Delhi District Court
Fir No. 16/2020 State vs Ashok Kumar on 22 February, 2023
FIR No. 16/2020 State Vs Ashok Kumar
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-008783-2020
Cr. Cases Number. 2454/2020
FIR No. 16/2020
Police Station : Kalindi Kunj
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
ASHOK KUMAR
Date of Institution : 24.08.2020
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 22.02.2023.
JUDGMENT
1. Serial No. of the case : 2454/2020
2. Name of the Complainant : ASI Rajvir Singh.
3. Date of commission of offence : 21.01.2020
4. Name of accused person : Ashok Kumar
Ashok Kumar S/o Sh. Chhote Lal,
R/o House No. D-/295, JJ Colony,
Madanpur Khadar, New Delhi. Aged
about 23 years.
5. Offence charged : S. 3 DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
Police Station : Kalindi Kunj Page No. 1 Of 18
FIR No. 16/2020 State Vs Ashok Kumar
JUDGMENT
1. In the present case, the accused has been facing the trial for the offence punishable under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred the 3 the DPDP Act).
2. Brief facts of the case are that on 21.01.2020, Assistant Sub-Inspector Rajvir Singh was on patrolling duty in the area along with Head Constable Nahar Singh. At about 08:50 p.m., they reached near Jal Board, Water Pump House, D-Block, J. J. Colony, Madanpur Khadar, New Delhi where they noticed that a board was affixed on a government electricity pole containing the words "Institute of Universal Studies 8076660579 and 7042680684 D-846/18, J. J. Colony, Madanpur Khadar, Sarita Vihar (near Shri Ram Chowk Bajrang Park)". In the meantime, Constable Ram Kishan also arrived at the spot. Thereafter, Constable Ram Kishan took photographs of the said board at the instructions of Assistant Sub-Inspector Rajvir Singh. They then took out the board from the pole and seized the said board. Assistant Sub-Inspector prepared the rukka and handed over the Police Station : Kalindi Kunj Page No. 2 Of 18 FIR No. 16/2020 State Vs Ashok Kumar same to Head Constable Nahar Singh to get the FIR registered at the Police Station. After that, Head Constable Nahar Singh took rukka to Police Station Kalindi Kunj and got the FIR registered. After some time, Head Constable Nahar Singh returned to the spot alongwith copy of FIR and original rukka and handed over the same to Assistant Sub-Inspector Rajvir Singh. The investigation of the case was marked to Assistant Sub-Inspector Rajvir Singh. During the course of investigation, Assistant Sub- Inspector Rajvir Singh contacted on the mobile numbers which were mentioned on the board and it was responded by the accused. IO informed him about the commission of the offence and asked him to come to the spot. Subsequently, accused came to the spot and met the IO. IO served notice u/s 41A Cr.P.C. upon the accused and interrogated him at the spot. Thereafter, IO prepared the site plan at the spot. IO then recorded the statement of witness u/s 161 Cr.P.C. Then then returned to the Police Station and deposited the case property in Malkhana. Assistant Sub-Inspector Rajvir Singh served the notice u/s 91 Cr.P.C. upon the Nodal Officers of Jio and Airtel for providing the requisite Police Station : Kalindi Kunj Page No. 3 Of 18 FIR No. 16/2020 State Vs Ashok Kumar information qua the mobile numbers in question. After completion of investigation the chargesheet was filed in the Court.
3. Cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act was served upon the accused to which the accused pleaded not guilty and claimed trial. Matter was then listed for Prosecutions evidence. The prosecution examined three witnesses in support of its case.
4. Assistant Sub-Inspector Nahar Singh was examined as PW1. He was accompanying the Investigating Officer on the date of incident in the present case. He deposed that on 21.01.2020, he was posted as Head Constable at Police Station Kalindi Kunj. On that day, he alongwith Assistant Sub-Inspector Rajveer were on patrolling duty. At about 08:50 pm, they reached near Jal Board, Water Pump House, D-Block, J. J. Colony, Madanpur Khadar, New Delhi, where they found one poster was affixed on the wall of Water Pump House containing the words "Institute of Police Station : Kalindi Kunj Page No. 4 Of 18 FIR No. 16/2020 State Vs Ashok Kumar Universal Studies 8076660579 and 7042680684 D-846/18, J. J. Colony, Madanpur Khadar, Sarita Vihar (near Shri Ram Chowk Bajrang Park)". In the meantime, Constable Ram Kishan also arrived at the spot as he was also on patrolling duty in the area. He took the photographs of the said board at the instance of Investigating Officer. They then removed the poster from the wall of the water pump house and Investigating Officer seized it vide memo Ex.PW1/A. Investigating Officer then prepared the rukka and handed over the same to him for the registration of the FIR. Subsequently, he took rukka to the Police Station and got the FIR registered through the then Duty Officer of Police Station Kalindi Kunj. After the registration of FIR, he returned to the spot and handed over the copy of FIR, original rukka and certificate u/s 65B of Indian Evidence Act to the Investigating Officer as the investigation of the case was marked to him. Investigating Officer then contacted on the mobile number which was mentioned on the poster and it was responded by accused. Investigating Officer informed him about the commission of the offence and asked him to come to the spot. Accused reached the spot after some time Police Station : Kalindi Kunj Page No. 5 Of 18 FIR No. 16/2020 State Vs Ashok Kumar and met the Investigating Officer. Investigating Officer interrogated him at the spot and prepared the interrogation memo which is Ex.PW1/B. Investigating Officer had given the notice u/s 41A Cr.P.C. to accused Ashok Kumar. Thereafter, Investigating Officer prepared the site plan Ex.PW1/C. Investigating Officer then recorded his statement u/s 161 Cr.P.C. to the abovesaid effect. Thereafter, they returned to the Police Station. He identified the accused and the case property from the photographs Ex.P-1(colly)(09 photographs).
