P-2.
In his cross-examination PW3 deposed that he did not remember when he received and saved the data on office computer. He did not remember, when he met Jitender personally. The recordings were done by Sh. Jitender in this case, who had some grievances and dealings with the Transport Departments. He affirmed that he was proficient to handle the electronic information. He had done a post-graduate diploma in computer applications from Kurukshetra University.
In his cross-examination PW3 stated that he did not remember when he received and saved the data on office computer and when he met Jitender personally. He stated that CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 8 of 93 from the date on which the recording were saved in the office computer, he was the custodian of the electronic data in question. He further stated that as a general practice in ACB whenever electronic data/recordings used to come, they used to be saved on the office computer and at the time of registration of the FIR or demand by the concerned IO, it used to be handed over after transferring the data on a CD. However, he was not aware of any SOP regarding the same. PW3 also did not remember about the recording gadget used by Jitender. He did not remember whether the office computer was password protected or not at that time. He also stated that he did not give a certificate u/s 65 B Indian Evidence Act on 27.03.2009 and was asked to furnish the same on 31.10.2019 when he provided the same. As regards the original data, PW3 further deposed that he did not remember, who had given him the original data, which he had saved in the computer and thereafter made the CDs. He did not remember whether the original data was stored in the CD, tape or pen-drive or any other recording instrument. He did not remember whether any recording device on which the original data was recorded, was handed over to him. He did not remember when he had saved the original data in the computer. He did not remember whether the original data was given to him by the complainant himself or by the IO or anyone else.
PW3 also deposed that he used to deal with the data only and he was no recollection if any original written complaint along with original data was also there. He did not prepare any panchnama / seizure memo with regard to either the recording CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 9 of 93 device or the original data handed over to him for the purpose of saving and making CDs thereafter. He did not remember the brand name or the make of the computer on which the said data was stored. He affirmed that there may other people working in the department who had access to the said computer on which the original data was saved. The files saved by him on the said computer were not password protected files, though, other people had access to the said computer but he believed that the said data was not accessed by others. He did not remember how many files were there in the recording and saved by him. He affirmed that the data saved by him on the computer and the CDs thereafter made by him had only information pertaining to the present case and no other files were either saved or loaded on the CDs prepared by him. He had checked the CDs to see that data had been properly copied on it and he was not aware about the contents of the present case. He did not maintain any records which could show that the said original data or device were given to him for the purpose of storing data on the computer and when they were returned. He had no information whether any DD entry was made when IO or anybody else had handed over the original recording device to him for the purpose of storing the data on the computer. He did not remember if any panch witnesses were present when the CDs were being prepared. He had not taken any certificate u/s 65 B of Indian Evidence Act from anyone including the complainant in respect to the date stored on the original device or on the original recording medium and therefore he could not vouch for the correctness/alterations/ changes/additions etc. whether made on the said original device CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 10 of 93 or the original recording media before it was handed over to him.
iv) PW4 Sh. Ajit Singh, Alternate Nodal Officer, Vodafone India Ltd., deposed that as per record, details of mobile numbers 9811111755, 9953120056 and 9999226630 for dated 25.09.2008 were not available in the system being more than one year old. The chart showing ownership of said mobile numbers is Ex. PW4/A and his reply regarding the aforesaid numbers is Ex. PW4/B. The CAF (Customer Application Form) regarding the said number were not available with the service provider as the aforesaid numbers had been discontinued and more than 3 years had lapsed. He also produced the Government order Mark- X, which mandated preservation of CAF records for three years.
v) PW5 Joginder Sharma, Deputy Commissioner, Transport Department, deposed that vide letter No.F4(01)/Vig/Tpt/09/765 dated 21.07.2010 Ex. PW5/A, he had forwarded the sanction order passed by Sh. R.K.Verma, Principal Secretary-cum-Commissioner (TPT) against accused Rakesh Vaid, Pollution Level Testing Inspector (PLTI), Mark-X, to the Additional Commissioner of Police, ACB.
vi) PW6 ASI Jitender, who took two sealed pullandas along with the FSL form and copy of transcription from MHC(M), HC Chander Singh of Malkhana of PS Civil Lines, and deposited the same with FSL, Rohini, Delhi, vide RC No. 3/21/12 dated 03.04.2012 Mark-Z. He handed over copy of RC to MHC(M) and the acknowledgement Ex. PW6/A to the IO.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 11 of 93vii) PW7 Dr. C.P.Singh, Assistant Director (Physics), FSL, Rohini. He deposed that on 28.07.2009 three sealed parcels were received in he office of FSL through HC Krishnana Dasan. First parcel was containing one CD of Moser Baer, marked as Exhibit -1, which was containing 13 audio files. The speaker starts with 'Namaskar aur ...." in the file namely "CX1980-01- 04-015.AVI" was marked as Exhibit-Q1 and the speaker started with "phone karun sir....." in file namely "CX1980-01-04-
015.AVI" was marked as Exhibit -Q2.
Parcel-2 was sealed with the seal of SKS at 7 places, two audio cassettes of make T-Series were found and same were marked as Exhibit-2 and Exhibit-3. The audio cassette containing specimen voice sample of Rakesh Vaid was marked as S-1 and second audio cassette containing specimen voice sample Sanjay Kumar was marked as S-2.
On laboratory examination by auditory analysis by critical listening and subsequent waveform and spectrographic analysis of the audio recording in audio file "CX1980-01-04-
015.AVI" (Exhibit Q1) in CD marked Exhibit-1, there was no indication of any form of alteration in audio record. He further deposed that the auditory analysis of recorded speech sample of Exhibit Q1 and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked Exhibit Q1 are similar to the voice exhibits of speaker marked Exhibit-S1 in respect of their acoustic cues and other linguistic and phonetic features. Hence, the voice exhibits of speaker marked "Exhibit Q1" and "Exhibit S1" were CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 12 of 93 the voice of same person i.e. Rakesh Vaid.
PW7 further deposed that the auditory analysis of recorded speech sample of Exhibit Q2 and subsequent acoustic analysis of speech samples by using CSL (computerize Speech Lab) revealed that the voice exhibits of speaker marked Exhibit Q2 are similar to the voice exhibits of speaker marked Exhibit-S2 in respect of their acoustic cues and other linquistic and phonetic features. Hence, the voice exhibits of speaker marked "Exhibit Q2" and "Exhibit S2" were the voice of same person i.e. Sanjay Kumar. PW7 proved his detailed report Ex. PW7/A PW7 further deposed that on 03.04.2012 two sealed parcels were received in the office of FSL through Const. Jitender. First parcel was containing one CD of Moserbaer, marked as Exhibit -1, which was containing 13 audio files. The speaker starts with "......Namaskar.... Badhiya Sahab ji...." in the file namely "CX1980-01-04-015.AVI" was marked as Exhibit- Q3.
Parcel-2 was sealed with the seal of KC at 6 places, one audio cassettes of make Sony Mark-3A was found and same was marked as Exhibit-4. The audio cassette was containing specimen voice sample of Jitender Kumar Sharma was marked as S-3. The auditory analysis of the recorded speech sample of speakers marked Exhibit Q3 and subsequent acoustic analysis of speech samples by using CSL (Computerized Speech Lab) revealed that the voice exhibits of speaker marked Exhibit Q3 are similar to the voice exhibits of speaker marked Exhibit-S3 in respect of their acoustic cues and other linguistic and phonetic features. Hence, the voice exhibits of speaker marked "Exhibit CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 13 of 93 Q3" and "Exhibit S3" were the voice of same person i.e. Jitender Kumar Sharma. PW7 proved his detailed report Ex. PW7/B. PW7 identified CD-1 of make Moserbaer containing the recordings vide Ex.P-1. He also proved the audio cassette make Sony containing sample voice recording of Jitender Sharma vide Ex.P-3. He also identified two audio cassettes make T-Series containing sample voice recordings of accused Rakesh Vaid and accused Sanjay as Ex.P-4 and Ex.P-5 respectively.
PW-7 was cross-examined by Ld. Counsels for the accused persons.
viii) PW8 Sh. Rajesh Kumar, District Transport Officer, deposed that in the year 2018, he was posted as MLO, Auto Rickshaw Unit, Burari, Delhi. A request letter was received from ACB regarding queries in case FIR no. 09/09, PS ACB, in his office and he had sent a reply dated 05.06.2018 Ex. PW8/A. He had also annexed documents i.e. details received from the computer branch regarding fee paid by Sh. Jitender Kumar S/o Sh. Nand Lal for scrapping process of his auto rickshaws during the year 2008, Ex.PW8/B (colly). PW8 further deposed that vide letter dated 02.04.2019 Ex.PW8/C he had replied to the queries asked by investigating agency in the aforesaid case and had also annexed the document i.e. posting order of Insp. Rakesh Vaid, PLTI Ex.P1.
ix) PW9 Jitender Sharma - public witness. PW9 deposed that in the year 2008, his father was running business of renting, sale and purchase of auto-rickshaws and he was also CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 14 of 93 looking after the work of his father. His father told him that he had grievances with the transport department as they used to demand money and in this regard his father had given a complaint at ACB. PW9 had accompanied him to ACB when the complaint was given by his father on behalf of PW9. His father had complained that the transport officials were demanding money from him. His father had submitted files at the Transport Department, Burari Authority, regarding scrapping of some of the auto-rickshaws which were given on rent by his father to the auto-rickshaw drivers. The officials of Transport Authority were demanding money for clearance of the said files. No action was taken on the complaint by the ACB. PW9 further deposed that probably in the year 2012 or 2013, he was called at the ACB to give his voice sample. Prior to 2012, he had visited ACB two times and they asked him about the complaint which his father had given, however, no action was taken. PW9 deposed that he was shown a video and was asked to write the audio contents of the audio-video recording on a paper and he wrote the same on a paper and then he read the same. Some of the words in the audio were not clear and one of the officials present there told him regarding the words which were not clear and then he repeated the same. After that for 8-9 years, no proceedings were done. During the period of pandemic i.e. 1½ years back Inspector Kishan Lal of ACB visited his house along with his laptop and asked him to give his statement. PW9 told him that he did not remember the incident. Insp. Kishan Lal also enquired about his father and he told that his father had expired in 2019. Thereafter, the Inspector played a CD in his laptop and PW9 was provided CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 15 of 93 with a headphone and he was asked to write the audio contents of the aforesaid CD which was played there. PW9 pointed out that the audio quality of the video was not clear, at which Inspector Kishan Lal also connected one another head phone in the laptop and thereafter, he explained those words which were not clear to PW9. Thereupon, PW9 noted down the contents of the audio on a paper and Insp. Kishan Lal typed the same. PW9 again said, that at first instance his signature were obtained by Insp. Kishan Lal on the paper on which he wrote the contents of the audio and thereupon, Insp. Kishan Lal also typed the same contents of the audio on laptop. Thereafter, one of the official who accompanied Insp. Kishan Lal went outside with the said laptop and brought one printout. Signatures of PW9 were also obtained on the said printout. Thereafter PW9 was asked by the IO about the original device which was used to carry out the sting. PW9 told the IO that he was not having the original device. PW9 also told the IO that his father had not given the original device to him. PW9 expressed his inability to trace the said original device. PW9 also told Insp. Kishan Lal that he was not aware if his father had deposited the said device in ACB. Thereafter, the police officials left from his house. PW9 identified his signatures on the transcription dated 21.10.2019 Ex.PW9/A. PW9 further deposed that he came to know the name of the accused as Rakesh Vaid in the year 2019 when it was revealed to him by Insp. Kishan Lal.
PW9 was cross-examined by Ld.Addl.PP. for the State. In his cross-examination by Ld.Additional P.P. for the State, PW9 denied that he had made statement dated 27.03.2009 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 16 of 93 to the police u/s U/s 161 Cr.P.C. PW9 affirmed that he was doing the work of sale and purchase of auto-rickshaws for the past six years prior to 2008. He stated that he used to work with his father. He did not remember whether he had visited the transport authority at Burari in the month of September 2008 for the clearance of his files. He did not remember if he had gone to the Burari Transport Authority for clearance of his 25 pending files and that he came to know that without giving bribe in advance, the files would not be processed. He did not remember whether he had visited the office of ACB and had complained regarding the corruption at Transport Authority at Burari and that the officials of ACB had advised him to do a sting operation of the corruption prevailing at the Transport Authority, Burari.
PW9 deposed that he did not remember the exact date, however, he had conducted a sting operation at Transport Authority, Burari with his father. He affirmed that he had deposited the recording of the sting operation at ACB and that he had visited the office of PLTI Rakesh Vaid and met him. However, he did not remember whether PLTI Rakesh Vaid had told him "aapka kaam ho jayega" or that he had named one person Sanjay and had asked PW9 to meet Sanjay outside the office on that day regarding his files or that at the same time Sanjay came in the room of PLTI Rakesh Vaid. PW9 also denied that Insp. Rakesh Vaid introduced him to Sanjay and also provided the mobile number of Sanjay to him.
PW9 further denied that he again met Sanjay as directed by Insp. Rakesh Vaid. He did not remember whether he had narrated about the details of the files to Sanjay or whether CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 17 of 93 Sanjay stated that "aapke baabat kitna kya lena hai, aadesh nahi hua hai" or that whether Sanjay talked to Insp. Rakesh Vaid on his mobile phone at that time.
PW9 further denied that after talking to Insp. Rakesh Vaid, Sanjay told him that Insp. Rakesh Vaid had stated "jo deta hai le lo, baaki hisab baad me ho jayega". PW9 deposed that he did not remember whether he had paid Sanjay bribe of Rs.5,000/- i.e. five notes of Rs.1,000/- denomination each at that time for clearance of his files or whether Sanjay had counted the notes given by PW9 and kept the same.
