Delhi District Court
State vs Satish Sehrawat on 20 September, 2023
IN THE COURT OF SWATI SHARMA : ACMM-II :
NEW DELHI DISTRICT : PATIALA HOUSE COURT : NEW DELHI
Cr Cases 46721/2016
STATE Vs. SATISH SEHRAWAT
456 /2013 (Vasant KunjSouth)
1. Case No. of the case : 46721/2016
2. The date of offence : 14.10.2013
3. The name of the complainant : Sh. Nain Singh
4. The name of the accused : Satish Sehrawat
S/o. Sh. Ram Prakash
Sehrawat
R/o. H. No. 1, Prakash
House, Main Road,
Mahipalpur, New Delhi.
5. The offence complained : u/s 3 of D.P.D.P. Act
6. The plea of the accused : Pleaded not guilty
7. Date of Institution of the case : 07.08.2014
8. The final order : Acquitted
9. Date of such order : 20.09.2023
Cr Cases 46721/2016
STATE Vs. SATISH SEHRAWAT
456 /2013 (Vasant KunjSouth) Page no. 1 of 13
JUDGMENT
Version of Prosecution
1. Vide this judgment this court shall decide the present case under Section 3 of D.P.D.P. Act.
2. The prosecution story in brief is that on 14.10.2013 at about 02:50 P.M., at electric pole in front of H. No. C-24, Nangal Dewat Village, Vasant Kunj, New Delhi, within the jurisdiction of PS Vasant Kunj South, accused had pasted one poster/banner of Colonel Devendra Sehrawat, candidate of Aam Admi Party on an electric pole in violation of code of conduct and accused, thereby, committed mischief causing damage to public property and, thus, the accused, thereby, committed an offence punishable u/s 3 of D.P.D.P. Act.
3. Investigation was completed and charge sheet was filed under section 3 of D.P.D.P. Act. Cognizance was taken and accused was summoned.
4. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 Cr.P.C.
Charge
5. Arguments on charge were heard and charge against accused was framed under section 3 of D.P.D.P. Act. Accused pleaded not guilty and claimed trial.
Cr Cases 46721/2016STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 2 of 13 Prosecution Evidence
6. In order to bring home the guilt of the accused, prosecution examined five witnesses which are as below:
7. PW IO/SI Deepak was examined as PW-1 who in his examination-in- chief deposed that "On 14.10.2013, I was posted as SI at PS VK South. On that day at about 02:50 PM. on receiving DD No. 24A which is Ex. PW1/A which was regarding a banner related to Aam Aadmi Party. Thereafter, I along with Const. Ram Niwas went to the spot i.e. Nangal Devat, Block C, New Delhi where we saw one banner was installed at the side of the road on the electric pole(C20) which was of Aam Aadmi Party. There I met the complainant Nain Singh, Executive Magistrate, Bijwasan. Thereafter, the complainant informed that the said banner was installed in violation of code of conduct of election commission and also giving a bad message to the public and give a written complaint to me which is Ex. PW1/B. Thereafter, I prepared the rukka which is Ex. PW1/C bearing my signature at Point A. After endorsement, rukka was handed over to Const. Ram Niwas for registration of FIR. Thereafter, during enquiry I prepared the site plan at the instance of the complainant which is Ex. PW1/D bearing my signature at Point A. In the meantime, Const. Ram Niwas came on the spot and handed over the copy of FIR and original rukka to me. Thereafter, we have taken photographs of the said banner and remove the same. Thereafter, it was measured which was found to be 4/5 feet. The said banner is in the name of Col. Devender Sehrawat, who is the member of Aam Aadmi Party. Thereafter, said banner was sealed by the IO in a white pulanda vide seizure Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 3 of 13 memo Ex. PW1/E bearing my signature at Point A. I recorded the statement of complainant after enquiry and relieved him. Thereafter, we went to the office of Aam Aadmi Party located at Prakash House Mahipalpur New Delhi in search of Devender Sehrawat. However, he was not found at the office. Thereafter, we came back to police station and the case property was deposited into the malkhana.
