Delhi District Court
State vs . Tushar Dedha on 24 May, 2023
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE-01, TIS HAZARI COURT,
CENTRAL: DELHI.
State Vs. Tushar Dedha
FIR No.133/2019
PS: Roop Nagar
Unique Case Identification No. 138/2021
JUDGMENT
(b) Date of offence 02.09.2019
(c) Complainant ASI Darshan Lal
(d) Accused Tushar Dedha S/o Sh. Kartar Singh,
R/o H.No. V-57, Khumra Mohalla,
Ambedkar Basti, Ghona Village, Delhi-
53.
(e) Offence Section 3 of The Delhi Prevention of
Defacement of Property Act, 2007.
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 05.12.2020
(i) Date when judgment was Not reserved
reserved
(j) Date of judgment 24.05.2023
FIR No.133/2019 State Vs. Tushar Dedha Page 1 of 12
ACMM-01(CENTRAL)/24.05.2023
Prosecution case
1. The prosecution case, in brief, is that Tushar Dedha defaced/damaged the main gate of post office by affixing poster on its wall on which"JOIN ABVP TUSHAR DEDHAA TUSHAR DEDHAA" was printed and thereby he committed an offence punishable under Section 3(1) of The Delhi Prevention of Defacement of Property Act, 2007 (herein after referred to as the DPDP Act). The instant FIR was registered. Investigation was conducted. The posters were seized and accused was arrested and subsequently released on police bail. Upon completion of investigation, charge-sheet was filed in the Court.
Notice
2. After consideration of the charge-sheet, charge under Section 3 of DPDP Act was framed against the accused to which he pleaded not guilty and claimed trial.
Statement of the accused under section 294 of The Code of Criminal Procedure code, 1973.
3. The name of DO/ASI Raj Rani, the Duty Officer who registered the instant FIR, was dropped from the list of witnesses as the genuineness of the instant FIR, Ex.AD1, endorsement on the rukka, Ex.AD2, certificate section 65 B Indian Evidence Act, Ex.AD3 and photographs of poster in question, Ex.AD1 was not disputed by the accused in terms of section 294 of Cr.P.C.
Prosecution Evidence
4. During trial, prosecution examined two witnesses; PW1/Ct Harikesh and PW2/ASI Darshan Lal.
5. Ct. Ram Avtar was not examined as he was a witness to the rukka. The FIR No.133/2019 State Vs. Tushar Dedha Page 2 of 12 ACMM-01(CENTRAL)/24.05.2023 genuineness of which was not disputed by the accused.
6. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the prosecution witnesses.
7. As testified by PW2/ASI Darshan Lal, on 02.09.2019, he alongwith Ct. Ram Avtar was on patrol duty and when at around 9:30 PM, they reached near main gate of Post office, Jawahar Nagar, UA Block, two posters pasted on which 'Join ABVP Tushar Dedha' was printed were noticed by him. He clicked the photographs of the said posters from his mobile phone. The said posters were pasted with gum (sticky substance) and due to which it was not possible to remove the same from the wall. Thus, the wall of the main gate of post office was found defaced by pasting the said posters. He prepared the tehrir, Ex. PW2/A , and handed over the same to Ct. Ram Avtar for registration of FIR at PS. After registration of FIR, Ct. Ram Avtar returned to spot alongwith copy of FIR and original tehrir and same was handed over to him. PW2 prepared site plan, Ex.PW2/B. PW2 searched for accused but in vain.
8. As broadly further deposed by PW2/ASI Darshan Lal and PW1/Ct. Harikesh, on 06.07.2020, they both searched for the accused. The PW2 apprehended the accused from Karanti Chowk, Maurice Nagar, at the instance of some students. The accused was found to be the student of Shyam Lal College and member of ABVP Wing in Delhi University. The accused disclosed about his crime. The PW2 arrested and conducted personal search of the accused vide memo, Ex. PW1/A and Ex. PW1/B respectively. PW2 recorded the statement of witnesses. On completion of investigation, PW2 filed charge-sheet in the Court. They both have correctly identified the accused and the said posters vide photographs, FIR No.133/2019 State Vs. Tushar Dedha Page 3 of 12 ACMM-01(CENTRAL)/24.05.2023 Ex.AD4(Colly).
During cross-examination by the Ld. Counsel for the accused persons, the PW2 stated that he requested the public persons to join in investigation but none joined and left the spot without disclosing their names and addresses and no notice was served upon them for not joining the investigation.
