Delhi District Court
State vs Udit Raj & Ors. on 18 December, 2013
IN THE COURT OF SH. AKASH JAIN, METROPOLITAN
MAGISTRATE06, PATIALA HOUSE COURTS, NEW DELHI
State vs Udit Raj & Ors.
FIR No : 184/08
U/s : 3 of West Bengal Prevention of
Defacement of Property Act, 1976
PS : Parliament Street
JUDGMENT
a) Sl. No. of the case : 396/02
b) Unique Case ID No. : 02403R0029382009
c) The date of commission of the
offence : 27.10.2008
d) Name of the complainant : ASI Kapoor Singh
e) Name, parentage & address
of accused :1) Udit Raj S/o Sh.Kallan R/o Presently
at T22, Atul Grove Road, New
Delhi1.
:2) Suresh Diwan S/o late Sh. N.D.
Diwan R/o E62, Kirti Nagar, New
Delhi15.
:3) Babu Lal S/o Sh. Vishram R/o
Presently at : T22, Atul Grove Road,
New Delhi1.
f) Offences complained of : 3 of West Bengal Prevention of
Defacement of Property Act, 1976
g) The plea of the accused : Pleaded not guilty
h) Final Judgment : All accused persons acquitted
i) Date of institution of case : 04.02.2009
j) Date of final arguments : 31.10.2013
k) Date of Judgment : 18.12.2013
BRIEF FACTS AND REASONS FOR THE DECISION:
1. The accused persons have been chargesheeted under section 3 of CC NO.396/02 FIR No.184/08 Page no. 1 of 6 West Bengal Prevention of Defacement of Property Act, 1976 on the allegations that on 27.10.2008 at 04:30 PM at Outside Wall of Flat No.215 and Nursing Hostel, North Avenue, Talkatora Road, New Delhi, the accused persons affixed a poster on which "Parisangh Ki Rally, Indian Justice Party: Dr. Udit Raj Ke Se He Banani Hai, Suresh Diwan, Pradesh Adhyaksh, Babu Lal, Karyalya Prabhari" was written and thereby they were booked under above said offence.
2. After taking cognizance of the offence and issuing summons against the accused, all the accused appeared before the court and were admitted to bail by Ld. Predecessor Court. Thereafter, documents were supplied to all the accused persons in compliance of section 207 Cr.P.C. and the notice under section 251 Cr.P.C. was served upon them for offence under section 3 of West Bengal Prevention of Defacement of Property Act, 1976 to which they pleaded not guilty and claimed trial. The matter thereafter proceeded for prosecution evidence.
3. In support of its case against the accused, prosecution examined as many as five witnesses. PW1 is Ct. Rohtash Singh, who deposed that on 27.10.2008, he was posted as Constable/ photographer at New Delhi District Line. On that day on call of IO, he reached at the spot i.e. Flat no.215, Nursing Hostel, RML Hospital, North Avenue, Talkatora Road, New Delhi where he met the IO ASI Kapoor Singh. He took six photographs of the place which are Ex. P1 to P6 and negatives Ex. P7 to P12.
CC NO.396/02 FIR No.184/08 Page no. 2 of 6
4. PW2 is HC Jagbir Singh, who deposed that on 27.10.2008, he was posted as constable at Police Post, North Avenue, PS Parliament Street. On that day at about 04:30 PM, he was on patrolling duty and during patrolling he alongwith ASI Kapoor Singh reached at the spot where on the walls of Flat no.215, Nursing Hostel, it was written in Hindi language in red and black colours as "Niji Kshetra Me Araksan Parisangh Ki Raili 17.11.2008 Ko Subhah 10 Baje Rajghat Se Ekttha Hokar Sansad Marg, Doctor Udit Raj (Chairman). Chunaw Aya To Kya Hua, Netritva Indian Justice Party, Sh. Udit Raj Sheri Banati Hai. Suresh Diwan (Pradesh Adhkshya) and Babu Lal (Karya Prabhari) were also written on the wall. PW2 further stated that the photographer was called by the IO and photographs of the spot were taken by the photographer in his presence. Thereafter, IO prepared the rukka and handed over the same to him for registration of FIR. Thereafter, he went to PS, got the FIR registered, returned back to the spot and handed over the copy of FIR and original rukka to the IO. The statements of two public witnesses were also recorded by the IO in his presence. The photographs were seized by the IO vide seizure memo Ex. PW2/A. The witness identified six photographs Ex. P1 to P6. During cross examination PW2 stated that he had not seen anybody writing on the wall.
