Delhi District Court
State vs . Amarjyot Singh on 19 January, 2023
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IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
CC No 8068/2020
State Vs. Amarjyot Singh
FIR No. 54/2020
U/s 3 DPDP Act
P.S. Naraina
1. S. No. of the Case : 297/02
2. Date of institution of case : 07.12.2020
3. Date of Commission of Offence : 16.01.2020
4. Name of the complainant : ASI Sunil Kumar
5. Name, parentage & Address : Amarjyot SIngh
of accused S/o Sh. Jagdev Singh
R/o H. No.F-16, Vishnu Garden,
Tilak Nagar, New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act
6. Plea of Accused : Accused pleaded not guilty for offence U/Sec. 3 DPDP Act
7. Final Order : Acquitted Date of reserving the judgment : 06.01.2023 Date of pronouncement of judgment : 19.01.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on 16.01.2020 at 9:30 p.m. at Electric Pole in front of A-21/20, Naraina Phase-II, within the jurisdiction of PS Naraina, accused Amarjyot Singh affixed one hoarding of HANS HYUNDAI on the electric pole at the abovesaid place and he thereby committed an offence punishable U/Sec.3 of DPDP Act.Digitally signed
State vs. Amarjyot SIngh by Snigdha
FIR No. 54/2020 Snigdha Sarvaria
PS Naraina
Sarvaria Date:
2023.01.19
15:43:29 +0530
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2. After completion of investigation, charge-sheet was filed. Copies were supplied to the accused and notice U/Sec.251 Cr.P.C. was served upon the accused on 25.05.2022 for offence punishable under section 3 DPDP Act to which accused has pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 03 witnesses.
PW-1 is ASI Vedpal who has proved registration of FIR as Ex.PW1/A, rukka as Ex.PW1/B and Certificate U/Sec.65B Indian Evidence Act as Ex.PW1/C. PW-1 was not cross-examined by the accused despite opportunity given to him.
PW-2 is HC Vikas Yadav who deposed that on 16.01.2020 he was posted as Constable at PS Naraina and on that day he was on patrolling duty alongwith ASI Sunil Kumar. He deposed that during patrolling, when they reached near A-21/20, Industrial Area, Phase-II, Loha Mandi, Naraina, they saw one hoarding/board on which "Hans Hyundai A-51 Naraina, Indl. Area, Phase-I, mobile No.011-47618300, 91-8447754565" was written, was found affixed on the electric pole. IO ASI Sunil Kumar took the photographs of the said hoarding from his mobile phone. He deposed that they removed the said hoarding from the electric pole and IO measured the said hoarding which was 1.5X2 feet and seized the same vide seizure memo Ex.PW2/A. Thereafter, IO prepared the rukka and sent him to PS for registration of FIR and after registration of FIR, he came back to the spot and handed over the original rukka and copy of FIR to the IO. He deposed that IO prepared State vs. Amarjyot SIngh FIR No. 54/2020 PS Naraina Snigdha Digitally signed by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:44:08 +0530 3 the site plan. He correctly identified the photograph as Mark A. He correctly identified the accused in the Court. PW-2 also c orrectly identified the hoarding/flex board as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-2 deposed that the spot is a public place. IO asked 2-4 public persons to join the investigation but they refused to join. IO did not seal the case property. He admitted that that photograph Mark A is not clear.
PW-2 denied the suggestion that nothing was recovered from the electric pole. He further denied the suggestion that the hoarding has been falsely planted upon the accused. He denied the suggestion that the case is false and fabricated and accused has been falsely implicated in the present case. He denied the suggeston that he is deposing falsely.
PW-3 is ASI Sunil Kumar who is the IO of the case and deposed on the similar lines as deposed by PW-2. PW-3 deposed that he took the photographs of the said hoarding from his mobile phone and they removed the said hoarding from the electric pole and he measured the said hoarding which was 1.5X2 feet and seized the same vide seizure memo already exhibited as Ex.PW2/A. He deposed that thereafter, he prepared rukka Ex.PW3/A and sent Ct. Vikas to PS for registration of FIR and after registration of FIR, Ct. Vikas came back to the spot and handed over the original rukka and copy of FIR to him. He deposed that he prepared the site plan Ex.PW3/B. PW-3 further deposed that he served the notice upon Hans Hyndai, Naraina, Phase-I, New Delhi U/Sec.91 Cr.P.C. He deposed that accused Amarjyot Singh joined the investigation and he interrogated the accused and recorded his State vs. Amarjyot SIngh Digitally signed FIR No. 54/2020 PS Naraina Snigdha by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:44:24 +0530 4 disclosure statement Ex.PW3/C and thereafter released the accused after serving him notice U/Sec.41A Cr.P.C. PW-3 correctly identified the photograph as Mark A. He correctly identified the accused in the Court. PW-3 also correctly identified the hoarding/flex board as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-3 deposed that the spot is a public place. He deposed that he asked 2-3 public persons to join the investigation but they refused to join the same on one or the other pretext. He deposed that he did not record their names and particulars. PW-3 admitted that photograph Mark A is not clear. He deposed that he did not file any Certificate U/Sec.65B Evidence Act regarding the photographs. He admitted that he did not examine the officials from the electricity department who prove that electricity pole was situated at the spot. He further admitted that he did not prepare any pullanda with seal of the case property. He did not obtain the CAF and CDR number of the mobile number mentioned on the hoarding.
