Delhi District Court
State vs . Yogit Rathi on 7 September, 2022
IN THE COURT OF SH. SIDDHARTHA MALIK,
CHIEF METROPOLITAN MAGISTRATE,
CENTRAL DISTRICT, TIS HAZARI COURT,DELHI
STATE VS. YOGIT RATHI
FIR NO. 137/2019
PS: ROOP NAGAR
U/S: 3 DPDP ACT
JUDGMENT
New Case No. : 6163/2020
CNR No. : DLCT02-012311-2020
Date of commission of offence : 07.09.2019
Date of institution of the case : 04.09.2020
Name of the complainant : HC Kailash Chander
Name of accused and address : YOGIT RATHI
S/o Sh. Satender Pal
Rathi
R/o D-72, Gali No.4,
West Jyoti Nagar, Delhi.
Offence complained of or proved : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 07.09.2022 Date of judgment : 07.09.2022 BRIEF STATEMENT OF THE REASON FOR DECISION
1. This is the prosecution of accused pursuant to charge sheet filed by P.S. Roop Nagar U/s 3 of the Delhi Prevention of FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 1/8 Defacement of Property Act 2007.
2. Brief facts of the case are that on 07.09.2019 at about 6:20 pm near NDPL Power house 33 KV. Shakti Nagar, Delhi within the jurisdiction of P.S. Roop Nagar, accused allegedly got pasted the posters on the wall mentioning "AVBP CANDIDATE FOR DUSU SECRETARY YOGIT RATHI B.NO. 3 AKSHIT DAHIYA PRESIDENT-1 PRADEEP TANWAR VICE PRESIDENT-5, YOGIT RATHI, SECRETARY-2, SHIVANGI KHARWAL JT. SECRETARY-4 ", to gain personal benefit/ advertisement. The poster was noticed by the complainant, a police official during patrolling and the present FIR was registered at his instance.
3. Thereafter, investigation was carried out and charge- sheet was filed against the accused. The accused appeared before the Court and notice for the offence U/s 3 of the Delhi Prevention of Defacement of Property Act 2007 was served upon him, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. In order to prove its case, the prosecution examined one witness.
5. PW-1 HC Kailash Chander deposed that on 07.09.2019, he was posted at PS Roop Nagar as HC and on that day, he alognwith Ct. Suresh were on area patrolling duty within the area of PS Roop Nagar and at about 6:20 pm, when they reached near Shakti Nagar, NDPL power house 33 KV Delhi, they saw one poster pasted on the wall of the powerhouse "ABVP candidate for DUSU secretary Yogit Rathi" written on the same FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 2/8 alongwith name of some other candidate and ballot number mentioned on the same and the said poster was affixed using some gumstick and after that he took the photograph of the said poster and thereafter, prepared the tehrir which is Ex. PW1/A and handed over the tehrir to Ct. Suresh to get the FIR registered. Ct. Suresh went to the PS and got the FIR registered and returned back to the spot alongwith copy of tehrir and handed over the same to him and he prepared the site plan which is Ex. PW1/B. He seized the said poster by removing the same from the wall of the powerhouse, seizure memo which is Ex. PW1/C. Thereafter, he alognwith Ct. Suresh returned back to the PS and he deposited the case property in the malkhana and after that he recorded the statement of Ct. Suresh and got the photograph of the poster prepared. He further deposed that on 08.07.2020 ct. Sawarmal again joined the investigation of the present case and he alognwith Ct. Sawarmal went to the ABVP office at Mourice Nagar where they met accused Yogit Rathi and he interrogated the accused Yogit Rathi. Thereafter, he issued the notice u/s 41 Cr.PC to appear before the court Ex. PW1/D. Thereafter, he alongith Ct. Sawarmal returned back to the PS and he recorded the statement of Ct. Sawarmal and after completion of investigation and he filed the charge-sheet before the Hon'ble Court. The witness was shown four photographs of poster with "
ABVP candidate for DUSU Secretary Yogit Rathi, Ballot NO. 3"
alongwith name of some other candidates and their ballot number mentioned on the same and witness has correctly identified the photographs as having been clicked by him on the day of incident in question. It is further submitted by the witnesses that a mobile phone used by the witness was regularly used to take photograph and same was in proper working condition as per section 65 B of FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 3/8 Indian Evidence Act. The photographs are Ex. P-1 ( colly). The MHC(M) produced one poster with " ABVP candidate for DUSU Secretary Yogit Rathi, Ballot NO. 3" alongwith name of some other candidates and their ballot number mentioned on the same. Witness after seeing the same correctly identified the poster as the one seized by him in the present case.