Statement of the accused under section 313 CrPC
9. The statement of the accused was recorded under section 313 of Code of Criminal Procedure, 1973. He denied the allegations and pleaded innocence. He stated that he was first year student of Shyam Lal College in the Year 2019 and he had never gone to the spot. He does not know anything about the alleged posters. As stated by him, the spelling of his name is different from as mentioned in the said posters. That on 06.07.2020, ASI Darshan Lal phoned him and directed him to appear before him in the Police Station: Roop Nagar and when he went to the said police station, he was asked him to put his signatures on some papers. He opted not to lead any evidence in defense. Defense Evidence was closed.
10.Final arguments have been heard. Record have been perused and considered.
Final Argument
11.It is submitted by the Ld. APP for State (Substitute) that the prosecution has been able to prove its case against the accused beyond reasonable doubt on the basis of testimonies of PW1 and PW2 and pleaded for the conviction of the accused.
On the other hand, in crux, it is submitted by the Ld. Counsel for the accused that there is no evidence in support of charge under Section 3 FIR No.133/2019 State Vs. Tushar Dedha Page 4 of 12 ACMM-01(CENTRAL)/24.05.2023 of the DPDP Act as none of the witnesses examined by the prosecution has deposed that the poster in question was installed either by the accused person or at his instance or for his benefit. The Ld. Counsel submitted that all the paper work was done while being in the police station. It has also been submitted that the accused has been falsely implicated is evident from the fact that despite availability no public witness has been joined either to the seizure of the said poster or the investigation. As submitted, the photographs produced in evidence are also remained unproved. The Ld. Counsel pleaded for the acquittal of the accused.
Relevant provision of law needs to be considered
12.It is pertinent to note that Section 3 is the penal provision and provides penalty for defacement of property. The sub-section (1), made a person liable to punishment provided therein who 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 and in case that offence is committed for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), the beneficiary, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence as per its sub-section (3).
13.Section 2 (a) of the DPDP Act described the "defacement" as including impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever and the word "deface" shall be construed accordingly.
14.Section 2 (c) described the "property" as including any building, hut, structure, wall, tree, fence, post, pole or any other erection and described FIR No.133/2019 State Vs. Tushar Dedha Page 5 of 12 ACMM-01(CENTRAL)/24.05.2023 the "writing" under Section 2(d) as including printing, painting, decoration, lettering, ornamentation etc., produced by stencil.
15.It is also pertinent to note that in the judgment titled as Anil Bhatia & Ors v Government of NCT of Delhi & Ors, dated 19/02/2015, the Honorable High Court of Delhi, has held that putting of posters, banners, hoardings, boards on the building, walls etc. is the subject matter of the defacement Act and while referring to a precedent reported as Sunil Pandharinath Jadhav v State of Maharashtra, it was observed that poster, banner, hoarding, board which does not co-here with the surrounding is bound to have bearing on the appearance or beauty of the public place and is an eye sour to the viewers causing not only public nuisance but also violative of the Fundamental Right under Article 21 of The Constitution of India, robbing people of the clean and beautiful environment and surroundings free from any defacement and the directions were issued for removal of all illegal posters, banners, hoardings, boards on the building.
Examination of the material available on record including evidence and brief reasons for the decision
16.It is a settled principle of law that the prosecution has to prove the case against the accused beyond reasonable doubt and for this, the prosecution has to stand on its own legs.
17.As per the case of the prosecution the accused is the perpetrator of the crime as his name was found printed on the seized posters which were allegedly found affixed on the public place. Neither it has been alleged nor deposed that the alleged poster was put on the spot for the benefit of the accused person. Therefore, the case is not covered under Section 3(3) of the DPDP Act.
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18.Now, to decide the guilt or innocence of the accused person, it is to be examined if the case is covered by section 3(1) of the DPDP Act i.e if the accused person has defaced the property in public view by themselves affixing the seized poster.
No independent witness joined
19. The entire case of the prosecution is based on the testimony of the police official and the documents exhibited in evidence. Admittedly, no public person has been joined to the seizure proceedings of the said poster. As deposed, the said posters were found affixed on the wall of Post office i.e. public place that too at around 09:50 pm, when the public persons were also available as come out from the testimonies of the witnesses examined by the Prosecution. However, no plausible explanation came forward from the prosecution for not joining the public witness to the seizure proceedings or the investigation. No reasonable explanation has been offered by the prosecution for not joining the public witness. Although that by itself is not a reason to outrightly reject the prosecution case, it does warrant careful scrutiny of the testimony of the police officers.
20.Moreover, no departure and arrival entries are proved on record by the prosecution which could have established that the PW1 and PW2 actually visited the alleged spot and seized the said posters from the spot as alleged..
