33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.
34. It was laid down by the Hon'ble Supreme Court in R. M. Malkani as under:
"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."
35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the evidence not collected properly would lead the court to view it with "care and caution".
36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Crl. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:
a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
C.C. No. 52/11 81 of 99
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
a.The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions (b) (c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done by resorting i.e. speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination of videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with."
Delhi District Court
Picture Houses Ltd. vs . Wednesbury Corporation. [1948] ... on 4 July, 2014
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No.52/2011
R.C. No.48(A)/04
Case I.D No.02401R0710582007
Introduction The two accused herein, namely, Const. Mukesh Kumar and Const. Dharam Dev Tyagi were both posted at P.S. Uttam Nagar in the year 2003. They have been sent up for trial under section 120B IPC read with Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereof with the allegations of their having accepted Rs. 100/ from one Jasbir Sansi and his wife Smt. Beena Sansi, who were in the business of selling liquor illegally, in front of their premises and having been so caught on camera by the complainant Shri Chetan Prakash who had been filming the officials of Delhi Police and Excise Department accepting bribe from the bootleggers operating in the jurisdiction of P.S. Uttam Nagar and other adjoining areas.
Allegations in detail
2. As per the allegations in the charge sheet the complainant Shri Chetan Prakash had video graphed several personnels of C.C. No. 52/11 2 of 99 Delhi Police and Excise Department of GNCT of Delhi taking bribes from bootleggers selling liquor illegally in the area under the jurisdiction of P.S. Uttam Nagar and adjoining police stations in order to expose to their corrupt practices. He had filed a Writ Petition before the Hon'ble High Court and by the orders dated 04.10.2004 in the said Writ Petition directions had been given to CBI to investigate this matter. In terms of the directions of the Hon'ble High Court, their were three FIRs registered on the basis of location of the offences committed viz., RC DAI 2004 A 0048, RC DAI 2004 A 0049 and RC DAI 2004 A 0050. The instant case i.e. RC DAI 2004 A 0048 relates to the incidents committed in the territorial jurisdiction of P.S. Uttam Nagar.
3. CBI had received five Hi8 cassettes and one VHS video cassette from the Hon'ble Delhi High Court which formed the basis of the investigation in this case. One of the places where the complainant Chetan Prakash had shot the video film clandestinely was in front of residential premises of one Jasbir C.C. No. 52/11 3 of 99 Sansi residing at C233, DDA Flats, Binda Pur, P.S. Uttam Nagar, New Delhi where he and his wife used to sell liquor illegally. There were also many cases registered against them at P.S. Uttam Nagar. The video films which the complainant had prepared related to the period 2002 to 2003.
4. The Five Hi8 original cassettes were forwarded to CFSL, Chandigarh for its opinion to know if they had been edited or tapered with. There was an opinion received from CFSL, Chandigarh on 19.12.2006 reporting that the said cassettes were camera original and were free from editing and tampering. As per the request made CFSL, Chandigarh had also prepared five CDs corresponding to the five Hi8 cassettes and forwarded them to CBI for the purpose of investigation.
5. Several police personnels of Delhi Police and the complainant had been called to CBI office to view the video clippings for identifying the persons seen in the questioned video clippings.
C.C. No. 52/11 4 of 99
6. Accused Const. Mukesh Kumar and Const. Dharam Dev Tyagi had also been identified having been caught on camera accepting money from Jasbir Sansi and Bena Sansi in front of thier premises. Const. Dharam Dev Tyragi was seen accepting Rs. 100/ currency note from Jasbir Sansi and Const. Mukesh Kumar was seen sitting on a Bullet motorcycle. Const. Mukesh Kumar was also heard making inquires about his own share of bribe.
7. Const. Dharam Dev Tyagi, however, was not heard saying anything.
8. The specimen voice of Const. Mukesh Kumar was taken and sent to CFSL, New Delhi for voice spectographic examination for comparing with the voice heard in the questioned video clipping. There was a positive opinion received from CFSL, New Delhi that the specimen voice of Const. Mukesh Kumar matched the questioned voice heard in video clipping.
C.C. No. 52/11 5 of 99
9. On the conclusion of the investigation and also getting the sanction for their prosecution undersection 19 of the Prevention of Corruption Act the charge sheet was filed. Charge
10. On the basis of the allegations, the charge under Section 120B IPC read with sections 7 and 13(2)read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was framed against both the accused persons and a separate charges under sections 7 and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act were also framed against both the accused persons to which they had pleaded not guilty and claimed trial.
Prosecution Evidence
11. PW1 Inspector Surender Singh had identified both the accused i.e. accused Const. Mukesh Kumar and Const. Dharam C.C. No. 52/11 6 of 99 Dev Tyagi having been posted at P.P. East Uttam Nagar under P.S. Uttam Nagar during his tenure as SHO during the period 01.10.2003 to February, 2004 at P.S. Uttam Nagar.
12. Witness PW2 ASI Phool Singh who was posted as ASI at P.P. East Uttam Nagar had identified both the accused persons and had stated that they were probably posted with him at P.P. East Uttam Nagar.
13. Witness PW3 Shri Deepak Kumar Tanwar, Sr. Scientific Officer, CFSL, New Delhi had deposed that there were 4 sealed parcels, 5 unsealed Compact Discs alongwith specimen sealed impression had been received at CFSL from CBI by letter dated 16.03.2007 alongwith other related documents. Out of 4 sealed parcels, 3 parcels had specimen voices S17 to S22 while the fourth parcel contained 5 Hi8 AudioVisual Cassettes marked Q1 to Q5.
C.C. No. 52/11 7 of 99
14. On opening of the parcels S17 and S18, he had found one normal size Audio Cassette, which had specimen voice recording of Const. Rajesh Kumar on side A and that of Const. Mukesh Kumar on side B. He had marked them as Ex. S17(A) and Ex. S18(A) respectively. He had selected certain common clue words / sentences from the specimen voice recording for voice spectographic analysis. He had also opened parcel Q4 which had one Hi 8 Audio Video cassette containing 4 Audio Video clippings. The Audio Video clipping starting at 07 minutes ending at 11 minutes 26 seconds was marked by him as Ex. Q4(1). In this video clipping the voice of the person starting with sentence 'Mere, haan, mere, mere kab dega too....' was marked as Ex. Q4(1)(A) by him. Some common clue words / sentences was selected from the questioned voice with reference to specimen voice recording of the accused here Const. Mukesh Kumar for spectographic analysis. He had subjected the said cassette also for auditory examination, which showed similarities in the linguistic characters and phonetics features. The spectographic examination of the common clue words / C.C. No. 52/11 8 of 99 sentences revealed similarities in respect of their number of formants, formants frequencies distribution, intonation pattern and other general visual features in the voice grams. It was concluded that the voice mark Ex. Q4(1)(A) i.e. questioned voice was the probable voice of Const. Mukesh Kumar whose specimen voice was marked Ex. S18(A). The witness had proved his report as Ex. PW3/A. He had also identified the case property, i.e. the audio cassettes, their packing material, cloth wrappers and inlay cards in the Court.
15. Witness PW4 Shri Chetan Prakash is the complainant in this case. This witness had deposed that he had prepared audio and video cassettes containing about 250 staff / officials of Delhi Police and Excise Department taking bribe at different places in Uttam Nagar area. He had taken said cassettes to the then ACP Rajbir Singh and had shown him the same. Despite the assurances given, there was no action taken on the basis of the same but instead a raid was conducted at his residence by the Special Cell of Delhi Police and the all cassettes were taken C.C. No. 52/11 9 of 99 away except for a few cassettes, which were lying on the loft and could not be noticed by them. Consequent upon this he had filed a Writ Petition before the Hon'ble High Court and submitted 5 Hi8 cassettes to the Hon'ble High Court. Later on, during the investigation of this case, on 11.01.2007 he was called to the CBI office, CGO Complex and shown 5 CDs on a computer and he had identified different persons depicted therein. Thereafter a CD Identification Memo was prepared in his presence, which he had signed. He had identified the said memo Ex. PW4/A in the Court. He had identified both the accused present in the Court and stated that at the relevant time both of them were posted at P.P. East Uttam Nagar when he had shot the video in question. The witness had identified the Hi8 cassettes in question, their packing, inlay cards etc. in the Court. The audio video clipping was played in the Court. He had deposed that it was recorded by him on 12.11.2003 in front of the house of Shri Jasbir Sansi, a bootlegger in business of selling liquor illegally. He had deposed that in the video cassette it was visible that the two Constables i.e. the accused in the Court came on a motorcycle C.C. No. 52/11 10 of 99 at the house of Jasbir Sansi. They could be seen accepting money from Jasbri Sansi.
16. Witness PW5 Inspector Mukesh Kumar had deposed that in the year 2004 when he was posted as Inspector in the Anti Corruption Branch, New Delhi, there was FIR Ex. PW5/A registered by Shri D.C. Jain, the then S.P. in this case and the same was handed over to him for investigation. During the investigation he had recorded the statement of the complainant and other witnesses, namely, Jasbir Sansi, Beena Sansi, Surender Chaudhary and Shri Satyawan so far as they related to this case. He had also recorded statement of other witnesses related to the connect cases arising out of the same FIR. He had also collected certified copies of the FIR registered against Shri Jasbir Sansi, Beena Sansi and Shri Dev Raj i.e. 200203 at P.S. Uttam Nagar. He had visited the places mentioned in the FIR alongwith the complainant Shri Chetan Prakash and identified those places.
C.C. No. 52/11 11 of 99
17. He had also identified the Inquiry Report Ex. PW9/A which was received from GNCT Vigilance and handed over to him after the registration of the case.
18. Witness PW6 Dr. C.P. Singh is the Scientific Officer who had examined the Hi8 cassettes involved in this case. He had deposed that on 09.11.2006 one sealed parcel was received from S.P. CBI, New Delhi. On opening the seal 5 video cassettes of Sony Hi8 were found therein. They were marked as Ex. 1 to Ex. 5 in the laboratory. The video cassettes were referred for examination to know :
(1) As to whether the video recorded in the video cassettes were in continuity or otherwise;
(2) As to whether the video recorded in the video cassettes were edited or other; and (3) as to whether video recorded in the video cassettes were the original master copy or copy of master copy.
C.C. No. 52/11 12 of 99
19. He had also been requested to prepare two sets of working copies of video recordings in CD form.
20. He had examined the contents of 5 video cassettes by using VISAR tool, vectorscope and Waveform Monitor. His findings on the above queries were;
(i) All the video shots in all cassettes were in continuity;
(ii) There was no indication of editing in the said cassettes; and
(iii) As there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that video recordings were camera original and thus master copy and not copy of the master copy.
