Delhi District Court
State vs . Rajan Dewan on 5 May, 2018
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : WEST
TIS HAZARI COURTS : DELHI
FIR No. 409/2017
ID 2927/2018
U/S. 3 DPDP Act
PS Moti Nagar
State Vs. Rajan Dewan
JUDGMENT
1. Sr. No of case 2927/2018
2. Date of commission of offence 12.11.2017
3. Name of complainant HC Pritam SIngh
4. Name of accused Rajan Dewan
s/o. Sh. RamChander Dewan
r/o. H NO. 49CGH10
Sunder Appts, Paschim Vihar
Delhi
5. Offence complained of U/s. 3 DPDP Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted
8. Date of such order 5.5.2018
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION: Accused was sent for trial on the allegations that on 12.11.2017 at about 8.30 PM he had defaced the public property by putting a board on the TPDDL Transformer in front of Shop NO. WZ33, State Vs. Rajan Dewan; FIR No. 409/17; PS MN 1/9 Main Market, Sudarshan Park, New Delhi.
2. MISCELLANEOUS PROCEEDINGS: After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3. NOTICE FRAMED AGAINST THE ACCUSED: Notice for offence punishable u/s. 3 DPDP Act was given to the accused, to which he pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION: In order to prove its case, prosecution has examined two witness. The testimony of the said witness in brief is as under :
(a)PW1 is HC Pritam Singh. PW1 is the complainant as well as the IO of the present case. PW1 deposed that on 12.11.17 he alongwith Ct. Harish were on patrolling duty and while patrolling when they reached near Shop NO WZ33, Main Market, Sudarshan Park they noticed a Board was affixed on the Grills of the Transformer. He further stated that he clicked photograph of the said Board and the said Board was seized vide memo Ex. PW1/A. PW1 further stated that he prepared tehrir Ex. PW1/B and got the FIR registered through Ct. Harish and thereafter he prepared site plan Ex. PW1/C. State Vs. Rajan Dewan; FIR No. 409/17; PS MN 2/9 PW1 further stated that on 12.11.17 he alongwith he alongwith Ct. Harish visited the address as mentioned on the Advertisement Board where accused was arrested after narrating the facts. PW1 further stated that thereafter disclosure statement of accused was recorded and was released on bail. PW1 identified the accused as well as the photographs of the Board in question as Ex. P1 to P3.
(b)PW2 is ASI Hawa Singh. PW2 was the duty officer and he identified the registration of the FIR by him on 12.11.17 at police station Moti Nagar.
5. STATEMENT OF ACCUSED: Statement of accused was recorded u/s. 313 Cr.P.C. wherein the incriminating evidence was put to the accused. Accused choose not to lead any evidence in his defence.
6. ARGUMENTS OF LD. APP FOR STATE AND LD DEFENCE COUNSEL: Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of defacement of the public property by accused has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
On the other hand, Ld counsel for accused has stated State Vs. Rajan Dewan; FIR No. 409/17; PS MN 3/9 that the prosecution has failed to prove its case beyond reasonable doubt as no public witness was joined by prosecution in support of its case. It is further submitted that accused was falsely implicated in this case and the alleged Board in question was never placed/ put by accused.
7. REASONS FOR THE DECISION:
(i) Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused.
(ii) It is no longer Res Integra that accused is entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
(iii) In the light of the above discussed legal position, I State Vs. Rajan Dewan; FIR No. 409/17; PS MN 4/9 shall now step forward to divulge my opinion on the respective fate of the accused.
(iv) Prosecution case is based upon the photographs which has been placed on record as Ex. P1 to P3. The same is regarding admissions for preschool students at Mother's Pride. However, the same is inadmissible as prosecution has failed to bring on record Certificate u/s. 65 (B) of the Evidence Act. Reliance is placed upon the judgment titled as Anvar PV Vs. PK Bashir (2014) 10 SCC 473, wherein it is observed that: "....Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[1], a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph150 as follows:
150. According to Section 63, secondary evidence means and includes, among other State Vs. Rajan Dewan; FIR No. 409/17; PS MN 5/9 things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge.
Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65." It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section State Vs. Rajan Dewan; FIR No. 409/17; PS MN 6/9 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The appellant admittedly has not produced any certificate in terms of Section 65B in State Vs. Rajan Dewan; FIR No. 409/17; PS MN 7/9 respect of the CDs, ExhibitsP4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground.
The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act..."
(v) Moreover it is seen that the the place in question was a busy/ place but the IO has failed to join any public witness at the State Vs. Rajan Dewan; FIR No. 409/17; PS MN 8/9 time of seizure of the alleged Board in question. Mere seizure of a board from public place does not prove that accused had placed the same. No sincere efforts was made by the IO to join the public witnesses in the investigation of the case. Non joining of public witness is also fatal for the prosecution case.
(vi) Keeping in view the ratio held in aforesaid case, Ex. P1 to P3 i.e. photographs cannot be admitted in evidence.
8. CONCLUSION: In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. The benefit of any lacunae left in the investigation, has to be given to the accused. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt and is hereby acquitted of the charge framed against him.
Compliance of section 437A cr.p.c. has been made in ordersheet.
Digitally signed by JITENDRA JITENDRA SINGH
SINGH Date:
2018.05.05
15:38:18 +0530
Judgment dictated and JITENDRA SINGH
pronounced in the open Court ACMM:WEST DISTT:DELHI
i.e. the 5th of May, 2018
(This judgment consists of 9 pages)
State Vs. Rajan Dewan; FIR No. 409/17; PS MN 9/9