Delhi District Court
State vs . Tarandeep Singh @ Prince on 11 July, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 166/17 Digitally signed
by MANISH
PS : Lajpat Nagar KHURANA
U/s : 3 DPDP Act
MANISH Date:
State Vs. Tarandeep Singh @ Prince
KHURANA 2018.07.11
15:52:50
Unique ID No. : 3354/17 +0530
Date of institution of case : 28.07.2017
Date of reserving the judgment : 28.06.2018
Date of pronouncement of judgment : 11.07.2018
J U D G M E N T
1. S. No. of the Case : 67/05/17
2. Date of Commission of Offence : 13.04.2017
3. Name of the complainant : ASI OM Prakash,
No. 584/SE
PS Lajpat Nagar, New Delhi
4. Name,parentage & address of accused : Tarandeep Singh
S/o Sh. Amrik Singh,
R/o H. No. L78,
Lajpat Nagar II, New Delhi.
5. Offence complained of or proved : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 13.04.2017, at about 08:00 p.m, on the iron gate of Vridha Ashram, Kasturba Niketan, Lajpat Nagar, Delhi within the jurisdiction of PS Lajpat Nagar which is a public property and in public view one board/hoarding mentioning the election campaigning words, name of accused and election symbol of "Shiv Sena" was found FIR No. 166/17 PS : Lajpat Nagar State Vs. Tarandeep Singh @ Prince Page no. 1 hanging and that it was affixed by the accused or with his authority which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused Tarandeep Singh for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused for the offence punishable u/s 3 D.P.D.P Act to which the accused pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined five witnesses.
4. PW1 Sh. Arpit Bharti deposed that he was working as Manager of Prakash Publicity Service and IO of the present case inquired from him regarding printing of stickers / hoarding printed on flex sheet, PVC banner seized in the present case. He deposed that the same were printed by the printing press of the company in which he was working as a Manager in the quantity of 150 pieces as also mentioned in sale invoice Ex.PW1/A. Witness further deposed that IO recorded his statement. During his cross examination by Ld defence counsel he could not tell the date as to when the notice u/s 91 Cr.PC was received by him and as to who served the same upon him. He stated that his statement was not recorded by the police official. He stated that the accused never came to him for placing the order of printing the flex boards. He could not tell the name of the person who came to place the order for printing. He further stated that the invoice Ex.PW1/A was not prepared by him and that the same was prepared by one accountant whose name he could not tell. He denied that no investigation was conducted by the IO from him or that he was deposing falsely.
FIR No. 166/17
PS : Lajpat Nagar
State Vs. Tarandeep Singh @ Prince Page no. 2
5. PW2 Sh. Baidnath Thakur deposed that he was working as Machine Operator in Prakash Publicity Service. He further deposed that IO of the present case inquired from him regarding the present case and he used to print the material as per order. He also deposed that IO recorded his statement Ex.PW2/A.
6. PW3 ASI Jagdish deposed that on 13.04.2017, he recorded the present FIR Ex.PW3/A, made endorsement on rukka Ex.PW3/B and gave certificate u/s 65B Evidence Act regarding registration of FIR on Ex.PW3/C.
7. PW4 Ct. Sumit and PW5 ASI Om Prakash deposed that on 13.04.2017, they were on evening patrolling duty and during patrolling at about 08:00 p.m. they reached near Vridha Awasiys Parishar (Vridha Ashram), Kasturba Niketan, Lajpat Nagar II, New Delhi where they noticed that on the iron gate of Vridha Awasiya Parishar one hoarding mentioning the election campaigning words on behalf of shiv Sena Party for MCD Ward no. 57S with name and photograph of accused Tarandeep Singh (Prince) was hanging. Thereafter, IO/PW5 took photographs of the spot by his mobile phone camera and informed the concerned SHO. IO/PW5 stated that he got the board removed from the abovesaid electricity pole with the help of PW4 Ct. Sumit and seized it vide seizure memo Ex.PW4/A. Thereafter, IO/PW5 prepared rukka Ex.PW5/A and got the FIR registered through PW4 Ct. Sumit. IO/PW5 also prepared site plan Ex.PW5/B. Thereafter, they took the case property to PS Lajpat Nagar where it was deposited in the malkhana. IO/PW5 recorded the statement of witnesses. IO/PW5 further stated that he seized two invoices Ex.PW1/A and Ex.PW1/B from the Printer Arpit Bharti vide memo Ex.PW5/D. Witnesses identified the accused and the photographs FIR No. 166/17 PS : Lajpat Nagar State Vs. Tarandeep Singh @ Prince Page no. 3 of case property Ex.P1 and Ex.P2.
8. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
9. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
10. Allegations against the accused are that on 13.04.2017, at 08:00 p.m, on the iron gate of Vridha Ashram, Kasturba Niketan, Lajpat Nagar, Delhi within the jurisdiction of PS Lajpat Nagar which is a public property and in public view one board/hoarding mentioning the election campaigning words, name of accused and election symbol of "Shiv Sena" was found hanging and that it was affixed by the accused or with his authority which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act.
11. Section 3(1) of the Act provides that whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purposes 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 50,000 rupees or with both. Defacement has been defined by Section 2 (a) of the Act 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.
Writing has been defined by Section 2 (d) of the Act which says FIR No. 166/17 PS : Lajpat Nagar State Vs. Tarandeep Singh @ Prince Page no. 4 that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil.
12. In the case in hand, a flex board was allegedly tied with the help of an iron wire on an iron gate. The same question regarding the defacement of public property by hanging of a board on an electricity pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
13. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which are para materia to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other material which is not the case herein.
14. PW5 ASI Om Prakash who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any illwill or bias against the accused. 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 order to allay any fear of bias or illwill, 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.
15. Further, PW4 as well as PW5 stated that they were on patrolling on the FIR No. 166/17 PS : Lajpat Nagar State Vs. Tarandeep Singh @ Prince Page no. 5 said day but no departure or arrival entry for patrolling was filed on record to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the prosecution. PW4 and PW5 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 PW4 and PW5 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
16. Further, the prosecution has relied upon three photographs of the case property Ex.P1 and Ex.P2. PW5/IO claimed to have clicked the photographs Ex.P1 and Ex.P2 from his private mobile phone but no certificate u/s 65 B Evidence Act in support of the photograph is placed on record. Merely filing of a 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.
17. Further, no independent witness was joined by the prosecution despite the fact that the alleged spot is a busy residential area. PW5 during his cross examination has admitted that he did not join any public witness and he also stated that he did not come across any person who might have seen anyone affixing the said board at the spot. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the board was tied on the iron gate of Vridha Ashram. No evidence has been brought on record to prove that the alleged board was affixed by the accused or with his authority. Further, the sale invoices relied upon by prosecution could not be proved on record as PW1 Arpit Bharti who was examined to prove the said invoice stated during his cross examination that the said invoice was not prepared by him.
FIR No. 166/17
PS : Lajpat Nagar
State Vs. Tarandeep Singh @ Prince Page no. 6
18. It is pertinent to mention that IO / PW5 stated during his cross examination that he got the photographs developed from one shop but he could not tell the name or address of the said shop. He also admitted that he did not join the said shop owner / developer into investigation and that he did not record his statement. He also stated that he did not collect certificate u/s 65 B Evidence Act from the said developer. The manner in which the investigation was conducted by the IO creates substantial doubt over the story of the prosecution especially when the IO has categorically stated during his deposition that he had not seen anybody affixing the board and he could not say as to who affixed the said board. Further no evidence has been brought on record to show that the phone number mentioned over the alleged board belonged to the accused herein.
19. Therefore, considering the fact that photographs of the board remained unproved, non examination of independent witness, non filing of certificate u/s 65B Evidence Act regarding taking of photographs by private photographer, lack of evidence regarding the factum of PW4 and PW5 being present on the spot at the alleged date and time, non production of departure and arrival entries and the complainant himself being the investigating officer and considering the totality of facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
20. Accordingly, accused Tarandeep Singh @ Prince is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. Announced in the open court Today on 11.07.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/11.07.2018 FIR No. 166/17 PS : Lajpat Nagar State Vs. Tarandeep Singh @ Prince Page no. 7