21. As per the request made he had prepared two working copies from the said video cassettes. The witness had identified his report Ex. PW6/A and also the letter Ex. PW6/B by which C.C. No. 52/11 13 of 99 his report and the cassettes were returned to CBI after sealing the same with the seal of CFSL Chandigarh. The witness had identified the Hi8 cassettes in the Court. He further had identified the 5 CDs corresponding to the said video cassettes mark P5/1 to P5/5.
22. Witness PW7 Shri Babbal working as Safai Karamchari with Municipal Corporation of Delhi had deposed that in December, 2006 he had visited the CBI office on the instructions of one Shri Mukesh Kumar, Inspector who was conducting investigation in one another case at Shahdara South Zone. When he was in the CBI office Inspector D.K. Thakur had brought some persons to the office. He was given a paper to read out something from it and thereafter the voice of the said person had been recorded. In his presence statements of Shri Mukesh Kumar and Shri Rajesh Kumar had been recorded. He had identified his signatures on the Specimen Voice Identification Memo Ex. PW7/A.
C.C. No. 52/11 14 of 99
23. Witness PW8 Shri Jasbir Sansi had deposed that he had been staying at DDA flats Bindapur, Uttam Nagar, Delhi with his wife and his grand son. He had admitted that while he was staying at Binda Pur he used to sell liquor illegally. The police officials also used to visit his flat for making searches etc. There were also some cases registered against him under the Excise Act. The cassette was played in his presence and he had deposed, after seeing the cassette, that in the cassette though he was not visible but his wife and daughter could be seen. While describing the scene he had stated that the officials of police were after him and they wanted him to provide the vehicle number of the complainant Shri Chetan Prakash. After noting down the number of the vehicle of Chetan Prakash he had given the same to his wife with the instructions that she may hand over the same to these persons as and when they visit. According to him she could be seen handing over the said paper slip to one of the accused. This witness was crossexamined by Ld. PP for CBI on the question that it was not a paper slip but money which the accused persons were receiving from his wife.
C.C. No. 52/11 15 of 99
24. Witness PW9 Shri Jia Lal Sawhney is the officer from Delhi Police who was posted as ACP, Vigilance in 2004 and had conducted the inquiry against the officials of Delhi Police and Excise Department who alleged to have indulged in corrupt practices such as taking money from bootleggers.
25. In the inquiry he had got prepared the digital photographs and the still photographs from the video cassettes and also transcription of the conversation for the comparison of video clippings. He had examined the officials of Excise Department and Delhi Police and shown them video cassettes for identification of Delhi Police and Excise Department officials appearing in those video clippings. He had also collected the documents with regard to the posting and deployment of officials of Delhi Police and Excise Department seen in the video clippings. He had noted down the scenes appearing in those video clippings separately. He had recorded statement of complainant Shri Chetan Prakash and other witnesses. He had mentioned in his report names the officials of Delhi police and C.C. No. 52/11 16 of 99 Excise Department who could be identified. He had identified the report in the court and submitted the same to his Department Ex. PW9/A alongwith its annexures. He had submitted that out of the persons identified during the course of the inquiry, two were the persons who were present in the Court i.e. the accused Mukesh Kumar and Dharam Dev.
26. Witness PW10 Shri Robin Hibbu had deposed that he had given the sanction for the prosecution of the accused Const. Mukesh Kumar and Const. Dharam Dev Tyagi Ex. PW10/A and Ex. PW10/B, respectively, under the provisions of Prevention of Corruption Act, after having gone through the various documents including FIR, CFSL report, police inquiry report and other material collected during the investigation by CBI.
27. Witness PW11 Shri Ram Naresh had deposed that he was posted from September, 2002 to August, 2004 as Const. at P.S. Uttam Nagar. He was called to CBI office where he was shown video clippings on a Laptop. He had identified, Cosnt.
C.C. No. 52/11 17 of 99 Ram Kumar, Const. Mukesh and Const. Dharam Dev from the said video clippings. He had further deposed that he knew Const. Mukesh Kumar and Const. Dharam Dev as they were posted in P.S. Uttam Nagar during the said period.
28. Witness PW12 Shri D.K. Thakur is the second Investigating Officer who had taken up the investigation in this case from Inspector Mukesh Kumar. As per his testimony he had scrutinized the files, documents and articles after having received the same from Inspector Mukesh Kumar. This case involved video clippings recorded by complainant Shri Chetan Prakash which he had reportedly given to Hon'ble High Court of Delhi and also to Vigilance Department of GNCT, Delhi. There were total 5 Hi8 cassettes. He had sent them to CFSL, Chandigarh to get their opinion regarding the authenticity of the videos to know if the same were genuine and not tampered. A positive opinion was received from CFSL, Chandigarh along with the copies of the recordings of HI8 cassettes in CDs for investigation purpose. During the proceedings he had taken the C.C. No. 52/11 18 of 99 help of officials of Delhi Police and also Shri Chetan Prakash to identify the persons and scenes in the video clippings. He had prepared the CD Identification Memo Ex. PW4/1 in this regard. He had also obtained voice samples of Cosnt. Mukesh Kumar (accused in this case) and one Const. Rajesh Kumar ( not an accused in this case) for voice spectrography expert opinion and prepared the memo Ex. PW7/A in this regard. He had received a positive report Ex. PW3/A from CFSL, Delhi, on the basis of which the final conclusions were drawn with regard to the fact as to who were the persons to be sent for trial.
29. He had also taken certain clarifications from Excise Department of GNCT of Delhi through a letter dated 27.11.2006 Ex. PW12/A signed by Shri S.K. Palsania the then S.P., CBI, ACB, New Delhi. The witness had further identified the letter Ex. PW12/B which was received from Excise Department, signed by Excise Collector Shri B.L. Sharma alongwith Excise Policy in vogue at that time.
C.C. No. 52/11 19 of 99
30. He had further collected the copies of the FIRs Ex. PW12/C (collectively) alongwith the list thereof in respect of the cases pending against Jasbir Sansi, his wife Beena Sansi and one Dev Raj Diwan at P.S. Uttam Nagar.
31. Witness PW13 Shri Deepak Purohit had deposed that he was posted as ACP (Excise Intelligence Bureau) on deputation from Delhi Police. There was letter received dated 27.11.2006 Ex. PW12/A which was responded by letter dated 28.11.2006 Ex. PW12/B signed by the then Excise Collector Shri B.L. Sharma which he had taken to the CBI office on 29.11.2006. He had deposed that it was not legal to sell liquor from residential premises in Delhi. He had further deposed that the officers of the level of Sub Inspectors were responsible for gathering intelligence in their respective districts divided for the purpose of collecting excise intelligence. Though there was a fund with the Excise Department for rewarding such Sub Inspectors based on the quantity and quality of liquor seized based on the intelligence gathered but there was no fund given C.C. No. 52/11 20 of 99 in advance to the Sub Inspectors for the purpose of intelligence gathering. The reward was given to the Sub Inspectors heading the District who would share the same with the members of his team who were instrumental for collecting of intelligence leading to seizure. He had clarified that the reward was based not on the basis of intelligence gathered but intelligence materialized leading to seizure.
32. Witness PW14 ASI Satyawan had deposed that he was posted as Record Mohrar at P.S. Uttam Nagar in the year 20052006. He had supplied copies of the FIRs alongwith the list collectively Ex. PW12/C registered against various persons, namely, Jasbri Sansi, Beena Sansi and Dev Raj in connection with committing of offences under Punjab Excise Act. Statement under Section 313 Cr.P.C.
33. All the incriminating evidence, which had come on record was put to the accused and their statements under Section 313 Cr.P.C were recorded.
C.C. No. 52/11 21 of 99
Defence Witness
34. In defence one witness Dr. Shailendra Jha from State Forensic Science Laboratory, Rajasthan DW1 was examined. He was asked to produce certain reports with regard to the opinion sought from the Forensic Laboratory in certain other cases involving five memory cards and 6 video cassettes in respect of which he had given the opinion Ex. PWDW1/B. As per the observation made in the report video footage recorded in the DVCs were found tobe tailored one.
Arguments
35. I have heard the Ld. Public Prosecutor for the CBI and also Ld. Defence Counsel. I have gone through the record of this case and also the written submissions which have been submitted on behalf of the prosecution as well as defence.
C.C. No. 52/11 22 of 99
Sanction
36. The prosecution had examined PW10 Sh. Robin Hibu to prove the orders of the Sanction Ex. PW10/A and PW 10/B passed by him for according sanction for the prosecution of the accused constable Mukesh Kumar and constable Dharam Dev Tyagi, respectively, under the provisions of thePrevention of Corruption Act. He had deposed that he was competent to remove the said accused from service and therefore also competent to accord sanction of their prosecution. He had also deposed that he had gone through the FIR, CFSL reports, Police Inquiry report and other material collected during the investigation. It was only after satisfying himself he had accorded the sanction.
37. As far as the competence of Sh. Robin Hibu to accord sanction of the prosecution of the accused persons is concerned the same is not disputed. The main focus, however, of the defence had been that the sanction for prosecution was without C.C. No. 52/11 23 of 99 the application of mind. In order to establish this fact it was pointed out that in the crossexamination the witness had first stated that he had gone through the transcript of the conversation recorded wherein the names of the accused herein also appeared. Later on when he was shown the transcript, form the Inquiry Report Ex. PW9/A at page no. 138, he had changed his stand after discovering that the same did not have the names of the accused persons by stating that his Hindi was not so good, and he had much more relied on the CFSL reports before according the sanction. Then, it was pointed out that the witness insisted in the crossexamination that he had watched the Hi8 cassettes which had been produced by the CBI before him but as per the case of the prosecution and as per the testimony of the the Investigating Officer PW12 Sh. D. K. Thakur, Hi 8 cassettes were never supplied to the Sanctioning Authorities. As per the testimony Of Sh. D K Thakur he had carried with him only the CDs to the Sanctioning Authorities so that if required they could be supplied to the Sanctioning Authorities for their viewing.
