Delhi District Court
State vs . Rahul Raj Aryan & Ors. on 17 August, 2020
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-02, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI
PRESIDING OFFICER: SH. GAJENDER SINGH NAGAR
STATE VS. Rahul Raj Aryan & Ors.
FIR NO. 241/2015
PS: Maurice Nagar
U/S: 3(1) DPDP Act
JUDGMENT
CIS No. : 11206/2018
Date of commission of offence : 09.09.2015
Date of institution of the case : 04.08.2018
Name of the complainant : HC Lokender
Name of accused and address : (1) Rahul Raj Aryan
S/o Sh. Ranjeet Sharma,
R/o VP-Noawan, P.S.
Shakurabad, Distt.
Jehanabad, Bihar.
(2) Kuldeep Bidhuri
S/o Sh. Ved Prakash,
R/o C/S 91/165, Mehla
Mohalla, Madanpur Khadar,
Delhi.
(3) Garima Rana
D/o Sh. Amar Singh,
R/o Dashmesh Colony,
Street No.8, Malout, Distt.
Muktsar, Punjab.
(4) Hitanshi Chouhan
FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 1/9
S/o Sh. Sanjay Chauhan,
R/o 238A, Pitampura, Delhi.
Offence complained of or proved : U/s 3(1) DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 10.08.2020
Date of judgment : 17.08.2020
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons pursuant to charge sheet filed by PS Maurice Nagar U/s 3(1) DPDP (Delhi Prevention of Defacement of Property Act, 2007) Act subsequent to the investigation carried out by them in FIR No. 241/2015.
2. Brief facts of the case are that all the four accused persons were contesting DUSU Elections from the panel of CYSS. Some stickers bearing names of the accused persons were found pasted on the security guard's cabin near main gate of Ramjas College. Initially, untraced report was filed in the matter, however later on supplementary charge-sheet for commission of offence punishable U/s 3(1) DPDP Act was filed on the assumption that since the stickers were bearing names of the accused persons, hence they were the one who had got printed and pasted the stickers there.
3. Complete set of charge sheet and other documents were supplied to the accused persons. After hearing arguments, charge for offence punishable under section 3(1) DPDP Act was framed against the accused persons to which they pleaded not guilty and claimed trial.
FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 2/9MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of their case has examined three witnesses in total.
5. PW-1 HC Gajender Rana exhibited copy of FIR as Ex. PW-1/A (OSR) and endorsement on rukka as Ex. PW-1/B.
6. PW-2 HC Lokender deposed that on 09.09.2015 he alongwith Ct. Naresh were on patrolling duty near Ramjas College. On that day, at about 5:30 pm they saw some stickers of CYSS having names of accused persons Rahul Raj Aryan, Kuldeep Bhidhuri, Garima Rana and Hitanshi Chouhan. The said stickers were affixed near security guard cabin. He took photographs of the said stickers through mobile. He prepared rukka which is Ex. PW-2/A and handed over the same to Ct. Naresh for registration of FIR. After sometime Ct. Naresh returned to spot with original rukka and copy of FIR. On that, he prepared site plan which is Ex. PW-2/B. He also seized the said stickers vide seizure memo Ex. PW-2/C. Thereafter, they returned to P.S. and deposited the case property in the maalkhana. It is stated that on 03.10.2015 he obtained forms of accused persons from Delhi University Election Department. The said forms are marked as Mark-A, Mark-B, Mark-C and Mark-D. It is stated that he interrogated accused Rahul Raj Aryan (correctly identified) and Sh. Anupam who was State President of CYSS and examined them. Thereafter, he was transferred. He exhibited five photographs of spot as Ex. P-1 (Colly). In his cross-examination, it is stated by him that he has not received any complaint from any person including Election Committee or Delhi University. It is stated by him that nothing was written on the sticker about the publisher and printer. It is stated by him that though he has taken the photographs from his mobile phone, however he has not placed the certificate U/s 65-B of Indian Evidence Act qua photographs on record. It is stated by him that he has not made any investigation qua the FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 3/9 person who had given instructions for printing of the said stickers, or qua the fact who had printed those stickers. It is stated by him that nothing came on record apart from the names of the accused persons on the stickers to show that the accused persons have given instructions for printing of the sticker, or pasting the same. It is stated that he has not seen the accused persons affixing the stickers on the wall. It is stated that he had not met any person who had seen the accused persons affixing the sticker on the wall.
7. PW-3 ASI Raj Kumar deposed that in May, 2018 the present case was marked to him for further investigation. During investigation, he interrogated accused Rahul Raj Aryan as well as other accused persons namely Hitanshi Chouhan, Garima Rana (correctly identified) and Kuldeep Bidhuri (identity not disputed) and served them notices U/s 41.1(D) of Cr.P.C. He prepared charge-sheet and filed before the Court. It is stated that the photographs of the case property are already Ex. P-1 (Colly). In his cross-examination, it is stated that he has not placed certificate U/s 65-B of Indian Evidence Act qua photographs on record.
8. No other witness was left to be examined, hence PE was closed.
9. Thereafter, separate statements of accused persons were recorded U/s 313 Cr.P.C in which all the incriminating material appearing in evidence against accused persons were put to them to which they stated that they are innocent and that they have been falsely implicated in this case. Accused persons opted not to lead defence evidence.
