Delhi District Court
State vs . Ajay Kumar on 10 April, 2023
1
IN THE COURT OF MS. SNIGDHA SARVARIA : CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS:
NEW DELHI.
Cr Cases 6750/2020
STATE Vs. Ajay Kumar
FIR No. 73/2020
PS Naraina
1. S. No. of the Case : 235/02
2. Date of institution of case : 23.07.2020
3. Date of Commission of Offence : 22.01.2020
4. Name of the complainant : HC Harbeer
5. Name, parentage & Address : Ajay Kumar
S/o Sh.Subhash Chand,
R/o CB-70, Ring Road,
Naraina, New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act
6. Plea of Accused : Accused pleaded not guilty for the offence U/Sec. 3 DPDP Act
7. Final Order : Acquitted Date of reserving the judgment : 27.03.2023 Date of pronouncement of judgment : 10.04.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on 22.01.2020 at 2:00 p.m. near Mini Stadium, Naraina Village, on the electric pole, Delhi, within jurisdiction of PS Naraina, one board was found affixed on the electric pole on which "AP COACHING CENTRE Don't Wait for opportunity. Create it. CLASS I TO x ALL SUBJECTS CLASS xi TO xii COMMERCE, State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 2 SCIENCE GOVT. EXAMS, SSC, RRB, NDA, BANK, TET/HTET DEFENCE, DELHI POLICE, HARYANA POLICE, ETC.ENGLISH SPEAKING COURSE CB-87, NARAINA VILLAGE RING ROAD NEW DELHI-28 7701865299 7217752278" was written which was belonging to accused Ajay Kumar and he thereby committed an offence punishable U/Sec.3 of DPDP Act.
2. After completion of investigation, charge-sheet was filed.
Copies were supplied to the accused and notice U/Sec.251 Cr.P.C. was served upon the accused on 03.11.2022 for the offence punishable under section 3 DPDP Act to which accused has pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 03 witness.
PW-1 is HC Harbeer who deposed that on 22.01.2020 he was on patrolling duty alongwith Ct. Kishan and while doing patrolling duty, at about 2:00 p.m. when they reached near Mini Stadium, Naraina Gaon, they saw that two boards were affixed on the electric pole. He deposed that the measurement of the boards was 1ft, 6 inch and 1 ft. He deposed that the board belongs to "AP COACHING CENTRE Don't Wait for opportunity. Create it. CLASS I TO x ALL SUBJECTS CLASS xi TO xii COMMERCE, SCIENCE GOVT. EXAMS, SSC, RRB, NDA, BANK, TET/HTET DEFENCE, DELHI POLICE, State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 3 HARYANA POLICE, ETC.ENGLISH SPEAKING COURSE CB-87, NARAINA VILLAGE RING ROAD NEW DELHI-28 7701865299 7217752278". He deposed that he took the photographs of board from his mobile phone and he alongwith the help of Ct. Kishan removed the boards and seized the same vide seizure memo Ex.PW1/A. He further deposed that after that he prepared tehrir Ex.PW1/B and handed over the same to Ct. Kishan and sent him to PS for registration of FIR and after registration of FIR Ct. Kishan came back at the spot and handed over the copy of FIR and original rukka to him. He deposed that he prepared the site plan Ex.PW1/C. He deposed that he deposited the case property in Malkhana vide GD entry No.028A and the said GD entry is Ex.PW1/D. He deposed that on 15.02.2020 notice U/Sec41A Cr.P.C which is Ex.PW1/E was served upon the accused and accused was bound down. PW-1 identified the photograph as Mark A. PW-1 also identified the board as Ex.P- 1(Colly).
During cross-examination by Ld. Counsel for the accused, PW-1 deposed that he made departure entry of the patrolling but he did not file the same alongwith case file. PW-1 admitted that he did not file any certificate U/Sec.65B Evidence Act regarding the photograph. He admitted that there was no witness from electricity department to prove the electricity pole. He further admitted that there was no independent witness in the present case. He deposed that he did not conduct the investigation regarding the printer of the board. He admitted he did not enquire regarding the CAF and CDR number of the mobile number State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 4 mentioned on the board. He denied the suggestion that no board was affixed by the accused. He denied the suggestion that the board has been falsely planted in the present case.
PW-2 is ASI Om Prakash who has proved registration of FIR as Ex.PW2/A, his endorsement on rukka as Ex.PW2/B and Certificate U/Se.65B Evidence Act as Ex.PW2/C. PW-2 was not cross-examined by the accused despite opportunity given to him.