On 29.11.2013, I again went there at the office of Aam Aadmi Party, 1 Prakash House, Manipalpur, New Delhi and there the brother of Devender Sehrawat namely Satish Sehrawat was present where I gave him notice u/s 160 CrPC which is Ex. PW1/F bearing my signature at Point A. During interrogation with Satish Sehrawat, he informed that the various banners were given to him by his brother Sh. Devender Sehrawat. Out of which the said banner was installed on electric pole(C20) in front of H.No. C 24 Nangal Devat Village New Delhi. Thereafter, I arrested the accused Satish Sehrawat (who is present in the court today correctly identify by the witness) vide arrest memo which is Ex. PW1/G and his personal search was conducted vide personal search memo Ex. PW1/H both bearing my signature at Point A. The accused was released on bail on furnishing of appropriate surety.
Thereafter, one notice under 160 CrPC which is Ex. PW1/1 was again served to Devender Sehrawat which was duly received by him where he replied that he has given various banners were given to his brother Sh. Satish Sehrawat. Out of which the said banner was installed on electric pole (C20) in front of H.No. C 24 Nangal Devat Village New Delhi. Thereafter, I prepared the chargesheet and filed before the court". Said witness correctly identified the accused and case property i.e. one banner of Aam Admi Party Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 4 of 13 torn into two pieces Ex. P1 produced by MHCM. Said witness was duly cross examined by ld. Counsel for accused.
8. PW Sh. Nain Singh was examined as PW-2 who in his examination- in-chief deposed that "I am working as Technical Officer in Indian Agricultural Research Institute (I.A.R.I.). During the Delhi Assembly Elections 2013, 1 was appointed as Executive Magistrate for Election Constitutency No. AC36, Bijwasan New Delhi. The said elections were held during October 2013. During my aforesaid assignment as Executive Magistrate, I was directed by my Returning Officer to keep a check on the unauthorised display of posters/banners pertaining to the Candidates participating in the aforesaid election process. On 14.10.2013, while I was performing my aforesaid responsibilities in aforesaid area, I noticed one banner which was installed on electric pole near H.No. C 24, Nangal Devat Village New Delhi. The said banner was related to Aam Aadmi Party and was displaying the message demanding the votes for Aam Aadmi Party in the following words 'Aam Aadmi Party ko vote de'. Thereafter, I informed SHO PS V K South regarding the said incident and police officials came on the spot. There upon I gave my written complaint to the IO which is already Ex. PW1/A bearing my signature at Point A. Thereafter, I left the spot to my office". Said witness correctly identified the case property i.e. one banner of Aam Admit Party torn into two pieces Ex. P1 produced by MHCM. Said witness was duly cross examined by ld. Counsel for accused.
Said witness was re-examined by ld. APP for State wherein he deposed that "It is correct that the banner in question was not displaying the message demanding the votes for Aam Aadmi Party in the following words Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 5 of 13 "Aam Aadmi Party Ko Vote De", however, it contains certain promises which were to be fulfilled by the Aam Aadmi Party during their tenure". Said witness was again duly cross-examined by ld. Counsel for accused.
9. PW Ct. Ram Niwas was examined as PW-3 who in his examination- in-chief deposed that "On 14.10.2013, I was posted as Const. at PS VK South. On that day at about 02:30 PM, I along with IO went to the spot i.e. Nangal Devat Village New Delhi. There I saw one banner which was installed on an electric pole near H.No. C 24, Village Nangal Devat New Delhi. The said banner was related to Aam Aadmi Party. The said banner was displaying the message for demanding the votes for Aam Aadmi Party in the following words 'Aam Aadmi Party ko vote de'. Thereafter, Sh. Nain Singh, Executive Magistrate gave his written complaint to the IO which is already Ex. PW1/A. Thereafter, IO prepared the rukka and handed over the same to me. Thereafter, I went to the police station and get the FIR registered. After registration I came back to the spot and handed over the copy of FIR and original rukka to the IO. IO removed the said banner and taken the same into possession vide seizure memo already Ex. PW1/E bearing my signature at Point B. Thereafter, I along with the IO went to the house of Satish Sehrawat(who is present in the court today and correctly identify by the witness) but he was not found and after that I along with IO came back to the spot. The case property was deposited into the malkhana with PS". Said witness correctly identified the accused and case property i.e. one banner of Aam Aadmi Party torn into two pieces Ex. P1 produced by MHCM. Said witness was duly cross examined by ld. Counsel for accused.
