Delhi District Court
State vs . Ram Nath Laxman Mudekar & Anr Khurana ... on 10 August, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 238/17 Digitally signed
PS : Pul Prahlad Pur by MANISH
U/s : 3 DPDP Act
MANISH KHURANA
State Vs. Ram Nath Laxman Mudekar & Anr KHURANA Date: 2018.08.10
Unique ID No. : 169/18 15:07:49 -0500
Date of institution of case : 06.01.2018
Date of reserving the judgment : 10.08.2018
Date of pronouncement of judgment : 10.08.2018
J U D G M E N T
1. S. No. of the Case : 06/05/18
2. Date of Commission of Offence : 18.11.2017
3. Name of the complainant : HC Vinod Kumar
No. 984/SE
PS Pul Prahlad Pur
4. Name, parentage & address of accused : 1. Ram Nath Laxman Mudekar
S/o Sh. Laxman Mudekar,
R/o Arvind Nagar room no. 20,
SS Amrutwar Marg, Opp.
BDD Chawl no. 112, Worli,
Mumbai, Maharashtra.
2. Ms. Rupali Rane
W/o Nilesh Rane,
R/o Flat no. 1303,
Rustam Ji Arbania, Acura
Building, C Wing, Behind
FIR No. 238/17
PS : Pul Prahlad Pur
State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 1
Vrindavan Society, Thane
West, Maharashtra.
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 18.11.2017 at 11:55 a.m on the electricity pole on shooting range road, near DDA Park within the jurisdiction of PS Pul Prahladpur, one board mentioning the words "Capapie Sports Equipments XXXXXXXXXXX" with address and mobile number of accused Ram Nath Laxman Mudekar was found affixed and that it was affixed by the accused Ram Nath Laxman Mudekar and Rupali Rane or at their behest on a 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 Ram Nath Laxman Mudekar and Rupali Rane 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 both the accused persons pleaded not guilty and claimed trial. Vide their joint statement recorded u/s 294 Cr.PC the accused persons admitted the factum of registration of present FIR as Ex.A1, endorsement on 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 HC Vinod Kumar and PW3 Ct. Abhishek Bhati deposed that on FIR No. 238/17 PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 2 18.11.2017, they were on patrolling duty. During patrolling at about 11:55 a.m. they reached near DDA Park, Shooting Range Road, Delhi where they noticed that on a electricity pole, one hoarding/board mentioning the words "
Capapie Sports Equipments XXXXXXXXXXX" with address and mobile number of accused Ram Nath Laxman Mudekar was found affixed. Thereafter, IO/PW1 took photographs of the spot by his mobile phone camera and informed the concerned SHO. Thereafter, they removed the said hoarding/banner and IO/PW1 seized the same vide memo Ex.PW1/A, prepared rukka Ex.PW1/B and handed over the same to PW3 Ct. Abhishek Bhati for the registration of the case. PW3 Ct. Abhishek took the rukka to PS Pul Prahladpur and got FIR registered and thereafter returned to the spot and handed over copy of FIR and original rukka to IO/PW1. IO/PW1 also prepared site plan which is Ex.PW1/C. It is stated by the IO/PW1 that he inquired about the phone numbers mentioned on the abovementioned advertisement board and on one mobile number, he spoke to one of the employee of Capapie Sports Equipments who told him that accused Ram Nath Laxman Mudekar was the person looking after affairs of the abovementioned company in Delhi, thereafter, he issued notice u/s 91 Cr.PC Ex.PW1/D to Ram Nath Laxman Mudekar who later on handed over him letter of authorisation Ex.PW1/E and certified copy of certificate of importer exporter code of abovesaid firm which was in the name of accused Rupali Rane as proprietor and which is Ex.PW1/F. PW1 further deposed that after due interrogation, he arrested accused Ram Nath Laxman Mudekar and conducted his personal search vide memos Ex.PW1/G and Ex.PW1/H respectively, thereafter, accused Ram Nath Laxman Mudekar was admitted to police bail. PW1 also stated that he recorded statement of Ct. Abhishek Bhati u/s 161 Cr.PC and, thereafter, he prepared chargesheet and filed in the Court against accused Ram Nath. He further stated that he took up further investigation of the present case and issued notice u/s 41A Cr.PC Ex.PW1/I FIR No. 238/17 PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 3 to accused Rupali Rane, thereafter, as he was engaged in the arrangement duty of Republic Day 2018 and further investigation was handed over to HC Kuldeep who went to Mumbai and interrogated accused Rupali Rane. PW1/IO also stated that thereafter, he prepared supplementary chargesheet against accused Rupali Rane and filed in the Court. Witnesses correctly identified the accused persons and photographs of the case property as Ex.P1 to Ex.P2.
