Delhi District Court
State vs Si Anil Kumar on 18 April, 2023
IN THE COURT OF SANJEEV KUMAR MALHOTRA
SPECIAL JUDGE: (PC ACT): (ACB-01):
RADC: NEW DELHI
CC No. 30/2019
CNR No.DLCT11-000211-2019
FIR No. : 01/2014
U/s : 7/13 (1) (d) of PC Act, 1988
PS : Vigilance
State VERSUS SI Anil Kumar
S/o Sh. Om Pal Singh
R/o H. No. 4658, Street no.7,
Old Seelampur West,
Gandhi Nagar, Delhi -110031
Permanent Address :
Village - VPO-Datiyana,
Distt.- Muzaffarnagar,
UP-251001.
Date of Institution : 01.06.2018
Date of Arguments : 18.04.2023
Date of Judgment : 18.04.2023
JUDGMENT
1. Brief facts of the present case as per the charge-
sheet are that on 04.02.14, Sh. L. C. Yadav, ACP/VIU/Vigilance gave a complaint cum rukka to Duty Officer, PS Vigilance Unit, Delhi that today i.e. on 04.02.14, TV channel Aaj Tak (Hindi) has aired a programme namely "Operation Delhi Police" from 20:00 hours onwards and in the said programme, several police officials of Delhi police are seen accepting bribe for doing some official duty and it FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 1 of 59 is clear from the telecast that SI Anil Kumar of PS Kalyanpuri, Delhi while on official duty is seen accepting gratification from an undercover agent of the said TV channel in lieu of settling a matter and thereby prima facie committed an offence u/s 7/13 (1) (d) of PC Act, 1988. It is stated that as per the approval of senior officers, a case is to be registered against the said official and accordingly, a case u/s 7/13 (1) (d) of PC Act, 1988 be registered and investigation of case be handed over to Insp. M. S. Shekhawat/Vigilance. On the basis of above complaint/directions, the present case FIR no.1/2014 was registered u/s 7/13 (1) (d) of PC, 1988 Act against accused.
2. After registration of the case, during the course of investigation, three unedited DVDs of subject sting operation containing raw footage were obtained from Sh. Satya Prakash, Asst. Manager, Legal Department, TV Today Network Limited. It is stated that with the help of above three DVDs, video files relating to the sting of SI Anil Kumar were transferred to a separate DVD by the computer operator of Vigilance branch. Sh. Akshay Singh and Sh. Sapan Gupta, who had conducted the sting operation were examined and their statements u/s 161 Cr.P.C. were recorded.
3. The gist of the statement of Sh. Akshay Singh is that he is a special correspondent in Aaj Tak TV Channel, India Today Group and to expose corruption in Delhi police, they were told to conduct sting operation by inducing and giving bribe to police officials at different police stations and to FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 2 of 59 traffic police officials which would be telecasted on Aaj Tak Channel. Thereafter, he alongwith Sapan Gupta, Intern Correspondent Aaj Tak made a plan to conduct sting operation of some police official of PS Kalyanpuri, as so many complaints regarding corruption were being received from there. On 30.01.2014, in the evening at about 04 pm to 06 pm, he told Sapan Gupta to go inside the PS and inform any senior officer that he had a deal of car with his friend for a sum of Rs.2 lac, out of which, Rs.80,000/- were already paid, but his friend is neither giving him the car nor returning Rs.80,000/-. He further asked Sapan Gupta to convince the police officer to sort out the said matter without any complaint and to call him by any way as the elder brother of his friend, so that he can offer bribe and record the transaction of accepting bribe by the police officer with his I-phone. As per their plan, Sapan Gupta went inside the PS and after seeing the name of SI Anil Kumar on a notice board as Emergency Officer, went to him at first floor and talked with him as per pre-planned story and also did the recording in his I-phone. As per plan, Sapan Gupta came outside the PS and told Akshay Singh about the entire conversation and also informed him about the location of room of SI Anil Kumar. Thereafter, Akshay Singh went inside the room of SI Anil Kumar and told him that he is elder brother of Umesh, who has taken Rs.80000/- from Sapan Gupta for sale of his car. He requested him not to register the FIR as his younger brother is a student and told him that he has returned Rs.45,000/- to Sapan Gupta FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 3 of 59 and will give remaining amount of Rs. 35,000/- to him tomorrow. Thereupon, Akshay Singh inquired from SI Anil Kumar about his fee, on which, he replied that "he never forced anyone and whatsoever appears to him as sufficient or appropriate". After some time, Akshay Singh took out Rs.5000/- from his pocket and kept the same on the table of SI Anil Kumar and told him that same are Rs.5000/- and in his presence, SI Anil Kumar took Rs.5000/- from the table and thereafter Akshay Singh came outside. He did the recording of the entire incident on his I-phone. Thereafter, he and Sapan Gupta, both transferred the sting operation conducted by them on the office computer of Aaj Tak Channel and deleted the recordings from his I-phone as they used to record incidents or sting operations continuously from their I-phone. Basically I-phone is a recording device and it did not contain any SIM number.
4. During investigation, statement of Sapan Gupta u/s 161 Cr.P.C. was also recorded, who corroborated the version of Akshay Singh. The CD of sting operation was seized and transcript of sting operation was also prepared. Accused SI Anil Kumar refused to give his voice sample, whereas Akshay Singh and Sapan Gupta have provided their voice samples at CFSL, CBI. Voice sample of Akshay Singh and Sapan Gupta were matched with the questioned voice and FSL expert opined the same to be probable voice of Akshay Singh and Sapan Gupta. As per CFSL report, the audio recordings in sting operation are in continuity and no form of tampering/editing could be detected. Further, it is FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 4 of 59 informed by Aaj Tak Channel that the original device has been deposited in the UP Vidhan Sabha in connection with Muzzafarnagar riots. Sh. Akshay Singh, Special Correspondent expired during investigation and his death certificate was obtained.
5. As per the contents of sting operation, transcript and other evidence, it was found that accused SI Anil Kumar of PS Kalyanpuri has accepted bribe of Rs.5,000/- from Akshay Singh. Thereafter, prosecution sanction was obtained and the charge-sheet was filed in the court. Cognizance of offence under section 7/13(1)(d) of PC Act was taken on 01.06.2018.
6. Thereafter, accused SI Anil Kumar was summoned and after hearing the arguments, charge for the offence under Section 7 of PC Act was framed against accused vide order dated 30.04.2019, to which he pleaded not guilty and claimed trial.
7. In order to prove its case, prosecution examined 25 witnesses. The brief summary of the evidence of prosecution witnesses is as under :
8. PW-1 is Sh. Sapan Gupta, who deposed that in the year 2014, while he was working as an Intern with TV Today, AAJ Tak, a team was constituted to conduct the reality check regarding rampant corruption in Delhi Police. He further deposed that he was attached with Sh. Akshay Singh (since expired) and they planned to make a fictitious story and were supposed to approach Delhi Police official.
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 5 of 59PW-1 deposed that probably in January 2014, he alongwith Sh. Akshay Singh went to PS Kalyanpuri in the evening and on the direction of Sh. Akshay Singh, he entered in the premises of PS Kalyanpuri and told the concerned official at reception counter that he has some grievance, who told him to contact accused SI Anil Kumar on the first floor in that regard. He further deposed that he met SI Anil Kumar and told him that he had paid Rs.80,000/- to his friend namely Umesh for purchase of his car, who is neither returning the amount nor giving the car and the amount which he had told to SI Anil Kumar for sale transaction was around Rs.2 lakhs. PW-1 deposed that he asked accused SI Anil Kumar to contact Sh. Umesh and tell him to either return his amount or give him the car, upon which, SI Anil Kumar told him to contact Sh. Umesh and call him at PS Kalyanpuri. He further deposed that thereafter, he went outside and after some time returned and told SI Anil Kumar that he could not contact Sh. Umesh as his phone was not reachable, but he had spoken to the elder brother of Sh. Umesh and asked SI Anil Kumar as to whether he can call him at PS Kalayanpuri, upon which, accused SI Anil Kumar told him to call the elder brother of Sh. Umesh and thereafter, he went outside the police station. PW-1 deposed that he informed all the aforesaid facts to Sh. Akshay Singh and thereafter, Sh. Akshay Singh went inside PS Kalyanpuri and came out after sometime. He further deposed that thereafter he alongwith Sh. Akshay Singh returned to their office and the footage of the sting operation was handed over to the FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 6 of 59 office.
8.1. PW-1 deposed that he had done the recording with the help of I-phone 5S, on both the occasions when he went inside PS Kalyanpuri and that the I-phone was handed over to Sh. Akshay Singh before he went inside the PS Kalyanpuri. PW-1 deposed that the sting was thereafter telecasted on the TV Today, AAJ Tak channel and Headlines Today, which is also known as India Today. He further deposed that thereafter a request was made by PS Vigilance to provide the unedited footage of the sting and the legal department of the office sent the unedited footage as well as a copy of the telecasted programme to PS Vigilance. PW-1 deposed that during investigation, they were called at PS Vigilance and accordingly, he alongwith Sh. Akshay Singh went to PS Vigilance, where their statements were recorded and both the footages i.e. the unedited sting operation pertaining to him as well as the telecasted programme of approximately one minute pertaining to him were shown and he confirmed that the footages are the same which he had recorded and the DVD was sealed and taken into police possession vide memo Ex.PW1/A. He further deposed that thereafter, he was called for recording of his sample voice and his sample voice was recorded in the micro SD card which was taken into police possession vide memo Ex.PW1/B. He further deposed that he had conducted the sting operation on 30.01.2014 and Sh. Akshay Singh told him about what had transpired inside the PS and that he met with accused SI Anil Kumar and asked him that no case FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 7 of 59 should be lodged. PW-1 deposed that Sh. Akshay Singh told him about the transaction of Rs.5,000/- which he had paid to accused SI Anil Kumar. He identified the footage of file no.3.mov of DVD Ex.P2 and confirmed that it is the same recording which he had done on 30.01.2014. He also identified the transcript Ex.PW1/D and file no.1.mov from DVD Ex.P1 and confirmed that it is the same audio-video recording which Sh. Akshay Singh had shown him after he came out from PS Kalyanpuri and also identified the accused in the audio-video recording to whom Sh. Akshay Singh had given Rs.5000/-.
