Delhi District Court
State vs . Rajat Chaudhary Etc. Khurana Date: ... on 31 January, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 430/17 Digitally signed
by MANISH
PS : Kalkaji
U/s : 3 DPDP Act
MANISH KHURANA
State Vs. Rajat Chaudhary etc. KHURANA Date: 2019.01.31
Unique ID No. : 6035/18 14:07:18 -0600
Date of institution of case : 10.09.2018
Date of reserving the judgment : 11.01.2019
Date of pronouncement of judgment : 31.01.2019
JUDGMENT
1. S. No. of the Case : 134/05/19
2. Date of Commission of Offence : 08.09.2017
3. Name of the complainant : SI Rahul,
No. 5885/SE,
PS Kalkaji.
4. Name,parentage & address of accused : 1. Rajat Chaudhary, S/o Sh.
Balraj, R/o 1129, Chhuriya
Mohalla, Tuglakabad, New
Delhi.
2. Mahamedha Nagar, D/o
Sh.Sharad Nagar, R/o D19
Patel NagarII, Ghaziabad,
UP.
3. Uma Shankar, S/o Brijesh
Kumar, R/o H. No. 18, Gali
no.1281, Sindhu Farm
Road, Meethapur, New
Delhi.
4. Parth Rana, S/o Bhagwan
Rana, R/o H. No. 43, Rana
Paana, Bhui Bhagat,
Qutabgarh, Delhi 110039.
FIR No. 430/17
PS : Kalkaji
State Vs. Rajat chaudhary etc. Page no. 1
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 09:00 p.m on the wall of Deshbandhu College opposite F Block, Kalkaji, New Delhi, which is a public property in public view within the jurisdiction of PS Kalkaji, one poster mentioning the words "ABVP Candidates for DUSU" alongwith names and ballet nos. of accused persons was found affixed which was got affixed by the accused persons or with their authority 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 persons for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused persons were summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused persons for the offence punishable u/s 3 D.P.D.P Act to which the accused persons pleaded not guilty and claimed trial. Vide statement recorded u/s 294 Cr.PC accused persons admitted the factum of registration of present FIR as Ex.A1, endorsement made by duty officer on the rukka as Ex.A2 and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3.
3. In order to prove its case, prosecution examined three witnesses.
4. PW1 Ct. Dharmender and PW3 SI Rahul deposed that on 08.09.2017 while patrolling at about 09.00 pm they noticed that on the wall of Deshbandhu College a poster mentioning words "ABVP Candidates for DUSU President FIR No. 430/17 PS : Kalkaji State Vs. Rajat chaudhary etc. Page no. 2 Rajat Chaudhary, B. No. 8, Parth Rana for Vice President, Mahamedhaa Nagar for Secretary and Umaa Shankar for Joint Secretary" was pasted. As the said poster was affixed on the wall of Deshbandhu College which was a public property in public view, IO/PW3 photographed the same by his private mobile phone camera and thereafter, the said poster was removed and seized vide seizure memo Ex.PW1/A. Thereafter, IO/PW3 prepared rukka Ex.PW1/B and got the FIR registered through PW1 Ct. Dharmender. IO/PW3 also prepared site plan Ex.PW3/A. PW3 IO/SI Rahul Kumar deposed that he issued notice u/s 41A Cr.P.C to all the four accused persons and joined them into investigation. IO/PW3 SI Rahul Kumar recorded statement of PW1 Ct. Dharmender u/s 161 Cr.P.C and after completion of investigation, IO prepared the charge sheet and filed the same in the court. Witnesses correctly identified the accused persons and the photograph of the case property i.e. poster placed on record as Ex.P1.
5. PW2 Sh. Deepak Prakash relied upon copy of list of candidates contesting DUSU Election 201718, copy of which is Ex.PW2/A and during his cross examination he deposed that he did not have personal knowledge about the present case.
6. Thereafter, PE was closed and statements of accused persons were recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused persons which accused persons denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused persons in their defence.
7. 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
8. Allegation against the accused are that on 08.09.2017 at 09:00 p.m on the wall of Deshbandhu College opposite F Block, Kalkaji, New Delhi, which is a public property in public view within the jurisdiction of PS Kalkaji, one poster FIR No. 430/17 PS : Kalkaji State Vs. Rajat chaudhary etc. Page no. 3 mentioning the words "ABVP Candidates for DUSU" alongwith names and ballet nos. of accused persons was found affixed which was got affixed by the accused persons or with their authority 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.
9. 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. 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.
10. PW3 SI Rahul 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. Reliance placed on the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
FIR No. 430/17
PS : Kalkaji
State Vs. Rajat chaudhary etc. Page no. 4
11. Further, PW1 as well as PW3 stated that they were on patrolling on the said day but their departure or arrival entry in the PS has not been proved on record to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the prosecution. PW1 and 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 PW1 and PW3 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
12. Further, the prosecution has relied upon the photograph of the case property Ex.P1. PW3/IO SI Rahul Kumar claimed to have clicked the photograph Ex.P1 from his private mobile phone but no certificate u/s 65 B Evidence Act in support of the photograph is placed on record. 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.
13. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot is a residential area. PWs have not explained in their testimony as to why they did not join any public witness. 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 poster was affixed by the accused persons or with their authority. Further, the alleged poster was affixed on the wall of Deshbandhu College, however, no complaint was received from the authority of Deshbandhu College as admitted by IO / SI Rahul Kumar during his cross examination.
14. Therefore, considering the facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubts.
15. Accordingly, accused Parth Rana, Uma Shankar, Mahamedha Nagar and FIR No. 430/17 PS : Kalkaji State Vs. Rajat chaudhary etc. Page no. 5 Rajat Chaudhary are held "not guilty" and are accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act.
Announced in the open court Today on 31.01.2019 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/31.01.2019 FIR No. 430/17 PS : Kalkaji State Vs. Rajat chaudhary etc. Page no. 6