C.C. No. 52/11 24 of 99
38. It does appear that on both the above counts the witness was caught on the wrong foot but should this necessary lead to the conclusion that according sanction was without the application of mind? As I can find, the emphasis of his testimony had been that he had much more relied on the CFSL reports which had been submitted before him apart from the other material. While appreciating the testimony of the Sanctioning Authority approach cannot be the same as appreciating the testimony of other witnesses in Court. His testimony is not in relation to a fact but an administrative decision taken by him on the basis of certain material which had been produced before him. It was, therefore, not necessary that he should have remembered each and every fact. It is a settled principle of law that the courts interfere with the Administrative orders only on limited grounds such as, as to whether the authority according sanction was competent to accord sanction and that while according sanction the sanctioning authority did not get swayed by the considerations which should not have influenced its decision or had taken into account something which it should C.C. No. 52/11 25 of 99 not have, while arriving at its decision (Associated Provincial Picture Houses Ltd. Vs. Wednesbury Corporation. [1948] 1 KB
223).
39. On the basis of something he may have said in cross examination which was apparently not correct, it does not appear to me that it can be said he did not go through the CFSL reports and connected material , which he kept referring to with certainty in his crossexamination and also in his examination in chief, and that the same was not sufficient to reach the conclusion that in the present case the sanction could be accorded for their prosecution or that there was no material before him to accord sanction or that he had abdicated his authority and accorded sanction on just being so asked by CBI. I am, therefore, not inclined to hold that the sanction granted in this case for prosecution of the accused persons was improper or without the application of mind.
C.C. No. 52/11 26 of 99
40. Ld. Defence Counsel had made reference to a judgment 2001 CrlJ4028 (Del) Tirath Prakash Vs. State and in particular referred to para no. 10 of the judgment to submit that validity of sanction depends upon the material placed before the sanctioning authority and the fact that all the relevant facts, materials have been considered by the sanctioning authority, which must apply its own mind to the relevant facts of the case. It may be noted that the said observations had been made by the Hon'ble High Court in the background that there was material difference between the facts of the case and the facts which were there in the sanction order on the basis of which the sanction order was passed. There was a contradiction with regard to the amount of gratification which was mentioned in the order of sanction and the one which was alleged in the charge sheet. I am of the view that no such situation arises in this case. Integrity of Video clipping/video shot in question.
41. The Prosecution had examined PW 6 Dr. C. P Singh who had examined the video cassettes as per the request received C.C. No. 52/11 27 of 99 from the CBI from the angles :
● as to whether the video recorded in the video cassettes were in continuity or otherwise ;
● as to whether the video on the video cassettes were edited or otherwise; and ● as to whether the video recorded on the video cassettes were original master copy or the copy of the master copy.
42. The witness had categorically stated that he had examined the video cassettes and he had found the cassettes to be camera original. The relevant part of his testimony is as under: "I had examined the contents of the said five video cassettes by using VISAR tool, vectorscope and Waveform Monitor. After the examination my findings on the above queries raised were as follows:
1. I had found all the video shots in all the cassettes in continuity;
C.C. No. 52/11 28 of 99
2.The above findings also indicated that there was no indication of editing of the said cassettes; and
3.As there was no evidence of second generation deterioration in the image quality and there was significant evidence to support the contention that video recordings were camera original, I had concluded that the said video cassettes were original master copy and not copy of the master copy."
43. The witness was crossexamined on various aspects including his knowledge about the various video formats and he had adequately answered all those questions. He was not confronted with any scientific/ technical material to show that the answers given by him were not correct. Even during the course of the final submissions being made for the Court there was no book or any other material produced to convince that the answers given by him were not correct.
44. I also find that during the submissions made before the court there was no serious challenge made as such to the C.C. No. 52/11 29 of 99 reliability of the report of Dr. C. P Singh. After going through his testimony and his report Ex. PW 6/A , in my opinion there is nothing to doubt that the video clipping/shot in question in cassette no. 4 related to this case was not camera original or same had been edited or tempered with at any time. Accordingly I conclude that the video shot/clipping related to this case is reliable having been not tempered with and the same is camera original.
SPEAKER IDENTIFICATION Specimen voice could not have been taken of the accused persons without the permission of the court.
45. According to the case of the prosecution during the course of the trial specimen voice sample of the accused Mukesh Kumar had been taken. On the one hand the Ld. Defence Counsel had submitted on merits that in this case the prosecution has failed to establish that the specimen voice of C.C. No. 52/11 30 of 99 the accused Mukesh Kumar had at all been taken and on the other hand also raised the legal question that the specimen voice of the accused could not have been taken without the permission of the court. The similar question was raised by the Ld. Defence Counsel in one another connected case CC No. 86/11 titled as CBI Vs. Sachin, wherein I had discussed this issue in detail and I had reached the conclusion that though during the course of investigation an accused could not be compelled to give his voice sample and no such permission could be also granted by the courts during the course of the investigation but there could not be any prohibition in a case where the accused may have given the voice sample voluntarily without any element of compulsion. The detailed discussion in the said case reads as under :
"44. The Ld. Defence Counsel had raised the question that first of all as per the judgement of Hon'ble High Court in Rakesh Bisht Vs. CBI ILR(2007) I Delhi 223, that the accused could not have been asked to give his voice sample as the same amounted to compelling the accused to be a C.C. No. 52/11 31 of 99 witness against himself. Secondly, he had stated that in any case since it was an opinion, which by itself is a weak evidence being an opinion of an expert, which did not go beyond stating that the voice in the video shot was the probable voice of the accused which would fall short of the standard of proof required in a criminal trial i.e. to prove a case against an accused beyond reasonable doubt.
45. Before proceeding further I would like to comment that after the judgement of the Hon'ble High Court in Rakesh Bisht's case, the same question came up before the Hon'ble Supreme Court Ritesh Singh Vs. State of UP and Anr. in a criminal appeal number 2003 of 2012 decided on 07.12.2012 as to whether a suspect can be compelled to give "specimen voice" during the investigation. The question, however, remained inconclusive and the same has been referred to a larger Bench. Thus as far as this Court is concerned law laid down in the Rakesh Bisht's case is binding. I would like make it clear that in both the judgements there was no dispute that per se taking "voice sample" is not violative ofArticle 20(3) of the Constitution. The question, however, remains can a voice sample given voluntarily be not utilized for comparison with the questioned voice.
C.C. No. 52/11 32 of 99
46. Going back to the Judgment of the Hon'ble High Court in Rakesh Bisht case one may say that this judgment makes it clear that the Magistrate neither with the aid of Section 73of the Indian Evidence Act or section 311 A Cr.P.C can grant permission to take "voice sample" of an accused during the course of investigation.
47. It may be noted that the question of approaching the Court would arise where the accused has refused to give voice sample or in other words he is compelled to give voice sample. The question, therefore, would be is there any prohibition in law to utilize the voice samples which may have been given by an accused voluntarily without any compulsion during the course of investigation. In Rakesh Bisht Hon'ble High Court had made reference to one judgment of Hon'ble Supreme Court in the case of Amrit Singh vs. State of Punjab 2006 AIR SCW 5712 wherein the question of obtaining a hair specimen of the accused was in issue.
48. Following portion from para 19 of the said judgment was quoted:
"Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will."
C.C. No. 52/11 33 of 99
49. I am of the view words "Appellant had a right to give or not to give sample of his hair" are significant. It only shows in the context of the present case that the accused had the choice of to give or to not give sample of his voice and if had given it by his choice he cannot now turn around and say that even if it had been given by choice it could not have been used for the purpose of comparison."
46. Thus there is no prohibition in law to have used a voice sample for investigation where there had been no compulsion and had been given voluntarily.
Whether the sample voice of the accused was not at all taken.
47. The focus of the crossexamination of the defence had been that actually there had been no voice sample obtained of accused Const. Mukesh Kumar.
48. As per the case of the prosecution the specimen voice of the accused Mukesh Kumar was taken in the presence of one C.C. No. 52/11 34 of 99 independent witness PW 7 named Sh. Babbal and on the same day the specimen voice of one constable Rajesh Kumar had also been taken. On one side of the audio cassette specimen voice of constable Rajesh Kumar was recorded and on the other side the specimen voice of accused herein Mukesh Kumar was recorded. In this regard there was also a memo prepared Ex. PW 7/A wherein also the details as to how his specimen voice was recoded had been given.
49. According to the Ld. Defence Counsel the prosecution has failed to establish that the specimen voice of the accused Const. Mukesh Kumar had actually been taken. Ld. Defence Counsel pointed out two things in support of his submissions one that the independent witness had not supported the case of the prosecution in this regard and second that like the signatures of constable Rajesh Kumar appearing on the memo Ex. PW7/A, signatures of accused Mukesh Kumar do not appear on the said memo.
C.C. No. 52/11 35 of 99
50. Let this be noted first that taking specimen voice of the accused Mukesh Kumar was an important aspect of the investigation. It was on the basis of this sample ultimately the speaker in the recorded conversation in the video clipping was to be identified. It was the duty of the Investigating Officer to ensure that this exercise was done carefully in the presence of the independent witness. He had accordingly taken this precaution and had undertaken the exercise of recording the specimen voice of the accused Mukesh Kumar in the presence of the independent witness Shri Babbal. The same, however, is being challenged for two reasons first, that the independent witness Shri Babbal when he was examined in the court could not identify the accused Mukesh Kumar as the person whose voice had been recorded in his presence and also the specimen voice recording memo Ex. PW7/A does not bear the signatures of accused Mukesh Kumar; It though bears the signatures of the independent witness Shri Babbal and also that of one constable Rajesh Kumar whose voice was also recorded on the C.C. No. 52/11 36 of 99 same date at the same time on the other side of the same cassette. Testimony of Shri Babbal would reveal that in the examination in chief he had clearly deposed that in his presence specimen voices of Shri Mukesh Kumar and Rajesh had been recorded but when it came to identifying the person whose voice had been recorded in his presence he had pointed not at Mukesh Kumar but the other accused namely Dharam Dev. He had identified his signatures on the specimen voice recording memo. He had further identified the cassette bearing his signatures on both sides and also its packing bearing his signatures. The witness was crossexamined on the question of the identity of the accused by Ld prosecutor. In the cross examination he had admitted that in his presence voice recorded was of the persons named Rajesh Kumar and Mukesh Kumar and not Dharam Dev. He had also admitted that he had seen said Rajesh Kumar and Mukesh Kumar for the first time on the day when their specimen voices were recorded in his presence and had not seen them thereafter. When in the cross examination specifically Shri Mukesh Kumar was pointed out for C.C. No. 52/11 37 of 99 identification to him he still could not say if he was the person whose statement had been recorded in his presence though at the end he had stated that it was possible that it could be the voice of Mukesh Kumar present court which may have been recorded in his presence. Thus, the total impression which one gathers from the testimony of this witness is that he was unsure about the physical identity of the persons whose statement was recorded in his presence, which is quite possible because he had seen this person only once that too 67 years before his statement was recorded in the court, but he was certain about the names of officials i.e. Rajesh Kumar and Mukesh Kumar whose specimen voices had been recorded in his presence. The names which also appear in the specimen voice recording memo Ex. PW7/A. To assume that Mukesh Kumar mentioned in the specimen voice recording memo could be some other Mukesh Kumar would be far fetched. It cannot be a coincidence that the name Mukesh Kumar appearing in the said specimen voice recording memo has the same particulars as the accused Mukesh Kumar appearing in the court. There was no question C.C. No. 52/11 38 of 99 put to the witness in the crossexamination which may create any doubt as to the recording of specimen voices of persons named Rajesh Kumar and Mukesh Kumar in his presence in a cassette or the same being not sealed in his presence after getting his signatures on the said cassette. There is nothing in his testimony which may lead to disbelieving what is noted in the specimen voice recording memo Ex. PW7/A is not correct. I am, therefore, not prepared to believe that the said specimen voice recording memo should be discarded because accused Mukesh Kumar was not identified in the court by this witness. For the same reasons I am also not inclined to disbelieve the specimen voice recording memo Ex. PW7/A and the proceedings recorded therein because it did not have the signatures of the accused Mukesh Kumar. I would, therefore, conclude that the specimen voice of the accused Mukesh Kumar had been taken as noted in the specimen voice recording memo Ex. PW7/A.
