Delhi District Court
State vs . on 12 August, 2015
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 21.08.2013
Date of reserving the Order : 12.08.2015
Date of pronouncing the Order: 12.08.2015
Corruption Case No. : 20/2013
FIR No. : 383/2007
Case Identification No. : 02401R0355402013
Police Station : Dabri
Under Section : 7/13 (i) (d) (II) of
Prevention of Corruption
Act, 1988
STATE
Vs.
(1) Netrapal Singh
S/o Sh. Nar Singh Pal Singh
R/o Village Shyam Pur, PSGabhana,
DisttAligarh, Uttar Pradesh
(2) Surinder Singh
S/o Sh.Kharak Singh
R/o Village Daulat Pur, PsJafar Pur,
Dist SouthWest, Delhi
(3) Satbir
S/o Sh. Ram Chander
R/o Village Khera Dabas, POUjwa,
Ps Jafar Pur, Distt SouthWest, Delhi
State Vs. Netrapal Singh Etc. Page 1/15
(4) Deepak
S/o Sh. Pratap Singh
R/o RZF231, Raj Nagar PartII,
Palam colony, New Delhi
(5) Sunil Kumar
S/o Sh. Mehar Chand
R/o H.No.28, Madhav Enclave,
Main Khera road, PS Najafgarh, Delhi
(6) Jaipal Singh
S/o Sh. Balbir Singh
R/o H.No.395, Kakrola Housing Complex,
Kakrola Mor, Dwarka, Delhi
(7) Madan Lal
S/o Sh. Naseeb Chand
R/o RZH8, Raj Nagar PartII,
Palam Colony, Delhi
(8) Joginder
S/o Sh. Paras Ram
R/o RZB107, Gurudwara Road, Gali No.6,
Mahavir Enclave, Palam, New Delhi
(9) Sanjay Kumar Dubey
S/o Sh. Ram Subash Dubey
R/o Dubey Bhawan, North Office,
Para Doranda DT Ranchi, Jharkand,
Argued by: Sh.B.B.Bhasin, Ld. Addl. PP for the State
Sh.Sanjay Gupta, Ld. counsel for accused No.1, 2, 3, 6 to 9
Sh.Yogesh Verma, ld. counsel for accused no.4 & 5
JUDGMENT
1.1 Chetan Sharma S/o Babu Lal filed Criminal Writ Petition No.1897 of 2005 before the Hon'ble High Court of Delhi with the averment that he had conducted video recording of Policemen and officials of other Departments taking bribe from bootleggers. Recordings were made on 15.10.2005, 16.10.2005, 17.10.2005 & State Vs. Netrapal Singh Etc. Page 2/15 22.10.2005. Vide order dated 12.12.2005, Hon'ble High Court of Delhi directed the Commissioner of Police to conduct Vigilance Enquiry. Commissioner of Police carried out a Vigilance Enquiry and then directed registration of FIR.
1.2 Complainant Chetan Sharma's statement was recorded on 07.05.2007, wherein he stated that he wanted to expose corruption in Police Department. In August2005 Daya Shankar S/o Ram Niwas met him and informed that he was a bootlegger and some Police officials had been forcibly extracting money from him and forcing him to sell illicit liquor. Whenever, he stops selling illicit liquor, he is involved in false cases. Daya Shankar sought complainant's help and complainant suggested him to get videography conducted of the police officials obtaining money from him. Daya Shankar agreed to the same. Accordingly, complainant started videography of corrupt police officials and shot about 10 police officials by 22.10.2005. Video film in the shape of video cassette was deposited in the Hon'ble High Court. On 27.01.2006, he had joined Vigilance enquiry conducted by Sh.J.L.Sahni - ACP, Vigilance. The Video Cassette, prepared by him, was played in his presence, wherein he had identified the police officials and got recorded his statement.
