recordings on Hi8 Tapes on the other. He contended that if as per the prosecution, all the recordings of the conversation had taken place on the HI8 Tapes, then oral evidence of PW5 and PW15 becomes inadmissible and cannot be accepted. 99. On the other hand, he contended that these HI8 Tapes and DVs on which the prosecution is relying upon are doctored as the same admittedly had remained with Tehelka people, who were working for and at behest of the venture capitalists and were interested in the success of their story to make money out of it, which in fact they made. He contended that Tehelka people had every opportunity to manipulate and doctor these tapes. He further contended that the tapes were thereafter taken into possession by the Army, from where it was handed over to the commission. He contended that in the commission, the same were not kept in the sealed condition, as is evident from the deposition of PW20.
100. Ld.Defence Counsel contended that deposition of the prosecution witnesses cannot be considered, as their deposition was recorded after showing the recordings of Hi8 Tapes and the transcripts which amounts to putting the leading questions to them and the same is against the established norms of recording of prosecution evidence.
101. It is contended by Ld.Senior Counsel that even after taking these tapes in possession, CBI had failed to keep the same in proper custody. He contended relying upon the cross examination of the investigating officer PW21 that these tapes were kept in the Malkhana, where it was used by various Investigating officers, as and when required. He contended that neither the Malkhaana register, nor any proper record of these tapes has been produced in court.
102. It is further contended by Ld.Defence Counsel that the transcripts which are relied upon by the prosecution are not the
correct version of what is recorded on these tapes. It is submitted that there is no synchronization and a particular dialogue which is being attributed to the accused, was infact never said by him. He further contended that a particular sentence or dialogue, stated by accused to someone else in his office, has been used by the prosecution, to be a part of conversation between accused and Mathew Samuel. He contended that PW21 even during the course of his crossexamination admitted the fact that there are discrepancies in the transcripts. 103. It is submitted by Ld.Defence Counsel that there was no demand of any gratification on the part of accused from anyone. The amount of Rs.1 lakh, allegedly passed on by Mathew Samuel, was a clear case of deceit on the part of Tehelka people and a design to capture the same on video, to suit their motives. He vociferously contended relying upon the meeting dated 06.01.2001 recorded on Hi8 Tape No.87 that, the whole discussion centered around “appointment” and even if it is presumed that this amount was accepted by the accused, the same was for “appointment” and
not for any motive or reward for exercise of any personal influence on any public servant. 104. It has been contended by Ld.Defence Counsel that deposition of PW5 and PW15 is sought to be corroborated from the deposition of PW18 T.Satyamurthy, who was an accomplice. He contended that T.Satyamurthy was infact never authorized by the accused, to act as his “personal secretary”. It is further contended that he was not authorized to make any statement for or on behalf of accused Bangaru Laxman. It is further submitted that this person was deliberately made an “approver” by the investigating agency, to suit their needs and this person had accepted this opportunity to save his skin. He contended that deposition of PW18 which is mostly hearsay statement should not be considered as the same has not been corroborated in material particulars. He challenged that deposition of PW18 cannot be read, in view of Section 133 and 114(b) of Indian Evidence Act.
105. Ld.Defence Counsel relying upon the deposition of DW1, an expert examined by them in defence, had led an attack on the deposition of PW19 D.Venkateshwarlu. He contended that this person is only a scientific officer and is not an expert in scientific analysis of tapes. He contended that one U.Ramamohan Rao is shown as an Expert with APFSL, but the said witness is withheld by the prosecution, therefore it should be presumed that the said witness has been withheld by the prosecution with a motive. He contended that the report Ex.PW.19/A should not be considered, as in the said report there is no description of the briefcase device, nor it has been stated that what was the condition of the briefcase device, when it was received and whether or not the same is in workable condition. He further contended in the report, PW19 did state that they had taken some specimen recordings, but the same have not been forwarded to the court along with the report. He further contended that there is no definite opinion given, as to whether the questioned recordings on Hi8 Tapes were done by the briefcase device Ex.PX8 only. He further contended that if the
report given by PW19 is believed to the extent that “frame by frame examination” of the recorded tapes were considered, it is humanly impossible to do the same in the given time. He further contended that PW19 has given opinion with respect to the items, which were never sent to APFSL for examination. 106. Ld.Defence Counsel has further tried to demolish the prosecution case stating that the prescribed guidelines of CBI Manual for Sample Collection, were not followed by PW2 A.D.Tiwari, PW10 S.Ingarsal and PW17 S.K.Gautam, while collecting the voice and image samples of accused and prosecution witnesses. He contended that there are number of contradictions in the deposition of the socalled independent witnesses, joined by the investigating agency at the time of collection of audiovideo samples.
107. It is submitted by Ld.Defence Counsel that the investigations were not properly conducted by CBI, which has caused prejudice to the accused. He contended that no telephone records were collected by the investigating officer, nor the financial
aspects were investigated. He contended that in the year 2004, the government had scuttled the commission of inquiry from inquiring into the financial aspects and had abolished the commission. He contended that the government had clandestinely collected a secret note from Sh.S.K.Dass Gupta, on the basis of which, the present case was got registered.
108. He further contended that the prosecution has withheld material witnesses during the course of trial which has prejudiced the case of the accused. It is contended that Tarun Tejpal and Shankar Sharma, who could have thrown light on the financial aspects were withheld by the prosecution. He contended that even Arnab Pratim Dass, from whom PW20 Sh.K.Y.Guru Prasad had taken the possession of brief case device, was not produced in the witness box. He contended that he was withheld as prosecution was afraid, as had he appeared in the witness box, then it would have come to light that the alleged briefcase device Ex.PX8 was not in a working condition. He contended that neither any witness, nor the investigating officer had demonstrated the
functional aspects of the briefcase device. He contended that the recording device of DVs, has also not been produced.
109. It is submitted by Ld.Defence Counsel, relying upon the American precedents that origin of the criminal design should not take place in the minds of the enforcement agencies, to prove anything against the accused. He contended that accused must have a disposition to commit the offence, on his own. He next contended that accused should not be induced or beguiled by the enforcement agencies to commit an offence. He contended that in the present case, the criminal design Originated in the minds of Tehelka people. He contended that accused has never had any
Disposition to commit any offence as he never approached anyone to
demand any amount. He further contended that the Inducement took place on the part of tehelka people due to which accused was beguiled. He contended that the entire case of the prosecution is thus hit by ODI.
110. He concluded his arguments saying that as the evidence on record is tainted, doctored, manipulated and motivated, therefore the same is inadmissible. He contended that therefore prosecution has failed to fulfill the necessary ingredients of the offence, so the accused be honorably acquitted. Ld.Defence Counsel in support of his contentions relied upon certain precedents.