PW-3 is HC Krishan who deposed that 22.01.2020 he was on patrolling duty alongwith HC Harbir. PW-3 deposed on the similar lines as deposed by PW-1 and proved the documents which were prepared by PW-1. PW-3 also correctly identified the photograph as Mark A and board as Ex.P-1.
During cross-examination by Ld. Counsel for the accused, PW-3 deposed that he did not remember the departure entry. He admitted that there is no witness from electricity department to prove the electricity pole. He admitted that there is no independent witness in the present case. PW-3 denied the suggestion that no board was affixed by the accused. He denied the suggestion that the board has been falsely planted in the present case.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. Statement of accused Ajay Kumar was recorded in the Court on 06.03.2023 wherein all the incriminating facts emerged during trial were put to him distinctly, separately and specifically. Accused stated that he is innocent and has been State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 5 falsely implicated in the present case. He stated that the board has been planted upon him.
DEFENCE EVIDENCE
5. Accused chose not to lead any evidence in his defence.
EVALUATION OF THE PROSECUTION EVIDENCE
6. Accused was charged for offence under section 3 DPDP Act.
7. I have heard Ld. Addl. PP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE
8. At this juncture it is relevant to reproduce the relevant provision of law, which is as under:
"Section 3 : 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 ru- pees, 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 State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 6 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."
9. It is significant to note that accused in the present case has been charged with the offence under Section 3 of The Delhi Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of 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. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent. The term 'defacement' has been defined under Section 2 (a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 7
10. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the prosecution is required to prove following facts beyond reasonable doubts:- (1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material. (2) That the said property is situated in a public view. (3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and occupier of the said property.
11. In order to secure conviction of the accused for the offence under Section 3(2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
12. No independent witness was joined in the investigation by the IO. PW-1 and PW-3 have not explained in their testimony as to why the public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the board in question was affixed on the spot, failure to do so raises adverse inference qua prosecution case. Also, if public persons refused to join the investigation, then appropriate action under the law should have been taken. Also, why no written notice was given to the public persons, was also not explained. This raises an adverse inference qua prosecution case.
State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 8
13. The witnesses PW-1 and PW3 have failed to point out as to how accused was pinned down as the installer of the board in question as much as, IO has neither recorded the statement of public persons working/residing in the locality where the board in question was found affixed nor has he recorded the statement of the printer, nor any eye-witness was found.
14. PW-1 and PW-3 did not bring on record any register to show timings regarding when they left PS and returned back to PS after patrolling, so it raises adverse inference with respect to prosecution case that PW-1 and PW-3 were on patrolling duty on the date and time mentioned in FIR.
15 None of the witnesses examined by the prosecution in its evidence have stated that they had seen the accused putting up the board in question.
16. The prosecution witnesses have stated that IO/PW-1 took photograph from his mobile of the board. The photograph was allegedly taken through an electronic device. But certificate U/Sec.65B of Indian Evidence Act to prove photograph has also not been filed on record. Thus, photographs have not been proved as per Indian Evidence Act. The prosecution has not proved the CAF/CDR that the mobile number on the board is of the accused.
17. In a case titled as T.S. Marwah & Others Vs. State, 2008 State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 9 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... mere putting of the banner will not be cov- ered 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, damag- ing, distinguishing, spoiling or injuring in any other way whatsoever, but Section 3 (1) is not all embrac- ing 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 mate- rial."
18. Thus, in the absence of any proof as to the affixation of the alleged advertisement board by or at the behest of the accused, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused being guilty for the offence of defacement of the public property within the meaning of Section 3 of DPDP Act.
19. In view of the aforesaid discussions, accused Ajay Kumar is entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
CONCLUSION
20. In view of the aforesaid discussions, accused Ajay Kumar is hereby acquitted for the offence punishable U/Sec. 3 of the DPDP Act.
21. Previous Bail bonds and supardarinama, if any, is cancelled. State vs. Ajay Kumar FIR No. 73/2020 PS Naraina 10 Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
22. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused today. Considered. Accepted. The same shall remain in force for a period of six months from today.
File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed
on 10.04.2023 by Snigdha
Snigdha Sarvaria
Date:
Sarvaria
(Snigdha Sarvaria
2023.04.10
15:11:13
CMM/NDD/PHC +0530
New Delhi/10.04.2023
State vs. Ajay Kumar
FIR No. 73/2020
PS Naraina