PW9 affirmed that he had recorded the entire proceedings in a spy camera and submitted the recordings of the sting operation done by him, at ACB.
PW9 denied that he had handed over the aforesaid recordings of the sting in two CDs to the ACB officials. He volunteered that he had handed over the original device i.e. spy camera to the ACB officials. He denied that the two CDs were marked as CD-1 and CD-2 and the same were played at the ACB office on a computer and after verifying the same, CD-1 was kept in a cotton pulanda and was sealed with the seal of SKS.
PW9 denied that he had made statement u/s 161 Cr.P.C. dated 17.02.2012 to the police. He further denied that on 17.02.2012, he visited the office of ACB and was shown the transcription of the recording of the sting operation. He did not remember whether the sting operation was done by him on 25.09.2008 in the afternoon after lunch hours. He affirmed that he had handed over the spy camera to SI Karnail Singh on that day itself when he had conducted the sting operation. He denied CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 18 of 93 that on 17.02.2012, the recording of the sting was saved in the office computer at ACB by SI Karnail Singh, in his presence. He did not remember whether the recording of the sting was played on that day and that he had identified the recording and the transcription of the same and as to whether he was called again on 03.03.2012. PW9 stated that he had given a statement u/s 161 Cr.P.C. to the police on 02.04.2012 vide Ex.PW9/B and on that day he had visited FSL, Rohini along with panch witness Sunny and the IO, where his voice sample was recorded in an audio cassette of make SONY C-60 ZXA and the same was marked as Ex.3A and copy of the recording was also prepared and marked as Ex3B and same were signed by him and the panch witness and were seized by the IO vide Ex.PW9/C. He affirmed that CD marked as CD-II was played by the IO at FSL with the help of the computer operator and after seeing the recording of the CD, he had verified that the recording was of the sting operation which was done by him in the month of September 2008 at Transport Authority, Burari. PW9 denied that he had identified PLTI Rakesh Vaid and tout Sanjay after seeing the recording of CD-II which was played at FSL. He also stated that one observation memo Ex. PW9/D was prepared by the IO and he had signed the same.
PW9 stated that his statement was recorded by the police on 21.10.2019 vide Ex.PW9/E. He affirmed that on 21.10.2019, IO along with panch witness Sh. Ram Raj Meena had come to his house and transcription running into seven pages was prepared after CD was played on the laptop by the IO and the transcription was signed by him and the panch witness on CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 19 of 93 each of the page. PW9 identified CD-I vide Ex. P-1 as the copy of the recording of the sting which he had conducted at Transport Authority Burari. PW9 also identified CD-II vide Ex. P-2 stating that it contained the same sting which was conducted by him at Transport Authority Burari. He also identified accused Rakesh Vaid as appearing in the CD. However, PW9 could not confirm the identity of accused Sanjay. He denied that he was deliberately not identifying accused Sanjay as he had been won over by him.
PW9 affirmed that the voice in the CD Ex.P2 was his voice while he was giving currency notes. PW9 also deposed that the transcript Ex.PW9/A (colly) was the true version of the sting operation conducted by him. PW9 also identified the audio cassette Ex. P-3 and stated that it was his voice, which was recorded by FSL officials.
PW9 further affirmed that he had handed over the spy camera along with the recording to SI Karnail Singh on the same day when the sting was conducted, in his office and the contents of the spy camera i.e. sting operation was transferred and saved in a computer by him in his office.
He affirmed that when he met PLTI Rakesh Vaid in his office he stated that "aapka kaam ho jayega" and named one person Sanjay and asked him to meet Sanjay outside the office regarding his files. He denied that accused Sanjay also came in the room of accused Rakesh Vaid and accused Rakesh Vaid introduced him to Sanjay and also provided mobile number of Sanjay to him. PW9 affirmed that accused Rakesh Vaid had also asked him to meet accused Sanjay later also. He further CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 20 of 93 affirmed that when he met accused Sanjay, he stated that "aapke baabat kitna kya lena hai, aadesh nahi hua hai". He volunteered that when he met accused Sanjay and enquired from him whether "mere baare mein saab ne kuch kaha hai?" and he replied "tere baare mein koi aadesh nahi hua hai". PW9 affirmed that later Sanjay talked with accused Rakesh Vaid on his mobile phone. He denied that accused Sanjay told him that accused Rakesh Vaid telephonically told him "jo deta hai wo le lo, baaki hisab baad me ho jayega". He affirmed that he had paid accused Sanjay bribe of Rs.5,000/- i.e. five currency notes of Rs.1,000/- denomination at that time for clearance of his file. PW9 volunteered that it was fees for clearance of his files. PW9 denied that he was intentionally not disclosing the material facts of the case as he has been won over by the accused persons.
In his cross-examination by Ld. Counsel for accused Rakesh Vaid, PW9 stated that he did not remember when he went to the office of ACB along with his father in the year 2008. He did not remember the name of the officer with whom they met at ACB. PW9 had not seen the FIR of the present case. He stated that when he was advised by ACB officials to conduct sting operation, neither his or his father's statement was recorded. They had not disclosed the names of the accused persons when they firstly visited with a complaint to the ACB Office. PW9 stated that he was the complainant in the present case. No recording device was given to him by the ACB officials for conducting the sting operation but he purchased the recording device i.e. spy camera at his cost. He purchased the spy cam when he returned from ACB office and he was advised to record CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 21 of 93 the sting. He did not remember the name of the shop or area from where he purchased the spy cam. He was not having bill regarding purchase of spy cam. He did not remember the make or brand of the spy cam. He had used the spy cam for the first time for conducting sting when he went to the transport department and before that he had never used the spy cam. He did not remember the storage capacity of the spy cam. The entire recording in the spy cam was only relating to the sting operation of the transport department and no other recording was done by him. The recording in the spy cam was continuous without any break. He did not remember the date, month or time when he conducted the sting operation but it was in the year 2008. At the time of conducting sting operation he alone went to the Transport Department and his father did not accompany him. When they made the complaint with the ACB regarding demand of bribe for clearing the files by the Transport Department, they were suggested to conduct sting operation of entire Transport Department. He conducted the sting operation of accused Rakesh Vaid only of the Transport Department and no other sting operation of any officer of Transport Department was done by him. His father had not instructed him to conduct sting operation or to meet accused Rakesh Vaid. PW9 went to meet accused Rakesh Vaid as he was the only concerned officer. He did not know as to which section accused Rakesh Vaid was supervising. He was not aware whether his 25 auto files were pending clearance with accused Rakesh Vaid.
PW9 further deposed that after sting operation, he immediately went to the office of ACB. He did not remember CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 22 of 93 the name of the police official who met him. On that day his statement was not recorded by that officer and his device was taken by him. He did not remember and stated that perhaps no seizure memo was prepared for taking the device in police possession. After the sting operation, he went 3-4 times in the same month, to the office of ACB. He did not remember the name of the officer but the same officer met him when he visited at the office of ACB during that month. PW9 deposed that he was not aware as to what happened to his device which he handed over to the said officer of ACB. He stated that there was USB device in his spy cam through which CD could be prepared. In his presence, the data of spy cam was not transferred in any computer or CD by any police officer including the officer with whom he used to meet. He did not remember the date when his first statement was recorded by the IO. PW9 further stated that except the sting operation i.e. file no. CX1980-01-04-015.AVI, he had not made any other file in CD-II Ex. P-2.
It was observed that there were 13 files appearing in the CD-II, PW9 stated that his voice was audible in the CD-II. PW9 further stated that he had not met with any other accused of the present case in the room of accused Rakesh Vaid. Accused Rakesh Vaid had not given him mobile number of any other person. He again stated that as far as he could recollect accused Rakesh Vaid had not given him mobile number of any person. He never met accused Sanjay prior to the sting operation regarding the incident and even till date. He stated that accused Rakesh Vaid had told him that his person would meet him outside and thereafter, he met with accused Sanjay. When he came CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 23 of 93 outside the room of accused Rakesh Vaid and after crossing the veranda when he came outside only accused Sanjay was present there who was talking with some other persons so he guessed that he was the same person whom accused Rakesh Vaid had asked him to meet. Some other persons, who were present in the room of accused Rakesh Vaid, were also talking with him. He did not remember whether accused Rakesh Vaid did not inform him the name of accused Sanjay. No other person regarding his case i.e. for clearance of files talked with accused Rakesh Vaid or accused Sanjay except PW9. When he went to the office of Transport Department for clearance of his files, he came to know that his 25 files were pending but he was not aware whether they were pending with accused Rakesh Vaid. PW9 further deposed that the fees which he referred in his statement and paid might be code word of the accused persons. There was some official fee also regarding his files. His statement was also recorded in the Transport Department 4-5 months before as he was called at Dwarka Transport Authority. He affirmed that he was told by the IO about the name of accused Rakesh Vaid and Sanjay while preparing the transcript in 2019. He denied that he was deposing falsely.
PW9 was re-examined by the Ld. Addl.P.P. for the State and he was questioned as under :
"Q. I put it to you that in your examination in chief you have deposed that you handed over the spy camera alongwith the recording i.e. sting to SI Karnail Singh on the same day when the sting was conducted in the office and the contents of the spy camera i.e. CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 24 of 93 sting operation was transferred and saved in a computer by him in his office but in the cross- examination by ld. Defence Counsel you have deposed that the contents of the sting operation were not transferred and saved in a computer by the person to whom you had handed over the spy camera, which one of the statements is true ?
Ans. I had given the device to the police officer and went away. I could not understand the suggestion of the Ld.Addl. PP for the State as to why I deposed that the data was transferred in my presence from my spy camera."
He denied that he had understood the question properly and had deposed correctly at the first instance but later he changed his version to save the accused persons.
PW9 was thereafter cross-examined by ld. Counsel for accused Sanjay and he deposed that he was not regularly visiting office of Transport Authority but used to visit there for his work. He affirmed that there are many mechanics of CNG sitting outside the transport authority who used to check CNG vehicles. He could not tell what those mechanics used to tell after checking the vehicles. They used to charge some amount for checking the vehicles. He came to know at the time of recording of his testimony that IO of the present case was Santosh Kumar. He did not remember whether his statement dated 27.03.2009 was recorded by Insp. Santosh Kumar in his presence. He could not tell the date when his other statements were recorded by the IO. He had given the complaint to the IO and his father accompanied him when he was asked to conduct CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 25 of 93 sting operation. He had made oral complaint to the IO regarding demand of bribe at transport Department on which the concerned officer suggested him to conduct sting operation.
x) PW10 Anil Kumar, Section Officer, DTIDC (Delhi Transport Infrastructure Development Corporation), deposed that on 27.03.19 he was posted as Admin Officer, Transport Department, Administrative Branch. With reference to letter no. 498-500 dated 22.03.19, he had furnished his reply dated 27.03.2019 Ex. PW10/A and also a copy of the relieving order in respect of Sh. Rakesh Vaid, PLTI, Burari-ARU dated 21.05.2008 Ex. P-1. PW10 further deposed that on 11.11.19, with regard to letter no. 9965/RC-09/09/KL/ACB dated 04.11.2019, he had furnished the posting details of Sh. Rakesh Vaid, PLTI with regard to FIR no. 09/2009 PS ACB. His reply dated 11.11.19 was Ex. PW-10/B and he had annexed documents i.e. order dated 16.07.10, 21.05.08, 13.06.19, 21.12.18 and 13.09.17 Ex. PW10/C (colly) along with his reply relating to PLTI Rakesh Vaid.
xi) PW11 Santram deposed that in the year 2011, he was posted as MLO at Burari Authority (Auto-Rickshaw Unit). In the year 2012, he was called by ACB and asked about the raid conducted against accused Rakesh Vaid. He did not remember what questions were asked by the ACB officials to him. His statement was not recorded by ACB officials and he had never given any written reply to the ACB officials. On being cross- examined by Ld. Addl. PP for State, PW11 submits that he denied having made statement Mark-PW11/X to the police. He CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 26 of 93 did not remember whether he had joined the investigation of the present case after receiving notice from ACB in the year 2012. PW11 further denied that he had stated to the ACB that Sh. Ayodhya Prasad, MLO and accused Rakesh Vaid, PLTI were posted during September, 2008 at Burari as per record and generally 4-6 Inspectors including MVI and PLTI remain posted in ARU Burari. PW11 affirmed that the nature of work at ARU Burari mainly consist of Addition and Termination of Hypothecation, Issue of Smart Card based permits, Physical appearance of Transferral and Transferee regarding transfer of ownership with ID proof, replacement of unfit vehicles (TSR) by way of scrapping, issue of certificate of fitness, issue of duplicate RC and PLTI (Pollution Level Test Officer) also performs the above-mentioned duties as there was no work of pollution checking being carried out by PLTIs. PW11 deposed that he did not remember whether he had checked the computer record of the authority and stated to the ACB that 28 TSRs were registered in the name of Sh. Jitender Sharma S/o Nand Lal and 4 TSRs were found transferred in the name of Jitender Sharma during the year 2008. PW11 affirmed that scrapping of the old and unfit vehicles are generally required after 15 years, however, he denied that the owners can get the vehicles scrap before life span of the vehicles on the basis of its physical and mechanical condition. PW11 affirmed that the owner of the vehicle has to submit application with relevant document at the appropriate counter of the authority and the concerned officer assigned for the said duty process the matter.