8.2. During his cross-examination, PW-1 deposed that no special team was created for the operation and there was already existing a SIT team and Mr. Deepak Sharma was the head of the team. He further deposed that Sh. Deepak Sharma was the part of Editorial Team and Sh. Puneet Jain was not part of Editorial Team but he was heading the Legal Department. To a specific question, PW-1 deposed that there were set of computers in the SIT Team which were being used by the team members based on the requirement and he cannot tell who was the Incharge of those computers. He further deposed that computers were used by him and Akshay Singh based on the availability of the computer and requirement of the work. He further deposed that there was a library in their office and the entire data in the form of audio-video or text files of their company was being maintained in the library for the future use, but he does not know who was the head of the library. He further deposed FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 8 of 59 that the Editorial Team took the decision to conduct the sting operation including sting operation of present case and the meeting of Editorial Team took place about one week prior to sting operation conducted in the present case. To a specific question as put by Ld. Defence counsel, PW-1 replied that mobile phones iphone 5S were issued earlier to the person part of the SIT team, who subsequently resigned and thereafter, these mobile phones were handed over to them by the previous team members. He further confirmed that there was no separate memory card in the mobile phone and it had an inbuilt memory.
8.3. PW-1 confirmed that Sh. Akshay Singh had gone alone and he directed him to go to first floor only. He further deposed that he has seen the video in the mobile phone itself on the same day when he alongwith Akshay Singh were returning to the office in the car. He further deposed that the mobile phone was placed on the table with its front camera upside facing the roof and the said phone was lying in the same position for the entire period when he was sitting before the accused and during that period, he checked the mobile by picking up from the table and putting again on the table so that accused did not have suspicion of recording. To a specific question, PW-1 deposed that he cannot tell as to whether the recordings on the day of sting was done in two mobile phones or in one phone and that he does not know whether Sh. Akshay Singh had done the recording in the same mobile phone in which he had done the recording as Sh. Akshay Singh was carrying two exactly FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 9 of 59 resembling iphone devices. He confirmed that he has not seen the signature of Akshay Singh earlier but have seen only at the seizure memo when it was shown to him in the Court.
9. PW-2 is HC Mahesh Kumar, who deposed that on 07.02.2014, ACP L.C. Yadav gave him three DVDs with direction to prepare separate DVD of each incident and to give the same to different IOs case wise. He further deposed that as per direction, he prepared separate DVDs of each incident and gave the same to different IOs. PW-2 deposed that the DVD Ex.P1 of the present case was pertaining to accused SI Anil Kumar, who was posted at PS Kalyanpuri and same was handed over to the IO by him. PW-2 also issued certificate U/s 65-B of Indian Evidence Act i.e. Ex.PW2/A pertaining to the DVD Ex.P1.
9.1. In his cross-examination, PW-2 admitted that date of preparation of any such recording would be reflected in the properties of particular device and it should have been 07.02.2014, as the recordings were transferred by him on 07.02.2014. At the request of Ld. Defence counsel when the DVD Ex.P1 related to present case was played on the computer, the date of access and date of modification of both the files of DVD Ex.P1 was reflected as 05.02.2014. To a specific question as put by Ld. Defence counsel, PW-2 deposed that he does not remember whether any seizure memo regarding handing over of DVD Ex.P1 was prepared by him or that the said DVD was kept by the IO in sealed cover or not. He further confirmed that no DVDs were FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 10 of 59 given to him by Insp. M. S. Shekhawat for preparing copies.
10. PW-3 is ASI Daleep Singh, who deposed that on 04.02.14, he was posted as Duty Officer at PS Vigilance from 08:00 pm to 08:00 am and on the basis of tehrir given by ACP L.C. Yadav, he registered the present case FIR i.e. Ex. PW-3/A and also made an endorsement on the tehrir i.e. Ex.PW3/B. He further deposed that after registration of FIR, he handed over the copy of FIR and tehrir to Insp. M. S. Shekhawat. He proved certificate u/s 65B of Indian Evidence Act issued by him in support of printout of FIR as Ex.PW3/C. 10.1. In his cross-examination, PW-3 deposed that he does not know how to operate the computer system. He further confirmed that the certificate U/s 65B of Indian Evidence Act was given in relation to the computer installed in the PS Vigilance for CCTNS.
11. PW-4 is Sh. Deepak Sharma, Editor, Aaj Tak Channel, who deposed that in the month of January- February 2014, his subordinate late Sh. Akshay Singh, Reporter in Aaj Tak had done a sting operation related to rampant corruption in police department and the footage of the sting operation was seen by him as a Supervisory Editor. He further deposed that later on, from an instrument, it was converted into a DVD and the entire material was handed over to Dr. Puneet Jain, Legal Head of Aaj Tak News Channel, who used to issue certificate U/s 65B of Indian Evidence Act in respect of electronic records.
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 11 of 5911.1. In his cross-examination, PW-3 deposed that the computer network of the company i.e. LAN was maintained by the IT Department and Dr. Puneet Jain used to see the legal aspects of the investigative stories. He deposed that the reporters used to download the raw footages of the sting operations and prepared DVDs and that every reporter used to have his own desk on which he used to work including preparation of DVDs and the footages were downloaded on the desktop of the reporter. He further confirmed that in the present case also, Sh. Akshay Singh downloaded the footage on his desktop and that one spyware i.e. I-phone was issued to Sh. Akshay Singh and intern Sh. Sapan Gupta, however, he does not know with whom the said I-phone was, as he left Aaj Tak channel in the year 2015. He further confirmed that the channel was complying with the standard laid down by News Broadcasting Standard Authority and the same were also complied in the sting operation.
12. PW-5 is ASI Manoj, who deposed that on 02.06.2015, while he was posted as HC and working as Reader to SHO, PS Kalyanpuri, Insp. Vinay Kumar came to PS and obtained photocopy of relevant part of the register containing complaints for the month of January 2014 i.e. Ex. PW-5/B and same were seized vide memo i.e. Ex.PW5/A.
13. PW-6 is HC Gajendra Singh, who deposed that on 01.04.2014, while he was posted at PS Kalyanpuri as Chitha Munshi, one inspector from PS Vigilance came to PS Kalyanpuri and he had given him the copy of chitha from FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 12 of 59 25.01.2014 to 03.02.2014 i.e. Ex.PW6/A (running into ten pages), which was seized vide memo Ex.PW6/B. 13.1. In his cross-examination, PW-6 admitted that the duties of particular police official on any date is mentioned in the Chittha and that if any official goes for investigation on any day, the same is not mentioned in Chittha. He volunteered that the same is mentioned in daily diary.
14. PW-7 is Sh. Jayesh Bhardwaj, Lab Assistant (Physics), CFSL, Delhi, who deposed that on 01.04.2014, a request was received from DCP, Vigilance Branch for recording of sample voices of Sh. Akshay Singh and Sh. Sapan Gupta and on 09.05.2014, he alongwith Ms. Anuradha Dey recorded the sample voices of Sapan Gupta and Akshay Singh in the presence of one witness namely Ct. Sikander in fresh micro SD cards Ex.P3 and Ex.P4 respectively through digital voice recorder of make SONY and after recording the sample voices, micro SD cards were handed over to the IO, who seized the same through seizure memo Ex.PW1/B and Ex.PW1/E. 14.1. In his cross-examination, PW-7 confirmed that there is no SOP (standard operating procedure) or working manual which is required to be followed for the purpose of taking voice sample as had been done in this case. He further deposed that he has not told the IO to mention the fact that Sony Recorder was used for recording of sample voice in any of the seizure memos. To a specific question as put by Ld. Defence counsel, PW-7 replied that the working procedure manual Ex. PW-7/D1 does not pertain to Physics FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 13 of 59 Division of CFSL where the sample voice recording was done and that it pertains to Scientific Aids Division. He further confirmed that purpose of recording of the sample voice was speaker identification. PW-7 admitted that the voice files similar to the sample files can be altered or modified on any computer using various softwares. He further admitted that the hash value is computed to maintain the authenticity and integrity of the evidence when it is seized or received for the examination as per the NICFS Manual, Chapter-24 which is Mark-PW7/D4.