5. PW3 is Prahlad Pandey, who deposed that on 27.10.2008, he was working at the tea shop no.18, at Talkatora Road. On that day, he had reached at the shop at about 08:30/09:00 AM. He had seen that something was written on the wall in red and black colour. He stated that he cannot read and write. He could not identify the place from the photograph and did CC NO.396/02 FIR No.184/08 Page no. 3 of 6 not support the case of prosecution.
6. PW4 is HC Bir Sen, who deposed that on 27.10.2008, he was posted as HC/ DO at PS Parliament Street from 04:00 PM to 12:00 midnight. On that day, at about 05:30 PM, he had received one rukka from Ct. Jagbir which was sent by ASI Kapoor Singh. On the basis of said rukka, he had registered FIR No.184/08 Ex. PW4/A. His endorsement on the rukka is Ex. PW4/B. After registration of FIR, he had handed over the original rukka and copy of FIR to Ct. Jagbir.
7. PW5 is IO ASI Kapoor Singh, who deposed on the lines of PW2. He further deposed regarding preparation of tehrir vide endorsement Ex. PW5/A and preparation of the site plan Ex. PW5/B. He further deposed that he recorded statements of public witnesses, namely Prahlad Pandey and Permanand Shukla who met him at the spot. Prahlad Pandey and Permanand Shukla use to run tea and biri shop at NDMC Shop no.18, Talkatora Road. He also recorded the statement of Ct. Jagbir Singh u/s 161 Cr.P.C. Thereafter, the accused persons were contacted on their telephone numbers which were painted on the walls. Thereafter, accused Udit Raj, Suresh Diwan and Babu Lal were given notice u/s 160 Cr.P.C. through their clerk Sanjay Rai to join investigation in the present case, however, they had not joined the investigation till the filing of chargesheet. PW5 was duly crossexamined and discharged.
CC NO.396/02 FIR No.184/08 Page no. 4 of 6
8. Thereafter, prosecution evidence was closed by the court on 15.02.2013 and the matter was proceeded further for recording of statements of all the accused persons under section 281 r/w section 313 Cr.P.C. The statements of all the accused persons were duly recorded u/s 281 Cr.P.C. wherein the accused persons disavowed all the allegations against them. No evidence was led by the accused in their defence. Thereafter, the matter was straightaway fixed for final arguments. Final arguments were heard on behalf of Ld. APP for state and the accused. Record perused.
9. The entire case of prosecution rests on the written material found on the wall of flat number 215, Talkatora Roda, New Delhi by the police. The prosecution though has failed to bring any eye witness who had seen either of the accused defacing property in question by writing the alleged material on the wall. The prosecution has examined one public witness PW3 Prahlad Pandey who runs the tea shop at Talkatora Road. However, he also did not support the case of prosecution and did not see either of the accused writing the alleged material on the wall. Moreover, nothing incriminating or material has been brought on record by the prosecution which shows that the property in question was defaced at the instance of either of the accused persons. The IO had also carried out shoddy investigation by not making efforts to search the person/ painter who infact had written the alleged material who could have deposed that at whose instance the said material was written. In lieu of absence of clinching evidence against either of the CC NO.396/02 FIR No.184/08 Page no. 5 of 6 accused persons, benefit of doubt is given to them. As such, accused Udit Raj S/o Sh.Kallan, Suresh Diwan S/o late Sh. N.D. Diwan and Babu Lal S/o Sh. Vishram are acquitted of the offence under section 3 of West Bengal Prevention of Defacement of Property Act, 1976.
Announced in the open Court (Akash Jain)
on 18.12.2013 Metropolitan Magistrate06,
Patiala House Court,
New Delhi
CC NO.396/02 FIR No.184/08 Page no. 6 of 6