5. PW2 HC Kuldeep Singh deposed that on 24.01.2018, he was posted as HC at PS Pul Prahlad Pur, New Delhi and on that day, on receipt of oral directions from concerned SHO and IO, he went to Thane, Maharashtra in relation to the present case for investigation qua another accused namely Rupali Rane. He further deposed that he reached Thane, PS Waghle State, Maharashtra from where he was accompanied by one lady Ct. Karuna Kapil Rane, Maharashtra Police, and thereafter, they both went to A268/2, Industrial Estate Waghle, Thane Maharashtra which was the factory address of accused Rupali Rane where Ms. Rupali Rane alongwith Sh. Nilesh Rane met them to whom he served notice u/s 41A Cr.PC Ex.PW2/A. He stated that thereafter he interrogated Rupali Rane and prepared interrogation report Ex.PW2/B. He stated that he also seized some documents vide seizure memo Ex.PW2/C in the presence of lady Ct. Karuna Kapil Rane and seized the documents vide memo Ex.PW2/D, thereafter, he returned to Delhi and handed over the documents to IO HC Vinod.
6. Thereafter, PE was closed and statement 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 persons and also carefully gone through the record.FIR No. 238/17
PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 4 Finding of the Court
8. Allegations against the accused are that on 18.11.2017 at 11:55 a.m on the electricity pole on shooting range road, near DDA Park within the jurisdiction of PS Pul Prahladpur, one board mentioning the words "Capapie Sports Equipments XXXXXXXXXXX" with address and mobile number of accused Ram Nath Laxman Mudekar was found affixed and that it was affixed by the accused Ram Nath Laxman Mudekar and Rupali Rane or at their behest on a public property and in public view and by the said act accused persons committed the offence punishable u/s 3 DPDP 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. In the case in hand, a board was allegedly tied with 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 board/banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property FIR No. 238/17 PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 5 Act, 1976.
11. 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 paramateria 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.
12. PW1 HC Vinod 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.
13. Further, PW1 as well as PW3 stated that they were on patrolling on the said day but could not tell the number of departure and arrival entry 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.
14. Further, the prosecution has relied upon the photographs of the case property Ex.P1 and Ex.P2. PW1/IO claimed to have clicked the photographs Ex.P1 and Ex.P2 from his private mobile phone but no certificate u/s 65 B Evidence Act in support of the photograph is placed on FIR No. 238/17 PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 6 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.
15. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot is a residential area. 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 persons or with their authority. Further, the alleged board was affixed on electricity pole of BSES, however, no complaint was received from electricity company and IO admitted during his cross examination that he did not inquire from electricity company about the said pole or the alleged board. Further no proof has been produced on record that the mobile phone numbers mentioned over the board/hoarding belonged to accused persons.
16. Therefore, considering the abovesaid facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused persons beyond reasonable doubts.
17. Accordingly, accused Ram Nath Laxman Mudekar and Rupali Rane 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 on 10.08.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/10.08.2018 FIR No. 238/17 PS : Pul Prahlad Pur State Vs. Ram Nath Laxman Mudekar & Anr. Page no. 7