15. PW-8 is Ms. Anuradha Dey, Lab Assistant (Physics), CFSL, Delhi, who deposed that on 01.04.2014, a request was received from DCP, Vigilance Branch for recording of sample voices of Sh. Akshay Singh and Sapan Gupta and on 09.05.2014, she alongwith Sh. Jayesh Bhardwaj recorded the sample voices of Sapan Gupta and Akshay Singh in the presence of one witness namely Ct. Sikander in fresh micro SD cards Ex.P3 and Ex.P4 respectively through digital voice recorder of make SONY and after recording the sample voices, micro SD cards were handed over to the IO, who seized the same through seizure memo Ex.PW1/B and Ex.PW1/E. 15.1. In her cross-examination, PW-8 deposed that their department does not follow any standard operating procedure and does not have any manual containing instructions for recording of sample voice. She further deposed that they had used SONY make recorder for recording of the sample voice and the purpose of recording FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 14 of 59 of the sample voice was speaker identification not speaker verification.
16. PW-9 is SI Amit Kumar, who proved the detailed bio-data Ex.PW-9/A of SI Anil Kumar which was retrieved from the office computer installed at IT Centre, Delhi by using his user ID. He also proved the certificate U/s 65B of Indian Evidence Act Ex.PW-9/B in support of the aforesaid bio-data.
17. PW-10 is Sh. R. K. Srivastava, Principal Scientific Officer, CFSL, who deposed that on 29.05.2015, he received one DVD marked as Ex-Q1 in unsealed condition from physics division for computation of hash value and he reported that DVD Ex-Q1 was found fully functional and undamaged and mentioned its MD5 hash value in his report i.e. Ex.PW10/A. He further deposed that on 29.09.2015, he received three DVDs marked as Exhibit-Q1, Exhibit-Q2 and Exhibit-Q3 in unsealed condition from physics division for opinion on two audio/video files i.e. 1.mov and 4.mov (stored in DVD marked as Exhibit-Q2) being identical with two audio/video files i.e. 1.mov and 4.mov (stored in DVD marked as Exhibit-Q1), (ii) for computation of hash values of DVDs marked as Exhibit-Q1, Exhibit-Q2 and Exhibit- Q3. PW-10 deposed that he examined the aforesaid DVDs marked as Exhibit-Q1, Exhibit-Q2 and Exhibit-Q3 and same were found fully functional and undamaged and that on the basis of computation of MD5 hash values, two specific files namely 1.mov and 4.mov (stored in DVD marked as Exhibit-Q2) were found identical with the files 1.mov and FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 15 of 59
4.mov (stored in DVD marked as Exhibit-Q1). He further deposed that he computed the MD5 hash values of the DVDs marked as Exhibit-Q2 and Exhibit-Q3 and mentioned in his report i.e. Ex.PW10/B. PW-10 deposed that on 05.12.2018, he received one sealed paper envelope containing five DVDs and two micro SD cards from Photo and Scientific Aids Division for providing their hash values and he examined the aforesaid DVDs and micro SD cards and computed their hash values and given his report i.e. Ex.PW10/C. 17.1. In his cross-examination, PW-10 produced Standard Operating Procedure running into two pages i.e. Ex.PW10/DA. He deposed that if the contents of two files are different, their hash values would be different, if computed using the same algorithm. To a specific question as put by Ld. Defence counsel, PW-10 replied that mirror image of a media is the forensic replica of the media. PW-10 confirmed that he gave opinion on the functionality of the DVD Exhibit Q-1 and not on the specific files and he had only computed the hash value of the DVD. He further deposed that since no previous hash value of the media was provided, the hash value computed by him could not be compared/verified and the hash value was provided by him as it was desired in the forwarding letter which can be used for authentication purpose for further reference. When the attention of the witness was drawn on page no. 2 of his worksheet which is part of Ex. PW-10/DG that the date of last access is 05th Feb 2014, the witness replied that it means FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 16 of 59 that file was accessed on that date.
18. PW-11 is Dr. Rajinder Singh, Retired Director, CFSL, CBI, who deposed that on 29.05.2014 and 15.09.2015, five sealed parcels from DCP, Vigilance, Delhi were received which were marked as Q-1, Q-2, Q-3, S-1 and S-2 i.e. DVDs and Micro SD cards containing questioned and specimen voices of Akshay Singh and Sapan Gupta. He further deposed that he examined the questioned voices of Sh. Akshay Singh and Sh. Sapan Gupta with respect to their specimen voices and found that questioned voices of Sh. Akshay Singh and Sh. Sapan Gupta were tallied with their specimen voices vide his detailed report Ex.PW11/A. PW- 11 identified the DVDs Ex.P1, Ex.P2, Ex.P5 as well as micro SD cards Ex.P3 and Ex.P4.
18.1. In his cross-examination, PW-11 deposed that his office had received transcription of the voice Ex.PW11/DX with other documents. He further deposed that he did not check the correctness of transcriptions with the audio recording of the exhibits. He admitted that CFSL, CBI was not notified by Central Government U/s 79A IT Act on the date of examination of exhibits of present case. He further deposed that neither the investigating agencies demanded nor he gave opinion whether recordings in the DVD was original or not. He admitted that source of recording/recording device was not provided by forwarding agency nor demanded by him and the genuinity of the recording cannot be ascertained without examination of original source of recording. He admitted that as per road FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 17 of 59 certificates Ex.PW11/DX1 and Ex.PW11/DX2, no copies of transcription and other documents were sent alongwith the exhibits to CFSL. He further deposed that he did not give any opinion in the present case nor it was asked about continuity/editing/erasing or alteration and confirmed that if any data is deleted from the beginning or from the end of any recording, the same cannot be detected.
19. PW-12 is retired ACP L.C. Yadav, who deposed that on 04.02.2014 at about 08:00 pm, on news channel AAJ Tak, one programme namely Operation Delhi Police was telecasted in which some police officials of Delhi Police were shown accepting bribe and accused SI Anil Kumar from PS Kalyanpuri was also shown in the programme. He further deposed that after discussion with senior official and as per their approval, he prepared rukka Ex.PW12/A for registration of the FIR, whereupon FIR No.01/2014 was registered and investigation was assigned to Insp. Magan Singh Shekhawat. He further deposed that as there were seven connected FIRs, copy of the relevant recording pertaining to every case was got prepared separately through HC Mahesh, Computer Operator at PS Vigilance and the recording pertaining to accused SI Anil Kumar was handed over to Insp. M.S. Shekhawat by HC Mahesh, who had prepared the DVD. He further deposed that a letter Ex. PW- 12/B dated 05.02.2014 was sent to Aaj Tak news channel office and the reply of Sh. Punit Jain dated 06.02.2014 i.e. Ex. PW-12/C was received alongwith three DVDs of unedited recording, one DVD of telecasted version and copy FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 18 of 59 of transcription i.e. Ex. PW-21/X. 19.1. In his cross-examination, PW-12 admitted that he was not the IO of any of the FIR no. 01/14 to 07/14 on 05.02.2014. He further confirmed that he got collected one DVD of telecasted version from the office of PRO, PHQ Delhi after lodging the complaint in all the seven cases by sending his driver to PHQ and that he did not prepare any seizure memo of the said DVD. He further deposed that he did not receive any covering letter from PHQ alongwith the said DVD. He admitted that the letter of Sh. Puneet Jain Ex.PW12/C was brought before him by Sh. Satya Prakash, Assistant Legal Manager, Aaj Tak alongwith DVDs Ex.P2, Ex.P5, Ex.P6 and Ex.P7 to his office on 06.02.2014. He further deposed that he did not verify from Sh. Satya Prakash whether DVDs brought by him were containing original recordings or not and that he did not sign the seizure memo of four DVDs when the same was prepared by M. S. Shekhawat. PW-12 deposed that he is not aware that as to whether Insp. M.S. Shekhawat, Insp. Punia and Insp. Kapil Dev had gone to office of Aaj Tak on 05.02.2014 for the purpose of collecting recording and again said these persons had in fact gone to the office of Aaj Tak on 05.02.2014 with his letter Ex.PW12/B, but he is not aware whether Insp. M.S. Shekhawat had handed over any letter under his signature to Aaj Tak or not on 05.02.2014. He further deposed that Sh. Satya Prakash came to his office alongwith letter Ex.PW12/C and articles on 06.02.2014 at about 05:00 pm. He further deposed that Sh. Satya Prakash FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 19 of 59 did not bring any certificate U/s 65B of Indian Evidence Act on 06.02.2014 nor they obtained the same from him in support of four DVDs brought by him. He admitted that DVDs received from Aaj Tak were handed over to HC Mahesh on 06.02.2014 for preparing copies.
20. PW-13 is Sh. Hibu Tamang, DCP, Security/SG, Delhi Police, who deposed that he perused the entire file and on application of mind, found sufficient incriminating material against SI Anil Kumar and accorded sanction U/s 19 of PC Act against him i.e. Ex.PW13/A, which was forwarded through covering letter i.e. Ex.PW13/B. 20.1. In his cross-examination, PW-13 deposed that copy of draft charge-sheet was sent to him alongwith the request letter. He further deposed that a DVD alongwith copy of the transcription was sent with the request letter containing the audio-video recordings of the sting operation which was aired on 04.02.2014. He further deposed that he does not remember whether the fact of death of Sh. Akshay Singh was brought to his knowledge or not. He admitted that certificate U/s 65B of Indian Evidence Act dated 20.12.2017 issued by Dr. Punit Jain was not sent to him alongwith the request letter. He admitted that SI Anil Kumar was exonerated in the departmental enquiry vide order Ex.PW13/DA bearing his signature at point A.
21. PW-14 is Ct. Harish Kumar, who deposed that on 29.05.2014, on the instruction of IO, he received three sealed parcels from MHC(M) and deposited the same at CFSL, Lodhi Road and after depositing the same, he gave FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 20 of 59 receipt/acknowledgement of CFSL to MHC(M).