PW11 admitted his signatures on the letter dated CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 27 of 93 18.07.12 Ex. PW11/A. PW11 admitted that in reply to notice u/s 160 Cr.P.C. dated 28.06.12, he had supplied original registration files registered in the name of Sh. Jitender Sharma to Sh. Kailash Chand, Inspector, ACB in case FIR no. 9/09, PS ACB and he had furnished the list of the vehicles registered in the name of Sh. Jitender Sharma to the ACB Ex. PW-11/B and the details of the 23 RCs Ex. PW-11/C collectively. PW11 affirmed that the said reply was prepared after verifying the data of the Burari Authority.
xii) PW12 Girish Kumar Yadav deposed that on 01.06.18, he was posted at Auto Rickshaw Unit and Vehicle Inspection Unit at Burari Transport Authority. In reference to the letter dated 01.06.2018 Ex. PW12/A of Inspector Kailash Chand, ACB, he had furnished the scrapping details of vehicles Ex. PW- 12/B, as per the official record available at the Burari Authority. He had also furnished the details of the fees paid in respect of the aforesaid scrapped vehicles vide Ex. PW-12/C. PW12 further deposed that with reference to the letter F. No. MLO(ARU)/Tpt/2018/2092 dated 02.06.18 of the MLO, vide letter dated 04.06.18 Ex. PW-12/D he had furnished information regarding the scrapping details of vehicles as well as fee details, for the period from September, 2007 to July 2009 Ex. PW-8/B collectively, as per official record maintained at the Burari Authority.
xiii) PW-13 Sushil Kumar - panch witness. PW13 deposed that on 30.03.2009, he was working as Crafts Instructor, CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 28 of 93 ITI Jail Road and he was assigned the duty of panch witness and as such he visited the office of ACB. Then he had accompanied the ACB officials along with accused persons namely Rakesh Vaid and Sanjay Kumar and other staff to FSL, Rohini, Delhi for getting recording the voice samples of the accused persons. At the FSL, Rohini voice samples of both the accused persons were recorded in audio cassettes. The cassettes were marked as 1A, 1B, 2B and 2C. He had signed on the cassettes. PW13 further deposed that two separate pulanda were prepared containing two cassettes, sealed and seized vide seizure memo Ex.PW13/A. He identified the two cassettes Ex. P4 and P5. He also identified the two audio cassettes Exhibit-1B (Ex. PW13/Article-1) and 2C (Ex. PW13/Article-2) containing voice samples of accused persons which were recorded at FSL.
xiv) PW-14 Sh. Sunny deposed that on 02.04.2012, he was posted at Litigation Branch, Directorate of Education Headquarters and he was assigned the duty of panch witness and as such he visited the office of ACB where he filled the duty roster. He along with IO Insp. Kailash Chand and Jitender Kumar Sharma went to FSL, Rohini for recording of voice sample of Jitender Kumar Sharma. The voice sample of Jitender Kumar Sharma was taken by the FSL officials in a blank cassette make SONY. One another cassette was also prepared which was the copy of the voice sample of Jitender Kumar Sharma. Both the cassettes were marked by the IO and he put his signatures on both cassettes. Thereafter both the cassettes were converted into two separate pulandas and sealed and seized vide seizure memo CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 29 of 93 Ex. PW9/C. He identified the audio cassette make SONY ZX A, C-60 marked as Exhibit-3B as Ex. PW14/Article-I and its cloth pullanda as Ex. PW14/Article-2. PW14 also identified the audio cassette make SONY ZX A, C-60 marked as Exhibit-3A containing original voice recording of Jitender Kumar Sharma as Ex. P-3 and the clothe pulanda as Ex.PW9/Article-1.
PW14 was cross-examined by Ld. Addl.P.P. for the state and in which he admitted his statement made to IO on 02.04.2012 Mark-X. PW14 also admitted that the original voice sample recording of Jitender Kumar Sharma was marked as Exhibit-3A and recording of the same was marked as Exhibit-3B. PW14 further admitted that after sealing both the cloth pullanda with the seal impression of KC the seal was handed over to him by the IO. He did not admit or deny whether CD marked as CD-2 which was with the IO, was also played on the computer of FSL. PW14 also did not remember whether the Jitender Kumar Sharma told in his presence that the recording in the said CD was done by him in September 2008 at Transport Authority, Burari and also identified Rakesh Vaid, PLTI and tout Sanjay Dalal regarding the conversation of demand and acceptance of bribe and in that respect one observation memo Ex.PW9/D was prepared. He further admitted that from FSL they returned to PS Civil Lines where the IO deposited the case property in Malkhana and thereafter, he handed over the seal of KC to IO. One CD marked as Exhibit-P2 placed on judicial file was played on the computer of the court and after seeing the CD, PW14 submitted that he did not remember whether the CD was played by the IO at FSL or not. He denied that he was deliberately not CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 30 of 93 stating the true facts about the playing of the CD at FSL.
xv) PW-15 Sh. Naveen deposed that in the year 2019, he was posted at A.C. Branch, GNCT, Delhi. He did not remember the exact date and month when he had accompanied Insp. Krishan Lal along with one panch witness and driver to Geeta Colony to play a CD in a laptop. At Geeta Colony, they had gone to the house of one Sharma and he played a CD which was given to him by Insp. Krishan Lal in the laptop. The contents were heard by Insp. Krishan Lal and he was asked to stop the CD at some places which was played on the laptop. His statement was recorded by Insp. Krishan Lal at ACB.
He was cross-examined by Ld. Addl.P.P. for the State. He stated that he did not recollect whether on 21.10.2019, he had visited the house at Geeta Colony, however, he stated that his statement was recorded by the IO same day when he visited the house at Geeta Colony. He admitted that the name of the panch witness, who had accompanied them, was Ram Raj Meena and they had visited the house of Jitender Sharma, H. No. 14/72, Geeta Colony, Delhi, who met them at his house. He also admitted that the CD containing the footage was played in the laptop with his help and Jitender Sharma also saw the footage which was played in the laptop and on the identification of the Jitender Sharma, transcription running into seven pages was prepared there and printout of the same was taken, which was signed by Jitender Sharma, panch witness Ram Raj Meena and the IO.
In his cross-examination by Ld. Counsel for the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 31 of 93 accused, he deposed that he had not gone for taking the printouts of the transcripts prepared at the house of Jitender Sharma. He did not know in whose custody the laptop remained when it was taken for taking printout of the transcripts.
xvi) PW-16 Sh. Rajesh Batra deposed that from the year 2007 to May 2010, he was working as UDC at Seikh Sarai RTO Authority. The exact date he did not remember, however, it may be March 29 or March 30, 2009, when he was assinged the duty of panch witness and he visited the office of ACB. On 29.03.2009, at the ACB, after accused Rakesh Vaid and Sanjay Kumar had given their consents for recording of their sample/specimen voice, consent memo of accused Rakesh Vaid Ex. PW16/A and consent memo of accused Sanjay Kumar Ex. PW16/B were prepared by the IO and he had signed the same.
xvii) PW-17 Sh. Ram Raj Meena deposed that on 21.10.2019, he was working as LDC, West Maintenance Circle, PWD, Karampura, Delhi and he was assigned the duty of panch witness. He had visited the office of ACB and he had accompanied Insp. Krishan Lal and one another person, who was having a laptop, went to the house of Jitender Sharma. He did not remember the address of Jitender Sharma. At the house of Jitender Sharma, one CD was played by Insp. Krishan Lal on the laptop in the presence of Jitender Sharma. The transcript was typed on the laptop by the person who had accompanied them with the laptop in their presence. The printouts of the transcript Ex. PW9/A (colly) were taken out from some shop and he had CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 32 of 93 accompanied Insp. Krishan Lal for taking the printouts of the transcript. He was not cross-examined by the accused persons despite opportunity given.
xviii) PW-18 SI Krishnadasan deposed that on 28.07.2009, on the instructions of IO Insp. Santosh Kumar, he reached at Malkhana of PS Civil Lines collected the sealed exhibits from the MHC(M) and vide RC no. 65/21 Ex. PW18/A deposited the sealed exhibits at FSL, Rohini. After depositing the same, he returned back and handed over the copy of RC and acknowledgement of case acceptance Ex. PW18/B to the MHC(M), PS Civil Lines. Till the sealed exhibits were in his possession, the same remained intact and were not tampered in any manner.
xix) PW-19 ASI Jitender Singh deposed that on 27.03.2009, he was posted as MHC(M), PS Civil Lines and Insp. Santosh Kumar deposited one sealed pulanda with the seal of SKS along with the copy of seizure memo in the present case in the Malkhana of PS Civil Lines. Insp. Santosh Kumar had also deposited the personal search articles of accused Rakesh Vaid and Sanjay Kumar. He made entry to that effect in the Register no. 19 bearing entry no. 93/818 Ex. PW19/A. PW19 further stated that on 30.03.2009, two sealed pulandas along with the copy of seizure memo were deposited in the Malkhana of PS Civil Lines by Insp. Santosh Kumar and he made entry to that effect in the register no. 19 at serial no. 95/820 Ex.PW19/B. On 28.07.2009, as per instructions of the IO, he handed over sealed CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 33 of 93 exhibits of the present case to HC Krishandasan vide RC no. 65/21 Ex. PW18/A for depositing the same at FSL, Rohini. He made entry to that effect in register no. 19 Ex.PW19/C. He also proved acknowledgement of case acceptance by FSL, Rohini, Ex.PW18/B. xx) PW-20 HC Kuldeep Singh deposed that on 10.06.2010 while he was posted at ACB as constable, as per instructions of the IO Insp. Santosh Kumar, He went to FSL, Rohini, and collected the result in the present case along with the sealed exhibits and handed over the sealed exhibits to MHC(M), PS Civil Lines and the result which was in sealed cover, to the IO.
xxi) PW-21 ASI Jai Parkash - MHC(M), PS Civil Lines. He deposed that on 10.06.2010, Ct. Kuldeep came at Malkhana and deposited sealed exhibits of the present case which were having seal impression of Dr. C.P. Singh, FSL, Delhi, and he made entry to this effect in the Register no. 19 Ex.PW21/A. xxii) PW-22 Sh. Kishan Pal deposed that he was TSR driver by profession. In the year 2005, he had purchased TSR No. DL-1RD-2532, which was registered in his name and in the year 2007 he had sold the said TSR to one Jitender Sharma. He had handed over all the documents i.e. RC, Permit, Form No. 29 and 30 and other relevant documents to Jitender Sharma. He identified his signature on the application form, form no. 34, affidavit and form no. 30 as well as original RC in his name. The CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 34 of 93 file containing the original documents pertaining to the aforesaid TSR no. DL-1RD-2532 is Ex.PW22/A (colly).
xxiii) PW-23 Sanjay Kumar deposed that he was auto- rickshaw driver by profession and in the year 2006, he had purchased an auto-rickshaw No. DL-1RC-5727 from Prince Auto Dealer, Kotla Scooter Market, Mayur Vihar, Phase-I, Delhi, and said auto-rickshaw was registered in his name. In the year 2006, he had sold the said auto-rickshaw to one Jitender Sharma through Raj Auto Dealer, Jheel Market and he had handed over all the documents i.e. RC, Permit, Form No. 29 and 30 and other relevant documents to Jitender Sharma. PW-23 identified his signatures on the documents i.e. application form, form no. 34, affidavit and form no. 30. He also identified the original RC contained in file of auto-rickshaw no. DL-1RC-5727 Ex. PW23/A (colly).
xxiv) PW-24 Praveen Kumar deposed that he was in the business of tours and travels. In the year 2006, he had purchased an TSR No. DL-1RC-1775 from Mangat Lal and same was registered in his name. In the year 2007, he had sold the said TSR to one Jitender Sharma through Krishna Auto Deals, DDA Market, Jahangirpuri. He had handed over all the documents i.e. RC, Permit, Form No. 29 and 30 and other relevant documents to Jitender Sharma. PW-24 identified his signatures on the documents i.e. application form, form no. 34, affidavit and form no. 30. He also identified the original RC contained in file of auto-rickshaw no. DL-1RC-1775 Ex. PW24/A (colly).
