Full Judgment
* % + IN THE HIGH COURT OF DELHI AT NEW DELHI Decided on:
30. h November, 2016 CRL.M.C. 3867/2016 Represented by: Mr. Ranbir Singh Kundu, APP. ........ Petitioner
versus STATE CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA, J.
(ORAL) GURPREET SINGH WALIA Represented by: Mr. Manoranjan, Adv. ..... Respondent 1. Aggrieved by the order dated 9th June, 2016 dismissing the application of the State for sending memory chip of the spy camera to the CFSL, the petitioner prefers the present petition.
2. Brief exposition of the fact is that one Parsuram Prasad, the complainant in FIR No.37/2010 under Section
Prevention of Corruption Act (POC Act) registered at PS Anti-Corruption Branch took video and audio of Gurpreet Singh Walia, the respondent herein allegedly taking bribe. The key chain spy camera with memory card was recovered and during the course of investigation, the memory card was sent to the FSL vide letter dated 13th October, 2010 seeking the following information- (a) Whether there is continuity in track or any tempering in the conversation?. (b) Whether voice of complainants and accused are matching with the Crl.M.C. 3867/2016 Page 1 of 6 sample voice?. (c) Whether recording made by complainant is possible from the seized recorder?. (d) Any other information which may assist the investigation.
3. Against the said letter, the FSL furnished report dated 9th November, 2010 with the following observations/opinion- “On examination of video images in CD marked as ‘ Exhibit-1’ and audio-video recorder marked ‘ Exhibit-2”, the following were observed: (a) The video recording in CD marked ‘ Exhibit-1’ and spy recorder marked ‘ Exhibit-2’ are in digital video format and there are no indication of alteration in the identified video shot on the basis of examination using Non Linear Video Editing Storage System & Video Analyst System. (b) The recorder is capable of recording video footages.”
4. The investigating officer after the report of the FSL dated 9th November, 2010 sought another report vide letter dated 19th July, 2012 with the following queries- (i) Whether the sample voice in Exhibit marked “O” of Sh. Pursuram complainant is of the same person as found in Exhibit-1 (Video CD) & Exhibit-2 (recorder)?. (ii) Whether the recordings in Exhibit-1 (Video CD) are the same as in Exhibit-2 (recorder)?. (iii) Any other opinion, which may assist in the investigation?. Crl.M.C. 3867/2016 Page 2 of 6
5. Pursuant to letter dated 19th July, 2012, the FSL furnished its report dated 24th August, 2012 with the following observations/opinion- “ The auditory analysis of recorded speed samples of speakers marked “Exhibit Q1” & “Exhiit-S1” and subsequent acoustic analysis of speech samples by using CSL (Computerize Speech Lab) revealed that the voice exhibits of speaker marked “Exhibit Q1” are similar to the voice exhibits of speaker marked “Exhibit- S1” in respect of their acoustic cues and other linguistic and phonetic features. OPINION: The voice exhibits of speakers marked “Exhibit Q1” and “Exhibit-S1” are the voice of same person (i.e. Sh. Pursuram). The memory card of the spy camera recorder was subjected to imaging of data in Computer Forensic Unit and it was found that there are two video files, namely, “SUNP0002.AVI” & “SUNP0004.AVI”, these are different from the video file, namely, “AVSEQ01” in the CD marked “ Exhibit-1”.”
6. Thereafter the Investigating officer filed the charge sheet and made Dr. C.P. Singh, Assistant Director, FSL as the prosecution witness to prove the above reports dated 9th November, 2010 and 24th August, 2012. Before examining Dr.C.P. Singh, the prosecution filed an application dated 1st May, 2015 seeking permission to send the memory card to CFSL for opinion on further queries. However, the learned Trial Court vide order dated 23rd October, 2015 kept the said application pending with observations that the same would be considered after examination of Dr.C.P. Singh.
7. PW-21 Dr. C.P. Singh was examined and the prosecution also cross- Crl.M.C. 3867/2016 Page 3 of 6 examined Dr.C.P. Singh and relevant questions put to Dr.C.P. Singh are as under:-
"Ques. Whether the memory card of spy camera recorder was retrieved by you to detect all the files deleted from the memory card?. Ans. I had retrieved the deleted files namely, _UNP0001, _UNP0003, _UNP0007 and _UNP0007_Part 2. The two files already mentioned in my report namely SUNP0002 and SUNP0004 were existing as undeleted. Ques. Whether you had used any specific software designed for forensic examination to retrieve the audio video visuals of the deleted files?. Ans. The deleted files were found corrupted as such they could not be played. I had used forensic tools to retrieve the deleted files.
8. In the application filed before the learned Spl. Judge the petitioner prayed for sending the memory chip to CFSL for getting reply on following questions:-
"(i) Is it correct that the recordings are done automatically by any memory chip in chronological order?. i.e. serially/numbered. (ii) In the instant memory chip recordings done at serial no.SUNP0002 and SUNP0004 are available while other recordings done at serial no.01 and 03 are not in existence. Is it possible that the recordings at serial no.01, 03 and any others have disappeared due to any virus effect, as it was claimed by the complainant and other witnesses that the concerned video Crl.M.C. 3867/2016 Page 4 of 6 shoot was recorded through questioned chip?. (iii) If the recordings other then serial no.2,4 ar not disappeared due to any virus effect. Is it possible to find out the reason/cause due to which these are not available in the Memory Chip?. (iv) Is it possible to retrieve all remaining recordings (other than serial no.2 &
4) done through the instant Memory Chip which are presently disappeared. (v) If all remaining recordings done through the questioned Memory Chip are retrieved, the contents of VCD may be got verified, whether there are same or otherwise?.
9. Vide the impugned order dated 9th June, 2016 the learned Special Judge noted that leaned APP has not been able to point out any defect in the FSL results on record and there are no allegations of mala fide against the expert. Thus, memory chip cannot be sent to CFSL for fresh opinion again.
10. As noted above, necessary queries had been raised qua the memory card not once but twice by the investigating officer and further when the expert witness came in the witness box, he was also put relevant questions to which replies were given. The evidence in the memory chip is corroborative to the evidence of the complainant and other witnesses. The memory card used was of the private person and in case any other thing which was stored therein has been deleted, the same does not impact the report vis-a-vis recording in the memory chip of the alleged incident.
11. I find no error in the impugned order. Memory chip cannot be sent again and again to the CFSL which would cause unnecessary delay in the trial. If there were some queries to be raised, the same were to be raised in the first instance or at best in the second instance or clarifications sought Crl.M.C. 3867/2016 Page 5 of 6 from the expert.
12. Petition is accordingly dismissed. NOVEMBER30 2016 ‘v mittal’ (MUKTA GUPTA) JUDGE Crl.M.C. 3867/2016 Page 6 of 6