22. PW-14 is SI Yunus Javed (this witness is also examined as PW-14), who deposed that on 02.06.2015, he joined the investigation of present case and accompanied Insp. Vinay Kumar to PS Kalyanpuri where HC Manoj, Reader to SHO, PS Kalyanpuri produced copy of complaint register from 01.01.2014 to 31.01.2014 i.e. Ex.PW5/B, which was seized vide memo Ex.PW5/A. He further deposed that on 05.06.2015, Sh. Satya Prakash of Aaj Tak Channel came to PS Vigilance, in whose presence three DVDs Ex.P2, Ex.P5 and Ex.P6 were played on the computer and the same were sealed and seized by Insp. Vinay Kumar, vide seizure memo Ex.PW14/A. 22.1. In his cross-examination, he deposed that DVDs were produced from Malkhana. He admitted that Sh. Satya Prakash had not brought any DVD alongwith him on 05.06.2015 for the purpose of comparison that the content of the DVDs which were seized on 06.02.2014, were the same which were given by him. He further deposed that the DVDs were having unedited content and was not of the programme which was telecasted on 04.02.2014.
23. PW-15 is ACP Kapil Dev, who deposed that on 06.02.2014, he had accompanied Insp. M. S. Shekhawat and Insp. Virender Singh to the office of TV Today Network, Noida, UP where Sh. Satya Prakash Assistant Manager, Legal Deptt., TV Today Network produced three unedited and one edited DVD alongwith transcription of the telecast. He further deposed that Insp. M. S. Shekhawat took the FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 21 of 59 aforesaid four DVDs/CDs and transcription into police possession vide seizure memo Ex.PW15/A. He identified the aforesaid DVDs Ex.P2, Ex.P5, Ex.P6 and Ex.P7.
23.1. In his cross-examination, PW-15 deposed that he was the IO of case FIR no.4/2014 registered against HC Digambar Singh and that the telecast of the sting operation was going on in the office of PS Vigilance when investigation of FIR no. 04/14 was entrusted to him. He further deposed that he had received one copy of the sting operation alongwith the copy of FIR when it was marked to him but he does not know as to who had prepared the said copy of the sting operation or whether it was prepared by Ct. Mahesh. He further deposed that the DVDs were not played by any one of them on 06.02.2014 in the office of TVTN. He admitted that no marking such Q2, Q3 and Q4 were put by the IO on 06.02.2014 on any of the DVDs. He further deposed that he does not know as to when these markings Q2, Q3 and Q4 were put on DVDs shown to him during his examination in chief.
24. PW-16 is Ct. Sikender Maan, who deposed that on 09.05.2014, voice samples of Akshay Singh and Sapan Gupta were recorded at CFSL, Lodhi Road, New Delhi in in his presence and the same were seized by IO vide memo Ex.PW1/B.
25. PW-17 is Sh. Puneet Jain, who deposed that in the year 2014, he was designated as Head, Legal & Compliances, Company Secretary and Vice President, Internal Audit of India Today Group. He further deposed FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 22 of 59 that the sting operation was conducted by Editorial Team which was headed by late Sh. Akshay Singh and broadcasted on 04.02.2014 on Aaj Tak Channel related to exposing corruption in Delhi Police. PW-17 deposed that he responded a notice U/s 91 Cr.P.C. sent to the company on 05.02.2014 and in total four CDs/DVDs Ex.P2, Ex.P5, Ex.P6 and Ex.P7 were handed over to the concerned department which comprises of three CDs/DVDs of raw footage/unedited footage and one CD/DVD was of the broadcasted footage. He further deposed that certificate U/s 65B of Indian Evidence Act was also provided since the requisite footage as a process was transferred from the I- phone (without SIM), used by late Sh. Akshay Singh in the sting operation. PW-17 deposed that the footage was transferred from the I-phone to the company computer as per the requisite process and CDs/DVDs were made by the library under his direct supervision and were consequently handed over to the police through Sh. Satya Parkash, Assistant Manager, Legal on 06.02.2014. He further deposed that the footage as a process was deleted from the I-phone after successful transfer to the office computer as the said I-phone was also used for other coverages and was lastly handed over to the Vidhan Sabha, UP in some other related sting operation. PW-17 deposed that Sh. Akshay Singh had expired after the aforesaid sting operation. He further deposed that he had provided separate certificate U/s 65B of Indian Evidence Act in connection with each FIR and the certificate pertaining to present FIR is Ex.PW17/A, FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 23 of 59 which was sent alongwith letter dated 20.12.2017 i.e. Ex. PW-17/B. PW-17 deposed that he had informed the Investigating Agency about the death of Sh. Akshay Singh and provided copy of his death certificate.
25.1. In his cross-examination, PW-17 deposed that he cannot admit or deny the suggestion whether Akshay, Sapan and Umesh induced the police officials for taking money under the garb of sting operation. He admitted that IT Department and Accounts Department were not under his control in the year 2014. He admitted that he had communicated to the IO that the original recording device used in the present case was in the custody of UP Vidhan Sabha in connection with Mujjafarnagar riots, vide letter Ex.PW17/B. He further deposed that he cannot tell as to when the recordings were transferred from I-Phone to the computers of SIT or as to when the recordings were deleted from the I-Phone or as to when the recordings were transferred from SIT to library department. He further deposed that he does not recall as to who had prepared edited footage from the unedited footage of the sting operation and as to where the edited version was prepared whether in SIT or library. He admitted that process of transfer of recordings from I-Phone to the computers of SIT and thereafter from the computers of SIT to the computers of library were not done in his presence. He further deposed that he cannot say whether the unedited footage of the present sting operation were transferred to the computers of library section in one go by the same person or in the same FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 24 of 59 manner from the computers of SIT section to the library section. He further deposed that he does not remember for how many times certificate U/s 65B of Indian Evidence Act was provided by him to the IO and after seeing the certificate U/s 65B of Indian Evidence Act Ex.PW17/DG, he deposed that it appears to be carrying his signature but he cannot admit or deny the same for want of original document. He further deposed that he did not watch the original recordings in I-Phone.
26. PW-18 is HC Gurmeet Singh, who deposed that on 01.04.2014, he joined the investigation of present case with Insp. Vinay Kumar and had gone to PS Kalyanpuri where Insp. Vinay Kumar had taken copy of duty roster (chittha) for the period 25.01.2002 to 03.02.2014 i.e. Ex.PW6/A and seized the same vide memo Ex.PW6/B.
27. PW-19 is SI Ram Het Meena, who deposed that on 26.03.2014, on the direction of DCP, he went to Vigilance office and received one CD in sealed cover containing sting operation which was telecasted on Aaj Tak and he prepared transcript of the recording in the aforesaid CD at PS Vigilance. He further deposed that he had heard the voice on the CD and same was typed verbatim and that the aforesaid CD was having three files. PW-19 proved the transcript of file no. 1 as Ex.PW19/A, transcript of file no. 3 as Ex.PW1/D and transcript of file no. 4 as Ex.PW1/C. 27.1. In his cross-examination, PW-19 admitted that he is not a signatory on transcriptions Ex.PW1/C, Ex.PW1/D and Ex.PW19/A. He further deposed that IO did not obtain any FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 25 of 59 certificate U/s 65B of Indian Evidence Act from him.
28. PW-20 is Sh. A.D. Tiwari, Principal Scientific Officer (Photo Division), CFSL, CBI, who deposed that on 08.06.2015, he received one unsealed cloth parcel alongwith case internal forwarding note from Physics Division for examination of one DVD already marked as Mark-Q1. He further deposed that he has thoroughly examined the video footages available in Exhibit-Q1 frame by frame and proved his report i.e. Ex.PW20/A, according to which, the DVD Exhibit-Q1 was found to contain two video files and conversation present in each video file and that he also examined the video files and observed that visuals in each video files were having single shot recording and there was no break found in between the first to last frame of each video file. PW-20 deposed that on 08.02.2016, he received another unsealed cloth parcel alongwith case internal forwarding note from Physics Division for examination of DVD already marked as Mark Q3 which was found to contain two audio-video files named as 3 and 7 and he throughly examined file no. 3 frame by frame and prepared his report Ex.PW20/B, according to which the conversation was present in file no. 3 and the audio-video file no. 3 was in continuity in video between the first and last frame of the audio/video files.
28.1. In his cross-examination, PW-20 admitted that as per worksheet Ex.PW22/DD, both the files in Q1 were created on 05.02.2014. He further deposed that no opinion was taken by the forwarding agency regarding originality of FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 26 of 59 the recordings. He further admitted that he has not done frame to frame examination for the purpose of checking originality of the recording. He further confirmed that as per both of his reports, he opined that for carrying out complete examination i.e. verification and authentication, the original recording device and media was required. He further confirmed that despite mentioning in this regard in his reports, no original recording device and media was provided by the investigating agency. He further admitted that CFSL, CBI, New Delhi was not notified U/s 79A of IT Act as on the date of both of his reports.