1.3 On the basis of complaint, as recorded above, FIR was registered. The video cassette was sent to CFSL, Chandigarh for analysis State Vs. Netrapal Singh Etc. Page 3/15 and it was reported that there was no intentional alteration/ tempering in the audiovideo recording. The particulars of police officials covered in videography were collected. Transcript of the conversation in two of the video sequences was prepared. Other conversations were not audible. Video cassette was sent to FSL for enhancement of audio contents and preparation of transcript. However, FSL, returned the same without preparing the transcript. IO, then, got prepared the transcript himself and still photographs were taken from the video recordings. Finding sufficient material against 9 of the police officials covered in the videography, they were charge sheeted. 2 Charge sheet was filed by ACP M.C.Katoch on 21.08.2013. Cognizance of the offences punishable u/sec.7, 13 (1) (d) (2) of the Prevention of Corruption Act, 1988 (hereinafter referred as 'the PC Act') was taken against the accused persons on 05.09.2013 and they were summoned to face trial. On appearance of the accused persons, they were heard on charge and vide order dated 26.02.2014, charge for offence u/sec.7, 13 (1) (d) of the PC Act punishable u/sec.13 (2) of the PC Act was framed. Accused persons pleaded not guilty and claimed trial. Prosecution, in support of its case, examined 25 witnesses and prosecution evidence was closed by statement of Ld. Addl. PP made on 03.08.2015. Statement of the accused persons u/sec.313 Cr.P.C. was dispensed with as nothing incriminating was found to have come up. State Vs. Netrapal Singh Etc. Page 4/15 3.1 SI Kailash Chander (PW1) was the duty officer at PSDabri on 07.05.2007. He has proved lodging of FIR in the present case. Smt. Chhaya Sharma (PW8) has proved sanction for prosecution against accused Ct. Surender Kumar (Driver) & HC Satbir Singh (driver). Sh. Parmaditya (PW20) has proved sanction for prosecution against accused Ct. Netrapal & Ct. Sanjay. Sh.Brahm Singh - DCP (PW9) has proved sanction for prosecution against accused Ct. Deepak & Ct. Sunil. Dr. P.S.Bhushan (PW10) has proved sanction for prosecution against accused HC Madan Lal, Ct. Jogender & Ct. Jaipal.
3.2 Ct. Vijay Singh (PW5) had brought the case property from SIT, Sec.18, Rohini and deposited the same in Malkhana of PSDabri of 01.01.2008. Amit Kumar (PW6) was posted as constable in SIT Branch on 26.02.2008. He had carried two sealed exhibits from the malkhana of PSDabri and had deposited the same in CFSL, Chandigarh. ASI Subhash (PW2) had collected the exhibits from CFSL, Chandigarh on 15.01.2009 and returned the same to Malkhana with the report. Both the witnesses deposed about safe custody of exhibits during transit and safe keeping in the Malkhana.
3.3 Dr. S.K.jain - Deputy Director, CFSL, Guahati (PW11) has deposed that he was posted as Assistant Director in CFSL, Chandigarh in 2008. He had examined the video cassette Ex.P1, containing Audio Video footage, sent to him for analysis. He proved his report Ex.PW11/A and deposed that the recording was free from addition, State Vs. Netrapal Singh Etc. Page 5/15 deletion & tempering. He, however, deposed that it was not possible to opine whether the audiovideo footage in the HI8 Video Cassette was original data. The recording device was not supplied by investigating agency, despite demand.
3.4 Retired Inspector Ajay Kumar Sharma (PW12) and ACP Raj Singh (PW13) had identified pictures of accused Ct. Deepak & Ct. Sunil in the video cassette Ex.P1 during investigation. Inspector Kuldeep Singh (PW14), during investigation, identified picture of Ct. Jaipal in the video cassette Ex.P1. SI Ajeet Singh (PW15), during investigation, identified picture of HC Satbir Singh in the video cassette Ex.P1. Retired ACP Hoshiyar Singh (PW16), during investigation, identified picture of Ct. Netrapal Singh in the video cassette Ex.P1. SI Charan Singh (PW17), during investigation, identified picture of Ct. Surinder in the video cassette Ex.P1. HC Vijay Singh (PW21), during investigation, identified picture of Ct. Sanjay in the video cassette Ex.P1. Retired Inspector Laxmi Chand (PW22), during investigation, identified picture of HC Madan Lal & Ct. Joginder in the video cassette Ex.P1. ASI Raj Kumar (PW3), during investigation, identified picture of Ct. Surender in the video cassette Ex.P1.
3.5 ACP Ramesh Chander (PW18) had collected a sealed packet containing CDs & Cassettes from ASI Manjoor Ahmed (PW19) on 22.06.2007 and had deposited the same in SIT office. Retired ACP Jeet Singh Joon (PW25) was the first IO. He proved recording of statement State Vs. Netrapal Singh Etc. Page 6/15 of Chetan Sharma, preparation of Rukka & registration of FIR. On 01.01.2008, he had received parcel containing video cassette from the Hon'ble High Court of Delhi and had seized the same. On his retirement, investigation was handed over to Dr. Joy Tirkey. Dr. Joy Tirkey (PW23) has proved seizure of a lead with microphone at one end and mono audio connector (jack pin) at the other end. He had got deposited the exhibits at CFSL, Chandigarh for analysis. He had also obtained sanction for prosecution against accused persons. ACP M.C. Katoch (PW24) was the final IO. He recorded the statements of Jaswant Singh, Daya Shanker & Kela Devi. He had got prepared the transcripts of audio contents of the audiovideo footage.