He denied the suggestion that nothing was recovered from the electric pole. He further denied the suggestion that the hoarding has been falsely plated upon the accused. He denied the suggestion that the case is false and fabricated and accused has been falsely implicated in the present case. He denied the suggestion that he is deposing falsely.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. Statement of accused Amarjyot Singh was recorded in the Court on 16.12.2022 wherein all the incriminating facts emerged during trial were put to him distinctly, separately and specifically. Accused State vs. Amarjyot SIngh Digitally signed FIR No. 54/2020 by Snigdha PS Naraina Snigdha Sarvaria Sarvaria Date:
2023.01.19 15:44:46 +0530 5 stated that he is innocent and has been falsely implicated in the present case. He stated that hoarding was planted upon him.
DEFENCE EVIDENCE
5. Accused chose not to lead any evidence in his defence.
EVALUATION OF THE PROSECUTION EVIDENCE
6. Accused was charged for offence under section 3 DPDP Act.
7. I have heard Ld. Substitute APP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE
8. At this juncture it is relevant to reproduce the relevant provision of law, which is as under:
"Section 3 : 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 ex- cept for the purpose of indicating the name and address of the owner or occupier of such property, shall be punish- able 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 State vs. Amarjyot SIngh FIR No. 54/2020 Digitally signed PS Naraina Snigdha by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:45:03 +0530 6 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 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."
9. It is significant to note that accused in the present case has been charged with the offence under Section 3 of The Delhi 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. 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.
State vs. Amarjyot SIngh Digitally signed FIR No. 54/2020 PS Naraina Snigdha by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:45:15 +0530 7
10. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the 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.
11. 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.
12. No independent witness was joined in the investigation by the IO. PW-2 and PW-3 have not explained in their testimonies as to why the 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 board in question was affixed on the spot, failure to do so raises adverse inference qua prosecution case. Also, why no written notice was given to public persons has also not explained. This raises an adverse inference qua prosecution case.
13. The witnesses PW-2 & PW-3 have failed to point out as to how accused was pinned down as the installer of the board in question as much as, IO has neither recorded the statement of public persons State vs. Amarjyot SIngh FIR No. 54/2020 PS Naraina Snigdha Digitally signed by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:45:32 +0530 8 working/residing in the locality where the board in question was found affixed nor has he recorded the statement of the printer, nor any eye- witness was found.
14. PW-2 and PW-3 did not bring on record any register to show timings regarding when they left PS and returned back to PS after patrolling, so it raises adverse inference with respect to prosecution case
15. The prosecution witnesses have stated that IO PW-3 took photograph of spot. The photograph was allegedly taken through an electronic device. Admittedly, no Certificate U/Sec.65B Indian Evidence Act has been filed to prove photograph on record. Furthermore, the photograph on record is not legible. However, the prosecution has not proved the CAF/CDR that the mobile number on the poster is of the accused, which raises an adverse inference qua prosecution case. Since photographs do not bear date on which it was taken, therefore, an adverse inference qua prosecution case is drawn.
16. It has not been explained by PW-2 and PW-3 why proper procedure of putting case property in a pullanda has not been followed. Merely because hoarding is big in size is no excuse.
17. 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 State vs. Amarjyot SIngh FIR No. 54/2020 Digitally signed PS Naraina Snigdha by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:45:48 +0530 9 Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines de- facement 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 deface- ments for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
18. Thus, in the absence of any proof as to the affixation of the alleged advertisement poster by or at the behest of the accused, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused being guilty for the offence of defacement of the public property within the meaning of Section 3 of DPDP Act.
19. In view of the aforesaid discussions, accused Amarjyot Singh is entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
CONCLUSION
20. In view of the aforesaid discussions, accused Amarjyot Singh is hereby acquitted for the offence punishable U/Sec. 3 of the DPDP Act.
21. Previous Bail bonds and supardarinama, if any, is cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
22. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused today. Considered. Accepted. The same shall remain in force for a period of six months from today.
State vs. Amarjyot SIngh Digitally signed FIR No. 54/2020 PS Naraina Snigdha by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:46:03 +0530 10
File be consigned to Record Room after due compliance.
Announced in the open court on 19.01.2023 Snigdha Digitally signed by Snigdha Sarvaria Sarvaria Date: 2023.01.19 15:46:17 +0530 (Snigdha Sarvaria ) CMM/NDD/PHC New Delhi/19.01.2023 State vs. Amarjyot SIngh FIR No. 54/2020 PS Naraina