29. PW-21 is Sh. M. S. Shekhawat, Retired ACP, to whom investigation was assigned deposed that on 04.02.2014, rukka was given to him by ACP L.C. Yadav and he handed over the rukka to the Duty Officer and got registered FIR no. 01/14 at PS Vigilance. He further deposed that on the next day, he alongwith Insp. Kapil Dev and Insp. V. K. Punia visited Aaj Tak office at Noida and served notice U/s 91 Cr.P.C. for providing CDs and DVDs of the sting operation related to the present case FIR. PW-21 deposed that on 06.02.2014, they again visited the office of Aaj Tak, Noida, where Sh. Satya Parkash, Assistant Manager, Legal Department, T.V. Today Network Ltd. handed over three unedited DVDs Ex. P2, P5 and P6 of the sting operation of Delhi Police, unedited DVD Ex. P7 titled as A.T. Operation Delhi Police and the transcript of the telecast Ex. PW-21/X, which were seized by him vide seizure memo Ex.PW15/A. He further deposed that he again FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 27 of 59 served notices U/s 91 Cr.P.C. Ex.PW17/DA and Ex.PW17/DB to Sh. Punit Jain for providing the original recording of sting operation done by Aaj Tak telecasted on 04.02.2014 alongwith original device/equipment used by the undercover reporter related to the present case.
29.1. In his cross-examination, PW-21 deposed that signature of Satya Prakash were already there on DVDs when the same were handed over by him on 06.02.2014. He deposed that he did not keep four DVDs received by him on 06.02.2014 in sealed pulanda. He further deposed that he did not deposit DVDs in the Malkhana on 06.02.2014 and kept the same on case file. He further deposed that as per seizure memo Ex.PW15/A, the DVDs were not played by him so as to satisfy himself whether there was any recording in those DVDs or not.
30. PW-22 is Sh. Satya Parkash, who deposed that he was working in Aaj Tak Channel from 2006 to 2019 and in the year 2014, while he was working as Assistant Manager, Aaj Tak Channel, he handed over DVDs to the Vigilance officials, who had visited their office.
30.1. In his cross-examination by Ld. Addl. PP for the State, PW-22 denied making any statement u/s 161 Cr.P.C. i.e. Mark-PW22/A. He admitted that on 06.02.2014, Insp. M. S. Shekhawat and his associate had visited their office at TV Today Network Ltd. and he handed over three unedited DVDs of Operation Delhi Police, raw footage no.1, 2 and 3, one edited DVD titled AT Operation Delhi Police including transcript of the telecast and same were taken into police FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 28 of 59 possession vide memo Ex. PW-15/A. He further deposed that he visited the office of Vigilance once where CDs were played and shown to him and he had identified the aforesaid DVDs as the same which were handed over by him on 06.02.2014. During his evidence, the DVDs Ex.P2, Ex.P5 and Ex.P6 were played on the computer in the court, but PW-22 deposed that he does not remember the contents of the recordings and also cannot say whether the aforesaid DVDs are the same which were handed over by him to the Vigilance officials on 06.02.2014.
30.2. In his cross-examination by Ld. Defence counsel, he admitted that as per seizure memo Ex.PW15/A, three DVDs containing raw footage were numbered as 1, 2 and 3, however no such numbers are available on DVDs Ex.P2, Ex.P5 and Ex.P6. He confirmed that he did not hand over four DVDs and transcription to officials of PS Vigilance in their office at relevant time. He further deposed that DVDs were not played and seen by those officials on that day. He further deposed that the DVDs were prepared by Editorial Department of Aaj Tak but he does not know when the same were prepared. He further deposed that the DVDs were not prepared by Sh. Punit Jain as he had nothing to do with functioning of Editorial Department of Aaj Tak. He admitted that at that time Aaj Tak was having separate heads of the departments for department like SIT/Library/IT/Legal.
31. PW-23 is Sh. Virender Singh Punia, Retired ACP, who deposed that on 06.02.2014 while he was posted as Inspector at PS Vigilance, accompanied Insp. M.S. FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 29 of 59 Shekhawat and Insp. Kapil Dev to office of Aaj Tak, Noida where Sh. Satya Prakash, Assistant Manager (Legal) produced four DVDs consisting of three unedited DVDs and one DVD containing edited recording of sting operation telecasted on 04.02.2014 Ex.P2, Ex.P5, Ex.P6 and Ex.P7 alongwith the transcript Ex.PW21/X of the telecast which were seized vide memo Ex.PW15/A. 31.1. In his cross-examination, PW-23 admitted that serial nos. 1, 2 and 3 are not available on DVDs Ex.P2, Ex.P5 and Ex.P6. He further deposed that the DVDs were not kept by Insp. Shekhawat in sealed pulanda. He further admitted that the DVDs were not played at the office of Aaj Tak to confirm about availability of recordings in those DVDs. He further deposed that the DVDs were given by Sh. Satya Prakash in unsealed condition and these were not bearing any identification mark when given on 06.02.2014.
32. PW-24 is Insp. Vinay Kumar, who deposed that further investigation was assigned to him in February 2014 and on scrutiny of file, he observed that the same was having five loose DVDs out of which, four DVDs (three unedited and one edited) were taken into police possession by previous IO/Insp. M. S. Shekhawat from Aaj Tak Channel through seizure memo Ex.PW15/A. He further deposed that he also seized the fifth DVD which was prepared by Ct. Mahesh from three unedited DVDs, which was containing the sting operation related to accused SI Anil Kumar of PS Kalyanpuri. PW-23 deposed that during investigation prime witnesses Akshay Singh and Sapan FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 30 of 59 Gupta were made to join the investigation at PS Vigilance and the fifth DVD was played on computer in their presence to ascertain the contents of the DVD related to sting operation of accused SI Anil Kumar which was aired on Aaj Tak Channel on 04.02.2014 around 08:00 pm. He further deposed that the DVD was marked as Mark-Q1 and same was seized vide memo Ex. PW-1/A which was also signed by Akshay Singh and Sapan Gupta at point B and A. He further deposed that statements u/s 161 Cr.P.C. of Akshay Singh Ex.PW-24/A and Sapan Gupta were recorded and their sample voices were also got recorded at CFSL, Lodhi Road in order to tally them with the voices available in seized DVD marked as Q1. The SD cards in which their voice samples were recorded were seized vide seizure memos Ex.PW1/E and Ex.PW1/B. PW-24 deposed that supplementary statements of both the aforesaid witnesses in this regard were also recorded.
32.1. PW-24 deposed that SI Anil Kumar was also requested to give his voice sample at CFSL which he refused vide his reply dated 07.04.2014 Ex.PW24/B. He further deposed that he prepared the transcript Ex. PW-1/C, Ex. PW-1/D and Ex. PW-9/A of the unedited DVDs with the help of witnesses and stenographer ASI Hetram. PW-24 deposed that the questioned DVD i.e. Q1 and sample voices of the witnesses were deposited in CFSL in sealed condition with copy of the transcription of the sting operation for expert opinion. He further deposed that the sting operation related to accused SI Anil Kumar was available in two FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 31 of 59 DVDs in three video/audio files. PW-24 deposed that three unedited DVDs were the original source of sting operation provided by Aaj Tak Channel and for seizing the same, PW- 24 summoned Sh. Satya Prakash, Assistant Manager, Aaj Tak Channel who had handed over these three unedited DVDs and one edited DVD to earlier IO Insp. M.S. Shekhawat, at PS Vigilance and in his presence those three unedited DVDs were played on the computer, who confirmed that those are the same DVDs which were handed over to Insp. M.S. Shekhawat on 06.02.2014 and thereafter, PW-24 seized the aforesaid three DVDs through memo Ex.PW14/A. He further deposed that three unedited DVDs i.e. Q2, Q3 and Q4 were kept in separate CD mailers and were sealed with the seal of VK and same were deposited in Malkhana. He admitted that the fourth DVD i.e. unedited DVD was not seized because it was already edited and containing the programme telecasted by the channel in connection with sting operation of many police officials including accused SI Anil Kumar. He further deposed that during investigation, CFSL, Lodhi Road sought original source of DVD marked as Q1 that was deposited with them for expert opinion and thereafter, the original source of Q1, i.e. Q2 and Q3 (DVDs in sealed condition) were deposited with CFSL, Lodhi Road for expert opinion. He further confirmed that a number of times Aaj Tak Channel was directed through notices U/s 91 Cr.P.C. to provide certificate U/s 65B of Indian Evidence Act and original device that was used to prepare sting FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 32 of 59 operation related to accused SI Anil Kumar, vide notices Ex.PW17/DA, Ex.PW17/DB, Ex.PW17/DC, Ex.PW17/DD and Ex.PW17/DF. PW-24 deposed that certificate U/s 65B of Indian Evidence Act Ex.PW17/A was obtained from Dr. Punit Jain, Group Chief, Law and Compliance Officer, Aaj Tak Channel. He further deposed that the expert opinion regarding sting operation of accused SI Anil Kumar was received from CFSL, Lodhi Road which confirmed the voice of Sh. Akshay Singh and Sh. Sapan Gupta, vide reports Ex.PW10/A, Ex.PW10/B, Ex.PW20/A and Ex.PW11/A. He further deposed that he moved an application in the court regarding taking consent/ willingness of accused for obtaining sample voice for expert opinion but the accused refused, vide the proceedings Ex.PW24/D. PW-24 also obtained prosecution sanction Ex.PW13/A against accused. He further deposed that the bribe money could not be recovered due to unidentifiable currency notes and gap between reported incident of sting operation and lodging of FIR. He further admiteed that Aaj Tak Channel has not provided the original device which was used to prepare sting operation of accused SI Anil Kumar and in this regard a Kalandara U/s 175 IPC was also filed in the court of Ld. Special Judge, however, Aaj Tak Channel approached Hon'ble High Court of Delhi against the Kalandara stating that the original device was deposited with U.P. Vidhan Sabha in connection with some sting operation and the aforesaid Kalandara was disposed off by the Ld. Special Judge after the Hon'ble Delhi High Court FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 33 of 59 had disposed off the same. He further deposed that during investigation, he