C.C. No. 52/11 39 of 99 Speaker Identification Report
51. As per the testimony of PW3, Shri Deepak Kumar Tanwar and also his report Ex. PW3/A, he had examined the specimen voice of Mukesh Kumar and also the recorded questioned voice and on its auditory and spectrographic examination he had concluded that the specimen voice of Mukesh Kumar matched with the questioned voice. The witness was crossexamined at length on various aspects. In the submissions made before the court Ld Defence Counsel had pointed out a number of infirmities in the report which, according to him, would make the report itself unbelievable. They are: a. Reference to xerox reports of specimen voice recording memo in the court though not mentioned in the forwarding letter.
52. Ld. Defence Counsel had pointed out that in the report there is reference to xerox copies of specimen voice recording memo sent to CFSL alongwith the Hi8 cassettes containing the C.C. No. 52/11 40 of 99 questioned voices and also the audio tapes containing the specimen voices in the forwarding letter Ex. PW3/DX1 being forwarded to CFSL.
53. It may be noted that the report of CFSL is a composite report relating to questioned recordings in different Hi8 cassettes alongwith the specimen voices recorded during investigation. It is correct that in this memo Ex. PW3/DX1 there is no reference to any xerox copy of the specimen voice recording memo having been sent .When this question was put to the witness the witness had deposed "it is correct that in the forwarding letter there is no reference to the said xerox copies of the memorandums". He had added the explanation "generally the reference to other documents forwarded alongwith the forwarding letter are not mentioned in the forwarding letter". The examination of the forwarding letter would show that it makes reference only to the audio cassettes wherein the specimen voices had been recorded of the various suspects and also to the five Hi8 cassettes and five CDs prepared from five Hi8 C.C. No. 52/11 41 of 99 cassettes by CFSL Chandigarh. I have not been able to understand that how does it affect the report or what conclusion should be drawn from it as to the integrity of the report. In my opinion it is quite possible that there may have been other documents also sent alongwith the forwarding letter while sending the exhibits such as audio cassettes wherein specimen voices had been recorded and the Hi8 cassettes containing the questioned voices to corelate the exhibits. I am of the view that not mentioning the xerox copies of the said specimen voice recording memo would not affect the integrity of the report itself. b. Though independent witness Shri Babbal had stated that his voice was recorded (introductory voice) before recording the specimen voice of the accused but witness had stated that in the cassette he had found voice of only Mukesh Kumar.
54. According of Ld. Defence Counsel the witness Shri Deepak Tanwar had deposed in the court that on the B side of the cassette he had found only the voice of Mukesh Kumar with no reference to introductory voice of Shri Babbal, it would mean C.C. No. 52/11 42 of 99 that witness Deepak Tanwar had not examined the cassette itself and had given the report without properly examining the cassette. I have seen the crossexamination of the witness on these lines. The witness was asked as to whether he was in a position to tell the court as to how many different voices were there in the cassette "S18". The witness had given a detailed reply as follows:
"I would like to clarify that there was only one audio cassette which was marked "S17 & S18" having voice recording on its 'A' and 'B' sides. The side 'A' of the cassette containing the specimen voice recording of Shri Rajesh Kumar and side 'B' contained specimen voice recording of Shri Mukesh Kumar. The side 'A' was "S17" which was later on marked by me "S17 (A)" and side 'B' was "S18" which was later on marked by me "S18(A)". On side 'B' there was voice of only one person referred to as voice of Mukesh Kumar. Similarly on side 'A' also there was voice of only one person referred to as the voice of Shri Rajesh Kumar".
C.C. No. 52/11 43 of 99
55. The above answer is to be understood in the light of the fact that the witness was answering the question in terms of "specimen voice" and not all kind of voices which could be there in the audio cassette including the introductory voice of Shri Babbal. It is sometimes also a question as to how a question gets conveyed to the witness at the time of his examination. Ld Defence Counsel wanted to know by this open ended question if besides the voice of Mukesh Kumar on side 'B' of the cassette (S18) the witness had found the voice of any other person as well and the witness took it to be as to the reference to "specimen voice" because that was the area of focus for him. As the above answer would show that he was answering the question referring to "specimen voice". He kept saying that on one side there was specimen voice of Rajesh Kumar and on the other side there was specimen voice of Mukesh Kumar. It does not appear to me that the witness could anticipate that the Ld. Defence Counsel wanted him to know about "introductory voice" also. I am of the view if the Ld. Defence Counsel wanted he should have explored this question further if he was really C.C. No. 52/11 44 of 99 looking for an answer that there was no introductory voice on side 'B' (S18) of the said recording. I am of the view that on the basis of the above question and answer no conclusion can be reached that witness Deepak Kumar Tanwar did not find introductory voice on the side 'B' (S18) of the said cassette or that he had given the opinion without having examined the said cassette.
c. Comparing specimen voice of Mukesh Kumar directly with the questioned voice, meaning thereby witness knew before hand that the questioned voice was that of Mukesh Kumar
56. The above question is to be understood in the context that in the forwarding letter there is reference to sealed parcels of specimen voices being sent of different suspects including Mukesh Kumar on the one hand and on the other hand a sealed parcel of five Hi8 video cassettes being sent. Meaning thereby, it would not have been known to the examiner before hand that in which of the Hi 8 Cassette he would find the questioned voice to be examined in relation to a particular Specimen voice. Thus C.C. No. 52/11 45 of 99 he would have been required to go on to hear each clipping from each of the cassette and then keep comparing them with one specimen voice to other before finally hitting one clipping in one cassette having the same voice as one of the specimen voices. According to Ld defence counsel since, the report does not indicate that the witness had examined any other cassette or clipping beside the specific clipping in question with the specimen related to this case, would shows as if he knew straight away knew which of the clipping from which of the cassette is to be examine by him. Meaning thereby he had already been instructed that what report he has to give in respect of questioned voice he had marked as Q4 (1) (A) and accordingly he had given the report without actually examining any clipping.
57. During the crossexamination when a suggestion was put to the witness he had admitted "it is correct that in my report I have not mentioned that I compared any voice other than the voice marked as Q4 (1) (A)in the clipping Q4 (1) with the C.C. No. 52/11 46 of 99 specimen voice S18". It was followed by another suggestion that it would show that he had given the report without carrying out any examination. It was denied by the witness. It reads: "It is wrong to suggest that I have not mentioned in my report Ex. PW3/A that I compared the specimen voice S18 with any questioned voice other than Q4 (1) (A) because I prepared the said report on asking of CBI without carrying out any examination to support the case of CBI".
58. I have gone through the report. In my opinion there was no such extensive examination required like comparing every clipping in every cassette with S18 to hit upon the clipping Q4(1) in cassette Q4. One may appreciate that in the laboratory all the audio cassettes and Hi8 cassettes had been opened. It has already been noted above that the witness was already in possession of the xerox copies of the specimen voice recording memos. It would have taken no time to find out that in the parcel marked S17 and S18 there was specimen voice of Mukesh Kumar. All the Hi8 cassettes were in one parcel C.C. No. 52/11 47 of 99 described at serial number 4 of the forwarding memo. Each Hi8 cassette had an inlay card, on each inlay card there had been details given of the persons, vehicles numbers, date and time of recording etc. in Hindi and English. Thus, on the cassettes itself the names of different officials had been mentioned. In my opinion that it would have taken no time in finding out as to which of the specimen voice relate to which of the cassette. There is one thing more I would like to clarify here if the Ld. Defence Counsel was serious about this issue there should have been some incisive crossexamination of the witness from this angle. Just on the basis of a few suggestions the report can not be discredited by saying that it was prepared without having actually examined the cassette in question. d. Worksheets/Voicegrams not made part of the report.
59. Admittedly in this case the worksheets and viocegrams do not form part of the report. When the witness was cross examined on this aspect the witness too had admitted that same C.C. No. 52/11 48 of 99 had not been filed by him with the report. He had, however, explained that there was no such practice. I believe it would have been better the same had been filed but there not filing would not result in discrediting the report. Other Defences Variation in the number of shots/video clippings in the CFSL reports of CFSL Chandigarh and CFSL Delhi.
60. It was submitted by the Ld. Defence Counsel that according to the report of CFSL Delhi there were four video clippings found in the cassette Ex. P4 whereas as per the report of Dr. C.P. Singh from CFSL, Chandigarh there were eight video shots in the said cassette. According to the Ld. Defence Counsel a video clipping and a video shot are not two different things but the same. He referred to the cross examination of the investigating officer where he was asked to explain the "contradiction" in the two reports. As per the submissions made the investigating officer had explained that a video shot and a video clipping are two different things. He had C.C. No. 52/11 49 of 99 argued that it was the duty of the prosecution to have got it clarified from the witness as to what was the distinction between a video shot and a video clipping. He referred to the testimony of Dr. C.P. Singh where a question was put to him what is a "video shot" and the witness had explained a shot being taken from the camera from the stage it is switched on to the stage it is switched off. According to Ld Defence Counsel a video clipping and a video shot convey the same thing and thus there is a contradiction in the two CFSL reports which raises a serious question about the integrity of the cassette itself.
