Delhi District Court
State vs . Ram Sagar on 21 March, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA
CHIEF METROPOLITAN MAGISTRATE,
DWARKA COURT, NEW DELHI.
FIR No. 176/2019
PS Dabri
State Vs. Ram Sagar
CIS No. : 18102/2019
Date of institution of the case : 16.11.2019
Date of commission of offence : 18.03.2019
Name of the complainant : HC Raj Kumar
Name of accused and address : Ram Sagar,
S/o Sh. Jag Narayan,
R/o RZE-25A, Bengali
Colony, Mahavir Enclave-I,
New Delhi
Offence complained of : U/s 3 DPDP Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date on which judgment reserved : 15.03.2022
Date of judgment : 21.03.2022
- :: JUDGMENT :: -
1.Vide this judgment, I shall decide the present case u/s 3 DPDP Act (Delhi Prevention of Defacement of Property Act, 2007) filed by the prosecution against accused Ram Sagar.
State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 1 of 10
2. Before deciding the present case, it is inevitable to mention here the brief facts of the case. It is the case of the prosecution that on 18.03.2019 at 08:00 PM, one banner/board of MS Institute mentioning "MS Institute 11th 12th physics, Chemistry, Math, 9th 10th Math and Science, 9911817505, 9891457861, E-25A, Bangoly Colony, Near Sulabh School, Mahavir Enclave, New Delhi" was found installed on a government pole near ICICI ATM and Gajab Restaurant, in front of main palam Dabri Road, Mahavir Enclave Part-I . Charge-sheet for commission of offence punishable u/s 3 DPDP Act was filed on the assumption that since the said banner/board was bearing mobile number of the accused, hence he was the one who had got printed and installed the banner/board there.
3. Copy of charge-sheet and supporting documents were supplied to the accused. After hearing arguments, notice for offence punishable u/s 3 DPDP Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, has examined three witnesses.
5. PW1 Ct. Naresh deposed that on 18.03.2019, he alongwith HC Raj Kumar and Ct. Surender were on picket duty in front of Dashrathpuri Metro Station from 08:00 pm to 11:00 pm and during duty, they noticed that one banner/board of MS Institute affixed on an electric pole situated near the ICICI Atm and Gajab Restaurant, Mahavir Enclave, Part-I, mentioning in the banner " MS Institute 11th State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 2 of 10 12th physics, Chemistry, Math, 9th 10th Math and Science, 9911817505, 9891457861, E-25A, Bangoly Colony, Near Sulabh School, Mahavir Enclave, New Delhi". He further deposed that HC Raj Kumar clicked the photograph of that banner/board from his phone and thereafter, they separated the said poster from electric pole. Thereafter, IO HC Raj Kumar seized the poster Ex. PW1/A and prepared rukka Ex. PW3/A. IO handed over the said rukka to him for registration of FIR. He went to the PS and got registered FIR and after registration of FIR, he come back at spot and handed over copy of FIR to IO. IO prepared site plan Ex. PW1/B. Thereafter, they returned to PS and IO recorded his statement. He correctly identified accused before the court. He correctly identified the case property i.e. banner as Ex.P1 and photograph of the banner as Ex. P2.
6. During cross examination, PW1 stated that he did not remember the number of DD entry prepared for his picket duty. He also did not remember the DD number of arrival in the PS on that day. He admitted that no public person had joined investigation of IO. He admitted that accused was not arrested in his presence. He denied the suggestion that he had not joined the investigation and therefore there is no signature on Ex PW1/A. He admitted that he had not seen who had affixed the said banner on the electric pole.
7. PW-2/ Ct. Surender deposed on the same lines as by the PW-
1.
8. PW-3/ HC Raj Kumar deposed on the same lines as by the State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 3 of 10 PW-1 & PW-2. PW-3 also deposed that on 08.08.2019, at about 12:00 PM, he called the accused Ram Sagar on the basis of mobile number given in the poster and accused came in the police station and was arrested vide arrest memo Ex. PW3/B and at the time of arrest, Ct. Krishan Kumar was present.
9. During cross examination, PW3 stated that he did not remember the number of DD entry prepared for his picket duty. He also did not remember the DD number of arrival in the PS on that day. He admitted that no public person had joined investigation. He admitted that accused was not arrested in his presence. He admitted that he had not placed certificate U/s 65 B of Indian Evidence Act regarding clicking the photograph of the spot by his mobile phone. He denied the suggestion that he had not obtained the signatures of Ct. Naresh and Ct. Surender at the relevant documents of the investigation as they were not accompanied with him and no investigation was carried by him at the spot. He admitted that he had not seen who had affixed the said banner on the electric pole.
10. No other witness was examined by the prosecution and hence, PE was closed.
11. Thereafter, separate statement u/s 313 CrPC of the accused was recorded, wherein all the incriminating material appeared in evidence against him, was put to him to which he stated that he is innocent and has been falsely implicated in this case.
State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 4 of 10
12. Accused opted not to lead defence evidence.
13. Final arguments advanced by Ld. APP for State and ld. counsel for accused heard. Case file perused carefully.
14. It is argued by Ld. APP for State that accused has affixed the poster on the electricity pole situated near ICICI ATM and Gajab Restaurant, Mahavir Enclave, Part-I and rukka Ex.PW3/A was prepared by the IO and accordingly, the accused be convicted for offence punishable u/s 3 DPDP Act.