had seized the complaint register of PS Kalyanpuri for 01.01.2014 to 31.01.2014 vide seizure memo Ex.PW5/A and the documents vide memo Ex.PW5/B. He had also seized the duty roster of PS Kalyanpuri from 25.01.2014 to 03.02.2014, vide seizure memo Ex.PW6/B and documents Ex.PW6/A. 32.2. In his cross-examination, PW-24 admitted that date, time and place of occurrence were not mentioned in the rukka received by him alongwith copy of FIR. He admitted that he did not prepare any site plan or recorded statement of Insp. M.S. Shekhawat in the present case. He further admitted that four DVDs received from TVTN on 06.02.2014 were neither sealed nor deposited by Insp. M.S. Shekhawat in the Malkhana. He admitted that the recording available in the DVDs received on 06.02.2014 were copies of the copied data from the original device. He further deposed that it was not revealed to him as to who had prepared the four DVDs received on 06.02.2014. He further admitted that the DVDs bearing serial no. 1, 2 and 3 were not the original source of recording. He volunteered that those three DVDs were original source of recording from his point of view and it is so as CFSL demanded the original source of Q-1 which was prepared from these three DVDs. He further deposed that the DVDs Q2, Q3 and Q4 and one edited DVD were not played by him before Akshay Singh or Sapan Gupta to ascertain and to verify that clippings in Q1 were in fact available in those four DVDs or not. He FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 34 of 59 admitted that ASI Ramhet is not a witness on transcripts Ex.PW1/C, Ex.PW1/D and Ex.PW19/A and that he did not obtain any certificate U/s 65B of Indian Evidence Act from ASI Ramhet regarding these transcriptions. He further deposed that handwritten portions on these transcriptions were done by him later on and ASI Ramhet was not aware about such handwritten portions. He admitted that vide letter Ex.PW17/DC, he had informed Sh. Punit Jain of TVTN that he was not the competent person to issue certificate U/s 65B of Indian Evidence Act and vide letter Ex.PW4/D1 requested Sh. Deepak Sharma to provide certificate U/s 65B Indian Evidence Act in support of DVD provided in February 2014. He further deposed that Sh. Deepak Sharma did not issue any certificate U/s 65B of Indian Evidence Act in support of sting operation. He further admitted that he did not send all the documents collected during investigation to the sanctioning authority alongwith the request for sanction and volunteered that only material documents were sent. To a specific question as put by Ld. Defence counsel, PW-24 deposed that there was no specific demand of money by the police officials in the sting operation, however, on offering the money by the undercover reporter, the police official replied " hum UP walon ki tarah nahi hain ki muh fade" and as per his interpretation this was enough to raise presumption of demand. He further deposed that he did not collect CDRs of mobile numbers of accused SI Anil Kumar, Akshay Singh or Sapan Gupta so as to find out their location on the date of FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 35 of 59 sting operation at or around PS Kalyanpuri and voluntarily deposed that the presence of accused SI Anil Kumar was established as per the duty roster obtained from PS that is why his CDR was not taken and rest of the two persons did not give their mobile numbers for security reasons. He admitted that the date and timing of the recordings were not available in any of the DVD.
33. After completion of the prosecution evidence, statement of accused was recorded under section 313 Cr.P.C. and all the incriminating evidence was put to him which he denied as false and incorrect and stated that he is innocent and has been falsely implicated in the present case by the TVTN officials by morphing and fabricating the sting operation for increasing their TRP. Accused further stated that he is not present in any such recordings and that he has not demanded or accepted any amount from anybody or from Akshay Singh at any point of time as claimed. He opted to lead defence evidence.
34. In his defence, accused has examined two witnesses. DW-1 is Sh. Syed Faizal Huda, who deposed that as per letter dated 17.10.2022 he was approached by accused SI Anil Kumar for the purpose of forensic examination and comparison of video recording files/clips to find out the mode of their creation and source of origin/device. He further deposed that on the basis of examination and analysis of the metadata properties by using software, it was concluded by him that the video recording files/clips provided in the copies of Exhibit Q-2 and Exhibit Q-3 FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 36 of 59 named as 1.mov, 2.mov, 3.mov and 4.mov were recorded in the same mode and by the same recording device/source and further opined that the same had not been recorded through the mobile device i.e. I-phone 5S and proved his detailed report Ex.DW1/A (colly).
34.1. In his cross examination by Ld. Addl. PP for the State, he deposed that he has not compared the DVDs with the original source of recording. He further deposed that the original source of the DVD was not provided to him by the accused for comparison and his report is based on the copies of the DVDs provided by the accused. He denied the suggestion that he is not a forensic expert or that deposing falsely at the instance of accused.
35. DW-2 is HC Balraj, who brought the original record regarding vigilance enquiry of accused SI Anil Kumar and proved the copy of final order dated 28.09.18 alongwith findings and list of witnesses alongwith statements of five witnesses as Ex.DW2/A, Ex.DW2/B (colly) and Ex.DW2/C (colly).
36. Arguments have been advanced by Ms. Purnima Gupta, Ld. Chief PP for the State and by Sh. Sanjay Gupta, Ld. Defence Counsel for the accused. I have also perused written arguments as filed on behalf of accused.
37. Ld. Chief PP for State argued that PW-1 Sapan Gupta, Intern of TV Today Network, who conducted the sting operation of accused alongwith Sh. Akshay Singh, Correspondent Aaj Tak Channel has supported the case of FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 37 of 59 prosecution. It is submitted that PW-1 Sh. Sapan Gupta had also done the recording with the help of I-phone 5S when he went to the room of accused SI Anil Kumar at PS Kalyanpuri.
38. Ld. Chief PP for State further argued that during evidence, DVD Ex. P1 was shown to PW-1 Sapan Gupta who confirmed that it was the same audio video recording which Sh. Akshay Singh had shown him after he came out from the PS Kalyanpuri and also identified the signature of Sh. Akshay Singh at point A on DVD Ex. P1. It has been submitted that PW-17 Sh. Punit Jain, who was Head of Legal & Compliances, TV Today Network Ltd. has specifically deposed that the footage was transferred from the I-phone used by Late Sh. Akshay Singh and the CDs/DVDs were made by the library under his direct supervision and therefore his certificate u/s 65-B of Indian Evidence Act is admissible in support of four CDs/DVDs i.e. three of unedited/raw footage and one of broadcasted footage.
39. Ld. Chief PP for State further argued that accused had refused to give his voice sample when an application was filed by the IO before the Court and therefore adverse inference should be drawn against him. It has been submitted that the prosecution has proved its case beyond reasonable doubt.
40. Per contra, Ld. Defence counsel argued that the original source of alleged sting operation i.e. I-phone was neither seized nor produced before the Court and Sh.
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 38 of 59Akshay Singh, who allegedly recorded the sting operation regarding the imaginary story for giving bribe to accused could not be examined as he expired. It is submitted that PW-1 Sh. Sapan Gupta has admitted in his cross- examination that he had not gone with Sh. Akshay Singh and only directed him to go to the first floor, therefore, PW- 1 Sapan Gupta is not the eye witness of alleged transaction between Akshay Singh and accused.
41. Ld. Defence counsel further argued that sanction to prosecute u/s 19 of PC Act was accorded without application of mind and that PW-24 Insp. Vinay Kumar has admitted in his cross-examination that all the documents collected during investigation were not sent to sanctioning authority. It is submitted that application of mind of sanctioning authority can only be gathered by summoning the official file of the sanctioning authority, but in present case, no such file was produced before the Court.
42. Ld. Defence counsel further argued that prosecution witnesses have deposed two different stories regarding procurement of four DVDs i.e. three raw DVDs and one edited DVD from which PW-2 HC Mahesh allegedly copied the DVD Ex.P1 related to sting operation of accused SI Anil Kumar. It is submitted that as per PW-12 Retd. ACP L. C. Yadav, who got the case FIR registered, Sh. Satya Prakash, Asst. Manager, Aaj Tak brought four DVDs alongwith letter of Sh. Punit Jain at his office on 06.02.2014, but PW-21 Insp. M. S. Shekhawat to whom investigation of present case was assigned, deposed that on 06.02.2014, he FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 39 of 59 alongwith Insp. Kapil Dev and Insp. V. K. Punia visited at the office of Aaj Tak at Noida, where Sh. Satya Prakash, Asst. Manager, Legal Department met them and handed over three unedited DVDs and one edited DVD of the sting operation of Delhi Police alongwith the transcript, which were taken in police possession by him.
43. Ld. Defence counsel vehemently contended that as per prosecution case, DVD Ex.P1 was prepared by PW-2 HC Mahesh on 07.02.2014 from three unedited DVDs, but the Mata Data of DVD Ex.P1 when checked during cross examination, had shown the date of access and date of modification of both the files i.e. 1.mov and 4.mov of DVD Ex.P1 is of 05.02.2014 and there is no explanation on record in this regard.
44. Ld. Defence counsel further argued that CFSL reports Ex.PW-11/A and Ex.PW-20/A are inconclusive in absence of original source of recording and media. It is submitted that PW-10 Sh. R. K. Srivastava had not played the video files available in Ex. Q1 to view the audio video recording and he computed the hash values of DVDs Ex.Q1, Q2 and Q3 which is relevant for the authentication in future. It is submitted that PW-20 Sh. A. D. Tiwari has also admitted that he has not done frame to frame examination for the purpose of checking originality of the recording.