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 35 of 93xxv) PW-25 HC Krishan Kumar deposed that on 23.05.2012, on the instructions of the IO, he collected the FSL result and the sealed exhibits of the present case from FSL, Rohini. On return, he handed over sealed exhibits to HC Chander Singh, MHC(M), PS Civil Lines and the FSL result to the IO.
xxvi) PW-26 ASI Chandra Singh - MHC(M) PS Civil Lines, who deposed that on 02.04.2012 Insp. Kailash Chand deposited sealed case property in the present case along with the copy of the seizure memo in Malkhana and he made entry in Register no. 19 at serial no. 9 Ex.PW26/A. PW26 further stated that on 03.04.2012, on the instructions of the IO, two sealed pulandas along with copy of transcription, FSL form were sent to FSL, Rohini, Delhi through Ct. Jitender, vide RC no. 3/21/12 dated 03.04.2012 Ex. PW26/B. Ct. Jitender came back and handed over the acknowledgement of case acceptance Ex. PW26/C and the copy of RC to him. On 23.05.2012, on the directions of the IO, Ct. Krishan Kumar went to FSL, Rohini along with forwarding letter and collected the result and the sealed exhibits of the present case and he handed over the sealed exhibits of the present case to him which were deposited in the Malkhana of PS Civil Lines and result was handed over to the IO. He further stated that the entry regarding handing over of the case property to Ct. Jitender to be deposited at FSL, Rohini and the deposit of the sealed case property in the Malkhana by Ct. Krishan Kumar on 03.04.2012 and 23.05.2012 were not done by CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 36 of 93 him inadvertently.
xxvii) PW-27 Ashish Kundra, Principal Secretary (Transport), Govt. of NCT of Delhi deposed that on 02.02.2021, the ACB forwarded a letter with complete investigation including new facts that emerged during investigation for grant of sanction against Rakesh Vaid, PLTI. He went through the documents and the new facts which emerged during investigation against Rakesh Vaid, PLTI, and after applying his mind, he being the competent authority to accord sanction against accused Rakesh Vaid, PLTI, accorded sanction dated 01.04.2021 U/s 19(1)(c) of PC Act Ex. PW27/A for his prosecution and said sanction order was sent to the ACB vide letter no. F.4(22)/Vig./TPT/2020/444/37308 dated 01.04.2021, Ex.PW27/B. xxviii) PW-28 Mahesh Chander deposed that he was TSR driver by profession. In the year 2006, he had purchased TSR No. DL-1RD-1410 and same was registered in his name. He had sold the said TSR to one Jitender Sharma in the year 2009. He had handed over all the documents i.e. RC, Permit, Form No. 29, 30 and 35 and other relevant documents to Jitender Sharma. PW-28 identified his signatures on the documents i.e. application form, form no. 34, affidavit and form no. 30, 35. He also identified the original RC and also affidavit of Jitender Sharma dated 02.02.2009 contained in file of auto-rickshaw no. DL-1RD-1410 Ex. PW28/A (colly).
xxix) PW-29 Surender Kumar deposed that he was TSR CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 37 of 93 driver by profession. In the year 2005-2006, he had purchased/got financed TSR No. DL-1RF-2547 from Kumar Auto, Jheel, Delhi. He had handed over the said TSR along with all relevant documents i.e. RC, Insurance and Permit to Kumar Auto, Jheel, Delhi after 2-3 years as he was unable to pay the installments. Later on the said TSR was transferred in name of one Jitender Sharma and he had gone to Transport Authority, Burari and signed the relevant documents regarding the transfer of the aforesaid TSR. PW-29 identified his signatures on the documents i.e. application form, form no. 34, affidavit and form no. 30, 31. He also identified the original RC and also affidavit of Jitender Sharma dated 14.02.2009 contained in file of auto- rickshaw no. DL-1RF-2547 Ex. PW29/A (colly).
xxx) PW-30 Dohit Duggal deposed that in the year 2006, he had purchased TSR No. DL-1RD-1868. He had sold the said TSR to Jitender Sharma and handed over all relevant documents i.e. RC, Insurance and Permit etc. to Jitender Sharma in 2007. PW-30 identified his signatures on the documents i.e. application form, form no. 29, 30 and affidavit. He also identified the affidavit of Jitender Sharma dated 26.07.2007 contained in file of auto-rickshaw no. DL-1RD-1868 Ex. PW30/A (colly).
xxxi) PW-31 Pope Singh deposed that in the year 2004, he had purchased/got financed TSR No. DL-1RE-9782 from Jheel, Gandhi Nagar, Delhi. He had handed over the said TSR along with all relevant documents i.e. RC, Insurance and Permit to Jitender Sharma, Financer after 1½-2 years. Later the said TSR CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 38 of 93 was transferred in name of one Jitender Sharma.
PW-31 identified his signatures on the documents i.e. application form, form no. 29, 30. He also identified the affidavit of Jitender Sharma dated 20.03.2009 contained in file of auto-rickshaw no. DL-1RE-9782 Ex. PW31/A (colly).
xxxii) PW-32 ACP Rajesh Kumar deposed that on 27.03.2009, he was posted as Inspector at ACB and had joined investigation of this case and IO Insp. Santosh Kumar asked him to remain present in the office on that day. He further stated that on that day, SI Karnail Singh prepared two CDs make Moserbaer from the data which was stored in the official computer of ACB. Both the CDs had same contents and both the CDs were played at the office of ACB. Both the CDs were handed over to Insp. Santosh Kumar by SI Karnail Singh. He along with SI Karnail Singh and Insp. Santosh Kumar had signed both the CDs. Insp. Santosh Kumar marked the CDs as CD-I and CD-II. CD-I was converted into pulanda by Insp. Santosh Kumar with the seal of SK. CD-II was kept open for investigation purpose. Both the CDs were seized and taken into police possession vide seizure memo already Ex.PW3/A. He accompanied the IO and reached at Geeta Colony, Block-12 during investigation and returned back to ACB. Again he joined the investigation with the IO and reached at Transport Authority, Burari where they met with Inspector Vaid and one tout Sanjay. Both were apprehended and taken to ACB where they were interrogated. The aforesaid CD i.e. CD-II which was kept open was played in presence of both and one display memo Ex. PW32/A was prepared by the IO in CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 39 of 93 this regard. Both the accused were interrogated by the IO separately. Accused Rakesh Vaid was arrested vide arrest memo Ex.PW32/B and his personal search was conducted vide memo Ex.PW32/C. Accused Sanjay Kumar was arrested vide arrest memo Ex.PW32/D and his personal search was conducted vide memo Ex.PW32/E. He correctly identified both the accused persons in the court. He correctly identified CD-I Ex.P1 and CD-II Ex.P2. One leading question was put to PW32 and he affirmed that he along with the IO had gone to the house of Jitender Sharma i.e. H. No. 14/72 who had conducted the sting operation.
xxxiii) PW-33 Insp. Kailash Chand, deposed that on 24.04.2012, he was posted as Inspector at ACB. On that day, investigation of present case was assigned to him. On 23.05.2012, he prepared an authority letter and handed over to Ct. Krishan Kumar to collect the result from FSL, Rohini and on 24.05.2012 he handed over the FSL result in sealed cover to him and also apprised that he had deposited the exhibits of the present case at Malkhana, PS Civil Lines after collecting the same from FSL, Rohini on 23.05.2012 itself. He recorded statements of Ct. Krishan Kumar and MHC(M), PS Civil Lines HC Chander Singh. He also de-sealed the envelope and examined the FSL result and placed the same on the file. On 19.07.2012, the Dak Section of PS ACB handed over him one covering letter along with 23 original original files of TSRs Ex. P6 (colly) which were received from Burari Authority with covering letter Ex.PW11/A and the list of the 23 files Ex.PW11/B. On 31.03.2017, he had CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 40 of 93 sent a letter to MLO, Burari and asked for the duty roster of accused Rakesh Vaid along with scrap register in the name of Jitender Kumar. Till the investigation remained with me, he had not received the reply of the aforesaid letter from MLO, Burari. Later further investigation was assigned to Insp. Kishan Lal and he handed over the file to him in the year 2018.
xxxiv) PW-34 ACP Kailash Chandra deposed that on 26.03.2011, he was posted as Inspector at ACB. On that day, the investigation of the present case was assigned to him. On 27.04.2011, he received a report Ex. PW34/A (colly) along with list of documents annexed with report regarding the registration number of TSRs owned by Jitender Sharma, from the Transport Department of GNCT of Delhi. On 17.02.2012, he called Jitender Sharma in his office and examined him and recorded his supplementary statement.
On 22.02.2012, he received reply dated 21.02.2012 Ex. PW34/B from the service provider Vodafone Ltd. regarding the ownership of three mobile numbers.
On 26.03.2012, pursuant to the notice given by him to MLO (Auto Rickshaw Unit) Sh. Sant Ram visited his office and joined the investigation. He recorded his statement U/s 161 Cr.P.C.
On 02.04.2012, pursuant to the notice given by him, Jitender Sharma came at his office and joined the investigation. He along with the complainant Jitender Sharma and panch witness Sunny along with other staff went to FSL, Rohini for recording of voice sample of the complainant. At FSL, Rohini CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 41 of 93 with the help of expert and FSL staff, the voice sample of the complainant Jitender Sharma was recorded in two empty CDs provided by him. One of the CD was containing original recording of the voice sample of the complainant Jitender Sharma and the other contained the copy of the same. The original recording was marked as 3A and the copy of the same was marked as 3B. Both the CDs i.e. 3A and 3B were separately converted into pulandas and were sealed by him with the seal of KC. PW34 again stated that two empty audio cassettes make SONY were provided to the FSL authorities by him for recording of the voice sample of the complainant Jitender Sharma and due to some confusion he had earlier stated that two empty CDs were provided to the FSL authorities for the recording purpose. Both the pulandas were signed by the complainant Jitender Sharma and panch witness. Both the pulandas were taken into police possession vide seizure memo Ex.PW9/C. One CD marked as CD-2 Ex. P-2 placed in the file in open condition was played by him in the computer installed at FSL and shown to the complainant Jitender Sharma. He had prepared an observation memo Ex. PW9/D in this regard. He had recorded the supplementary statement of the complainant in this regard on that day and had also recorded the statement of panch witness U/s 161 Cr.P.C. Both the sealed exhibits were deposited by him in the Malkhana of PS Civil Lines.
On the next day i.e. 03.04.2012, he prepared a forwarding letter and authorized Ct. Jitender to collect the exhibits from Malkhana of PS Civil Lines and get it deposited at FSL, Rohini for examination purpose. PW34 further deposed CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 42 of 93 that he was informed by Ct. Jitender that he had got deposited the sealed exhibits along with the forwarding letter at FSL, Rohini and he recorded his statements. On 13.04.2012, further investiga- tion was assigned to Insp. Kailash Chand as per order of senior officers and he handed over the case file to him.
PW34 has correctly identified CD-2 Ex. P-2, audio cassette Ex. P-3, cut cloth of pullanda in which audio cassette Ex. P-3 was kept as Ex.PW9/Article-1.
xxxv) PW-35 ACP Rakesh Ahuja, who deposed that on 01.10.2020, he was posted as Inspector at ACB. On that day, he received the file of present case as further investigation was assigned to him. He received the prosecution sanction and placed the same on file. During investigation, he also approached Vodafone for providing CDRs of relevant mobile numbers related to present case but the Vodafone informed him that as more than 10 years had already lapsed they were unable to provide the CDRs of the mobile numbers. The reply of the service provider is Ex. PW35/A. He could not collect the certificate U/s 65B of Indian Evidence Act in support of the CDRs which were collected by the previous IO. Draft chargesheet was already prepared by the previous IO. He telephonically spoke with the complainant regarding the original device through which complainant prepared the video recording and complainant informed him that same was already lost and the bribe amount of Rs.5,000/- which he had given to the co-accused Sanjay Kumar belonged to him. He prepared the final chargesheet and filed the same before the court.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 43 of 93xxxvi) PW-36 ACP Krishan Lal, deposed that on 12.09.2018 he was posted as Inspector at ACB and further investigation of present case was assigned to him. On 16.04.2019, he called one Amrender Singh in whose name CAF of mobile number 9953120056 which was being used by accused Sanjay and recorded his statement u/s 161 Cr.P.C. On 24.04.2019, he called MLO Rajesh Kumar from Burari STA and recorded his statement u/s 161 Cr.P.C. On 31.07.2019, he made inquiries from Jitender Sharma regarding the original device through which sting was conducted, but he could not produce the same.
On 21.10.2019, he along with Ct. Naveen (from Delhi Civil Defence) and panch witness Ramraj Meena went to the house of complainant Jitender Sharma after collecting laptop from SO branch of ACB in official vehicle. They reached at the house of Jitender Sharma at Geeta Colony after lunch hours i.e. about 3 pm and prepared the transcript of the CD containing sting operation with the help of Ct. Naveen at the instance of complainant. As they were not having printer, the print out of the transcript Ex. PW-9/A (colly) was taken from nearby shop.
On 31.10.2019, he called SI Karnail Singh and made inquiries from him about the original device and he informed that complainant had taken the original device with him after the same was downloaded and preparation of the CD by him. SI Karnail Singh told him that he prepared two CDs after transferring the data from original device. One was sealed and another CD was kept opened for the purpose of investigation. SI CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 44 of 93 Karnail Singh gave him the certificate u/s 65-B of Indian Evidence Act Ex. PW-3/B. He also received the posting details etc. of accused Rakesh Vaid Ex. PW-10/B and PW-10/C (colly). He called all those persons who had sold their TSRs to complainant Jitender Sharma. Out of them, 7-8 persons appeared before him and he recorded their statements u/s 161 Cr.P.C. He got issued one request letter through DCP concerned to the Transport Department for grant of sanction u/s 19 of PC Act against accused Rakesh Vaid along with the relevant documents and CD of the sting operation. He recorded the statements u/s 161 Cr.P.C. of those witnesses who joined investigation with him. Thereafter in the month of February, 2020 he was transferred from ACB and he handed over the file to Insp. Sanjay Gaur, ACB.
xxxvii) PW-37 ACP Sh. Santosh Kumar Singh deposed that on 27.03.2009, he was posted as Inspector at ACB and he was assigned an enquiry and necessary action related to corruption in Transport Authority, Burari, Delhi. During enquiry, he called Sh. Jitender Sharma, who had conducted the sting operation regarding corruption in Transport Department, for which the enquiry was assigned to me. It was revealed during enquiry that Sh. Jitender Sharma was dealing with the sale-purchase of auto- rickshaws so he went to Transport Authority, Burari for his work and there he came to know that without giving bribe his work regarding transfer/clearance of 25 auto-rickshaw files, cannot be done. He came to ACB and met the senior officers who advised CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 45 of 93 him to record the transaction regarding the bribe i.e. sting operation related to his work.