5. Ms. Amrita was examined by the prosecution as PW2. She deposed that in the month of June, 2017, she got issued a SIM Card of Jio company having number 8076660579 in her name. However, she gave it to her brother-in-law for his personal use. Investigating Officer inquired her about the same and recorded her statement in the present case.
6. Assistant Sub-Inspector Rajvir Singh was examined by the prosecution as PW3. He is the complainant as well as the Investigating Officer in the present case. He deposed that on 21.01.2020, he was posted as Assistant Sub-Inspector at Police Police Station : Kalindi Kunj Page No. 6 Of 18 FIR No. 16/2020 State Vs Ashok Kumar Station Kalindi Kunj and on that day, he alongwith Head Constable Nahar Singh were on patrolling duty. At about 08:50 pm, they reached near Jal Board, Water Pump House, D-Block, J. J. Colony, Madanpur Khadar, New Delhi, where they found that one poster affixed on the wall of Water Pump House containing the words "Institute of Universal Studies 8076660579 and 7042680684 D-846/18, J. J. Colony, Madanpur Khadar, Sarita Vihar (near Shri Ram Chowk Bajrang Park)". In the meantime, Constable Ram Kishan also arrived at the spot as he was also on patrolling duty in the area. He took the photographs of the said board at his instance. Thereafter, they removed the poster from the wall of the water pump house and he seized it vide memo Ex.PW1/A. Thereafter, he prepared the rukka and handed over the same to Head Constable Nahar Singh for the registration of the FIR. Rukka is Ex.PW3/A. Head Constable Nahar Singh then took rukka to the Police Station and got the FIR registered. After some time, Head Constable Nahar Singh returned to the spot and handed over the copy of FIR, original rukka and certificate u/s 65B of Indian Evidence Act to him as the investigation of the Police Station : Kalindi Kunj Page No. 7 Of 18 FIR No. 16/2020 State Vs Ashok Kumar case was marked to him. During the course of investigation, he called on the mobile number which was mentioned on the said poster and it was responded by the accused. He informed the accused about the commission of the offence and asked him to come to the spot. Accused then came to the spot after some time and met him. He interrogated the accused at the spot and prepared the interrogation memo already Ex.PW1/B. He then served notice u/s 41 A Cr.P.C. upon the accused Ashok Kumar Ex.PW3/B. Thereafter, he prepared the site plan at the spot already Ex.PW1/C. He recorded the statement of witnesses u/s 161 Cr.P.C. to the abovesaid effect. Thereafter, they returned to the Police Station and deposited the case property in the Malkhana of Police Station Kalindi Kunj. During further course of investigation, he served the notice u/s 91 Cr.P.C. upon the Nodal Officer of Jio Delhi Circle and Airtel for providing the CAF and CDR of the mobile number 8076660579 and 7042680684 and collected the same alongwith certificate u/s 65B of Indian Evidence Act, same are Ex.PW3/C (colly). After the completion of the investigation, he filed the charge-sheet against Police Station : Kalindi Kunj Page No. 8 Of 18 FIR No. 16/2020 State Vs Ashok Kumar the accused. He identified the accused and the case property from the photographs before the Court. Photographs of the case property are Ex.P-1(colly)(09 photographs).
7. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. APP for the State, PE was closed and the statement of the accused was recorded under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. The accused has denied commission of the offence and has stated that he had been been falsely implicated in the present case. Accused did not lead any evidence independent in his defence. DE was closed. Final arguments were heard.
8. It is submitted by Ld. APP for State that the prosecution has proved its case against the accused beyond reasonable doubts. The accused has failed to prove any defence. He has failed to produce any permission for installing / affixing the board on the public property. Hence, the accused is liable to be convicted.
9. On the other hand, it is submitted by the accused that the prosecution has failed to prove the case against accused Police Station : Kalindi Kunj Page No. 9 Of 18 FIR No. 16/2020 State Vs Ashok Kumar beyond reasonable doubts. There is no public witness examined by the prosecution. The complainant himself has conducted the investigation which vitiate the proceedings conducted during the investigation. There is no evidence available on record to prove that the board was installed / affixed on the instructions of the accused. He has been falsely implicated by the police officials to settle some personal score. No offence has been committed by him.