4.1 PW Kela Thekedarni was given up by Ld. Addl. PP, vide statement dated 02.03.2015, as her testimony did not contain any incriminating material qua the accused persons. PWs Yashwant Singh & Jaswant were also given up by Ld. Addl. PP, vide statement dated 25.05.2015, as their testimonies were based on inadmissible electronic record. Daya Shankar (PW7) was the sole prime witness, who as per the complainant's version had paid bribe to the accused persons. However, when he stepped into the witness box as PW7, he did not support the prosecution version. He deposed that he was employed with one Jaswant Singh, who was engaged in the business of selling liquor. On instructions of Jaswant, he used to hand over some money to some persons, known to him. Those persons used to be in civil dress. State Vs. Netrapal Singh Etc. Page 7/15 Jaswant was running some 'committees' and member of 'committees' used to given and collect their money. He was unable to identified those persons. He was crossexamined by Ld. Addl. PP but he did not support the prosecution case. Complainant Chetan Prakash (PW4) is the sole material witness, who has stood by his complaint and statement made during investigation. He has deposed that Daya Shankar requested him to conduct audiovideo recording of Police Officials, forcibly extracting money from him. Daya Shankar had been paying illegal gratification to police officials on behalf of Jaswant Singh, as monthly protection money for sale of illicit liquor. Daya Shankar wanted to withdraw from the business of illicit liquor but police officials were not permitting him to do so. Accordingly, to help Daya Shankar, in October2005, he sat in a hidden place at the Adda of Jaswant Singh and Daya Shankar and filmed police official, who would come to collect the protection money. He had video filmed 10 police officials up to 22.10.2005 and had submitted the footage contained in a video cassette to the Hon'ble High Court of Delhi. He identified video cassette Ex.P1 to have been recorded by him. Video Cassette Ex.P1 was played in the court and he identified the accused persons accepting currency notes from Daya Shankar. He deposed that he had conducted Audio recording with inbuilt microphone in the Sony Handicam, used by him. An external microphone had also been used for audiorecoding on the cassettes. He identified the external microphone and its lead.
State Vs. Netrapal Singh Etc. Page 8/15 4.2 He was crossexamined at length by ld. defence counsels and admitted that he was declared a Bad Character of PSDabri. He had made videos of about 450 Police Officials. He denied that he had used various softwares to manipulate the videography. He admitted that none of the accused persons had demanded or accepted bribe from him. He admitted that he did not know the name of accused persons at the time of filing the writ petition. He came to know their names during investigation. He claimed to have used blank cassette, wherein, the recording was made.
5.1 Sh.Sanjay Gupta & Sh.Yogesh Verma, ld. defence counsels have argued that in view of the testimony of Dr. S.K.Jain (PW11), the sanctity of the data, contained in cassette Ex.P1, becomes doubtful and also it loses its admissibility. Dr. S.K.Jain had deposed that it was not possible to have opined that the cassette contained original data. It is further argued by the ld. defence counsels that the cassette, when played in the court, contained a clip of TV Program in between the clips allegedly of accused persons demanding & accepting bribe; whereas, Chetan Sharma (PW4) has deposed that he had used blank cassette for conducting the recordings. Thus, the authenticity of contents of the video cassette Ex.P1 is doubtful. It is further argued that in the absence of any proof that the video cassette Ex.P1 contained original data, the same can not be admitted as Primary Evidence. Further, in the absence of certificate u/sec.65/B of the Indian Evidence Act, the cassette can not State Vs. Netrapal Singh Etc. Page 9/15 be admitted as Secondary Evidence, as well. Moreover, Daya Shankar, who allegedly had paid the bribe on demand, has not supported the prosecution case. There is no incriminating material on record. Identification of accused persons by Chetan Sharma (PW4) in the video cassette can also not be read in evidence, as the same is only narration of contents of video cassette Ex.P1, which is inadmissible in evidence. Chetan Sharma (PW4) has admitted that he did not know the accused persons prior to the incident and they had not demanded or accepted any bribe from him.