In September 2008, Jitender Sharma went to Transport Authority, Burari, regarding clearance/transfer of 25 auto-rickshaw files and met with accused Rakesh Vaid, who was posted there as PLTI (pollution level testing inspector) and asked him that his work will be done and told him to meet with one Sanjay, who was working as a tout in the Transport Authority, Burari. In the meantime, the said Sanjay Kumar came in the office of accused Rakesh Vaid, who also introduced co-accused Sanjay Kumar to Jitender Sharma and accused Rakesh Vaid also gave mobile phone number of accused Sanjay Kumar. Thereafter, Jitender Sharma came outside the office and he enquired about doing his work from accused Sanjay Kumar, who told him that till that time he had not received any message from accused Rakesh Vaid and thereupon accused Sanjay Kumar made call to accused Rakesh Vaid. Thereafter, accused Sanjay told to Sh. Jitender Sharma that he has to pay bribe of Rs.6,000/- per case/file and asked him to give whatever amount he had brought on that day. Thereafter, Jitender Sharma gave Rs.5,000/- as bribe to accused Sanjay Kumar and recorded the entire incident through spy cam. PW37 correctly identified both accused persons in court room.
On 27.03.2009, Insp. Rajesh Kumar was present along with him at ACB and at around 07:10 am SI Karnail Singh prepared two CDs containing the sting operation conducted by Sh. Jitender Sharma in the official computer of ACB in his presence, which was already downloaded through the original CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 46 of 93 device of Jitender Sharma on the office computer of ACB. Both the CDs were given mark CD-1 and CD-2 which were signed by him, SI Karnail Singh and Insp. Rajesh Kumar. He perused the CDs prepared by SI Karnail Singh on office computer and it was containing the sting operation which was conducted by Sh. Jitender Sharma. The CD-1 was kept in cloth pulanda and was sealed with the seal of SKS and CD-2 was kept open for the purpose of investigation. He took both the CDs in police possession through seizure memo Ex.PW3/A. From the enquiry conducted and from CDs, it appeared that a case U/s 7/8/13 PC Act r/w 120B IPC was made out and accordingly he prepared a rukka Ex.PW37/A, handed over the same to DO for registration of the case FIR at about 08:05 am. Duty Officer recorded the FIR already Ex.PW2/B and handed over him the copy of FIR and original rukka as further investigation was assigned to him. Thereafter, he along with Insp. Rajesh Kumar went to the residence of Jitender Sharma i.e. 14/72, Geeta Colony for the purpose of investigation and recorded his statement U/s 161 Cr.P.C. After that they returned to ACB and again left for further investigation with Insp. Rajesh Kumar. They reached at Transport Authority, Burari and enquired about the office of accused Rakesh Vaid and came to know that he was sitting in the office. PW37 met him and briefed regarding the case and also enquired about accused Sanjay Kumar, who told that Sanjay Kumar would be outside his office. Thereafter, he came outside the office and met with accused Sanjay Kumar. He brought both the accused Rakesh Vaid and Sanjay Kumar from Transport Authority, Burari to ACB. They were interrogated in detail CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 47 of 93 regarding the case and CD-2 was played in their presence on the office computer vide a memo Ex.PW32/A. He arrested accused Rakesh Vaid and Sanjay Kumar vide memos Ex.PW32/B and Ex.PW32/D and took their personal search vide memos Ex.PW32/C and Ex.PW32/E. He re-examined the accused persons and recorded the statements of witnesses and also deposited the case property i.e. CD and personal search articles of accused persons with Malkhana.
On 28.03.2009, he apprised the facts of the case to the senior officers and requested them to obtain CDRs and CAFs from the concerned service providers of the mobile phones of the accused persons, vide memo already Ex.PW35/DA. He produced both the accused persons before the court and moved an application Ex. PW37/B for 3 days PC remand and 2 days PC remand was granted by the court. He brought the accused persons at ACB and interrogated them and they were put in lockup of PS Civil Lines.
On 29.03.2009, both the accused persons were brought to ACB from lockup and were again interrogated in the presence of SI Bal Kishan and panch witness Rajesh Batra. Both the accused had given their consent for giving their specimen voice samples and their consent memos Ex.PW16/A and Ex.PW16/B were prepared in the presence of panch witness. He prepared a transcription Ex. PW37/D (colly) of the conversation from the CD-2 at the office of ACB.
On 30.03.2009, both the accused persons were taken to FSL, Rohini and panch witness Sushil Kumar was also asked to reach there. The FSL official i.e. Sh. Sunil Kumar, Scientific CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 48 of 93 Associate recorded the voice samples of the accused persons in four cassettes i.e. two original and two copies. The cassettes were signed by him and panch witness Sushil Kumar. The cassettes were marked as 1A, 1B and 2B and 2C. Cassette 1A and 2B were kept in cloth pulanda and sealed with the seal of SKS and 1B and 2C were kept in a separate cloth pulanda and sealed with the seal of SKS. He took all the sealed pulandas of cassettes in police possession vide memo Ex.PW13/A. He recorded the statement of the panch witness. Accused persons were remanded to J/C and he deposited the exhibits to Malkhana of PS Civil Lines. He examined HC Jitender, MHC(M) and recorded his statement.
On 31.03.2009, he received the CDRs from page no. 96 to 101 Ex.PW35/DB (colly). I also obtained bio-data and posting details of accused Rakesh Vaid Ex.PW1/A. On 28.07.2009, he called HC Krishan Dasan and briefed him and handed him over the papers for depositing the exhibits after collecting the same from MHC(M) of PS Civil Lines to FSL, who deposited the sealed exhibits at FSL vide RC no. 65/21 dated 28.07.2009 and handed over the acknowledgement to MHC(M). He recorded the statements of HC Krishan Dasan and HC Jitender.
On 10.06.2010, Ct. Kuldeep collected the FSL report and handed over to him two sealed pulandas sealed with the seal of FSL. He kept the FSL result Ex.PW7/A and recorded the statements of Ct. Kuldeep and HC Jai Parkash, MHC(M).
On 17.06.2010, he apprised the development of investigation of the case to Addl. C.P. Sh. R.D. Shukla and CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 49 of 93 requested him to seek sanction U/s 19 of PC Act against accused Rakesh Vaid. Accordingly, a request letter was sent to sanctioning authority.
On 26.07.2010, he received the sanction against accused Rakesh Vaid. On 04.03.2011, he apprised the facts of the case to ACP Sahdev Singh and requested him to send a letter Ex. PW37/E to obtain sale-purchase letter/documents of Sh. Jitender Sharma regarding those 25 files. Thereafter, he was transferred from ACB and file was handed over to Insp. Kailash Chand.
PW37 correctly identified the CDs Ex.P-1 and Ex.P- 2, audio cassettes Ex.P4 and Ex.P5.
7. During recording of prosecution evidence, on 29.04.2022 ld. Counsel for the accused persons admitted document i.e. transfer order no. F.No. DCB(VIU)/Tpt./ 2008/1997-2004 dated 21.05.2008 issued by M.A.Usmani, Dy. Commission (VIU) Ex. P-1 and as such PW M.A.Usmani was dropped from the list of witnesses. On 18.08.2022, at the request of Ld. Addl.P.P. for the State, PW SI Bal Kishan was also dropped from the list of witnesses as he was a witness regarding consent memo dated 29.03.2009, which was already proved by other witnesses.
Statement of accused persons :
8. After conclusion of prosecution evidence, statements of both the accused persons were recorded under CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 50 of 93 Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in evidence against them and stated that they are innocent and falsely implicated in this case.
Accused Rakesh Vaid further stated that he had not received any phone call from any Sanjay. Insp. Yashpal and Insp. Satyapal had come to his office and they checked all the files pending with him. In between Insp. Santosh also came there, who asked him to accompany to ACB as some complaint was against him. In his absence, both the inspectors along with other staff of Burari Authority prepared some inspection memo i.e. Surprise check/Scrutiny memo and he got the copy of same later on. In surprise check/Scrutiny memo, no file of the complainant was found pending with him in his office. No CD was played in his presence. He further stated that he has been exonerated in the Departmental Enquiry.
Accused Sanjay Kumar further deposed that at the relevant time he was doing the job of checking of CNG leakage in the vehicles outside the Burari Transport Authority on road and accused Rakesh Vaid was not known to him. He was taken from the road where he was working to ACB by the inspector. He further stated that no CD was played in his presence and no transcription was prepared at the office of ACB in his presence. He further stated that at relevant time, he was not using any mobile no. 9953120056 and he was using mobile no. 9899529618. He further stated that he was not working as a tout at Burari Transport Authority and he had no concern with accused Rakesh Vaid.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 51 of 93Both the accused persons did not prefer to lead evidence in their defence.
Arguments :
9. It is argued by Ld. Chief P.P. for the State that the Jitender Sharma had recorded a sting operation of handing over of bribe amount of Rs.5,000/- to accused Sanjay tout on the instructions of accused Rakesh Vaid, PLTI Inspector, on 25.09.2008. He handed over the spy cam with which the sting operation was conducted along with the recording to ACB Office.
On 27.03.2009, SI Karnail Singh handed over two CDs containing the sting operation conducted by Jitender Sharma and after verifying its contents and the allegations made, the FIR was registered on 27.03.2009. It is stated that Jitender was examined as PW9 and he has essentially supported the allegations against the accused persons. In his testimony he has deposed that he had conducted the sting operation, that the voice in CD Ex. P-2 was his voice and the transcript Ex. PW9/A was prepared by him. It is further argued that PW7 C.P.Singh, FSL Expert, has deposed that there was no indication of any form of alteration in the audio recording. PW9 has also stated that the voice in the video recording was of accused Rakesh Vaid, accused Sanjay Kumar and Jitender Sharma. The said voices have been proved to be their voices as per the FSL reports Ex.PW7/A and Ex.PW7/B. It is thus argued that since the audio-video recording contained in the CDs has been proved on record to be genuine, the voices of the accused persons as well as Jitender Sharma, who had CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 52 of 93 conducted the sting operation, stand identified and even the transcript of the conversation between them stands proved by PW9, therefore, the accused persons are liable to be held guilty of the offences they are charged with.
10. On the other hand, it is contended by ld. Counsel for the accused persons that Jitender Sharma PW9 had stated that in the year 2008 his father had given a complaint to ACB on his behalf wherein it was alleged that the officials at Transport Authority, Burari, were demanding money from him, for clearance of the files relating to scrapping of auto-rickshaws. It is argued that the FIR has been lodged on the basis of the statement of IO/Insp. Santosh Singh and the original complaint is not placed on record.
11. It is further argued that there is unexplained delay in registration of the FIR in as much as the alleged sting operation was conducted on 25.09.2008 and the FIR was registered after the substantial delay, on 27.03.2009. It is further stated that the FIR has been lodged on the basis of inquiry conducted by the IO/Insp. Santosh Kumar Singh whereas Jitender Sharma, who had carried out the sting operation, was available at that time and hence there is no reason why the FIR was not lodged on the statement of Jitender Sharma. It is urged that the FIR filed on the statement of IO/Insp. Santosh Kumar Singh is concocted.
12. It is further argued that PW9 has not supported the case of the prosecution on essential points and he has also not CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 53 of 93 produced the original device with which the sting operation was recorded. It is urged that PW9 Jitender Sharma has given different versions regarding handing over of the original recording device to ACB. PW9 was unable to identify accused Sanjay before the court and he has also denied the contents of the conversation that allegedly took place between him and accused Rakesh Vaid. It is further stated that in his testimony PW9 has categorically stated that he had paid accused Sanjay Rs. 5000/- as fees for clearance of his files. It is stated that even as per the version of PW9, the recording in the spy cam was continuous without any break, however, the CD prepared by Insp. Karnail Singh Ex. P-1 and Ex. P-2 contained 13 files thereby indicating interpolation. It is further stated that the date and time in the recording is incorrect and it does not indicate the date to be 25.09.2008. It is further argued that in the entire video recording in CDs there was no demand and obtainment by accused Rakesh Vaid. The purported video recording only shows alleged acceptance of Rs.5000/- by accused Sanjay and it is not proved that it was purportedly taken by him on behalf of accused Rakesh Vaid. It is stated that even though the video recording shows more than 3-4 persons in the room of accused Rakesh Vaid, however, none of them have been arrayed as witness by the IO. It is argued that the IO has placed on record two transcripts Ex. PW37/D and the other is Ex. PW9/A. It is stated that in Ex. PW9/A, one person indicated as 'other person' has been shown to be continuously present in the transcript and he has not been arrayed as a witness.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 54 of 9313. It is stated that during his tenure accused Rakesh Vaid had handled only four files pertaining to Jitender Sharma and hence, 19 files out of 23 files mentioned in Ex. PW12/B were not dealt with by accused Rakesh Vaid and in fact one of the files of Jitender Sharma had already been cleared by accused Rakesh Vaid during his tenure on 17.09.2008 i.e. prior to the alleged sting operation conducted on 25.09.2008, thereby indicating that there was no harassment caused to Jitender Sharma by accused Rakesh Vaid at any point of time and hence, belying the version of the prosecution. The fact that the files of Jitender Sharma were being cleared even before the alleged sting operation and even thereafter, then there was no question of any illegal gratification being taken for the said work.
14. It is further argued that as per the contents of the FIR, Jitender Sharma was introduced to Sanjay by accused Rakesh Vaid as accused Sanjay had entered his room at the relevant time, however, the video recording of the sting operation does not show that accused Sanjay had entered the room of accused Rakesh Vaid at any point of time. It is stated that the prosecution has failed to establish that there was any connection between accused Rakesh Vaid and accused Sanjay.
15. It is urged that accused Sanjay purportedly seen in the video making a call to someone could have made a call to any person and not necessarily accused Rakesh Vaid. The prosecution has failed to prove that the person at the other end was accused Rakesh Vaid. It is accordingly argued that the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 55 of 93 prosecution has failed to establish any link between accused Sanjay and accused Rakesh Vaid and the only connecting point between accused Rakesh Vaid and Sanjay being a call has not been proved on record.
