Delhi District Court
State vs Shahid Hussain on 14 May, 2024
IN THE COURT OF MS. T. PRIYADARSHINI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CR CASE/ 5175/2020
STATE Vs. SHAHID HUSSAIN AND ANR.
State vs. Shahid Hussain & Anr.
FIR No. 434/2019
Police Station : Saket
Under Section : 3 PDPP Act
Date of institution : 24.12.2020
Date of reserving : 13.05.2024
Date of pronouncement : 14.05.2024
JUDGMENT
a) Serial number of the case : 5175/2020
b) Date of commission of : 24.09.2019 offence
c) Name of the complainant : SI Abdul Qadir
d) Name, parentage and : i) Shahid Hussain S/o Sh. Zakir address of the accused Hussain R/o H. No. 47/2, persons Shaheen Bagh, New Delhi
ii) Saurabh S/o Sh. Subhash R/o H. No. 219, Shahpur Jat, New Delhi
e) Offence complained of : 3 PDPP Act
f) Plea of the accused : Accused persons pleaded not persons guilty
g) Final order : Acquittal
h) Date of final order : 14.05.2024 State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 1 of 10BRIEF STATEMENT OF FACTS FOR THE DECISION CASE OF THE PROSECUTION
1. On 24.09.2019 in Kharja Lock-up, Saket Courts, New Delhi, the accused persons, namely, Shahid Hussain and Saurabh, in furtherance of their common intention, damaged the cameras which were installed in the Lock-up and while doing so, they defaced the public property. Thus, they committed offence punishable under Section 3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as the "PDPP Act") read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as "the IPC") CHARGE
2. Vide order dated 27.01.2021, charge for the offence punishable under Section 3 PDPP Act read with Section 34 IPC was framed against both the accused persons, who pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
3. Vide order dated 18.03.2021, in compliance to the provisions of Section 294 of the Code of Criminal Procedure, 1973 (hereinafter "the Code"), the accused was called upon to admit the genuineness of: i) Endorsement by the DO; ii) The present FIR; and iii) Certificate under Section 65B Indian Evidence Act vide Ex A1 to A3.
State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 2 of 10EVIDENCE OF THE PROSECUTION
4. Prosecution has examined four witnesses i.e. PW1 SI Abdul Qadir (the complainant), PW2 Sh. Jitender Kumar, PW3 ASI Radhey Shyam (the IO) and PW4 SI Ram Singh.
5. PW1 SI Abdul Qadir deposed that on 16.09.2019, he was posted as Second In-charge, Saket Lock-up, Saket Court, New Delhi. On that day, he received one written complaint from Assistant Engineer vide Ex PW1/A and conducted inquiry and found that two accused persons, namely, Shahid Hussain and accused Saurabh were damaging the CCTV cameras which were installed in the Lock-up and by doing so, they had committed the offence under Section 3 PDPP Act. PW1 also received one CD containing the CCTV footage of the incident, through which he identified the above named two accused. PW1 gave one complaint regarding the same to the SHO, PS Saket vide Ex PW1/B. After registration of FIR, the police officials approached PW1 and recorded his supplementary statement. PW1 correctly identified the CD of CCTV footage. He also correctly identified both the accused persons. The witness was duly cross-examined by the Ld. LAC for accused persons.
6. PW2 Sh. Jitender Kumar, CCTV Operator, District Courts, Saket, New Delhi deposed that during investigation of the case, the police officials had approached their office for the CCTV footage. PW2 being the CCTV Operator had prepared the State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 3 of 10CD of the CCTV footage and handed over the same to the IO. PW2 had also handed over the certificate under Section 65B Indian Evidence Act to the police official vide Ex PW2/A. The CD was correctly identified by the witness. The witness was duly cross-examined by the Ld. LAC for accused persons.
7. PW3 ASI Radhey Shyam deposed that on 16.11.2019, the SHO endorsed one complaint vide Ex PW3/A bearing the signature of SHO/Inspector Keshav Mathur and got the FIR registered. The investigation of the present case was marked to PW3. During investigation, PW3 had given notice to the PWD Engineer, Saket Court. PW3 arrested both accused persons, namely, Saurabh and Shahid Hussain vide memos Ex PW3/B and Ex PW3/C respectively. Both the accused persons had refused to sign the arrest memo. PW3 had collected the CCTV footage along with certificate under Section 65B Indian Evidence Act and the CD was exhibited as Ex P1. One Kalandra was also prepared by ASI Ram Singh, copy of which was collected by PW3 and was placed on record. After completing investigation, PW3 prepared charge sheet and filed it before the court. PW3 correctly identified accused Saurabh. The identity of accused Shahid Hussain was not disputed by Ld. LAC for accused persons. The witness was duly cross-examined by the Ld. LAC for accused persons.
8. PW4 SI Ram Singh deposed that on 12.09.2019, he was posted as ASI/MHC of Lock-up, Saket Court, New Delhi. On that day, as the CCTV camera of Kharja No. 2 was not working, State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 4 of 10an Engineer was called for repairing it and after inspecting the same, the Engineer informed that the CCTV camera was damaged. When the CCTV footage of other CCTV cameras were checked, it was found that accused Shahid Hussain and Saurabh along with their friends had damaged the CCTV cameras of Kharja No. 2. Thereafter, PW4 prepared Kalandra (Ex PW4/A) under Section 46/47 Delhi Prisons Act, 2000 vide DD No. 20B dated 12.09.2019 (Ex PW4/B). PW4 correctly identified both the accused persons. The witness was duly cross-examined by the Ld. LAC for accused persons.
STATEMENT / DEFENCE OF THE ACCUSED PERSONS
9. In their respective statement recorded under Section 313 of the Code, both accused persons denied the entire evidence against them. They stated that they are innocent and have been falsely implicated in this case. They did not lead any evidence in their defence.