Cr Cases 46721/2016STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 6 of 13
10. PW ASI Dharmender Kumar was examined as PW-4 who in his examination-in-chief deposed that "On 14.10.2013 I was posted as DO at P.S. V. K (S) and my duty hours from 08.00 am to 04:00 pm. On that day at about 02.50 pm one call was received from Nain Singh regarding banner and poster of Aam Aadmi Party. Afterthat in this regard I made DD entry 24 A, same is already Ex PW1/A (OSR). Afterthat as per directions of SHO the said DD entry given to HC Manoj for handing over to SI Deepak for further investigation as per directions of SHO". Said witness was duly cross examined by ld. Counsel for accused.
11. PW SI Naresh Kumar was examined as PW-5 who in his examination-in-chief deposed that "On 14.10.2013 I was working as DO as ASI at P.S. V K (S) and my duty hours from 04.00 pm to 12.00 midnight. On that day at about 04.10 pm Ct. Ram Niwas handed over me one rukka sent by SI Deepak Panwar. Thereafter I endorsed the same which is already Ex. PW1/C bearing my signature at point B. On the basis of said tehrir I got FIR no. 456/13. The same is Ex.PW5/A bearing my signature at point A (OSR running into 3 pages). I have brought FIR register which also contains a similar contents (seen and compared with Ex.PW5/A (bearing my signature at point A). After copy of FIR alongwith certificate u/s 65 B of Indian Evidence Act (which is Ex. PW 5/B bearing my signature at point A). and original rukka was handed over to Ct. Ram Niwas for handing over to SI Deepak Panwar for further investigation as per the directions of SHO concerned". Said witness was duly cross examined by ld. Counsel for accused.
Cr Cases 46721/2016STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 7 of 13
12. No other witness was examined by the prosecution and hence, PE was closed.
13. Thereafter, separate statement u/s 313 CrPC of the accused was recorded, wherein all the incriminating material appeared in evidence against him, was put to him to which he stated that he has been falsely implicated in this case. He stated that "I never went to Nangal Dewatt Village or alleged spot C-20, Nangal Dewat Village ever in my life. I have not installed any banner in question on any alleged electric pole. I have no relation with banner in question and saw the same for the first time in court only. I am into the business of travel and tours and managing director of ten travels Pvt. Ltd. which is a travel tour company having office at Mahipalpur, New Delhi. The BJP supporters concocted some false story and got present case registered in connivance with police against Aam Aadmi Party with whom I had no relation. I never received any banner from Colonel Devender Sehrawat for installation anywhere or otherwise. My borther Colonel Devender Sehrawat who during the relevant time was contesting for elections from Aam Aadmi Party was not in cordial relations with me and in order to save his own skin in present case made a false statement before the police and got me implicated in present case. I have no relation with any political party. I am innocent and falsely implicated in the present case.". Accused opted not to lead defence evidence.
14. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
Cr Cases 46721/2016STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 8 of 13
15. It is argued by Ld. APP for State that accused has affixed the poster/banner on an electric pole situated in front of H. No. C24, Nangal Dewat Village, Vasant Kunj, New Delhi, and rukka Ex.PW-1/C was prepared by the IO and accordingly, the accused be convicted for offence punishable u/s 3 DPDP Act.
16. On the other hand, it is argued by Ld. Counsel for accused that prosecution has miserably failed to prove its case as there is nothing on record to show that the impugned poster/banner was affixed by the accused. There are no public witnesses to substantiate the commission of the offence. The photographs are not annexed with certificate U/s 65 B of Indian Evidence Act. It is further submitted by Ld. Defence counsel that accused be acquitted.
17. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 which 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) Where any offence committed under sub-section (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 9 of 13 offence.
(3) The aforesaid penalties will be without prejudice to the provisions of section 425 and section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
18. Though in the present matter a poster/banner mentioning "hum kya karenge? Bhrastachariyo ko 6 mahino me Tihar Jail Bheja Jayega, Bijli ke rate aadhe se bhi kam kiye jayege, har ghar tak saaf paani pahuchaya jayega, rojana 700 liter paani har ghar ko muft diya jayega "aam aadmi party, bijwasan vidhan sabha Mob no 8588833436" was found affixed on an electric pole, yet it has to be decided as to whether all the ingredients as mentioned in Section 3 DPDP Act have been fulfilled or not.
19. In the present matter, SI Deepak Panwar was the IO in the case who was examined as PW-1 and he was the one who took the photograph and prepared rukka Ex. PW-1/C.
20. PW-1 stated that he along-with Ct. Ram Niwas went to the spot i.e. Nangal Devat, Block C, New Delhi, but they could not produce/place on record the departure and arrival entry to prima facie show that they were on duty or visited the spot on the said day which is a crucial aspect left by the police. PW-1 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 PW-1 leaves much to be desired in order to prove the prosecution's case beyond reasonable doubt.
21. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. It is pertinent to note that certificate u/s 65B of Indian Evidence Act has not Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 10 of 13 been placed on record. Digital photograph taken from an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been done in the present case for reasons best known to the police. Merely filing of photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photograph of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
22. Further, no independent witness was joined in the investigation by the IO. PW has not explained in their testimony as to why other public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the poster was affixed on the spot. No evidence has been brought on record to prove that the alleged poster was affixed by the accused or with his authority.
23. In the present matter, the allegation against the accused is that one poster/hoarding mentioning "hum kya karenge? anna hazare wala lokpal parit hoga mahilaon ki suraksha ke liye conmando force "aam aadmi party bijwasan vidhan sabha Mob no 8588833436" was found affixed on an electric pole in front of H. No. C-24, Nangal Dewat Village, Vasant Kunj, New Delhi. Now, it has to be seen whether installing of poster/hoarding 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 Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 11 of 13 Defacement of Property Act is same to same as Section 3 of DPDP Act. For the sake of clarity, Section 3 of West Bengal Prevention of Defacement of Property Act, is reproduced here 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."
24. In a case titled as "T.S. Marwah & Others Vs. State", 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... 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, spoiling or injuring in any other way whatsoever, but Section 3(1) is not all embracing and it refers to only such type of defacements for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
25. The question which is to be decided in the present case is whether the present case is covered by the aforesaid judgment and whether the aforementioned judgment also applicable to offence u/s 3 of DPDP 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 (supra) would also be applicable to the provision of Section 3 of DPDP Act. In Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 12 of 13 these circumstances, affixing of a poster/hoarding mentioning "hum kya karenge? anna hazare wala lokpal parit hoga mahilaon ki suraksha ke liye conmando force "aam aadmi party, bijwasan vidhan sabha Mob no 8588833436" would not amount to an offence u/s 3 of DPDP Act.
26. In view of the aforesaid discussion, it can be safely concluded that the prosecution has failed to prove its case against accused beyond reasonable doubt.
27. Further, 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 the accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
28. In the present case, in view of the above stated discussions, it can be held that the prosecution has failed to prove its case beyond reasonable doubt. The evidence coming on record entitles the accused to be acquitted in the present case. Therefore, accused, namely, Satish Sehrawat S/o. Sh. Ram Prakash Sehrawat is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
Announced in the open court on 20.09.2023.
(SWATI SHARMA) ACMM-II/PHC/ND/20.09.2023 Cr Cases 46721/2016 STATE Vs. SATISH SEHRAWAT 456 /2013 (Vasant KunjSouth) Page no. 13 of 13