16. It is averred that even as per the transcript, accused Sanjay had spoken to someone on mobile phone, allegedly with accused Rakesh Vaid and had also stated that the amount against Jitender Sharma had not been told to him by accused Rakesh Vaid. It is stated that nowhere in his conversation does accused Sanjay mention the name of accused Rakesh Vaid and hence the prosecution has failed to prove any link between accused Rakesh Vaid and accused Sanjay. Hence, it is argued that no demand in any form has been made by the accused persons and in absence of proved demand or acceptance on behalf of accused Rakesh Vaid, the accused persons are liable to be acquitted for the charged offences.
17. I have heard ld. Counsel for the parties and perused the record.
18. 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 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 56 of 93 also observed that that while invoking the presumption under section 20 of PC Act, the court is required to consider the 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."
19. 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.:
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 57 of 93"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 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] .)"
20. 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 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 58 of 93 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.
21. The Constitution Bench of Hon'ble Supreme Court 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 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 59 of 93 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 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.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 60 of 93(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."
22. 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.
23. It is the case of the prosecution that accused Rakesh Vaid in conspiracy with his tout accused Sanjay Kumar demanded illegal gratification other than legal remuneration for clearing 25 auto rickshaw files of Jitender Sharma and demanded Rs. 6000/- for clearing each file and in pursuance thereof and under the directions of accused Rakesh Vaid, accused Sanjay Kumar obtained Rs. 5000/- as advance bribe money from CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 61 of 93 Jitender Sharma and accordingly they are liable to be held guilty for the offences charged with.
24. It is argued by ld. counsel for the accused persons that there is no evidence against the accused persons and they are liable to be acquitted of the charged offences. It is urged that there is alleged acceptance of bribe money of Rs.5000/- by accused Sanjay, who has not been identified by Jitender Sharma PW9 and that alone would not be sufficient to hold the accused persons guilty in absence of any evidence of demand.
25. In this regard, Jitender Sharma PW9, who conducted the sting operation, has deposed in his examination-in-chief that in the year 2008, his father was running business of renting, sale and purchase of auto-rickshaws and he was also looking after the work of his father. His father told him that he had grievances with the transport department as they used to demand money and in this regard his father had given a complaint at ACB. PW9 had accompanied him to ACB when the complaint was given by his father on behalf of PW9. His father had complained that the transport officials were demanding money from him. His father had submitted files at the Transport Department, Burari Authority, regarding scrapping of some of the auto-rickshaws which were given on rent by his father to the auto-rickshaw drivers. The officials of Transport Authority were demanding money for clearance of the said files.
26. Accordingly, in his examination-in-chief PW9 made CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 62 of 93 general averments regarding money demanded by the officials of transport authority for clearance of files pertaining to scrapping of auto rickshaws and he did not mention about any specific incident of demand by any particular individual.
27. PW9 was cross-examined by Ld. Addl.P.P. for the State in this regard as he was resiling from the previous statement given to the police and also not disclosing the identity of the accused persons. In his cross-examination by Ld. Addl.P.P. for the State, he affirmed that he had visited the office of PLTI Rakesh Vaid and met him but he did not remember whether PLTI Rakesh Vaid had stated to him "Aapka Kaam Ho Jaiga" or that he had named one person Sanjay and asked him to meet Sanjay outside the office on that day regarding his files and at the same time Sanjay came in the room of PLTI Rakesh Vaid. He further denied that Insp. Rakesh Vaid had introduced Sanjay to him and provided the mobile number of Sanjay to him. He did not remember if he had given the details of files to Sanjay or whether Sanjay told him "Aapke Baavat Kitna Kya Lena Hai Aadesh Nahi Hua Hai". He also did not remember whether accused Sanjay talked to Insp. Rakesh Vaid on his mobile phone. He also denied that after talking to Insp. Rakesh Vaid accused Sanjay told him that Insp. Rakesh Vaid had stated "Jo Deta Hai Le Lo Baki Hisab Baad Mai Ho Jaiga". PW9 did not remember whether he had paid a bribe of Rs. 5000/- i.e. five notes of Rs. 1000/- denomination each at the time of clearing of his file and whether Sanjay counted the notes and kept the same.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 63 of 9328. It is also noteworthy that Jitender Sharma PW9 could not confirm the identity of accused Sanjay appearing in CD-II Ex P-2. PW9 however identified accused Rakesh Vaid appearing in the said CD. The attention of the witness was again drawn by Ld. Addl.P.P. for the State towards accused Sanjay in the video clip in CD Ex. P-2, however, PW9 again stated that he was unable to say that accused Sanjay was the same person who was seen in CD Ex. P-2. PW9 deposed that the transcript Ex. PW9/A was the true version of the sting operation which was done by him.
29. PW9 denied that he was deliberately not identifying accused Sanjay as he had been won over by him. When PW9 was further cross-examined by Ld. Addl.P.P. for the State, he supported the prosecution version to some extent and he affirmed that when he met PLTI Rakesh Vaid, he stated to him "Aapka Kaam Ho Jaiga" and that he had named one person Sanjay and asked him to meet Sanjay outside the office on that day regarding his files. PW9 however again denied that accused Sanjay came in the room of PLTI Rakesh Vaid and accused Rakesh Vaid introduced him to Sanjay and also gave his mobile number to PW9. He further affirmed that accused Rakesh Vaid had also asked him to meet accused Sanjay later on also. He affirmed that accused Sanjay told him "Aapke Baavat Kitna Kya Lena Hai Aadesh Nahi Hua Hai". He volunteered that when he met accused Sanjay and enquired from him whether "Mere Bare Mai Sahab Ne Kuch Kaha Hai" and then accused Sanjay replied "Tere Bare Mai Koi Aadesh Nahi Hua Hai". PW9 further CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 64 of 93 affirmed that accused Sanjay talked to Insp. Rakesh Vaid on his mobile phone. He also denied that after talking to Insp. Rakesh Vaid accused Sanjay told him that Insp. Rakesh Vaid had stated "Jo Deta Hai Le Lo Baki Hisab Baad Mai Ho Jaiga". He affirmed that he had paid accused Sanjay a bribe of Rs. 5000/- i.e. five notes of Rs. 1000/- denomination each at that time for clearance of his file. He volunteered that it was fees for clearance of his files. He denied that he was intentionally not disclosing material facts of the case.
30. In his cross-examination by accused, PW9 deposed that he had not met with any other accused of the present case in the room of accused Rakesh Vaid and that accused Rakesh Vaid had not given him mobile number of any other person. He had never met accused Sanjay prior to the sting operation and even till date. He had met with accused Sanjay as accused Rakesh Vaid told him that his person will meet him outside and thereafter he met with accused Sanjay. When he came outside the room of accused Rakesh Vaid and crossed the varanda, he came outside and only accused Sanjay was present there, who was talking to some other persons, so he guessed that he was the same person whom accused Rakesh Vaid had asked him to meet. No other person spoke to accused Rakesh Vaid or accused Sanjay except PW9 regarding clearance of the files. He further stated that the word "fee" as deposed by him might be a code word of the accused persons. He also stated that there was some official fees also regarding his files. Pertinently he stated that he was told the name of accused Rakesh Vaid and Sanjay while preparing the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 65 of 93 transcript in the year 2019.
31. Accordingly, in his testimony recorded before the court, PW9 identified accused Rakesh Vaid, however, he did not identify accused Sanjay before the court. He however affirmed that accused Rakesh Vaid told him that "Aapka Kaam Ho Jaiga" and had asked him to meet Sanjay outside the office regarding his files and to meet Sanjay later also. PW9 however denied that accused Sanjay was introduced to him by accused Rakesh Vaid or that accused Rakesh Vaid gave him the mobile number of accused Sanjay. He had met with accused Sanjay as accused Rakesh Vaid told him that his person will meet him outside and thereafter he met with accused Sanjay. PW9 also stated that when he came outside the room of accused Rakesh Vaid and crossed the varanda, he came outside and only accused Sanjay was present there, who was talking to some other persons, so he guessed that he was the same person whom accused Rakesh Vaid had asked him to meet.
32. Hence, it emerges from the testimony of PW9 that accused Sanjay was not introduced to him by accused Rakesh Vaid nor his mobile number was given to him by accused Rakesh Vaid nor did accused Sanjay enter the room of accused Rakesh Vaid when he was there. Even PW37 IO/Insp. Santosh Kumar Singh deposed that he was unable to point out any particular frame in CD Ex. P-1 where accused Rakesh Vaid had introduced Jitender Sharma with accused Sanjay or gave his mobile number to Jitender Sharma. PW9 also denied about any details of CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 66 of 93 accused Sanjay being given to him by accused Rakesh Vaid except that accused Rakesh Vaid asked PW9 to meet one Sanjay outside his office. When PW9 came out, he met a person whom he guessed to be Sanjay about whom accused Rakesh Vaid was referring to. He further deposed that the names of the accused persons were told to him by the IO when preparing the transcript in 2019. PW9 did not confirm the identity of accused Sanjay and denied the suggestion that he was not identifying him as he had been won over by him.
33. It is also manifest from the testimony of PW9 that when PW9 met accused Sanjay, he told PW9 that there were no directions regarding how much amount had to be taken from PW9. PW9 stated that he had enquired from accused Sanjay if something had been told to him by 'Sahab'/Sir regarding PW9, at which accused Sanjay replied that there were no directions regarding him. Thereafter accused Sanjay spoke to accused Rakesh Vaid on his mobile phone. However, PW9 denied that accused Sanjay told him that accused Rakesh Vaid had telephonically told him to take whatever PW9 was giving and the remaining calculations would be made later. Thereafter PW9 affirmed that he had paid a bribe of Rs. 5,000/- to accused Sanjay and volunteered that it was fees for clearance of his files.
34. Hence, in view of the testimony of PW9, accused Rakesh Vaid stated that the work of PW9 would get done and that he asked PW9 to meet one Sanjay, who was neither introduced to PW9 by Rakesh Vaid nor his mobile number or other details were CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 67 of 93 given to PW9 by Rakesh Vaid and accused Sanjay had not entered the room of accused Rakesh Vaid when PW9 was in the room of accused Rakesh Vaid. Hence, the allegation regarding demand initially was that accused Rakesh Vaid had told PW9 that his work would get done and asked him to meet one Sanjay outside. When PW9 came out and met accused Sanjay, accused Sanjay told him that there were no directions qua PW9. Hence, till that stage there was no proved demand on record.
35. It is only thereafter that accused Sanjay talked with accused Rakesh Vaid on his mobile phone. PW9 has however denied that thereafter accused Sanjay told PW9 that accused Rakesh Vaid had telephonically told him to take whatever PW9 was giving and the remaining calculations could be done later. Thereafter PW9 gave a sum of Rs. 5000/- to accused Sanjay as bribe. Hence, as per the prosecution version, after making a call to accused Rakesh Vaid, accused Sanjay took a sum of Rs. 5000/- as bribe from PW9 on the directions of accused Rakesh Vaid, which were given telephonically. The prosecution has relied upon the CDR of the mobile phone no. 9999226630 belonging to accused Rakesh Vaid recovered in his personal search vide personal search memo Ex. PW32/C and CDR of mobile number 9953120056 being used by accused Sanjay found in his personal search vide personal search memo Ex. PW32/E to show that on 25.09.2008 the location of mobile phone of accused Rakesh Vaid and accused Sanjay Kumar was at Burari and that they were in touch with each other.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 68 of 9336. In order to prove the telephonic call between accused Rakesh Vaid and accused Sanjay, prosecution has examined PW4, Nodal Officer, Vodafone India Ltd., who produced a list containing the names of the subscribers of the mobile phone numbers 9811111755, 9953120056 and 9999226630 to be Jitender Kumar Sharma i.e. PW9, Amrinder Singh and Rakesh Vaid respectively vide Ex. PW4/A. He deposed that the Customer Application Forms regarding the said numbers were not available as the said numbers had been discontinued for more than three years. He further deposed that the original CDRs of the three mobile numbers for 25.09.2008 was not available being more than one year old and the reply in that regard was Ex. PW4/B. During recording of his testimony the IO PW35 ACP Rakesh Ahuja exhibited the Call Detailed Records of accused Rakesh Vaid vide Ex. PW35/DB, however, the said Call Detail Records are not supported by certificate u/s 65B of the Indian Evidence Act and hence have not been proved in accordance with law by the competent person.