45. It was argued by Ld. Defence counsel that it is a settled law that defence witnesses are also entitled to equal treatment as given to the witnesses of the prosecution. It is FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 40 of 59 submitted that DW-1 Sh. Syed Faizal Huda, Private Forensic Expert vide his report Ex. DW-1/A has proved by examining the Meta Data properties of video files that same were recorded in the same mode and by the same device on 05.02.2014 and that these recordings were not recorded from I-phone 5S.
46. Ld. Defence counsel further argued that Sh. Punit Jain was not the competent person to issue certificate u/s 65- B of Indian Evidence Act relating to three unedited DVDs from which allegedly HC Mahesh copied the video footage related to present case on DVD i.e. Ex.P1. It is submitted that IO Insp. Vinay Kumar submitted a Kalandara u/s 175 IPC before Ld. Special Judge, wherein it was submitted that inspite of repeated requests, the channel had not provided the original device and in response to notice u/s 91 Cr.P.C., Dr. Punit Jain intimated that Sh. Deepak Sharma, the then SIT Editor was the person incharge of the computer on to which the sting footage was downloaded from the original device and DVDs were prepared, but later on, he informed that Sh. Akshay Singh is the person incharge of the computer who had downloaded the raw footage from the device to the office system/computer and in to DVDs.
47. It was argued by Ld. Defence counsel that accused has been exonerated in the departmental proceedings and documents produced before Disciplinary Authority are mirror image of the subject matter of present case. In support of his arguments, Ld. Defence counsel has relied upon the following judgments:-
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 41 of 59(i) Anwar P. V. vs. P. K. Bhasheer AIR 2015 SC 180, wherein it was held that electronic record produced for the inspection of the court is documentary evidence u/s 3 of the Evidence Act, 1872 and that any documentary evidence by way of an electronic record under the Evidence Act, in view of Section 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B of the Evidence Act.
(ii) Ram Singh vs. Colonel Ram Singh AIR 1996 SC 3, in which six conditions for admissibility of a tape recorded statement are provided and it was held that the tape recorded statements of the witnesses were wholly inadmissible in evidence and, at any rate, they do not have any probative value apart from the legal infirmities pointed out therein.
(iii) Mansukhlal Vithaldas Chauhan vs. State (1997) 7 SC 622,wherein it was held that the validity of sanction would depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority.FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 42 of 59
(iv) K. C. Singh vs. CBI Crl. Appeal. no.
976/10, wherein it was held that the grant of sanction is a solemn function, which the sanctioning authority is required to perform with due care and due application of mind to the material placed before him/her alongwith the request for sanction for prosecution.
(v) Ashish Kumar Dubey vs. State 2014 (IV) AD (Delhi) 473, wherein it was held that without the device being examined and without the cassette itself being examined for ruling out the possibility of tampering, one of the important requirements spelt out in Ram Singh vs. Colonel Ram Singh case was not satisfied and that rendered the Q3 cassette an inadmissible piece of evidence.
(vi) Jahan Singh vs. State 2020 (2) RCR (Cr.) 794 Delhi, wherein it was held that although a copy of the transcription was sent to the CFSL but no opinion was sought either on the contents of the transcription or its correctness and authenticity. In such circumstances, the contents of transcription cannot be said to be proved.
(vii) Sudhir Choudhary vs. State AIR 2016 FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 43 of 59 SC 3772, wherein it was held that the text which the appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the Investigating authorities for making a fair comparison.
(viii) Anil Sharma vs. State 2004 (3) RCR (Crl.) 774 (SC), wherein it was held that in criminal trial equal treatment be given to evidence of prosecution and defence.
(ix) Jonson Jacob vs. State WP (Crl.) 1279/2021 wherein it was held that when departmental proceedings and criminal proceedings are a mirror image of each other and the accused has been exonerated on merits in the departmental inquiry, and not due to minor technicalties or irregularities, the criminal proceedings on the same set of facts and circumstances cannot be permitted to be continued as the standard of proof in departmental proceedings is much lower than the standard of proof in criminal proceedings.
48. Before appreciating evidence in this case, it is important to note that even in a case under Prevention of FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 44 of 59 Corruption Act, 1988, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused must be proved beyond all reasonable doubts. In this regard, reliance is placed upon State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (Cr) 217 SC and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that the foundational facts must be established by the prosecution.
49. It is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognized as human right which cannot be wished away.
50. Accused has questioned the validity of sanction order u/s 19 of PC Act. Therefore, at first instance, the question arises whether sanction u/s 19 of PC Act was accorded by sanctioning authority after application of mind or not. Ld. Defence Counsel for the accused argued that PW-24 Insp. Vinay Kumar admitted in his cross examination that all the documents collected during investigation were not sent to sanctioning authority, which shows that sanction Ex.PW-13/A was accorded without FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 45 of 59 application of mind. It was further submitted that application of mind of sanctioning authority can only be gathered by summoning the office file of the sanctioning authority and in the present case, no such file was produced before the Court. As regards application of mind by sanctioning authority, in State of Maharashtra through CBI Vs Mahesh Jain, 2013 (8) SCC 119 , following principles were culled out:-
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. 14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prime facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. 14.6 If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to a public servant against frivolous and vexatious litigants, but simultaneously an order of sanction FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 46 of 59 should not be construed in a pedantic manner and there should not be a hypertechnical approach to test its validity."
51. It was further held that :
"True it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a safeguard to the public servant against vexatious litigation but simultaneously when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. The flimsy technicalities cannot be allowed to become tools in the hands of an accused."
52. Thus, grant of sanction is an administrative function and only prima facie satisfaction of the sanctioning authority is needed. The adequacy or inadequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order and when there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Also, flimsy technicalities cannot be allowed to become tools in the hands of accused.
53. PW-13 Sh. Hibu Tamang, DCP Security deposed that he perused the entire file and on application of mind, he found sufficient incriminating material against accused SI Anil Kumar and accorded prosecution sanction u/s 19 of PC Act. In his cross examination, PW-24 Insp. Vinay Kumar admitted that only material documents were sent to sanctioning authority alongwith the request for grant of FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 47 of 59 sanction. No question was put to sanctioning authority about any material document which was not placed before him with the request to grant the sanction. No request whatsoever was made by Ld. Defence counsel either at the time of cross examination of sanctioning authority or later on for summoning/calling of the sanction file. Therefore, I do not find any ground which may show that sanction Ex.PW-13/A was accorded without application of mind. The authority of Mansukh Lal vs. State (supra) as relied upon by Ld. Defence counsel is not applicable in the facts of present case as in that case, the Hon'ble High Court issued mandamus under Article 226 of the Constitution directing the Secretary to grant sanction for prosecution of accused and another judgment K. C. Singh vs. CBI (supra) as relied upon by Ld. Defence counsel is also not helpful as in that case, the CFSL report pertaining to some other case was mentioned in the sanction order.
54. Sh. Akshay Singh, Special Correspondent of Aaj Tak channel, who had conducted and recorded the sting operation related to present case could not be examined as he passed away during investigation and Sh. Punit Jain, Head Legal & Compliances provided the copy of his death certificate to the IO. The original device i.e. I-phone through which Sh. Akshay Singh recorded the sting operation was not produced before the Court and it has come on record in the evidence of PW-17 Sh. Punit Jain that the original recording device was in the custody of UP Vidhan Sabha in some other related sting operation.
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 48 of 5955. As per prosecution case, Sh. Akshay Singh, Correspondent, Aaj Tak Channel and PW-1 Sh. Sapan Gupta, who was working as Intern planned a fictitious story and at first instance as per plan, PW-1 Sh. Sapan Gupta entered inside the room of SI Anil Kumar and told him about his grievance regarding purchase of a car from one Umesh and convinced him to call the elder brother of Umesh and recorded the conversation with the help of I- phone 5S and thereupon, Akshay Singh pretending to be elder brother of Umesh went inside the PS and met SI Anil Kumar and he also done the recording from the I-phone 5S while accused accepted the amount of Rs.5000/-, which he put on the table of accused for sorting out the matter without registration of FIR. It is admitted by PW-1 Sapan Gupta in his cross examination that Sh. Akshay Singh had gone alone and he only directed him to go to first floor. Thus, it is admitted case of prosecution that when Akshay Singh went to meet the accused at PS Kalyanpuri as per their plan, PW- 1 Sapan Gupta was not present there.
56. PW-2 HC Mahesh Kumar deposed that the data was transferred by him in DVD Ex.P1 from DVD which is Ex.P2 i.e. one of the three unedited DVDs. When DVD Ex.P1 was played, PW-1 Sapan Gupta identified the footage i.e. file no.4.mov as the same which he had recorded on 30.01.2014 and also identified the transcription of the conversation in said audio video footage of file no. 4.mov as Ex. PW-1/C. PW-1 Sapan Gupta also deposed that file no.1.mov from DVD Ex.P1 is the same audio video FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 49 of 59 recording which Sh. Akshay Singh had shown him after he came out from PS Kalyanpuri. File no.4.mov of DVD Ex. P1 and its transcription Ex. PW-1/C and file no.3.mov of DVD Ex.P2 and its transcription Ex.PW-1/D show that same are regarding the conversation between Sapan Gupta and accused and in these recordings, no conversation regarding acceptance of bribe by accused is appearing. Therefore, file no.4.mov of DVD Ex.P1 and file no. 3 of DVD Ex.P2 are not helpful to the case of prosecution as these recordings are between Sapan Gupta and accused when he went to the room of accused as per preplanned story to convince him to call the elder brother of Umesh with whom he had transaction regarding sale of a car, so that Sh. Akshay Singh pretending to be elder brother of Umesh can go to his room and can record the transaction of giving bribe.