15. On the other hand, it is argued by Ld. Counsel for accused that prosecution has miserably failed to prove its case as there is nothing on record to show that the impugned banner/board was affixed by the accused. There are no public witnesses to substantiate the commission of the offence. The photographs are not annexed with certificate U/s 65 B of Indian Evidence Act. It is further submitted by Ld. Defence counsel that accused be acquitted.
16. After hearing the submissions of both the sides and before proceedings further with deciding the present case, it is inevitable to discuss Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 which 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 imprisonment for a term which may extend to one year, or with fine which may State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 5 of 10 extend to fifty thousand rupees, or with both.
(2) Where any offence committed under sub-section (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.
(3) The aforesaid penalties will be without prejudice to the provisions of section 425 and section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
17. Though in the present matter a banner/board mentioning in the banner "MS Institute 11th 12th physics, Chemistry, Math, 9th 10th Math and Science, 9911817505, 9891457861, E-25A, Bangoly Colony, Near Sulabh School, Mahavir Enclave, New Delhi" was found installed at an electricity pole, yet it has to be decided as to whether all the ingredients as mentioned in Section 3 DPDP Act have been fulfilled or not.
18. In the present matter, complaint was made by HC Raj Kumar i.e. PW3 and he was the one who took the photograph and prepared rukka Ex. PW3/A, he is also IO in this case.
19. PW3 stated that he alongwith Ct. Surender and Ct. Naresh were on patrolling duty on the said date, but they could not produce/place on record the departure and arrival entry to prima facie show that they were on picket duty or visited the spot on the State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 6 of 10 said day which is a crucial aspect left by the police. PW3 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 PW3 leaves much to be desired in order to prove the prosecution's case beyond reasonable doubt.
20. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. It is pertinent to note that certificate u/s 65B of Indian Evidence Act has not been placed on record. Digital photograph taken from an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been done in the present case for reasons best known to the police. Merely filing of 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.
21. Further, no independent witness was joined in the investigation by the IO. PW has not explained in their testimony as to why the public witness was not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the poster was affixed on the spot. No evidence has been brought on record to prove that the alleged poster was affixed by the accused or with his authority.
State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 7 of 10
22. In the present matter, the allegation against the accused is that a banner/board mentioning in the banner "MS Institute 11th 12th physics, Chemistry, Math, 9th 10th Math and Science, 9911817505, 9891457861, E-25A, Bangoly Colony, Near Sulabh School, Mahavir Enclave, New Delhi" was found installed on the electricity pole near ICICI ATM and Gajab Restaurant, Mahavir Enclave, Part-I. Now, it has to be seen whether installing of banner/board would amount to an offence u/s 3 of DPDP Act, or not. Prior to enactment of DPDP Act, West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of West Bengal Prevention of Defacement of Property Act is same to same as Section 3 of DPDP Act. For the sake of clarity, Section 3 of West Bengal Prevention of Defacement of Property Act, is reproduced here as under: -
"Whoever defaces any property in public view by writing or marking with ink, chalk, paints or any other material, except for the purpose of indicating the memo and address of the owner or occupies of such property, shall be punishable with punishment prescribed."
23. In a case titled as "T.S. Marwah & Others Vs. State", 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing, spoiling or injuring in any other way whatsoever, but Section 3(1) is not all embracing and it refers to only such type of defacements for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
24. The question which is to be decided in the present case is whether the present case is covered by the aforesaid judgment and State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 8 of 10 whether the aforementioned judgment also applicable to offence u/s 3 of DPDP Act. Provisions of Section 3 of DPDP Act and Section 3 of the West Bengal Prevention of Defacement of Property Act are similar to each other and, therefore, the ratio of the aforementioned judgment of T.S. Marwah (supra) would also be applicable to the provision of Section 3 of DPDP Act. In these circumstances, affixing of a banner/board mentioning in the banner "MS Institute 11th 12th physics, Chemistry, Math, 9th 10th Math and Science, 9911817505, 9891457861, E-25A, Bangoly Colony, Near Sulabh School, Mahavir Enclave, New Delhi" would not amount to an offence u/s 3 of DPDP Act.
25. In view of the aforesaid discussion, it can be safely concluded that the prosecution has failed to prove its case against accused beyond reasonable doubt.
26. Further, it is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that the accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
27. In the present case, in view of the above stated discussions, it can be held that the prosecution has failed to prove its case beyond State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 9 of 10 reasonable doubt. The evidence coming on record entitles the accused to be acquitted in the present case. Therefore, accused namely Ram Sagar is hereby acquitted from the offence punishable under Section 3 of DPDP Act.
28. Accused has furnished personal bond and surety bond in terms of Section 437-A Cr.P.C. The same have been accepted and shall remain in force for a period of six months from today.
29. File be consigned to Record Room.
Pronounced in the open court on this 21st March 2022 (VINOD KUMAR MEENA) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi State Vs. Ram Sagar FIR No.176 of 2019, PS Dabri Page No. 10 of 10