37. Accordingly, neither the Customer Application Form nor the CDRs regarding the aforesaid numbers were proved by the prosecution. Be that as it may, as per the prosecution version a call was made by accused Sanjay to accused Rakesh Vaid in the presence of Jitender PW9, when he had asked accused Sanjay if any direction has been made qua him, at which accused Sanjay had replied that there were no directions regarding how much had to be taken from PW9 and that thereafter accused Sanjay spoke to accused Rakesh Vaid on his mobile phone.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 69 of 9338. Perusal of the Call Detail Records mentioned in the charge-sheet and in Ex. PW35/DB reveals that a call was made from mobile number 9999226630 i.e. mobile number of accused Rakesh Vaid to mobile number 9953120056 i.e. mobile number being used by accused Sanjay on 25.09.2008 at 15:30:08 hours and another call was made a call was made to mobile number 9999226630 i.e. mobile number of accused Rakesh Vaid from mobile number 9953120056 i.e. mobile number being used by accused Sanjay on 25.09.2008 at 18:42:06 hours. In the presence of PW9, during the working hours only one mobile phone call was made between accused Rakesh Vaid and accused Sanjay at 15:30:08 hours and the said mobile call was made by accused Rakesh Vaid to accused Sanjay and not vice-a-versa as has been alleged by the prosecution and as shown in CD Ex.P-2. Moreover, the prosecution has not examined Amrinder Singh who is reflected as the owner of mobile no. 9953120056, which was purportedly being used by accused Sanjay. In fact a statement u/s 161 Cr.P.C. of Amrinder Singh Marked PW36/DA is on record and in that regard PW36/ IO ACP Krishan Lal deposed that on 16.04.2019 he called one Amrinder Singh,whose name was mentioned as the owner in the CAF of mobile phone number 9953120056 and he recorded his statement u/s 161 Cr.P.C. In his cross-examination he deposed that as per the statement of Amrinder Singh Mark PW36/DA, the said Amrinder Singh informed that he never got issued the mobile number 9953120056 and that he had not handed over the said SIM to Sanjay Kumar as he did not know any person by the name of CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 70 of 93 Sanjay Kumar. Accordingly, it is not proved on record that mobile number 9953120056 either belonged to accused Sanjay or if it was given by Amrinder Singh for use to accused Sanjay Kumar. It is also pertinent to note that the IMEI number of the mobile phone recovered from accused Sanjay is not mentioned in his personal search memo Ex.PW32/E nor were the mobile phones of the accused persons produced before the court during trial. Hence, it is not proved on record that accused Sanjay Kumar was using mobile no. 9953120056 on 25.09.2007 when sting operation was conducted by PW9.
39. As discussed herein-above, as per the testimony of PW9, accused Sanjay Kumar did not enter the room of accused Rakesh Vaid when PW9 was in the room of accused Rakesh Vaid; accused Rakesh Vaid did not introduce accused Sanjay to PW9; accused Rakesh Vaid did not give mobile number or accused Sanjay to PW9; accused Rakesh Vaid however told PW9 to meet accused Sanjay outside; when PW9 came outside accused Sanjay was present (whom he did not identify before the court) and so PW9 guessed that he was the same person to whom accused Rakesh Vaid had asked to meet. Hence, till that stage there is no evidence to show a link between accused Rakesh Vaid and accused Sanjay except that accused Rakesh Vaid had told Jitender Sharma PW9 to meet Sanjay and that PW9 met accused Sanjay outside and guessed that he was Sanjay whom Rakesh Vaid had asked him to meet.
40. The only evidence to show that accused Sanjay had CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 71 of 93 accepted Rs.5,000/- as bribe from Jitender pursuant to directions given to him by accused Rakesh Vaid, was the mobile phone call purportedly made by accused Sanjay to accused Rakesh Vaid. The prosecution has failed to prove the mobile phone call between accused Rakesh Vaid and accused Sanjay. Therefore, the identity of the person to whom accused Sanjay had spoken to is not established on record, to be accused Rakesh Vaid.
41. Additionally, PW9 has also denied that accused Sanjay told him that accused Rakesh Vaid had telephonically told him to take whatever PW9 was giving and the calculation can be made later, however, he stated that he paid accused Sanjay a bribe of Rs. 5000/. Hence, as per the testimony of PW9 the bribe amount of Rs. 5000/- was not given to accused Sanjay upon any directions of accused Rakesh Vaid. Accordingly, the prosecution has failed to prove that accused Sanjay had accepted Rs.5,000/- from Jitender PW9 in pursuance of any demand from accused Rakesh Vaid. Moreover, accused Sanjay has not been identified by PW9 Jitender Sharma.
42. The FIR in the present case was registered on 27.03.2009 on the basis of complaint of Insp. Santosh Kumar. It is alleged in the complaint that as per the complainant's version, the amount demanded was @ Rs.6,000/- per file per auto- rickshaw. However, Jitender Sharma PW9 has not deposed about the rate per file of Rs.6,000/- as the amount demanded. None of the statements of PW9 Jitender Sharma recorded on 27.03.2009 (Mark-X), 17.02.2012 (Mark-B), 02.04.2012 (Ex.PW9/B), CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 72 of 93 21.10.2019 (Ex.PW9/E) reveal about any demand of Rs.6,000/- per file per auto-rickshaw. In this regard, PW-37 Insp. Santosh Kumar deposed that accused Sanjay told Jitender Sharma that he had to pay a bribe of Rs.6,000/- per case per file and asked him to give whatever amount he had brought on that day. In his cross-examination PW37 admitted that the demand of Rs. 6,000/- per file, which as per rukka was made by accused Sanjay to Jitender Sharma after making a call to Rakesh Vaid, is not there. Moreover, no such fact has been deposed by PW9 Jitender Sharma nor was this fact put to PW9 during his cross- examination by Ld. Addl. PP for State. In these circumstances, the fact that the accused persons had demanded an amount of Rs.6,000/- per file per auto-rickshaw is not substantiated from the record. Moreover, the sting operation was conducted on 25.09.2008 and the present FIR was registered on 27.03.2009. The statement of Jitender Sharma was also recorded U/s 161 Cr.P.C. on 27.03.2009 wherein he does not make any assertion that he had given any further amount for clearance of his files apart from bribe amount of Rs.5,000/- which was given to accused Sanjay on 25.09.2008 when the sting operation was conducted.
43. As per the complaint Ex.PW37/A, Jitender Sharma met PLTI accused Rakesh Vaid regarding clearance/transfer of 25 auto-rickshaw files on 25.09.2008. In this regard, PW-9 deposed that he does not remember if he had gone to Burari Transport Authority for clearance of his 25 pending files and that his files would not be cleared without giving bribe in advance. PW-37 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 73 of 93 Insp. Santosh Kumar deposed that Jitender Sharma came to know that without giving bribe, his work regarding transfer/clearance of 25 auto-rickshaw files would not be done.
44. Ex.PW12/B mentions the details of the vehicles belonging to Jitender Sharma for scrapping of his auto-rickshaws during the year 2008. The said list mentions 23 vehicles/autos which were pending between 28.02.2007 till 22.07.2009. As per Ex.P1, accused Rakesh Vaid was posted as PLTI, Burari w.e.f. 21.05.2008. It is noted that as per Ex.PW12/B, out of 23 files pending with Burari Transport Authority for scrapping, 16 files had already been cleared before accused Rakesh Vaid joined Burari Transport Authority as PLTI. One file was cleared on 17.09.2008 i.e. before the sting operation was conducted on 25.09.2008. Three files were cleared during the tenure of accused Rakesh Vaid after the sting operation on 25.09.2008 and the remaining three files were cleared after the arrest and suspension of accused Rakesh Vaid on 27.03.2009, owing to the present case. It is also noteworthy that despite the fact that it has been alleged that money had been demanded for clearance of files, however, apart from payment of bribe money of Rs.5,000/- to accused Sanjay, no further demand or payment of bribe money has been asserted by Jitender Sharma subsequently and even till 27.03.2009, when his statement was recorded by the IO, Insp Santosh Kumar under section 161 Cr.P.C., before which three more of his files had been cleared during the tenure of accused Rakesh Vaid.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 74 of 9345. As held by the Hon'ble Supreme Court in Neeraj Dutta case (supra), in order to bring home the offence under Section 7 of the Act, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. The fact that accused Rakesh Vaid told PW9 that "Aapka kaam ho jayega" and that he asked him to meet one Sanjay outside, who told him that no directions had been passed qua PW9, would not amount to a demand in terms of section 7 of the Act. Further, in absence of any evidence of prior demand by accused Rakesh Vaid and mere acceptance of an amount of Rs 5000/- by tout accused Sanjay (who was not identified by PW9), would not be sufficient proof to hold the accused persons guilty of the charged offences.
46. The prosecution has also relied upon the audio- video recording of the sting operation contained in CDs Ex.P1 and Ex.P2, conducted by the Jitender Sharma PW9 in support of its version.
47. The original device i.e. spy cam through which the sting operation was recorded has not been produced before the Court, therefore, the prosecution is relying upon the CDs Ex.P1 and Ex.P2 in support of its case. Now it has to be examined as to whether the prosecution has proved the two CDs as secondary evidence to prove the fact that the accused persons demanded or obtained any bribe from Jitender PW-9 which was allegedly recorded by him through his spy cam. Admittedly, as per case of prosecution, on 27.03.2009, PW-3 SI Karnail Singh had prepared CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 75 of 93 two CDs in ACB from the official computer of ACB, data of which was stored in office computer. The two CDs had same content and were of make 'Moserbaer'. CDs were marked as CD1 and CD2 by Insp. Santosh Kumar and CD1 was kept in a sealed pullanda and CD2 was open for the purpose of investigation. Both the CDs were seized vide seizure memo Ex. PW3/A. PW-3, PW-9 and other official witnesses identified CD1 as Ex. P-1 and CD-II as Ex. P-2. On 31.10.2019, PW3 prepared Certificate u/s 65(B) of Indian Evidence Act Ex. PW3/B in respect of said two CDs and handed over to IO. Therefore, the CDs Ex.P1 and ExP2 being secondary evidence are required to be proved as per Section 65-B of Indian Evidence Act.
48. 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 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 76 of 93 conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in 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.CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 77 of 93
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.
17. 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."
49. 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 CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 78 of 93 (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 checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled".
50. 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.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 79 of 9351. Firstly, the source of the original electronic record has to be proved. In the present case, the original electronic record ie a video-recording is stated to be made by PW9 with the help of a spy cam with which he conducted the sting operation. Admittedly, the spy cam/ memory card containing the original recording has not been brought on record. It is therefore to be seen as to whether it is proved that the CDs Ex. P-1 and Ex. P-2 are the secondary evidence of the original electronic record as contained in the spy cam. As regards the original device from which the recording was made, PW9 in his examination-in-chief stated that the IO enquired him about the original device which was used to carry out the sting operation and he informed the IO that he did not have the original device and he further told the IO that the original device was not given to him by his father. PW9 also expressed his inability to the IO to produce the original device. PW9 also stated that he was not aware if his father had deposited the recording device at ACB.
52. In his cross-examination by Ld. Addl.P.P. for the State, PW9 affirmed that he had deposited the recording of the sting operation at ACB and that he had recorded the entire proceedings in a spy camera. He also affirmed the suggestion that he had submitted the recordings of the sting operation done by him at ACB. He however, denied that he had handed over the aforesaid recordings of the sting in two CDs to ACB officials. Additionally he volunteered that he had handed over the original CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 80 of 93 device i.e. the spy camera to ACB officials. He denied that the two CDs were marked as CD-I and CD-II and the same were played at ACB Office on a computer and after verifying the same, CD-I was sealed. PW9 also affirmed the suggestion of the prosecution that he had handed over the spy camera to SI Karnail Singh on the day when he had conducted the sting operation. However, he denied the suggestion that on 17.02.2012 in his presence the recording of the sting was saved in the office computer at ACB by SI Karnail Singh. He did not remember whether the recording of sting was played on that day and he had identified the recording and its transcription.
53. He further affirmed that CD marked as CD-II Ex.P-2 was played by the IO at FSL and that after seeing the recording, he verified that the recording was of the sting operation which was done by him in the month of September 2008 at Transport Authority Burari. PW9 also identified CDs Ex.P-1 and Ex. P-2 and stated that they contained the recording of the sting, which he had conducted at Transport Authority Burari. PW9 further affirmed that he had handed over the spy camera along with the recording to SI Karnail Singh on the same day when the sting was conducted in his office and the contents of the spy camera i.e. sting operation were transferred and saved in a computer by him in his office.
54. In his cross-examination by ld. Counsel for the accused PW9 deposed that no recording device was given to him by the ACB officials for conducting the sting operation but he CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 81 of 93 purchased the recording device i.e. spy camera at his cost. He purchased the spy cam when he returned from ACB office and he was advised to record the sting. He did not remember the name of the shop or area from where he purchased the spy cam. He was not having bill regarding purchase of spy cam. He did not remember the make or brand of the spy cam. He had used the spy cam for the first time for conducting sting when he went to the transport department and before that he had never used the spy cam. He did not remember the storage capacity of the spy cam.
55. PW9 Jitender further deposed that after sting operation, he immediately went to the office of ACB. He did not remember the name of the police official who met him. On that day his statement was not recorded by that officer and his device was taken by him. He did not remember and stated that perhaps no seizure memo was prepared for taking the device in police possession. After the sting operation, he went 3-4 times in the same month, to the office of ACB. He did not remember the name of the officer but the same officer met him when he visited at the office of ACB during that month. PW9 deposed that he was not aware as to what happened to his device which he handed over to the said officer of ACB. He stated that there was USB device in his spy cam through which CD could be prepared. In his presence, the data of spy cam was not transferred in any computer or CD by any police officer including the officer with whom he used to meet.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 82 of 9356. PW9 was re-examined by the Ld. Addl.P.P. for the State and he was questioned as under :
"Q. I put it to you that in your examination in chief you have deposed that you handed over the spy camera alongwith the recording i.e. sting to SI Karnail Singh on the same day when the sting was conducted in the office and the contents of the spy camera i.e. sting operation was transferred and saved in a computer by him in his office but in the cross-examination by ld. Defence Counsel you have deposed that the contents of the sting operation were not transferred and saved in a computer to whom you had handed over the spy camera, which one of the statements is true ? Ans. I had given the device to the police officer and went away. I could not understand the suggestion of the Ld.Addl. PP for the State as to why I deposed that the data was transferred in my presence from my spy camera."