61. I am of the view that the above argument of the Ld. Defence Counsel is misplaced. It is known that a video clipping can comprise of many video shots. It does not appear to me that it required any explanation from any witness. An ordinary viewer though can make out what can be seen in a video clipping but he cannot make out as to how many shots which resulted in the making of the said video clipping. It can, however, be possible by the way of forensic examination. Since Dr. C.P. Singh had C.C. No. 52/11 50 of 99 examined the cassette from the point of view of it being tampered with or original, he was in a position to say that as to how many shots were there in the entire cassette. Really speaking he was not concerned about how many clippings were there making one scene and his entire report just based on "shots" found in the cassettes. Whereas when the said cassette is being examined for the purpose of the speaker identification what he could see was not shot wise division of the recordings but video clipping wise division of the entire cassette where one scene would constitute one video clipping. Incidentally as far as this case is concerned there is a single shot video clipping that is one scene. In my opinion once this distinction becomes clear it would not seem like a contradiction as is being made out by the Ld. Defence counsel.
62. It does appear from the CFSL Delhi report that as per this report the last clipping (which is the same as the last shot) starts at 7:00 minutes and ends at 11:36 minutes but the same is apparently not correct. The timing recorded in the CD C.C. No. 52/11 51 of 99 Identification memo appears to be correct where the starting time is 10:46 minutes which also matches with the Dr. C.P. Singh's report. I am of the opinion that the timing given of the beginning of the video clipping is an inadvertent error and the same can be ignored for the reason that the examination of the clipping at CFSL Delhi was after the clipping had been examined at CFSL Chandigarh. If it had been edited after it had been examined at CFSL Chandigarh the timing of the clipping would have decreased not increased by '3:28' minutes. I had viewed the cassette myself and found that it started at 10:46 and ended at 11:36 minutes same as noted in the report of Dr. C.P. Singh and in the CD Identification memo. It was impossible for anyone to have recreated/enacted the same scene again and then added into the already existing scene and then deleted it before it was produced in the Court.
63. To sum up what is recorded in the CFSL Delhi's report as to the starting time of the video clipping is an error inadvertently committed and would not give rise to any suspicion to suspect C.C. No. 52/11 52 of 99 the integrity of the video clipping.
The seal of the envelope containing the cassette was found to be opened.
64. The Ld. Defence Counsel in his submissions has referred to an observation of the court dated 22.02.2011 where it was noted "the envelope bearing court seal is produced but the three seal impressions at the mouth of the envelope were found to be opened/broken".
65. According to Ld. Defence Counsel there is a distinct possibility of these cassettes being tampered with between the date 09.02.2011 when the cassette was last produced in the court and could not be played with the help of the digital camera brought by the complainant and on the next date i.e. 22.02.2011 when the said envelope sealed with the seal of the court was produced.
C.C. No. 52/11 53 of 99
66. It may be noted that it is possible that sometimes because of mishandling the seals can get broken as they are brittle in nature. Though I find an observation being made by the court "three seals impressions at the mouth of the envelope are open/broken". I, however, do not find that as a result of it the mouth of the envelope was open to the extent that the cassettes therein, which were five in number could have been easily taken out and placed back into it easily. I find no such observation. Had it been so I am certain that an observation in that regard must have been noted. I would also like to point out that despite the seals impressions open/broken, the envelope was still required to be opened for taking out material from it. Further one may also take note of the fact that inside that envelope there was one another brown envelope and on the opening of the same there was still another unsealed envelope found having five video cassettes. In my opinion it would have been physically impossible to take out so much material from the partially opened envelope and the same being insert back into it. In the given scenario in my opinion the fact of a few seals being found C.C. No. 52/11 54 of 99 broken would have assumed significance only if it would have been followed by an observation that it was possible to take out the material which was found inside the envelope with ease and being put back into it with equal ease. In the absence of any such observation I am of the view that it would not be appropriate to jump to the conclusion that just because a few seal impressions were found to be open/broken it should be assumed all the cassettes found therein had been tampered with.
Name of the accused being mentioned as Dharam Dev Tyagi on the inlay card and his name being referred to as constable Tyagi in the CD Identification memo gives reason to suspect that the cassette may have been tampered with.
67. Ld. Defence Counsel has submitted that when the complainant stated to have submitted the cassettes in the Hon'ble High court he had written complete name of the accused as Dharam Dev Tyagi but subsequently when he was examined by the investigating officer in the year 2007 he did not C.C. No. 52/11 55 of 99 know the full name of the accused that being the case it is difficult to believe that he would have known the full name of the constable Dharam Dev Tyagi in the year 2004 when he had deposited the cassettes with the Hon'ble High Court. According to him the only possibility is that he wrote the full name of the accused as constable Dharam Dev Tyagi only after 2007. Meaning thereby that he had the access to the said cassettes despite they being in the possession of CBI, giving him the opportunity to tamper the same or it had been replaced by writing the complete name of the accused as "Constable Dharam Dev Tyagi"
68. In my opinion the entire argument of the Ld. Defence Counsel is far fetched. It does not ppear to me just because on the inlay card full name of the accused had been written as "Dharam Dev Tyagi" and subsequently in the CD Identification memo he was only referred as constable Tyagi, any conclusion can be reached that the complainant had the access to the video cassettes or he had the opportunity to tamper with the C.C. No. 52/11 56 of 99 cassettes. It is a very normal thing to refer to a person sometime giving his full name and sometime referring to him just by his surname.
69. I would have required something more to jump to such a conclusion. On the contrary the record would show when the envelope containing the video cassettes was opened at CFSL, Chandigarh it was bearing the seal of Hon'ble High Court, when the envelope was subsequently opened at CFSL, New Delhi it was bearing the seal of CFSL, Chandigarh when the same envelope was opened in the court it was found to be bearing seals of CFSL, New Delhi. I am of the view that this sequence is good enough to show that there was no possibility of the said envelope being opened in the office of CBI after it had been received from Delhi High Court even during the course of the investigation. As the record would show initially the investigation was carried out on the basis of a VHS cassette having copies of various video clippings and then on the basis of the CDs received from CFSL, Chandigarh prepared on the request to C.C. No. 52/11 57 of 99 CBI by CFSL, Chandigarh for the purpose of the investigation. I am of the view that this submission of Ld. Defence Counsel has no force.
Though video clipping bears the date of 12.11.2003 but same cannot be believed.
70. According to Ld. Defence Counsel during investigation there was statement of one Sh. Surender Chaudhary recorded under Section 161 Cr.P.C. which would show that complainant had approached him through one Sh. Ishwar in June/July 2004 for using his house for shooting a film of the liquor being sold illegally by the sansis in the house of sansis in the DDA flats opposite his house for which the neem tree in between his house and the house of the sansis was required to be cut. He declined to allow his house to be used as he was opposed to cutting the tree as the tree used to provide them shade. Complainant had offered to pay him the rent as well but he refused. Later on he had come to know that the complainant had used the premises of the Bansal property dealer to shoot C.C. No. 52/11 58 of 99 the film. On the basis of the said statement it is submitted by Ld. Defence Counsel that this statement would show that Sh. Chetan Prakash had started shooting the video films only after June/July 2004 and not before.
71. He had added that complainant too had stated that he had shot the video films from the plot of Bansal property dealer. The prosecution however had neither examined Sh. Surender Chaudhary nor Bansal property dealer as their examination would have exposed the weakness of the case of the prosecution.
72. The statement of complainant would show that he had been shooting the video films for a long time and he had continued to shoot the videos even after he had filed the writ petition before the Hon'ble High Court. It is a matter or record that the video clipping in question is not the only video he had shot. There is absolutely no reason to say that he had started shooting the video only after he had approached Sh. Surender C.C. No. 52/11 59 of 99 Chaudhary to allow his house to be used for shooting the video. Seemingly, he had been approaching different people to use their premises for using their premises for shooting such videos. As in this case after Sh. Surender Chaudhary had refused he had approached Bansal property dealer to allow his premises to be used for shooting the video. It is also a matter of record that there was not one but many videos shot of the house fo Jasbir Sansi on different dates and times. I am, therefore, of the view that just Sh. Surender Chaudhary had stated that Chetan Prakash had approached him in June/July 2004 for permitting his house to be used for shooting the films there can be any presumption drawn that he had not been shooting the videos before or complainant could not have shot video on 12.11.2003. The house of complainant had been raided according to him by special cell of Delhi Police on 27.08.2003 and taken away all the cassettes in the house except for a few on which they could not lay their hand, this would mean that the said cassette must only be having clippings of the dates prior to 27.08.2003, thus it could not be having the clipping of 12.11.2003.
C.C. No. 52/11 60 of 99
73. It is submitted by Ld. Defence Counsel that according to the complainant his house was raided on 27.08.2003 by the officials of special cell of Delhi Police and all his cassettes were taken away except for some which could not be discovered by them which he had later on filed before the Hon'ble High Court. According to Ld. Defence Counsel it would mean that all the video clippings in the said cassettes must have been of the period prior to 27.08.2003 and there could not have been any clipping there in of 12.11.2003, which is the subject matter of this case.
74. Ld. Defence Counsel had further added that according to the complainant the officials of the special staff had also taken away his video camera. It is not the case of the prosecution that complainant had acquired any other camera thus it can be said that in November 2003 even did not have a camera which he could use for shooting the videos. Thus apparently the date of 12.11.2003 was not correct and deliberately predated by the complainant.
C.C. No. 52/11 61 of 99
75. I am of the view that the argument is more in the nature of speculation. In order to lay a foundation for such an argument the complainant should have been crossexamined on these lines. There is no crossexamination on the question of as to how he had shot the video clipping of 12.11.203 if his video camera had been taken away by the special staff of CBI on 27.08.2003. It may also be emphasized here that the complainant never claimed that he had stopped shooting the videos after 27.08.2003 in fact his case is that he had continued to do so even thereafter thus I do not find any material to suggest that the complainant had deliberately given the date of 12.11.2003. I would also like to note, apparently there was nothing he was to gain from such an exercise. I am accordingly not inclined to accept this argument of the Ld. Defence Counsel. No link evidence to show that the Hi 8 cassettes produced in the court was the same which was deposited in the Hon'ble High Court.
C.C. No. 52/11 62 of 99
76. It is submitted by the Ld. Defence Counsel that it was deposed by the first Investigating Officer Sh. Mukesh Kumar that he had not received the Hi 8 cassettes during the period the investigation had remained with him. The second Investigating Officer Sh. D. K Thakur had also not claimed that he had received the Hi 8 cassettes. According to him the Hi 8 cassettes were received by one Inspector Amit Vikram Bhardwaj but Inspector Amit Vikram Bhardwaj has not been cited as a witness in this case. It is also submitted that there is no document placed on record to show as to how and when the said cassettes had been received by the CBI from the Hon'ble High Court.