ARGUMENTS:
10. Final arguments heard on behalf of Ld. APP for State as well as Ld. Defence counsel.
FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 4/9FINDINGS:
11. Section 3(1) of the Delhi Prevention of Defacement of Property Act, 2007 provides that :-
"Penalty for defacement of property:-
(1) Whoever defaces 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, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both.
(2) XXX (3) XXX
12. Though in the present matter some stickers bearing names of the accused persons were found pasted on the guard's cabin near Ramjas College, however due to the following reasons the accused persons deserve acquittal in the present matter :-
(i) In the present matter, complaint was made by HC Lokender i.e. PW-2. After registration of FIR he was the one who seized the stickers, prepared the site plan. Thus, after registration of FIR, investigation of the present case was marked to the same police official who was the complainant. HC Lokender Singh has written letters to DUSU Election Officer. The other ASI Raj Kumar only took up the investigation when HC Lokender was transferred from the police station. Thus, in the present matter complainant and IO was the same person. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any ill−will or bias against the accused persons. The mindset of the complainant ordinarily is holding a grievance against somebody whereas the mandate of the investigating officer is to ascertain the truth. Therefore, in FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 5/9 order to allay any fear of bias or ill−will, it is in the fitness of things that the complainant and the IO should not be the same person which is not the case before the Court. Reliance placed upon the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
(ii) PW2 stated that he alongwith Ct. Naresh was on patrolling duty on the said day but they could not produce/place on record the departure and arrival entry to prima−facie show that they were on patrolling duty or visited the spot on the said day which is a crucial aspect left by the police. PW2 being present at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing link in the prosecution case. Therefore, the testimony of PW2 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
(iii) The prosecution has relied upon five photographs of spot which are Ex. P-1 (Colly). The photographs were allegedly taken through an electronic device i.e. mobile phone. It is pertinent to note that certificate U/s 65-B of Indian Evidence Act has not been placed on record. During their cross examination PW-2 and PW-3 admitted that the certificate U/s 65-B of Indian Evidence Act is not placed on record. Digital photographs taken by an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate U/s 65-B of Indian Evidence Act which has not been done in the present case for reasons best known to the police. Merely filing of photographs does not suffice and does not make it an admissible piece of evidence. It implies that the photographs of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
(iv) No independent witness was joined in the investigation by the IO.
PWs have not explained in their testimony as to why the public witness was not joined in the investigation. It was within the reach of the IO to FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 6/9 examine the independent witness to prima facie satisfy that the poster was affixed/ pasted on the spot. No evidence has been brought on record to prove that the alleged poster was affixed/ pasted by the accused persons or with their authority.
(v) The PWs who were allegedly visited the spot examined by the prosecution categorically stated that they had not seen anybody or the accused persons while affixing the said poster at the spot and they also stated that they could not say as to who affixed the poster at the spot. They also stated that they did not come across any witness who might have seen any person affixing the posters at the spot.
(vi) In the present matter, the allegation against the accused persons is that some sticker bearing their names were found pasted on a Government building. Now it has to be seen whether pasting posters / stickers would amount to an offence U/s 3 of DPDP Act, or not. Prior to enactment of DPDP Act, West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of West Bengal Prevention of Defacement of Property Act is same to same as Section 3 of DPDP Act. For the sake of convenience, Section 3 of West Bengal Prevention of Defacement of Property Act, is reproduced here which provides 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."
In a case titled as "T.S Marwah & Ors Vs. State", 2008(4) JCC 2561 it has been held by Hon'ble High Court of Delhi that "mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing, FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 7/9 spoiling or injuring in any other way whatsoever, but Section 3(1) is not all embracing and it refers to only such type of defacement for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material".
The question for determination in the present case is whether the present case is covered by the aforesaid judgment and whether the aforementioned judgment also applicable to offence under Section 3 of Delhi Prevention of Defacement of Property Act.
Provisions of Section 3 of DPDP Act and Section 3 of the West Bengal Prevention of Defacement of Property Act are similar to each other and therefore the ratio of the aforementioned judgment of T.S Marwah Vs. State would also be applicable to the provision of Section 3 of DPDP Act.
In these circumstances, pasting of posters on the wall having the names of the accused persons on them would not amount to an offence U/s 3 of DPDP Act.
13. In view of the above-stated circumstances, it can be safely held that the prosecution has failed to prove its case against accused persons beyond reasonable doubt.
14. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused persons are entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused persons to acquittal.
FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 8/915. In the present matter, in view of the above-stated discussions, it can be safely held that the prosecution has failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused persons to be acquitted in the present case. Therefore, all the accused persons namely Rahul Raj Aryan, Kuldeep Bidhuri, Garima Rana and Hitanshi Chouhan are hereby acquitted from charge leveled against them in the present matter. Requirements of Section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
Digitally signed by GAJENDER GAJENDER SINGH NAGAR
SINGH NAGAR Date: 2020.08.17 17:20:28
-04'00'
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR)
COURT ON 17.08.2020 ACMM-02 (CENTRAL)/DELHI
Containing 09 pages all signed by the presiding officer.
GAJENDER Digitally signed by
GAJENDER SINGH NAGAR
SINGH NAGAR Date: 2020.08.17 17:21:06
-04'00'
(GAJENDER SINGH NAGAR)
ACMM-02(CENTRAL)/DELHI
FIR No. 241/2015, State Vs Rahul Raj Aryan & Ors. PS: Maurice Nagar Page 9/9