Delhi District Court
State vs . Rajat Chaudhary Date: on 22 October, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 404/17 Digitally signed
PS : Lajpat Nagar by MANISH
KHURANA
U/s : 3 DPDP Act MANISH
State Vs. Rajat Chaudhary Date:
KHURANA 2018.10.22
14:44:12
Unique ID No. : 5786/18 +0530
Date of institution of case : 04.09.2018
Date of reserving the judgment : 15.10.2018
Date of pronouncement of judgment : 22.10.2018
J U D G M E N T
1. S. No. of the Case : 130/05/18
2. Date of Commission of Offence : 08.09.2017
3. Name of the complainant : HC Neeraj Kumar,
No. 2071/SE,
PS Lajpat Nagar.
4. Name,parentage & address of accused : Rajat Chaudhary,
S/o Sh. Balraj,
R/o H. No. 1129/B,
Chhuraiya Mohalla, TKD,
Delhi
5. Offence complained of : 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 08.09.2017 at 9.30 pm at the electricity pole in front of gate of PGDAV College, Nehru Nagar, Delhi within the jurisdiction of PS Lajpat Nagar, which is a public property and in public FIR No. 404/17 State Vs. Rajat Chaudhary 1/7 view, one board mentioning the words "Join ABVP Rajjat Chaudhary"
was found affixed/hanging, which was affixed by the accused or at his behest on the said public property and in public view, 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 Rajat Chaudhary 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. Vide statement recorded u/s 294 Cr.PC accused admitted the factum of registration of present FIR as Ex.A1, endorsement made by duty officer on the rukka as Ex.A2, certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3 and letter of concerned Acting Principal of Motilal Nehru College, University of Delhi, New Delhi dated 07.03.2018 alongwith annexures sent to the IO during investigation as Ex.PW1/E(colly).
3. In order to prove its case, prosecution examined two witnesses.
4. PW1 HC Neeraj Kumar nad PW2 Ct. Sandeep deposed that on 08.09.2017 while they were on DUSU Election Duty at about 9.00 pm they reached at PGDAV College, Nehru Nagar, Delhi and noticed that on the electricity pole in front of that college, one board mentioning the words "Join ABVP Rajat Chaudhary" was found affixed/hanging. Thereafter, PW1/IO photographed the same from his private phone camera and removed the said board and seized the same vide seizure memo Ex.PW1/A. PW1/IO also prepared rukka Ex.PW1/B and got the FIR registered through PW2 Ct. Sandeep and he also prepared site plan Ex.PW1/C. PW1/IO also deposed that on 06.03.2018, he served notice u/s FIR No. 404/17 State Vs. Rajat Chaudhary 2/7 91 Cr.PC Ex.PW1/D to the Principal, Motilal Nehru College, New Delhi and vide letter Ex.PW1/E obtained the address of accused. Thereafter, during investigation PW1/IO visited the house of accused vide departure entry DD No. 12B dated 23.08.2018 Ex.PW1/F and at the house of accused served notice u/s 41A Cr.PC Ex.PW1/G upon him and executed his pabandinama and he came back to the PS and made arrival entry vide DD No. 37A dated 23.08.2018 Ex.PW1/H. Witnesses also relied upon two photographs developed on 2 separate A4 size papers as Ex.P1 and Ex.P2.
5. 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 to which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
6. 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
7. Allegation against the accused are that on 08.09.2017 at 9.30 pm at the electricity pole in front of gate of PGDAV College, Nehru Nagar, Delhi, which is a public property and in public view, one board mentioning the words "Join ABVP Rajjat Chaudhary" was found affixed/hanging, which was affixed by the accused or at his behest and by the said act accused committed the offence punishable u/s 3 DPDP Act.
8. 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 FIR No. 404/17 State Vs. Rajat Chaudhary 3/7 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. Property has been defined by Section 2 (c) of the Act which says that it includes any building, hut, structure, wall, tree, fence, post, pole or any other erection.
9. In the case in hand, a hoarding/board was allegedly affixed/tied on an electricity pole. The same question regarding the defacement of public property by hanging of a board on an electricity pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
10. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which is para materia to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other material which is not the case herein.
11. PW1 HC Neeraj 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 FIR No. 404/17 State Vs. Rajat Chaudhary 4/7 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 DUSU Election Duty on the said day but could not tell the number of departure and arrival entry to primafacie show that they were on patrolling duty/DUSU Election Duty on the said day which is a crucial aspect left by the police. PW1 and PW2 admitted during their cross examination that no DD entry was made at the time of leaving the PS for patrolling. 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 two photographs of the case property Ex.P1 and Ex.P2. PW1/IO HC Neeraj Kumar claimed to have clicked the said photographs Ex.P1 and Ex.P2 from his private mobile phone but no certificate u/s 65B Evidence Act in support of the photographs is placed on record. During cross examination PW1/IO admitted that he did not place on record certificate u/s 65B Evidence Act regarding development of the photographs. Merely filing of a photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photograph remain unproved in the present case and cannot be relied upon in support of the prosecution case.
14. Further, as per evidence on record, IO allegedly got the photographs developed from a cyber cafe, however, during his cross examination IO FIR No. 404/17 State Vs. Rajat Chaudhary 5/7 stated that he did not cite the developer of the aforesaid photographs as a witness to the present case.
15. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot i.e the PGDAV college is a busy place. PW1 during his cross examination has stated that he did not join any public witness and he also did not come across any person who might have seen anyone affixing the board at the spot. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the board was affixed on the electricity pole. No evidence has been brought on record to prove that the alleged board was affixed by the accused or with his authority.
16. It is pertinent to mention that the board was allegedly affixed on the electricity pole but PW1/IO admitted during his cross examination that he did not receive any complaint from any electricity company or from college authority regarding the abovesaid board. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said board at the spot and they also stated that they could not say as to who affixed the said board at the spot. Further, the alleged board does not contain photograph or phone number of accused so as to associate the accused with the said board.
17. Ld counsel for the accused argued that the accused has been falsely implicated by someone and the board relied upon by the prosecution bears wrong spelling of the name of the accused as "Rajjat Chaudhary"
and no inquiry was done by the police from the alleged maker of the said board. Though, the name of the accused find mention on the board, however, in my considered opinion, the material placed on record is not sufficient to prove the case against the accused beyond reasonable doubt. The photographs in this regard relied upon by the prosecution has not FIR No. 404/17 State Vs. Rajat Chaudhary 6/7 been proved as per procedure established by law. Further, the photographs filed on record reflect that the board bears the wrong spelling of the name of the accused. Further, the spelling of name of the accused as provided through the letter Ex.PW1/E(colly) by Acting Principal, Motilal Nehru College, DU is "Rajat Choudhary". Not only that, the IO has also relied upon the photocopy of the Aadhar Card of the accused which also bears the correct spelling of the name of accused as aforementioned. The stand of the accused that had the poster been got printed by him, he would have taken care to get the correct spelling mentioned therein is plausible and deserves consideration.
18. Therefore, considering the facts and circumstances, I am of the opinion that prosecution has failed to prove the case against the accused beyond reasonable doubts.
19. Accordingly, accused Rajat Chaudhary is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. Announced in the open court Today on 22.10.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/22.10.2018 FIR No. 404/17 State Vs. Rajat Chaudhary 7/7