77. It may be so but still in my view it will not make any difference. It would have made some difference if the Ld. Defence Counsel had brought something on record or pointed out something from the record which could show that there was some reasonable ground to doubt as to the integrity of the Hi 8 cassettes. On the contrary the report of the expert from CFSL C.C. No. 52/11 63 of 99 Chandigarh would show that the parcel which was received by CFSL Chandigarh from SP, CBI was having ten seals of "High Court Registrar Delhi". He had returned the cassettes in a parcel after sealing them with the seal of CFSL Chandigarh (Physics). Meaning thereby that the sealed parcel which were delivered to CFSL Chandigarh was the same which was received from Delhi High Court. Further, as already narrated above, the report of CFSL Delhi would show that the parcel containing Hi 8 cassettes which was delivered to CFSL Delhi was bearing the seals of CFSL Chandigarh. The said parcel was returned to CBI after being sealed with seal of CFSL Delhi. When the said parcel was opened in the court on 09/02/11. It was found to be bearing the seals of CFSL, Delhi. I am of the view that despite no formal document having been proved as to how and on what date the cassettes had been received from the Hon'ble High Court, it is abundantly clear that the Hi 8 cassettes produced in the court are the same which were sealed by the Registrar Delhi High Court and there is absolutely no reason to say that they were tampered with by CBI before being produced in the court.
C.C. No. 52/11 64 of 99 Report of Defence Witness Dr. Shailender Jha of FSL, Rajasthan in other case observing the video clipping to have been tailored.
78. Ld. Defence Counsel had submitted that the testimony of Sh. C. P. Singh is not reliable and in order to support this view he had submitted that admittedly Chetan Prakash had continued to shoot the videos after filing the Writ Petition in Hon'ble High Court, in respect of such videos there was a report of FSL, Rajasthan received which specifically pointed out that the said videos had been suitably doctored/tampered.
79. Dr. Shailender Jha was examined as DW1 by the defence. The said report related to one FIR 114/08 of P S Janakpuri. According to his report Ex. DW1/B video footages recorded the DVCs were tailored one. It is an admitted fact that the said report did not relate to this case. I find no reason to discredit the report of the expert given in this case vouching for the integrity of video shots, including the shots relating to the case, in the Hi 8 cassettes in question because some other C.C. No. 52/11 65 of 99 expert report gave an adverse report in respect of some other video recording. I find the testimony of the witness DW1 of no relevance to this case. In any case even on the basis of this report I am not prepared to jump to the conclusion that there had been deliberate changes being made by the complainant herein in the said matter. The main reason for DW1 Dr. Shailender Jha to reach his conclusion was that some video clips available in the Memory Card were not available in the video cassettes and similarly some of the video clips available in the video cassettes were not available in the Memory Card. When in the crossexamination he was specifically questioned about it his answer was that there cannot be one definite reason for that. The question and the answer given by him are being reproduced as under : "Q. In your report you have made an observation "There were some video footages available in the memory cards which were not available in the video cassettes and vice versa". Can you tell the court what could be the reason for it?
C.C. No. 52/11 66 of 99 Ans. I cannot give any definite one reason. It could be for various reasons, like, fault in camera and recording medium such as CD, cassettes, hard disk etc. There could be such a mismatch also because of human intervention like, cutting, editing, obliteration or repetition of the video footage."
80. In the above given circumstance, in my opinion that the testimony of the witness DW1 will make no difference to this case.
Inconsistent statements made by Sh. Chetan Prakash with regard to the dates of Scene no. 7, 23 & 24 in the VHS cassette.
81. Ld. Defence Counsel had made a reference to a statement given by complainant Chetan Prakash during a vigilance inquiry conducted against Sh. S. S. Sehrawat, SHO of P. S Uttam Nagar. He had made reference to the said statement and submitted that during the inquiry the complainant had made different statements with regard to the date of recording of clippings no. 7, 23 & 24. I am not inclined to take note of such C.C. No. 52/11 67 of 99 inconsistencies, if any, in the statements the complainant may have made in the disciplinary inquiry against Sh. S. S. Sehrawat. The VHS cassette is not a subject matter of this case. Similarly, observations if any which have been made by CAT during a hearing in respect of disciplinary action taken against Sh. S. S. Sehrawat by this department with regard to the videos in the said VHS cassette. As has already been noted above that the said VHS cassette is not part of this case. The video clippings referred to in those proceedings also do not relate to this case.
82. It is submitted by the Ld. Defence Counsel that since there was a possibility of changing the date in the video clipping, therefore, this court may not accept without any independent corroboration that the accused persons had accepted the bribe on 12.11.03. First of all I would find it extremely difficult to jump to any conclusion with regard to the change of meta data in a video clipping on the basis of the statement which Chetan Prakash may have given during the disciplinary inquiry. It is a C.C. No. 52/11 68 of 99 technical question and if the Ld. Defence Counsel wanted he should have asked this question to the expert who had been examined in the court with regard to the clipping in question. The opinion of the expert Dr. C. P. Singh is firm and clear that the video clipping in question is camera original. It means that the meta data which was given at the time of shooting the film remained the same after it had been shot. I have not been able to find anything in the crossexamination of the witness Chetan Prakash where he may have been given any specific suggestion that the date of 12.11.03 recorded on the video clip was not correct or the video was shot not on 12.11.03 but on some other date. I would also find it hard to believe that there was any reason for the complainant to have given some other date of the shooting of the video clipping than the date when it was actually shot as he was apparently nothing to gain or loose by giving some other date than 12.11.03. I would like to add that something stated from the memory by any independent person as to the date could not have made any difference because in my opinion what was recorded as meta data on the video C.C. No. 52/11 69 of 99 clipping was much more reliable than anything having been said as to the date by an independent person from his memory. Unreliability of Complainant Sh. Chetan Pakash as a witness.
83. It was submitted by the Ld. Defence Counsel that there are serious issues relating to the background of the complainant Chetan Prakash. The fact that he was declared "Bad Character" of his area and he had criminal cases pending against him cannot be overlooked while appreciating his testimony. He also made reference to various contradictions in the statement he had made before the court and the statement recorded under section 161 Cr.P.C making his testimony unbelievable.
84. I would like to look at the testimony of Sh. Chetan Prakash in a different way. I am of the view that as far as the core allegations are concerned his testimony is based on what he could see from the video clipping which was played in his C.C. No. 52/11 70 of 99 presence in the court. In other words his testimony is nothing but giving an account of what could be seen in the video clipping which was played before the court. Therefore, one may say that there is nothing to separate his testimony from the video clipping. What is important is what is recorded in the evidence with regard to the video clipping and nothing more. Therefore, the question of whether his testimony is reliable or not reliable makes no difference.
Video recording in the Hi 8 cassette is not substantive but only a corroborative piece of evidence.
85. I am of the view that this preposition of Ld. Defence Counsel is not correct. A video recording in itself can stand alone as a witness of an incident. I have discussed this issue in detail in one another connected case titled as "CBI Vs. Vijay Pal" CC No. 92/11 under the heading Silent Witness Theory. I would like to reproduce the same herein as under:
C.C. No. 52/11 71 of 99
" SILENT WITNESS THEORY
26. A photograph and a video clipping are the category of documents which though silent but speak for themselves or one may say they are despite being silent "worth thousand words". More often than not in case of a videography the words and the acts of the accused herself/ himself speak for themselves. The impact of such an evidence is such that it leaves nothing for imagination. In a trial usually a court depends on the account of events which had taken place in the commission of an offence narrated by a person who may have seen the same. When, however, a videography or a video clipping of an event related to commission of offence is presented before the court, the court may not have been present at the time the offence was committed but it is as good as the court having seen the commission of the offence with "its own eyes". Thus, not necessarily dependent on what witnesses have to say about it. In R M Malkani' s case Hon'ble Supreme Court had described a tape recorded evidence as " real evidence". It was stated " When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine."
1 R M Malkani V State of Maharashtra 1973 AIR 157, 1973 SCR (2) 417 C.C. No. 52/11 72 of 99
27. There is another factor may be referred here that human memory may fail and the visual impressions on the human mind of an event may fade over a period of time, thereby bringing in some elements of assumptions when the same event is recounted in the court after a long period of time. The advantage of a video clipping or a videograph is such that it would remain the same always (provided it is not damaged for external reasons). Thus can be said to be superior to the statements of witness who are asked to recount what s/he may have seen or heard at some point of time.
28. I am of the view this evidence is not only substantive evidence but can be also a preferred evidence in case of difference in the testimony of a witness have may claim to have seen an incident and the a videograph showing the said event. It is submitted once it is admitted in evidence it can standalone even in the absence of any other substantive or corroborative evidence. It was laid down by the Hon'ble Supreme Court in Sh. N. Sri Rama Reddy Vs Sh. V. V. Giri in reference to a tape recorded conversation, while approving the decision in one Scottish case " From the above decision it is apparent that the tape itself is primary 1 1971 AIR SC 1162 2 Hope & Another V H M Advocate (1) Scots Law Times 264 C.C. No. 52/11 73 of 99 and direct evidence admissible as to what has been said and picked up by the recorder." What is true of tape record is certainly true of a video tape. Indeed in this age of surveillance cameras it is not uncommon to find where "camera" is the only witness and video footage may be the only piece of evidence.
29. This "silent witness" though is "worth thousand words" but still cannot be subjected to cross examination. Thus the only way it can be defeated is to question its admissibility and relevancy.
30. American jurisprudence would define it as "Silent Witness Theory" . In brief it means " A theory or Rule in the Law of Evidence: Photographic evidence (as photograph or videotapes) produced by a process whose reliability is established may be admitted as substantive evidence of what it depicts without the need for an eyewitness of what it depicts without the need for an eyewitness to verify the accuracy of its depiction." One can find the elaboration of this rule and its applicability in the American Jurisprudence in the Opinion delivered on December 8,1982 by the Arkansas Court of Appeals in Thelma Marie Fisher v State of Arkansas [ 7 Ark. App. 1 (1982)] . The relevant part of the Judgment 1 dictionary.findlaw.com/definition/silentwitnesstheory.html 2 http://opinions.aoc.arkansas.gov/WebLink8/0/doc/89190/Electronic.aspx C.C. No. 52/11 74 of 99 reads as under:
"The admissibility of photographic evidence is based on two different theories. One theory is the "pictorial testimony" theory. Under this theory, the photographic evidence is merely illustrative of a witness' testimony and it only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness' personal observation. Obviously, the photographic evidence in this case is not admissible under such a theory, since no person could verify that the video tape accurately represented what occurred at the store, based on personal observation. A second theory under which photographic evidence may be admissible is the "silent witness" theory. Under that theory, the photo graphic evidence is a "silent witness' which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness. See, 2 C. Scott, Photographic Evidence § 1021 (2d ed. Supp. 1980); 3 J. Wigmore, Evidence § 790 (Chadbourn rev. 1970).