57. PW-1 Sapan Gupta during his examination in chief identified signature of Akshay Singh on DVD Ex.P1 at point A, but later on in his cross examination, he deposed that he has not seen the signature of Akshay Singh earlier, but saw only at the time of seizure memo when it was shown to him in the Court. As per case of prosecution, DVD Ex.P1 containing relevant file of Akshay Singh and accused i.e. file no.1.mov is a copy prepared by PW-2 HC Mahesh Kumar from the copies of the original recordings i.e. three unedited DVDs which were prepared from the office computer of Aaj Tak after downloading the data from original device.
FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 50 of 5958. Now, let me examine whether the prosecution has proved the DVD Ex.P1 as a secondary evidence as there is no direct ocular evidence or primary evidence against the accused that he demanded or obtained any bribe from Akshay Singh which was allegedly recorded by him through his I-phone. The original device i.e. I-phone through which the sting operation was recorded has not been produced before the Court, therefore, the entire case of the prosecution is based upon the DVD Ex.P1. Admittedly as per case of prosecution, the DVD Ex.P1 was prepared at the office of Vigilance on 07.02.2014 by PW-2 HC Mahesh Kumar from the four DVDs i.e. three raw and one edited DVD which were handed over to him by PW-12 ACP Sh. L. C. Yadav and the data on those DVDs was copied from the office computer of TV Today Network, on which, allegedly the data was transferred from the original device, therefore, DVD Ex.P1 being a secondary evidence is to be proved as per Section 65-B of Indian Evidence Act.
59. In case titled as Anvar P. V. Vs P. K. Basheer (supra), it has been observed that :
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 51 of 59 which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied :
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 52 of 59 record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic 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."
60. Hon'ble Supreme Court in Arjun Pandit Rao Khotkar Vs Kailash Kushanrao Gorantyal & Ors. in Civil Appeal no. 20825-20826 of 2017 in its decision dated 14.07.2020, on the issue of certificate under section 65B Indian Evidence Act, 1872 observed as under:
"............We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly clarified in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has been followed in a FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 53 of 59 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".
61. Thus, for the admissibility of any secondary evidence in digital form, the 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 with the electronic evidence produced on record. Source and authenticity are the two hallmarks pertaining to electronic record. Firstly, the question arises, from whom PW-12 Sh. L. C. Yadav received four DVDs containing raw footage as well as edited footage of sting operations conducted by Sh. Akshay Singh, undercover reporter of the Aaj Tak TV Channel. In this regard, PW-12 Sh. L. C. Yadav deposed that he had sent a letter Ex. PW-12/B to Aaj Tak news channel office to FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 54 of 59 provide unedited original recording of the programme and Sh. Satya Prakash, Assistant Manager, Legal brought four DVDs to his office on 06.02.2014 alongwith letter of Sh. Punit Jain i.e. Ex. PW-12/C, but PW-21 Insp. M. S. Shekhawat, to whom investigation of present case was assigned, deposed that on 06.02.2014, he alongwith Insp. Kapil Dev and Insp. V. K. Punia visited at the office of TV Today Network located at Noida, UP where Sh. Satya Prakash, Assistant Manager, Legal Department, TV Today Network met them and handed over three unedited DVDs containing raw footage and one edited DVD alongwith transcript of the telecast and he took all those four DVDs and transcription into police possession vide memo Ex. PW- 15/A. Thus, the prosecution witnesses contradicts each other and deposed two different versions regarding receiving of three unedited CDs/DVDs containing raw footage and one edited DVD from the Aaj Tak channel.
62. Next question comes as to who was having lawful control over the use of the computer of Aaj Tak Channel on which the data regarding sting operation was transferred from the original device i.e. I-phone of Akshay Singh and thereupon, the data was copied in three DVDs containing raw footage of the sting operation for the purpose of furnishing certificate u/s 65-B of Indian Evidence Act. In this regard, prosecution has examined three witnesses of Aaj Tak channel i.e. PW-4 Sh. Deepak Sharma, who was Editor of Aaj Tak, PW-17 Sh. Punit Jain, who was Head of Legal & Compliances of Aaj Tak channel and PW-22 Sh. Satya FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 55 of 59 Prakash, who was working as Assistant Manager. PW-4 Sh. Deepak Sharma, Editor of Aaj Tak confirmed in his cross examination that reporters used to download raw footages of sting operations and prepare DVDs and that every reporter used to have his own desk on which he used to work including preparation of DVDs. He further confirmed that in the present case also, Sh. Akshay Singh downloaded the footage on his desktop and Dr. Punit Jain, Legal Head used to issue certificate u/s 65-B of Indian Evidence Act in respect of electronic records. PW-17 Sh. Punit Jain, Head Legal & Compliance has also admitted in his cross examination that process of transfer of recordings from I- phone to the computers of SIT and thereafter from the computers of SIT to the computer of library were not done in his presence. However, he issued the certificate u/s 65-B of Indian Evidence Act i.e. Ex. PW-17/A pertaining to present FIR. From the testimony of PW-4 Deepak Sharma, it appears that although the footage of sting operation of present case was downloaded by Sh. Akshay Singh on his desktop from original device and DVDs were also prepared by him, but as PW-17 Sh. Punit Jain was the Head, Legal & Compliances, he was asked to furnish certificate u/s 65-B of Indian Evidence Act without considering the requirement of Section 65-B of Indian Evidence Act. PW-24 Insp. Vinay Kumar admitted in his cross-examination that vide letter Ex.PW-7/DF, he had informed Sh. Punit Jain of TVTN that he was not competent person to issue certificate u/s 65-B of Indian Evidence Act and vide letter Ex PW-4/D1 he had FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 56 of 59 requested Sh. Deepak Sharma to provide certificate u/s 65 B of Indian Evidence Act. Not only this, PW-24 Insp. Vinay Kumar admitted in his cross-examination that it was not revealed to him as to who had prepared four DVDs received on 06.02.2014. Thus, certificate u/s 65-B of Indian Evidence Act issued by PW-17 Sh. Punit Jain i.e. Ex. PW-17/A in support of three unedited/raw DVDs is not admissible as Sh. Punit Jain was not the person having lawful control over the use of the computer on which the data of sting operation was downloaded from the original device and copied in three DVDs.
63. Ex.P1 is the DVD which was prepared by PW-2 HC Mahesh Kumar on 07.02.2014 from three unedited DVDs i.e. Ex.P-2, P-5 and P-6. It is admitted case of the prosecution that three unedited DVDs were received by PW- 12 Sh. L. C. Yadav on 06.02.2014 alongwith the reply of Sh. Punit Jain i.e. Ex. PW-12/C and thereafter, Sh. L. C. Yadav directed PW-2 HC Mahesh Kumar to prepare separate DVDs of each incident and to give the same to different IOs case wise. However, when the DVD Ex.P1 was played before the Court for the purpose of finding its properties, the date of access and date of modification of both the files appeared as 05.02.2014. PW-2 HC Mahesh Kumar was reexamined by Ld. Addl. PP for State in this regard, but he deposed that he cannot give any explanation as to why date of access and date of modification of both the files of DVD Ex.P1 is 05.02.2014, whereas it was prepared by him on 07.02.2014. Thus, Mata data of DVD Ex.P1 falsify the FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 57 of 59 testimony of PW-2 that he prepared the DVD Ex.P1 on 07.02.2014.
64. DVD Ex.P1 was examined by PW-10 Sh. R. K. Srivastava, Principal Scientific Officer, CFSL, who deposed that he had not played the video files available in the DVD to see and view the audio video recording and he had only computed the hash value of the DVD which has the relevance for the authentication in future. PW-20 Sh. A. D. Tiwari, Principal Scientific Officer (Photo Division) CFSL, CBI has admitted in his cross-examination that he has opined that for carrying out complete examination i.e. verification and authentication, the original recording device and media was required and despite mentioning in this regard in his reports, no original recording device and media was provided by the Investigating Agency. He further admitted that it cannot be opined without original device about the nature of recording device.
65. The question of raising adverse inference against the accused for not giving his voice sample would arise only when the contents of the video recording is proved in accordance with law, which has not been done in the present case. The source as well as authenticity of DVD Ex.P1 is not established on record even by way of secondary evidence.
66. In view of above reasons and discussion, I am of the considered opinion that prosecution has failed to prove its case against accused SI Anil Kumar beyond reasonable FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 58 of 59 doubt. Accordingly, benefit of doubt is given to the accused and he is acquitted from the charge framed against him. His bail bonds stands cancelled and surety is discharged.
67. File be consigned to record room after due Digitally compliance. signed by SANJEEV SANJEEV KUMAR KUMAR MALHOTRA MALHOTRA Date:
2023.04.18 16:41:05 Announced in the open court +0530 on 18 th April, 2023 (Sanjeev Kumar Malhotra) Special Judge (PC Act) (ACB-01) Rouse Avenue District Courts New Delhi FIR No. 01/2014, PS Vigilance State vs. SI Anil Kumar Page 59 of 59