Delhi District Court
State vs . Sushma Sikka on 6 April, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 176/17
PS : Lajpat Nagar
U/s : 3 DPDP Act
State Vs. Sushma Sikka
Unique ID No. 5835/17
Date of institution of case : 08.12.2017
Date of reserving the judgment : 14.03.2018
Date of pronouncement of judgment : 06.04.2018
J U D G M E N T
1. S. No. of the Case : 127/05/17
2. Date of Commission of Offence : 18.04.2017
3. Name of the complainant : HC Rajesh Kumar
No. 2243/SE
PS Lajpat Nagar, New Delhi
4. Name,parentage & address of accused : Sushma Sikka
W/o Sh. Ramesh Sikka
R/o H. No. 31, Sewa Naga
Market, K. M. Pur, 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 18.04.2017 at 8.30 pm at the electricity pole in front of A199, Lajpat NagarI, Delhi within the jurisdiction of PS Lajpat Nagar, which is a public property and in public view, one board FIR No. 176/17 State Vs. Sushma Sikka Page 1 of 6 bearing the name and photograph of accused and election symbol of "Congress Party" was found hanging, which was got affixed by the accused or with her 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 Sushma Sikka 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 four witnesses.
4. PW1 Ramkesh and PW2 HC Rajesh deposed that on 18.04.2017 while they were on patrolling at about 8.30 pm, they reached at A199, Lajpat NagarI, New Delhi and there they noticed that a banner on wooden frame tied with an electricity pole with iron wire on which the name and photograph of accused as well as the name and photograph of Neeraj Basoya and other leaders of congress party for election campaigning, were printed, was found hanging and as the said banner was hanging on a public property, in public view, PW2/IO photographed the same by his private mobile phone camera and thereafter, they removed the said banner and PW2/IO seized the same vide seizure memo Ex.PW1/A and he prepared rukka Ex.PW2/A and got the FIR registered through PW1 Ct. Ramkesh and he also prepared site plan Ex.PW1/B. PW2/IO further deposed that on 09.09.2017 during investigation, he served the notice u/s 41A Cr.PC Ex.PW2/B upon the accused in the presence of PW3 W/Ct. Ngai Hauvung in reply to which accused joined investigation on 10.09.2017. PW2/IO further deposed that he also issued notice to the printer of the said banner Ex.PW2/C and obtained copy of retail FIR No. 176/17 State Vs. Sushma Sikka Page 2 of 6 invoice/bill which is MarkX. Witnesses also relied upon seized case property i.e one seized banner as Ex.P1 and its four photographs Ex.P2 to Ex.P5.
5. PW3 W/Ct. Ngai Hauvung deposed that on 10.09.2017 she joined investigation of the present case with PW2/IO HC Rajesh Kumar during which the accused joined into investigation and IO prepared pabandinama. She further deposed that IO recorded her statement u/s 161 Cr.PC to that effect.
6. PW4 Sh. Pradeep Kumar deposed that he is running a shop in the name and style of Creative Land Advertising at 1483/3, Wazir Nagar, KM Pur, Delhi and IO inquired him about printing of flex sheets which are shown in the photographs Ex.P2 to Ex.P5 and after seeing the same he told that same were printed in his office. He further stated that he handed over IO copy of bill book vide which the accused had given the order for printing of materials mentioned in the said bill book MarkX and he also gave reply to the notice of IO. During his cross examination, this witness deposed that he could not confirm after seeing the photograph of hoarding that it was printed in his workshop or not. He stated that he had never seen the original hoarding seized by the IO.
7. 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. No evidence was led by the accused in her defence.
8. 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
9. Allegations against the accused are that on 18.04.2017 at 8.30 pm at the electricity pole in front of A199, Lajpat NagarI, Delhi, which is a public FIR No. 176/17 State Vs. Sushma Sikka Page 3 of 6 property and in public view, one board bearing the name and photograph of accused and election symbol of "Congress Party" was found hanging, which was got affixed by the accused or with her authority and by the said act the accused committed the offence u/s 3 DPDP Act.
10. 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 that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil.
11. PW2 HC Rajesh Kumar 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.
12. Further, PW1 as well as PW2 stated that they were on patrolling on the said day but no DD entry has been placed on record either by PW1 or by FIR No. 176/17 State Vs. Sushma Sikka Page 4 of 6 PW2 to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the police. PW1 and PW2 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 PW1 and PW2 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
13. Further, the prosecution has relied upon four photographs of the case property as Ex.P2 to Ex.P5. PW2/IO HC Rajesh Kumar claimed to have clicked the said photographs Ex.P2 to Ex.P5 by his mobile phone camera. During cross examination PW2 had admitted that he did not file certificate u/s 65B Evidence Act on record. Digital photograph by an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the IO. 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.
14. It is pertinent to mention that no independent witness was joined during investigation by the prosecution. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the said banner was affixed on the pole as alleged. Even the person from whom the IO got the photographs of the spot developed was not cited as a witness. Further, no PW has deposed that the alleged banner was affixed by the accused and there is no evidence to prove that the said banner was affixed by accused or at her behest.
15. It is pertinent to mention that as per the allegations, the alleged banner was affixed on the electricity pole of BSES but PW2/IO admitted during FIR No. 176/17 State Vs. Sushma Sikka Page 5 of 6 his cross examination that he did not inquire from BSES regarding the status of the said electricity pole nor any complaint was received from BSES. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said banner at the spot and they also stated that they could not say as to who affixed the said banner at the spot. Prosecution has also examined PW4 Pradeep Kumar who was running the shop under the name and style of Creative Land Advertising at Wazir Nagar, K M Pur, Delhi who deposed that IO inquired from him and shown him the photographs Ex.P2 to Ex.P5 and he told him that the same were printed in his office. However, during his cross examination he deposed that after seeing the said photographs he could not confirm as to whether the same were printed in his workshop or not. He also stated that he had never seen the original hoarding.
16. Therefore, considering the fact that photographs of the banner remained unproved, non examination of independent witness, non filing of certificate u/s 65B Evidence Act regarding taking of photographs of the spot, lack of evidence regarding the factum of PW1 and PW2 being present on the spot at the alleged date and time, non production of DD 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.
17. Accordingly, accused Sushma Sikka is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act.
File be consigned to Record Room.
Announced in the open court
Today on 06.04.2018 (Manish Khurana)
CMM/SE/District Court, Saket
New Delhi/06.04.2018
FIR No. 176/17 State Vs. Sushma Sikka Page 6 of 6