ANALYSIS AND FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Ms. Shilpi Choudhary, Ld. Substitute APP for State and Ms. Deepa Rawat, Ld. LAC for the accused persons have been considered.
11. Section 3 of the PDPP Act is reproduced below:
"Section 3. Mischief causing damage to public property State vs. Shahid Hussain & Anr.FIR No. 434/2019, PS: Saket Page 5 of 10
(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being:
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-
communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months."
12. The question to be decided is whether the prosecution has been able to prove beyond reasonable doubt that the accused persons committed mischief by doing any act in respect of any public property. Section 2(a) of the PDPP Act states that mischief shall have the same meaning as in Section 425 of IPC. Section 425 of IPC defines mischief as follows:
"Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief".
Explanation 1.- It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2.- Mischief may be committed by an act State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 6 of 10affecting property belonging to the person who commits the act, or to that person and others jointly."
13. It is the case of the prosecution that on 24.09.2019, in Kharja Lock-up, Saket Courts, New Delhi, both the accused persons damaged the cameras which were installed in the Lock- up and while doing so, they defaced the public property.
14. Both the accused persons did not lead any evidence in their defence. In their respective statement recorded under Section 313 of the Code, they stated that they had not damaged the cameras which were installed in the Lock-up. They further stated that on the alleged date of incident, the Lock-up was crowded and there was a lot of noise. They also stated that there was no altercation or fight which had happened in the Lock-up on that day.
15. All the witnesses in the instant case, except PW2 Sh. Jitender Kumar (the CCTV Operator) are police officials. PW1 SI Abdul Qadir (the complainant) deposed that he had received a CD containing the CCTV footage of the incident. Further, in his cross-examination, he admitted that he identified the accused persons only on the basis of the CCTV footage. He also admitted in his cross-examination that as per the complaint, group of UTPs had damaged the CCTV footage and that the incident had not taken place in his presence. PW2 Sh. Jitender Kumar had prepared the CD of the CCTV footage and handed it over to the IO. PW3 ASI Radhey Shyam is the IO of the present case who carried out investigation. In his cross-examination, he admitted that he did not record the statement of any other police official State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 7 of 10posted in the Lock-up at the time of incident except PW1/Complainant SI Abdul Qadir. He further admitted that he did not collect the duty roster of the day of the incident. He also admitted that PW1/Complainant SI Abdul Qadir did not hand over any broken camera to him and, therefore, it could not be seized. PW4 SI Ram Singh deposed that as the CCTV camera of Kharja No. 2 was not working, an Engineer was called for repairing it and after inspecting the same, the Engineer informed that the CCTV camera was damaged and when the CCTV footage of other CCTV cameras were checked, it was found that accused Shahid Hussain and Saurabh along with their friends had damaged the CCTV cameras of Kharja No. 2.
16. After going through the testimony of the aforesaid witnesses, it is vivid that none of the witnesses had witnessed the incident and the accused persons were identified solely on the basis of the CCTV footage. Interestingly, the CD allegedly containing the CCTV footage of the incident, when played in the court, did not display any file containing the said CCTV footage. Assistance of the officials posted in the Computer Branch of the District was taken and the said official could also not play the CD. It was in fact stated by him that there is no video on the CD. No independent witnesses/other police officials of the Lock-up were joined in the present case as witness. Further, the CCTV cameras which were broken were not seized in this case and the Engineer who had assessed the damages of the CCTV cameras was also not made a witness, who being an expert, could have brought on record the extent of damages caused to the CCTV cameras and also could have corroborated the version of the State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 8 of 10witnesses in this case. Also, whilst PW1 SI Abdul Qadir stated that on the basis of an inquiry he arrived at the conclusion that the accused persons had broken the CCTV footage, the nature of said inquiry is unclear. No statements of other inmates who were present at that time have been recorded. Also, it is implausible that no police official was present at the time of the incident especially when the place of incident is the lock-up cell. The investigation has been done in a perfunctory manner and the only conclusion that can be arrived at is without conducting any inquiry, the accused persons have been implicated for destroying public property when it is an admitted fact that a group of inmates were involved. The prosecution is silent as to on what basis the accused persons were identified amongst the aforesaid group of inmates as the miscreants. Most pertinently, the CCTV footage on the basis of which the accused persons have been identified is also not on record and the CD which is on record does not contain any CCTV footage. Thus, there is nothing on record to establish that any mischief was done by the accused persons on account of which the public property was damaged.
17. In the case of Prem Singh Yadav vs. CBI [178 (2011) DLT 529], it was held that where it is possible to have both the views, one in favor of the prosecution and the other in favor of the accused, the later should prevail. Pronouncements in case of Dilip vs. State of Madhya Pradesh [1 (2007) CCR 354] and Gagan Kanejia vs. State of Punjab [IX (2006) SLT 406] were relied. Relying upon the law laid and elicited in the preceding paragraphs, since two views are possible on the evidence State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 9 of 10adduced in this case, one pointing to the guilt of the accused persons and other to their innocence, view which is favourable to the accused persons is being adopted. Accordingly, both the accused persons are given benefit of doubt and are acquitted of the offence charged under Section 3 of the PDPP Act.
18. Bail bond in compliance of Section 437A of the Code is directed to be furnished.
Dictated and announced in open Court on 14.05.2024.
Digitally signed by T T PRIYADARSHINI
PRIYADARSHINI
Date: 2024.05.15
16:56:42 +0530
(T. Priyadarshini)
Additional Chief Metropolitan Magistrate South District, Saket Courts, New Delhi 14.05.2024 State vs. Shahid Hussain & Anr.
FIR No. 434/2019, PS: Saket Page 10 of 10