57. Accordingly, from the testimony of PW9 it can be discerned that he has taken varied stands as regards handing over of the original device at ACB. Whereas in his examination-in- chief initially he stated that he had told the IO that he did not have the original device nor his father had given the original device to him. He expressed his inability to trace the original device. Subsequently, in his cross-examination by the Ld. Addl.P.P. for the State he stated that he had recorded the sting operation in a spy camera and submitted the recording of the sting operation at ACB. He further volunteered that he had handed over the original device i.e. the spy camera to ACB officials. Thereafter he affirmed that he had handed over the spy camera to SI Karnail Singh on the day of sting operation and that the sting operation was transferred and saved in a computer by SI Karnail Singh in his office. PW9 did not remember the details of the purchase i.e. shop, invoice, make, brand, storage capacity etc. CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 83 of 93 of the spy camera. He also stated that in his presence the data of the spy camera was not transferred in any computer or CD by any police officer including the officer with whom he used to meet. On a specific question being put to him by ld. Addl.P.P. for the State in his re-examination, PW9 deposed that he had given the recording device to the police officer and went away. Hence, on one hand PW9 expressed his inability to produce the original device in his examination-in-chief and subsequently in his cross- examination by Ld. Addl.P.P. for the State he maintained that he had handed over the spy camera to SI Karnail Singh on the day when he had conducted the sting operation and that the contents of the spy camera were transferred and saved in a computer by SI Karnail Singh in his office. Eventually in his re-examination by Ld. Addl.P.P. for the State he stated that he had given the device to the police official and went away.
58. It is relevant to note that PW3 SI Karnail Singh in his cross-examination stated that he did not remember when he had received and saved the data on his office computer, however, he stated that he was the custodian of the electronic data between 25.09.2008 and 27.03.2009. He did not remember about the recording gadget used by Jitender or whether the recording device was handed over to him and when he had saved the original data in the computer or by whom the original data was given. No panchnama / seizure memo was prepared regarding handing of the recording device or the original data by the ACB. PW3 also stated that the computer on which the files were saved was not password protected and other people had access to the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 84 of 93 said computer.
59. Pertinently, PW3 in his examination-in-chief only deposed regarding the facts that transpired on 27.03.2009 when he had prepared two CDs (CD-1 Ex. P-1 and CD-II Ex. P-2)from the data stored in the office computer of ACB in the presence of Insp. Santosh Kumar Singh and Insp. Rajesh Kumar. The said CDs were seized by the IO vide seizure memo Ex. PW3/A. PW3 also handed over a certificate u/s 65B Indian Evidence Act regarding the aforesaid two CDs to the IO vide Ex. PW3/B on 31.10.2019.
60. Perusal of Ex. PW3/A reveals that the said seizure memo was prepared on 27.03.2009 regarding the two CDs which were prepared at around 07.10 am by SI Karnail Singh. Seizure memo Ex. PW3/A has no mention of the original recording device. PW3 SI Karnail Singh handed over certificate u/s 65B of the Indian Evidence Act to Insp. Santosh Kumar in respect of the aforesaid two CDs on 31.10.2019, which also has no mention of the original device or recording.
61. Accordingly, even though PW9 had deposed that he had handed over the original recording device i.e. the spy camera to SI Karnail Singh on the date of the sting operation, however, SI Karnail Singh has not deposed regarding the handing over of the original recording device to him by PW9. Jitender Sharma PW9 has also deposed that the data of the spy cam was not transferred in any computer or CD by any police officer in his CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 85 of 93 presence. Moreover, in his examination-in-chief SI Karnail Singh has made no mention of the facts that transpired on 25.09.2008 and he has essentially deposed regarding the two CDs that were handed over by him to the IO on 27.03.2009 and the certificate u/s 65B of Indian Evidence Act Ex. PW3/B.
62. In the present case, the original recording device or the details thereof are not available on record. Moreover, neither PW9 Jitender Sharma has deposed that he had downloaded the original recording from the recording device nor has PW3 deposed that he had downloaded the contents from the original device on the official computer at ACB. It is not proved on record that the CDs Ex. P-1 and Ex. P-2 were prepared from the original recording as contained in the original device. Hence, the source of the electronic record has not been proved on record.
63. In order to prove the genuineness of the electronic record as contained in the two CDs, the IO PW37 sent CD-I i.e. Ex. P-1 to FSL Rohini for evaluation and analysis along with the voice sample of Jitender Sharma and the accused persons contained in audio cassettes being Ex. P-3 to P-5. The CD Ex. P- 1 containing the audio-video recording and the audio cassettes containing the voice samples were examined by the FSL expert and the finding of the FSL expert in this regard as contained in the FSL report Ex. PW7/A are as follows :
"On auditory analysis by critical listening and subsequent waveform and spectrographic analysis of the audio recording in audio file "CX1980-01-04-
015.AVI" in CD marked "Exhibit-1", there is no indication of any form of alteration in audio recording.CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 86 of 93
The auditory analysis of recorded speech samples of speakers Marked "Exhibit Q1" and subsequent acoustic analysis of speech samples by using CSL (computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q1" are similar to the voice exhibits of speaker marked "Exhibit-S1" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibits of speakers marked "Exhibit Q1" and "Exhibit S1" are the voice of same person (i.e. Sh. Rakesh Vaidya).
The auditory analysis of recorded speech samples of speakers marked "Exhibit Q2" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q2" are similar to the voice exhibits of speaker marked "Exhibit-S2" in respect of their acoustic cues and other linguistic and phonetic features.
Hence, the voice exhibits of speakers marked "Exhibit-Q2" and "Exhibit-S2" are the possible voice of same person (i.e. Sh. Sanjay Kumar)."
64. The finding of the FSL expert in this regard as contained in Ex. PW7/B are as follows :
"The auditory analysis of the recorded speech samples of speakers marked "Exhibit Q3" and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked "Exhibit Q3" are similar to the voice exhibits of speaker marked "Exhibit-S3" in respect of their acoustic cues and other linguistic and phonetic features.
OPINION :- The voice exhibits of speakers marked "Exhibit-Q3" and "Exhibit-S3" are the voice of same person (i.e. Sh. Jitender Kumar Sharma)."
65. In view of the FSL report Ex. PW7/A, the authenticity of the audio recording contained in CD Ex. P-1 was established as it was opined that there was no indication of any form of alteration in the audio recording. Additionally, as per the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 87 of 93 FSL report Ex. PW7/A and Ex. PW7/B, the voice sample of accused Rakesh Vaid, Jitender Kumar Sharma and Sanjay were the voice of the speakers in CD Ex.P-1 make "Moserbaer" containing the recording.
66. In the present case admittedly PW-9 Jitender had made a video recording of the incident. In this context, FSL expert PW-7 Dr. C.P. Singh deposed that Ex.P-1 contained 13 audio files. In his cross-examination he again stated that file CX1980-01-04-015.AV1 was an audio file and other 12 files were also audio files, then he again stated that they were audio video files. He had examined only file no. CX1980-01-04-
015.AV1 on the basis of transcription as provided. He also deposed that his finding was valid only for audio track. He could not comment whether there was any co-relation between words spoken by the respective speakers with the relevant video as his examination was confined only to audio track. He also deposed that the original media had not been provided to him. Perusal of the FSL report Ex.PW7/A reveals that Exhibit-1 was assigned to CD of make 'Moserbaer' containing 13 audio files and thereafter the files were detailed. Hence even the FSL report Ex.PW7/A mentions 'audio files' only. The report of Dr. C.P.Singh Ex. PW7/A pertains only to the audio recording as contained in the CD Ex. P-1, and no frame by frame examination or any examination of the video contained in the CD Ex. P-1 was carried out to rule out the possibility of alteration in the video recording as contained in the CD Ex. P-1.
CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 88 of 9367. Additionally, as regard the contents of the CDs Ex. P-1 and Ex. P-2, PW9 Jitender stated that the entire recording in the spy cam was only relating to the sting operation and no other recording was done by him. The recording in the spy cam was continuous without any break. During recording of his testimony CD Ex. P-2 was played before the court and there were 13 files appearing in the CD. PW9 stated that except the sting operation i.e. file no. CX1980-01-04-015.AVI, he had not made any other file.
68. PW9 was however not the maker of the CD Ex. P-2. As regards the contents of the CDs Ex.P-1 and Ex.P-2 handed over by PW3 to the IO, PW3 deposed that the data saved by him on the computer and the CDs made by him only had information pertaining to the present case and no other files were either saved or loaded on the CDs prepared by him. He had checked the CDs to see that the data had been properly copied on it and he was not aware about the contents of the present case. Pertinently, PW3 deposed that he could not vouch for the correctness/ alterations/changes/additions etc. whether made before the original recording media was handed over to him. He also deposed that his computer was not password protected and other persons working in department had access to the computer on which the data was saved.
69. Accordingly, the official computer at ACB from CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 89 of 93 which the two CDs Ex. P-1 and P-2 were prepared was not under exclusive control of PW3 and even the files saved by him were deposed to be not password protected. The CDs handed over by PW3 Karnail Singh were deposed as containing files pertaining to the present case only and PW9 also has specifically deposed that there was one continuous video recording in the spy cam which was without any break, however, CD Ex. P-2 contained 13 files out of which only file no. CX1980-01-04-015.AVI was stated by PW9 to have been made by him. It is also noteworthy that the date appearing in the video recording contained in CD Ex. P-2 is 04.01.1980. There is no explanation forthcoming, on record, regarding discrepancy in the date of recording as seen in Ex. P-2 viz-a-viz the date of recording as per the prosecution version which is 25.09.2008. In these circumstances the authenticity of video recording remains questionable.
70. Accordingly, in view of the aforesaid the two hallmarks pertaining to electronic record i.e. its source as well as genuineness are not established in the facts of the present case and hence the two CDs Ex. P-1 and Ex. P-2 are inadmissible in evidence in view of Section 65B of the Indian Evidence Act.
71. It is argued by Ld. Chief P.P. for the State that PW9 Jitender Sharma has proved the contents of the transcript dated 21.10.2019 and hence the allegations against the accused persons stand proved through the transcript Ex. PW-9/A (colly).
72. As discussed herein-above, the audio video CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 90 of 93 recording contained in CD from which the transcript Ex. PW9/A were prepared has been held to be inadmissible in evidence. PW9 has deposed only regarding some facts in his testimony recorded before the court which are at variance with the contents of the transcription Ex. PW9/A. However, no explanation was sought from PW9 regarding the said discrepancies. In reference to the transcript, PW9 has also deposed that he was shown a video and asked to write the audio part of the video on a paper which he wrote and he read them. Some of the words in the audio were not clear and one of the officials there told him regarding the words, which were not clear and he repeated the same. He also deposed that in 2019 Insp. Kishan Lal of ACB visited his house along with the laptop and he played a CD on his laptop and PW9 was provided with the head phone and asked to write the audio contents of the CD, which was played. PW9 pointed out that the audio quality of the video was not clear at which Insp. Kishan Lal explained those words to him, which were not clear. Thereupon PW9 noted down the contents of the audio on a paper and Insp. Kishan Lal was also typing the same. He also said that at the first instance his signatures were obtained by Insp. Kishan Lal on the said paper on which PW9 wrote the contents of the audio and thereupon Insp. Kishan Lal also typed those contents of the audio on the laptop. Thereafter one official, who had accompanied Insp. Kishan Lal, went outside with the said laptop and brought one printout on which the signatures of PW9 were obtained.
73. Accordingly, from the testimony of PW9 it emerges CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 91 of 93 that the audio quality of the video was not clear and the contents of the inaudible portions were explained to him by Insp. Kishan Lal. Signatures of PW9 were obtained on a paper and thereupon Insp. Kishan Lal typed the contents of audio in a laptop on the basis of the contents of the audio written by PW9 on a paper. Printout was brought by one police official and his signatures were obtained thereon. Hence, in view of the testimony of PW9 it cannot be safely concluded that the transcript Ex. PW9/A is the correct version, as per PW9, of the audio video recording contained in the CD as some portions of it are stated to be inaudible, which were explained to PW9 by the police officials on the basis of which the said transcript was prepared. Perusal of the transcript as well as the video recording as contained in CD Ex.P-2, which is on judicial record reveals that there are certain inaudible portions in CD Ex.P-2. Additionally, though accused Sanjay (who has not been identified by the PW9) is stated to be speaking as per the transcript, at around 1:00:37 hours in the video, whereas, he appears in the video, later, at about 1:01:09 hours, from in front, some distance away from Jitender Sharma PW9, who was making the video recording. Furthermore, on carefully viewing the CD Ex P2 available on record, it is noticed that the words in the transcript Ex. PW9/A attributed to accused Sanjay do not match with the lip movements of accused Sanjay. As discussed, the frame by frame examination of the video recording was not got conducted at the time of FSL examination and hence, the authenticity of the video recording remains questionable. Furthermore, considering the fact that the contents of the transcript, which is based upon the CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 92 of 93 aforesaid video recording which is held to be inadmissible in evidence, are not corroborated any other cogent piece of evidence, the same cannot be relied upon to hold the accused persons guilty of the offences they are charged with.
74. In view of the aforesaid discussion, the prosecution has thus, failed to prove its case against the accused persons for the offences they are charged with and to bring home the guilt of the accused persons beyond reasonable doubt. The accused persons are thus entitled to benefit of doubt and therefore, acquitted of the charged offences.
75. Their bail bonds stand cancelled and sureties stand discharged.
76. File be consigned to record room after due compliance.
Digitally signed byDEEPALI DEEPALI SHARMA Announced in the open Court SHARMA 15:07:30 +0530 Date: 2023.11.08 on 7th November, 2023 ( Deepali Sharma ) Special Judge (PC Act) (ACB-01) Rouse Avenue Courts Complex New Delhi CC No. 35/2021 FIR No. 09/2009, PS ACB, State vs. Rakesh Vaid & Anr. Page 93 of 93