5.2 Sh.B.B.Bhasin, Ld. Addl. PP for the State has argued that Chetan Sharma's testimony can not be outrightly thrown away. He has identified each of the accused persons and deposed that they were accepting bribe from Daya Shankar. Daya Shankar has apparently been won over by the accused persons. Chetan Sharma has also deposed that the video cassette prepared by him was original. Sh.Bhasin has also argued that the Provisions u/sec.65/B of the Indian Evidence Act would not be attracted in the present case, as the cassette contains original recordings.
6 I have heard Sh.B.B.Bhasin, Ld. Addl. PP for the State, Sh.Sanjay Gupta & Sh.Yogesh Verma, ld. counsels for the accused persons and perused the evidence on record.
State Vs. Netrapal Singh Etc. Page 10/15 7.1.1 Formal witnesses, examined, can be categorised in 3 categories. PW3 & PW12 to PW17, PW21 & PW22 have merely identified the pictures of accused persons in video cassette Ex.P1. The other category of witnesses, are (PW8, PW9, PW10 & PW20)who had granted sanction for prosecution against the accused persons. The third category of witnesses are witnesses (PW2, PW5 & PW6) to seizure & safe custody of video cassette Ex.P1.
7.1.2 Chetan Sharma (PW4) & Dr. S.K.Jain (PW11) can be said to be the only material witnesses, who have supported the prosecution case. Testimony of Chetan Sharma is totally inadmissible, being hearsay evidence of Daya Shankar's alleged version and also because he has merely narrated the contents video cassette, which in itself is inadmissible. The testimony of Dr. S.K.Jain (PW11) or the report submitted by him is apparently incomplete as he has not given any opinion whether the contents in cassette Ex.P1 were original recording. He has also not opined regarding the compatibility of HI8 cassette with the recording device. His findings/ opinion expressed in the report that there is no addition, deletion & tempering with the video footage is also patently wrong. A perusal of the testimony of Chetan Sharma (PW4), as recorded on 18.04.2015 indicates that the sequence at Srl. No.10 displays the starting time of recording as 19:22 Hours and concluding time as 19:42 Hours. It was observed by the court that the sequence had jumped time from 19:27:23 Hours to 19:28:02 Hours and 19:30 Hours to State Vs. Netrapal Singh Etc. Page 11/15 19:38 Hours. Meaning thereby, either the recording was stopped in between the sequence, or, some portion has been deleted, after the recording had been done. The FSL report being silent as regards this sequence; in my opinion, the same is not a complete & correct report. Similarly, the FSL report has not noticed and opined about a TV clip of ETC Channel, in between the alleged recordings of corrupt activity. 7.2 However, in the absence of proof of actual demand of bribe, it can be held that there is any incriminating material against the accused persons. Mere identification of their pictures in cassette Ex.P1 can not be said to be incriminating as cassette Ex.P1 itself is inadmissible in evidence. The video footage contained in Ex.P1 has not been opined by FSL to be the original recording. It has been demonstrated by the ld. defence counsels that the video cassette contains clippings of ETC Channel in between the alleged incriminating clips, which demonstrates that the cassette is not original recording. It was copied on a prerecorded cassette. It has also not been brought on record that the recording device had the provisions of making direct recording on the cassette or it first recorded on a memory stick and then transferred the contents to cassette. The recording device was admittedly not sent to FSL for analysis. Thus, there is no evidence that video recording contained in cassette Ex.P1 is original recording and, thus, Primary Evidence admissible u/sec.62 of the Indian Evidence Act. In the absence of certificate u/sec.65/B of the Indian Evidence Act, the State Vs. Netrapal Singh Etc. Page 12/15 cassette Ex.P1 is apparently inadmissible as Secondary Evidence, as well. View taken by the Hon'ble Supreme Court of India in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014's case is as under: "Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions u/sec.65B(2) of the Indian 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; State Vs. Netrapal Singh Etc. Page 13/15
(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.
U/sec.65 (4) of the Indian Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate, which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned u/sec.65 B(2) of the Indian 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."State Vs. Netrapal Singh Etc. Page 14/15
8 I am, thus, of the considered opinion that no incriminating material has come up against the accused persons. Prosecution has, thus, failed to establish the charges framed. All the accused persons are entitled to acquittal from the charges u/sec.7 of the PC Act, 13 (i) (d) of the PC Act and punishable u/sec.13 (2) of the PC Act. Ordered accordingly.
However, in terms of sec.437 (A) Cr.P.C., accused persons are directed to furnish bail bonds for the amount of Rs.25,000/ each with one surety in the like amount, along with latest passport size photographs and residential proof, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 12.08.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Netrapal Singh Etc. Page 15/15