In Arkansas, photographic evidence is admissible under the "pictorial testimony" theory, when a sponsoring witness testifies that it is a fair and accurate representation of the subject matter. Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975);
C.C. No. 52/11 75 of 99 Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969); Gross v. State, 246 Ark. 909, 440 S.W.2d 543 (1969); Lillard v. State, 236 Ark. 74, 365 S.W.2d 144 (1963); Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959); Reaves v. State, 229 Ark. 453, 316 S.W.2d 824 (1958), cert. denied, 359 U.S. 944, 79 S. Ct. 723, 3 L.Ed.2d 676 (1959); Grays v. State, 219 Ark. 367, 242 S.W.2d 701 (1951); Simmons v. State, 184 Ark. 373, 42 S.W.2d 549 (1931); Sellers v. State, 93 Ark. 313, 124 S.W. 770 (1910) The question presented on this appeal has never been answered in Arkansas. A video tape recording and a film produced by an automatic camera have been admitted into evidence in two cases. However, the precise objection made in the case at bar was not raised in either case. See, French v. State, 271 Ark. 445, 609 S.W.2d 42 (1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d 663 (1978).
This case presents the question of whether photographic evidence may be admitted as substantive evidence under the "silent witness" theory. We hold that the trial court correctly ruled that the video tape recording was admissible. The Uniform Rules of Evidence, Rule 901 (a), Ark. Stat. Ann. § 281001 (Repl. 1979), provides that authentication is a condition precedent to the C.C. No. 52/11 76 of 99 admissibility of evidence and that this requirement is met by a showing of evidence sufficient to support a finding that the matter in question is what its proponent claims. Section (b) lists various illustrations, showing methods of authentication or identification. The Uniform Rules of Evidence, Rule 1001 (2), Ark. Stat. Ann. § 281001 (Repl. 1979), provides that "photographs" includes photographs, xray films, video tapes, and motion pictures. Xray films are admissible in Arkansas, subject to proper authentication. Oxford v. Villines, 232 Ark. 103, 334 S.W.2d 660 (1960); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 161 S.W.2d 178 (1942); Prescott & N .W .R. Co. v. Franks, 111 Ark. 83, 163 S.W. 180 (1914); Miller v. Minturn, 73 Ark. 183,83 S.W. 918 (1904). Obviously, it is impossible for a witness to testify that an xray film is a fair and accurate representation of the subject matter, based on that witness' personal observation. Therefore, x rays could never be admissible under the "pictorial testimony" theory. 3 C. Scott, Photographic Evidence § 1262 (2d ed.1969). Every jurisdiction admits xray films as substantive evidence upon a sufficient showing of authentication, thus utilizing the silent witness theory, even if unintentionally. We note that Rule 1001 (2) treats xrays, photographs, video tapes, and motion pictures, as one and the same.
C.C. No. 52/11 77 of 99 Photographic evidence is the best available means of preserving the appearance of a scene at a given time. It is superior to eyewitness testimony in certain respects. Eye witness testimony is subject to errors in perception, memory lapse, and a witness' problem of adequately expressing what he observed in language so that the trier of fact can understand. See, 1 C. Scott, Photographic Evidence § 4154 (2d ed.1969). Photographic evidence can observe a scene in detail without interpreting it, preserve the scene in a permanent manner, and transmit its message more clearly than the spoken word. We hold that photographic evidence is admissible where its authenticity can be sufficiently established in view of the of the context in which it is sought to be admitted. Obviously, the foundational requirements for the admissibility of photographic evidence under the "silent witness" theory are fundamentally different from the foundational requirements under the "pictorial testimony" theory. It is neither possible nor wise to establish specific foundational requirements for the admissibility of photographic evidence under the "silent witness theory". Since, the context in which the photographic evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say that adequate foundational facts must be C.C. No. 52/11 78 of 99 presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. The trial court determines the preliminary questions regarding the admissibility of evidence, and the appellate court reviews those determinations only for an abuse of discretion."
The reflection of the Rule in the Indian Law
31. As it may seem the expression " silent witness theory" in this form or any other form does not find reference in the Indian Jurisprudence but the expression like " Real Evidence" in R M Malkani (supra) and expression like "primary and direct evidence" in Sh. N. Rama Reddy vs V. V. Giri (supra) take us in the same direction.
32. One may also note here times have changed and so has the technology. It is, therefore, necessary to move along with the times even in terms of appreciation of such evidences. It is true that the technology has made it easier to doctor or morph video material but it is not necessary to view it with unusual suspicion. If the technology is available to doctor or morph video tapes than the technology is also available to detect the same. 1 Court of Its Own Motion v State WP (CRL.) NO. 796/2007 Judgment of Delhi High Court dated 21 August 2008 Para 129 C.C. No. 52/11 79 of 99
33. I am of the view by and large there are only two factors one which a Court need to seek while admitting a video in evidence. One, that it is relevant and the other that it is genuine and not tempered with.
34. It was laid down by the Hon'ble Supreme Court in R. M. Malkani as under:
"Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidences. First, the Court will find out that it is genuine and free from tampering or mutiliation. Secondly, the Court may also secure scrupulous conduct and behaviour on behalf of the police. The reason is that the Police Officer more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the judge."
35. As one would notice the main focus is on inquiry being directed towards finding out as to whether the tape recorded conversation is "free form tampering and mutiliation". Second aspect is more for putting the investigating officer on notice that the C.C. No. 52/11 80 of 99 evidence not collected properly would lead the court to view it with "care and caution".
36. I would like to make reference to the Judgment of the Hon'ble High Court of Delhi in the case Deepak Kumar Vs State Crl. Appeal No. 1315 of 2011 decided on 09.01.2012 wherein the previous judgments on the subject had been referred and following conditions were laid down by the Hon'ble High Court for admitting a tape recorded conversation in evidence:
a) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.
b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
c) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
d) The statement must be relevant according to the rules of Evidence Act.
C.C. No. 52/11 81 of 99
e) The recorded cassette must be carefully sealed and kept in safe or official custody.
f) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance.
a.The above conditions can be broadly divided in two parts. Conditions (a), (d) and (f) relate to relevancy for unless the voice is identified and is audible or intelligible the tape recorded conversation or voice is meaningless in so far the relevancy is concerned. The other conditions (b) (c) and (e) relate to the integrity of the recording. With the advent of the new technologies the above objective can be achieved by forensic examination. In specific reference to videotapes it can be done by resorting i.e. speaker identification by conducting spectrography analysis and other auditory examinations to determine the voice of the speaker and by examination of videotapes by using VISAR tool, Vectorscope and waveform monitor to determine that a videotape is genuine and not tempered with."
86. Ld. Defence Counsel had made reference to the judgment of Hon'ble Supreme Court in Yusufalli Esmail Nagree Vs. State C.C. No. 52/11 82 of 99 of Maharashtra to submit that tape recorded conversation is not substantive piece of evidence but only has corroborative value. I have gone through the judgment of Hon'ble Supreme Court and I find no such specific preposition being laid down in the said judgment that a tape recorded conversation cannot be a substantive evidence but only a corroborative piece of evidence. The facts of the case would show that at the time of giving the bribe, person giving the bribe was the only eye witness available and the conversation which took place between the bribe giver and bribe taker was recorded simultaneously on a concealed Tape Recorder. The expression used in the judgment is "tape record of the dialogue corroborates his (bribe giver) testimony", meaning thereby that there was already an initial evidence available of the bribe giver which was strengthened or supported by another evidence in the form of tape recorded conversation between the bribe giver and the bribe taker. There is, however, no general preposition laid down that in no case a tape recorded conversation can ever be a substantive evidence in a case. It may be noted that it would depend on the facts of C.C. No. 52/11 83 of 99 each case where a tape recorded conversation may be treated as a substantive evidence or a corroborative evidence. In any case I also find that the proposition which may be true in a case of tape recorded conversation cannot be as such extended to a audio video recording of an event. As was observed by the Hon'ble High Court of Delhi in the case of Court of its own motion v/s State WP (Crl.) no.796/2007 decided on 21.08.2008 that :
"127. It must be remember that tape recorded material is concerned with only of other senses - the sense of hearing, while video recorded material is concerned with two senses - the sense of hearing and that of sight. To that extent, the specific arguments that may be available to challenge the authenticity of tape recorded material may not be applicable mutandis mutandis to video recording."
87. As has also already been discussed above that an audio video recording stands on a different footing altogether because it gives opportunity to a court to see the crime taking place as it was at the scene of occurrence. In that sense the court is really C.C. No. 52/11 84 of 99 not dependent on what others have to say about of the incident, the Court it self can view as if it was there at the scene of the incident. . In my opinion, therefore, on the basis of the above judgment no conclusion can be reached that an audio video recording cannot be used as a substantive evidence in itself. Time, place and accuracy of recording and ensuring that the tape was not tampered with.
88. The Ld. Defence Counsel had submitted that in Yusufalli Esmail Nagree (supra) it was laid down by Hon'ble Supreme Court that before admitting a tape recorded conversation the time, place & accuracy of a recording must be proved by a competent witness. It may be stated that in a case of tape recorded conversation it is difficult to pin point the location of the recording. In the case, however, of the audio video recording no such problem arises because the location itself is visible in the video itself. It may be noted the facility of recording the meta data while making the recording makes it possible to know the exact date and time of recording from the audio video recording C.C. No. 52/11 85 of 99 itself for which most of the time no independent corroboration is required. It was also submitted that in this case there was no site plan prepared to locate the time & place of the recording of place of occurrence. One may note that a site plan is nothing but one of the methods of documenting the scene of the crime. Its importance in a large number of cases cannot be overemphasized. At the same time it may also be noted its importance can vary from case to case and also that it is not the only method of documenting the scene of the crime. Photographs and video taping are also the tools employed to document the scene of the crime. It is an exercise which is undertaken post the commission of the crime to reconstruct as to how the crime may have been committed or to pick up pieces of evidence form the scene of the crime. But what can be better then having the crime itself being captured as it was committed. It not only documents the scene of the crime but also the crime. In the present case I am of the view preparation of site plan would have been nothing but a formality not likely to serve any purpose.