6. During his cross examination, the witness stated that he had made departure entry prior to leaving the PS for patrolling duty, however, he did not remember the DD number. The witness admitted that the spot was frequented by public persons. He had requested some independent public persons to join the investigation, however, they all refused to join the same and left without disclosing their names and addresses and no notice was given to said public persons and neither their names were recorded anywhere. He had enquired from nearby persons about who affixed the said poster. However, no one was aware about the same. The witness had not conducted any enquiry as to who had printed the said poster and for whom. He had not conducted any investigation qua the names of the persons whose name and ballot numbers were mentioned in the poster. The witness denied that he had not conducted fair investigation in the present case. The witness denied that accused had nothing to do with the poster in question. The witness admitted that he has not given any separate certificate under section 65 B of Indian Evidence Act for the photograph. The witness denied that accused has been falsely implicated in the present case.
FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 4/87. During trial, accused admitted the copy of FIR No. 137/2019 Ex. A-1, endorsement on rukka Ex. A-2, Certificate u/s 65 B of Indian Evidence Act Ex. A-3 under Section 294 Cr.PC.
8. No other witness was examined in view of the testimony of PW-1 and the admission of documents by the accused as the remaining witnesses had similar statements as PW-1 and thus PE was closed.
THE DEFENCE :
9. Statement of the accused U/s 313 Cr.P.C. was recorded. The accused denied the prosecution case and stated that he had no concern with the poster in question. The poster did not belong to him. He claimed that he had not committed any offence. Accused did not lead any evidence in defence.
THE ARGUMENTS:
10. Ld. APP for the State has argued that the prosecution has been able to establish its case against the accused as the poster in question was recovered from the spot by the witness who stood by his testimony and the accused has failed to show that he has no concern with the poster/board.
11. Per contra, accused submits that he has no concern with the poster, that he never got the same affixed and that he never defaced any property. It is submitted that there is no evidence on record that the poster was affixed by him or at his instance by any other person.
FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 5/8FINDING
12. The undersigned has heard Ld. APP for the State and accused and have also perused the material available on record.
13. 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 imprison-
ment 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
14. In the present matter a poster bearing name of the accused was found pasted on the wall which gives presumption that the poster has direct connection with the accused, however the record shows major discrepancies in the testimony of the witness examined which support the version of the accused as the prosecution has not been able to conclusively establish that the alleged poster was pasted at the instance of the accused.
15. First of all, no independent witness was joined in the FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 6/8 investigation by the IO. IO has not explained in his testimony as to why the public witnesses were not joined in the recovery or the subsequent investigation. The witnesses have admitted during their cross examination that public persons were present when the poster was found pasted on public place by the complainant. It was within the reach of the IO to join the independent witness while he found the poster pasted and also during subsequent proceedings conducted at the spot.
16. The complaint was made by HC Kailash Chander i.e. PW-1. After registration of FIR he was the one who seized the poster, prepared the site plan and arrested the accused. Thus, after registration of FIR, investigation of the present case was marked to the same police official who was the complainant and thereafter carried out the entire investigation. Thus, in the present matter complainant, recovery witness and IO is 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. In order to allay any fear of bias or ill−will, it is in the fitness of things that the complainant should not investigate the offence himself. 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.
17. No evidence has been brought on record to prove that the alleged poster was affixed/ pasted by the accused or with his authority. The PW-1 has not stated that he had seen anybody or the accused while affixing the said poster at the spot and he also could not say as to who affixed the poster at the spot. He did not FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 7/8 come across any witness who might have seen any person affixing the posters at the spot.
18. Moreover, the IO has not conducted any investigation from the publisher/printer who printed the posters to establish if the posters were printed at the instance of the accused. There is no material on record to show that the posters were printed and subsequently pasted at public places at the instance of the accused. The mere fact that the posters bear the name of the accused does not prove the fact that the posters were pasted by the accused or at his instance.
19. In the present matter, the evidence on record does not prove the commission of offence beyond reasonable doubt. Therefore, accused Yogit Rathi S/o Sh. Satender Pal Rathi is hereby acquitted. Requirements of Section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance. Digitally signed by SIDDHARTHA SIDDHARTHA MALIK MALIK Date: 2022.09.07 16:08:12 +0530 ANNOUNCED IN THE OPEN (SIDDHARTHA MALIK) COURT ON 07.09.2022 CMM (CENTRAL)/DELHI Containing 08 pages all signed by the presiding officer.
Digitally signed by SIDDHARTHA SIDDHARTHA MALIK MALIK Date: 2022.09.07 16:08:17 +0530 (SIDDHARTHA MALIK) CMM (CENTRAL)/DELHI FIR No. 137/2019 PS: Roop Nagar State Vs. Yogit Rathi Page 8/8