10. Submissions heard on behalf of both the parties. Carefully perused the record.
11. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
12. It is significant to note that accused in the present case has been charged with the offence under Section 3 of the Delhi Police Station : Kalindi Kunj Page No. 10 Of 18 FIR No. 16/2020 State Vs Ashok Kumar Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent.
13. The term 'defacement' has been defined under Section 2(a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
14. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the Police Station : Kalindi Kunj Page No. 11 Of 18 FIR No. 16/2020 State Vs Ashok Kumar prosecution is required to prove following facts beyond reasonable doubts:-
(1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material. (2) That the said property is situated in a public view. (3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and occupier of the said property.
15. In order to secure conviction of the accused for the offence under Section 3 (2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
16. Accused has argued that the complainant had also conducted the entire investigation in the present case and, therefore, the entire investigation has come under doubts. It is prayed that benefit of the said doubt may be given to the accused.
17. Hon'ble High Court of Delhi in Gurtej Singh Batth vs State, in Crl.A.39/2015, on 27 November, 2018, while relying Police Station : Kalindi Kunj Page No. 12 Of 18 FIR No. 16/2020 State Vs Ashok Kumar upon the judgments of the Hon'ble Supreme Court of India in Mohan Lal v. State of Punjab, (2018) SCC OnLine SC 974 and Arif Khan v. State of Uttarakhand, (2018) SCC Online SC 459, has held that in every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any conduct or impression which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair. If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality. Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the Investigating Officer would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.
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FIR No. 16/2020 State Vs Ashok Kumar
18. However, the case of the prosecution cannot be disbelieved only because the investigation was conducted by the complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
19. In the present case, as the record would reveal that no independent public witness had joined the investigation at any point of time with respect to recovery of the incriminating board. The place of recovery of the board in question is clearly shown to be located in an area where public persons would be readily available. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as Police Station : Kalindi Kunj Page No. 14 Of 18 FIR No. 16/2020 State Vs Ashok Kumar under:
"The recovery was from a street with houses on both sides and Police Station nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
20. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, this Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and Another v. State of Gujarat, AIR 1988 SC 696. The aforesaid fact merely casts an additional duty on the Court to be more vigilant while scrutinizing the testimony of the police witnesses. However, in the present case, there are other circumstances too, which raise suspicion over the prosecution version. Police Station : Kalindi Kunj Page No. 15 Of 18
FIR No. 16/2020 State Vs Ashok Kumar
21. The witnesses PW-1 and PW-3 have stated that they were on patrolling duty when they had noticed the board on the wall of Water Pump House. They had removed the board and seized it.
22. The witnesses PW1 and PW3 who had allegedly seen the board have not stated that they had seen anybody or the accused while affixing the said board at the spot and they could not say as to who had affixed the board at the spot. The prosecution also did not examine any witness who might have seen any person affixing the board at the spot. As argued by the Ld. Counsel for accused, there is not even an iota of evidence led by the prosecution to prove that the board in question was either installed / affixed by the accused herein or that the same was installed / affixed on his instructions.
23. The only allegation against the accused is that the board had been installed / affixed on the wall of Water House Pump, a public property.
24. Prior to enactment of the DPDP Act, the West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Police Station : Kalindi Kunj Page No. 16 Of 18 FIR No. 16/2020 State Vs Ashok Kumar Delhi. Section 3 of the West Bengal Prevention of Defacement of Property Act is similar to Section 3 of DPDP Act which reads as under:
"Whoever defaces any property in public view by writing or marking with ink, chalk, paints or any other material, except for the purpose of indicating the memo and address of the owner or occupies of such property, shall be punishable with punishment prescribed."
25. Hon'ble High Court of Delhi in case title "T.S. Marwah & Ors. Vs. State 2008 (4) JCC 2561" has held that the offence u/s 3(1) of the Act would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. Mere putting of the poster will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
26. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 is similar to the Section 3(1) of the West Bengal Prevention of Defacement of Property Act except with one change in the definition of word "Writing". Section 2(d) of the Delhi Prevention of Defacement of Property Act, 2007 Police Station : Kalindi Kunj Page No. 17 Of 18 FIR No. 16/2020 State Vs Ashok Kumar defines writing as including printing, painting, decoration, lettering, ornamentation etc. produced by stencil. In West Bengal Prevention of Defacement of Property Act, word "Writing" has been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except this difference in the definition of writing, the provisions of both the Acts are same. Therefore, the ratio of the judgment of the Hon'ble High Court of Delhi in "T.S. Marwah(supra)"' still holds good for the present case as the facts of the present case are similar to the facts of the case in that of "T.S. Marwah's case (supra)".
27. In the present matter, in view of the discussion herein above, it can be safely held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is entitled to the benefit of reasonable doubt and is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 22nd Day of February, 2023.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:
New Delhi.
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