21.Thus, the testimony of official witnesses that the said posters were seized from the spot does not find any corroboration from any independent source. In this regard, it would be apt to note the observations made by the honorable High Courts and Apex Court as below:
22.In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as that where the police has failed to join FIR No.133/2019 State Vs. Tushar Dedha Page 7 of 12 ACMM-01(CENTRAL)/24.05.2023 independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
23.In the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
24.In the case of Sahib Singh v. State of Punjab AIR 1997 SC 2417, it has been held as under:-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these FIR No.133/2019 State Vs. Tushar Dedha Page 8 of 12 ACMM-01(CENTRAL)/24.05.2023 eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
25.In the case of Sadhu Singh Vs. State of Haryana 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
26.In the case of Massa Singh Vs. State of Punjab 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
27.In the case of Chanan Singh Vs. State, 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
28.In the cases of Gurbel Singh Vs. State of Punjab, 1991 Crl.Rev. No.504 (P&H) and Dhanpat Vs. State of Punjab, 2000 (1) CC Cases HC 52, it has FIR No.133/2019 State Vs. Tushar Dedha Page 9 of 12 ACMM-01(CENTRAL)/24.05.2023 been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
29.In the instant case, no reasonable explanation has been offered by the prosecution either for not joining the public witnesses. The case of the prosecution is based on the testimony of police official which is not corroborated by any independent witness or material. Thus, the non- joining of public witness raises reasonable doubt to the prosecution case and gives teeth to the defence raised by the learned Counsel for the accused person that the witnesses did not visit the spot and all the proceedings were done while being in police station.
The photographs on record not proved
30.The prosecution has relied upon the said photographs, Ex. AD4 (colly). The said photographs, Ex. AD4 (colly), were clicked by PW2 through his mobile phone which is an electronic device. Significantly, the mandatory Certificate in terms of Section 65B of The Indian Evidence Act, 1872 supporting the said photographs has not been produced in evidence for which also no explanation has been offered by the prosecution. Thus, the said photographs, Ex. AD4 (colly), remained unproved and can not be relied upon in support of the case of the prosecution that the alleged seized posters were affixed on the spot.
Nexus between the accused person and the crime
31. As per prosecution, the accused person is connected with the crime or are the perpetrator of the crime as his name was printed on the said poster. However, there is no evidence on record as to the affixing of the said poster by the accused person as none of the witnesses examined has deposed that they saw the accused person affixing the alleged seized posters on the spot.
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32. The spelling of the name of the accused as mentioned in the charge-sheet, and other documents like arrest memo, personal search memo, bonds and copy of Aadhar card of the accused filed with the charge-sheet is "Tushar Dedha" whereas the same as printed on the said poster is "TUSHAR DEDHAA". There is nothing on record which could established that "Tushar Dedha" and "TUSHAR DEDHAA" is one and the same person.
33. Significantly, no inquiry or interrogation at all has been made by the printer or the publisher of the said posters which could have indicated that the accused person had affixed the said poster on the spot as alleged.
34. Thus, the identity of the offender is shrouded in doubt and the prosecution has failed to convincingly establish the identity of the accused person as the perpetrator of the crime who affixed the said poster on the spot.
35. In view of the above examination of the material available on record, it is observed that the non joining of the independent witness to the alleged seizure of the posters or the investigation and failure to establish the nexus between the crime and the accused person casts a shadow of doubt on the version of the prosecution. The prosecution was under obligation to remove the shadow which it has failed. The prosecution has failed to attain the standard of proof beyond reasonable doubt. In this regard, it would be apt to note the observations made in the judgment as below:
36.In the case of Mohd. Fazal Versus State Crl. Appeal No. 243/2009 dated 19th May, 2014, the Hon'ble High Court of Delhi noted as under:
"In criminal law, the burden of proving that the accused had committed the crime and that too beyond reasonable doubt, is on the prosecution. The said legal principle is virtuous, sacred and unexceptionable as it protects innocents but the said principle is not designed and FIR No.133/2019 State Vs. Tushar Dedha Page 11 of 12 ACMM-01(CENTRAL)/24.05.2023 intended to be applied in an impractical manner with unrealistically wide interpretation; that silence on the part of the accused is always and universally acceptable and under no circumstances the accused should be or is required to give an explanation"
37. It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
38.As observed above that the prosecution has failed to prove its case against all the accused persons beyond reasonable doubt, I give benefit of doubt to all the accused persons. Accordingly, accused Tushar Dedha is acquitted of the charge of offence of which they faced the trial.
39.Bonds accepted in terms of provision of section 437A, CR.P.C, shall remain in force for a period of six months from today. Announced in the open Court today i.e. on 24.05.2023.
(RAJANI RANGA) ACMM-01(CENTRAL)/THC/DELHI 24.05.2023 FIR No.133/2019 State Vs. Tushar Dedha Page 12 of 12 ACMM-01(CENTRAL)/24.05.2023 FIR No.133/2019 State Vs. Tushar Dedha Page 13 of 12 ACMM-01(CENTRAL)/24.05.2023