C.C. No. 52/11 86 of 99 The evidence of an expert is a weak evidence.
89. The Ld. Defence Counsel had made reference to the judgments of the Hon'ble Supreme CourtMagan Bihari Lal vs. State of Punjab (1977) 2 SCC 210 and S. Gopal Reddy vs. State of A.P. (1966) SCC (Crl.) 792. to submit that the evidence of an expert is a weak evidence, meaning thereby on the basis of the testimony of Dr. C. P. Singh who had given an expert opinion that the video clipping in this case is camera original or not tampered with, cannot be alone used for conviction.
90. In Magan Bihari Lal vs. State of Punjab there was a railway receipt involved stated to have been forged by the appellant before the court. During investigation the specimen handwriting of the appellant was taken. The same was compared with the forged writing on the railway receipt by the Government Examiner of Questioned Documents and as per his report the specimen handwriting of the appellant matched with the forged writing on the railway receipt. The only evidence C.C. No. 52/11 87 of 99 against him was this report of the expert and he having been found in the company of one Umedi Lal when this Umedi Lal was talking to one Joginder Lal and Ram Nath in connection with the sale of iron sheets, which was the subject matter of forged railway receipt. The circumstances were such in which it was difficult to believe as to how appellant who was working only as a guard with the railway administration could have come into possession blank railway receipt of a railway station which was not in his jurisdiction at any time and also he had nothing to do with the train by which the wagon in question was dispatched. There was also no evidence to connect him with the theft of the blank receipt. The other evidence of the appellant having been found in the company of one Umedi Lal when Umedi Lal was talking to one Joginder Lal and one Ram Nath with regard to the sale of the iron sheets was found to be unsatisfactory and not inspiring confidence of the court. The only evidence which stood against the accused was the opinion of the handwriting expert. Hon'ble Supreme Court had observed "it would be extremely hazardous to condemn the appellant C.C. No. 52/11 88 of 99 merely on the strength of the opinion of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law"
91. The above law laid down by the Hon'ble Supreme Court in case Magan Lal vs. State of Punjab was reiterated in the other case S. Gopal Reddy Vs. State of A.P. referred to by the Ld. Defence Counsel.
92. The above observation of the Hon'ble Supreme Court came way back in 1977, I may submit that even the science of examination of questioned documents is far advanced today than what it was in 1977. There are far more sophisticated tools of examination available than what were prevalent earlier. In any C.C. No. 52/11 89 of 99 case the examination of handwriting has never been considered as an exact science because of various factors which influence the writing of a person in a particular set of circumstances and at a particular point of time. Therefore, in practice the opinions of the handwriting experts have been treated differently from the opinions of the experts basing their conclusion on exact science. I am of the view, therefore, that it will not be appropriate to paint every expert deposing in the court with the same brush and judge the testimony of every expert on the same parameters which may be there for appreciating the testimony of a handwriting expert. I am of the view that the observation made by the Hon'ble Supreme Court in Magan Lal's case are to be considered to be correct only in respect of the "Handwriting Experts". Therefore, in my opinion the observations made by the Hon'ble Supreme Court in the above cases in relation to the handwriting expert's opinion can not be extended to opinions of other experts including examination of videography for its originality and also it having been tampered with or not or speaker identification; and dub the same as "weak evidence".
C.C. No. 52/11 90 of 99 Narration what could be heard and seen
93. Thus it ultimately rests on what has come in evidence in terms of what can be heard and seen in the video clipping. It was deposed by witness Shri Chetan Prakash about what could be seen in the video clipping as follows:
"I have seen the video and audio film which was recorded by me on 12.11.2003 in front of the house of Sh. Jasbir Sansi. The last scene of the said cassette was recorded at 19:38:11 onwards. In the said video cassette, it is visible that a Police Bullett Motorcycle came, on which there are two constables constable Mukesh Kumar, who is now present in court is seeing (sicseen) sitting on the front seat of the said Police Bullett Motorcycle which constable Dharamvir (sicDharam Dev) who is now present in the court is seeing (sicseen) going towards Smt. Beena Sansi wife of Shri Jasbir Sansi".
94. He had further deposed about the incident :
"These two police officials present in court can be seen accepting money from Jasbir Sansi. I had seen them accepting money from Jasbir Sansi and Beena Sansi were selling liquor before they had come to C.C. No. 52/11 91 of 99 collect money and I had also continued to sell liquor illegally after they had left".
95. The video clipping was played in the court in the presence of witness PW8 Sh. Jasbir Sansi. He was asked to view the cassette and also hear the conversation and then identify the place and persons seen in the video clipping. The witness had deposed as under:
"The place which is seen in the video clipping is my residence. The two accused present in the court could be seen in the clipping (Vol.) I, however, do not know their names. In the video clipping my wife and my daughter could be seen.
(At this stage Ld. PP for CBI has asked the witness to view the clipping again to identify if he is there in the clipping or not) I am not there in this video clipping and it also does not have my voice.
Q: Can you tell the court what was being done to be seen in the video clipping?
C.C. No. 52/11 92 of 99 A: They were after me. They wanted me to give the vehicle number of Shri Chetan Prakash. After noting down the number of the vehicle of Sh. Chetan Prakash I had given the same to my wife with the instructions that she may handover the same to these persons as and when they approach her. She is seen as handing over the said paper slip to one of the accused".
96. The witness was thereafter crossexamined by Ld. PP for CBI. The relevant part of his testimony reads as under:
"It is incorrect to suggest that in the video clipping which has been shown to me today, I could be seen and my voice also could be heard and I am deliberately trying to conceal this thing. It is incorrect to suggest that in the video clipping the accused could be seen taking money from my wife. It is further incorrect to suggest that they had come to collect bribe from us as we were in the business of selling liquor illegally. It is further incorrect to suggest that these accused persons had never asked me to supply any number of Sh. Chetan Prakash an also I had not noted down any such number and handed over to my wife and my wife had also not given the paper slip where such a number was written to the accused".
C.C. No. 52/11 93 of 99
97. I had viewed the cassette of my own. The fact is, Jasbir Sansi cannot be actually be seen from the angle the video had been shot though there is a male voice clearly audible. It could be his voice, as was suggested to Jasbir Sansi, during his crossexamination, but Jasbir Sansi had denied that it was his voice, neither any witness attributed this voice to Jasbir Sansi nor there was any forensic confirmation of the same. Dharam Dev Tyagi walks up to Beena Sansi after alighting from the motorcycle and accepts something from her and returns and sits back on the rear seat of the motorcycle. If one may overlook the conversation between the Accused Mukesh Kumar and male voice, one cannot make out if what is handed over to Dharam Dev Tyagi is a currency note or something else. It may added here, the video quality is not good. The scene is of the night and the picture is grainy.
98. As I had played the video clipping and heard the conversation attributed to Mukesh Tyagi and the other Male Voice i.e. Jasbir Sansi. What I could hear from the C.C. No. 52/11 94 of 99 conversation was broadly the same which was provided to me as transcript subsequently after I had given directions. It reads as under :
"Man : Grahak hi nahi hai. Kahan se du Police : Mere aur Man : Ain Police : Haan, mere.
Man : Haan Police : Mere Man : Nahi abhi sahab ko bhi nahi diye maine.
Police : Mere kab dega phir.
Man : Abhi kaha se dunga, abhi 15 se pahle sahab ko dunga, jab baad mein baat karunga, pahle mauka sahab ka hai, kisi ko nahi diye abhi tak, apni kasam, kisi ko nahi diye, pata karlo yaar kisi se bhi".
99. Unfortunately the above conversation has not come in evidence anywhere in any form including in the statement of the C.C. No. 52/11 95 of 99 Complainant , Chetan Prakash, followed by confirmation of the identity of speakers.
100. So what we are left with is the statement of Chetan Prakash wherein his description of the scene ends by saying "constable Dharamvir (sicDharam Dev) who is now present in the court is seeing (sicseen) going towards Smt. Bina Sansi wife of Sh. Jasbir Sansi" later he had added while referring to the video clipping "these two police officials present in the court can be seen accepting money from Jasbir Sansi. I had seen them accepting money from Jasbir Sansi as I was preparing their videos" (factually not correct as has already been stated above Jasbir Sansi is not even in the frame). Then according to Jasbir Sansi as per his instructions his wife Bina Sansi had given to them a piece of paper over which the number of the vehicle of the complainant had been written. He had further stated that he was not visible in the clipping and his voice also could not be heard. It has already been observed that it cannot be made out if what Const. Dharam Dev Tyagi had recived was a currency note or something else.
C.C. No. 52/11 96 of 99
101. This is the sum total of the best evidence which has come against the accused persons. I am of the view the same is insufficient to reach the conclusion beyond reasonable doubt that the Accused had demanded and accepted the money from Jasbir Sansi or Beena Sansi.
102. It may be noted that there is some amount of casualness with which the investigation was conducted and thereafter charge sheet was prepared which ultimately got also reflected in the conducting of the case by prosecution.
103. As per the CD Identification memo prepared during the investigation a currency note of Rs. 100/ was accepted by constable Dharam Dev Tyagi from Bina Sansi and in the conversation taking place between constable Mukesh Kumar and Bina Sansi, Bina Sansi says that she has not yet paid to sahab. The fact is that there is no conversation which can be attributed to Bina Sansi. The conversation is taking place between constable Mukesh Kumar and a man who actually C.C. No. 52/11 97 of 99 cannot be seen from the angle video was shot as he is hidden behind a bar probably of the window from which the video was being shot. Coming to the charge sheet the allegation is that the money was accepted from Jasbir Sansi and not Bina Sansi as stated in the CD Identification memo. It appears that probably it is because of this Chetan Prakash too had insisted in his deposition in the court that the accused persons had accepted the money from Jasbir Sansi and subsequently in the cross examination conducted of PW8 Jasbir Sansi by prosecution the suggestion was given that Jasbir Sansi could be seen in the video clipping.
Conclusion:
104. In view of forgoing discussion and the facts and circumstances of the case, I am of the view of the prosecution has not been able to prove beyond reasonable doubt that the Accused had demanded and accepted money from Jasbir Sansi or Beena Sansi. There is no other independent evidence C.C. No. 52/11 98 of 99 beyond what has been discussed above that the Accused had entered into any conspiracy as charged. I am accordingly acquitting the accused persons of the offence punishable under Section 120B IPC read with sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988, and also of the substantive offence punishable under section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 04 of July, 2014 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.
No comments:
Post a Comment