Delhi District Court
State vs . Hari Kishan on 9 September, 2013
1 IN THE COURT OF SH. D.K.JANGALA: ACMM/NW/ROHINI COURTS/DELHI State Vs. Hari Kishan FIR No. 539/08 PS: Jahangir Puri U/s 3 (1) West Bengal Prevention of Defacement Property Act, 1976 Case ID No. 02404R0354542009 JUDGEMENT
A) Sl. No. of the case : 120/3
B) The date of commission : 25.10.08
of offence
C) The name of the complainant : HC Bhagirath
PS Jahangir Puri
D) The name & address of accused : Hari Kishan S/O Sh. Bal Ram
R/O C15/1,Ramgarh, Main Road,
Jahangir Puri, Delhi.
E) Offence complained of : U/s 3(1) West Bengal
Prevention of Defacement of
Property Act, 1976.
F) The plea of accused : Pleaded not guilty
G) Final order : Acquitted
H) The date of such order : 09.09.13
Date of Institution : 08.12.2009
Judgment reserved on : 02.09.2013
Judgment announced on: 09.09.2013
FIR No. 539/08 S/V Hari Kishan Page No. 1/
2
THE BRIEF REASONS FOR THE JUDGEMENT:
1. It is alleged against the accused that on 25.10.08 at about 6.30 pm within the jurisdiction of P.S. Jahangir Puri , the accused has affixed his poster containing his name and photograph and other contents that " Delhi Ka Vikas Congress Ke Hath etc". It is alleged that the said poster was affixed on the electric pole near ITI Gate within the public view which defaced the aforesaid public property. It is alleged that the accused has committed an offence punishable U/S 3 of West Bengal Prevention of Defacement of Property Act, 1976.
2. The police conducted the investigation and after completion of the investigation filed the charge sheet on record. After completion of the necessary formalities, the notice for commission of the offence punishable U/S 3 of West Bengal Prevention of Defacement of Property Act, 1976 was served upon the accused on 22.04.10 to which he pleaded not guilty and claimed trial.
3. The prosecution to prove its case examined 3 PWs. The statement of the accused was recorded U/S 313 CrPC, whereby the accused denied the story of the prosecution and submitted that he is falsely implicated in the present case. The accused did not lead any defence evidence.
4. The relevant and material extract of evidence produced by the prosecution FIR No. 539/08 S/V Hari Kishan Page No. 2/ 3 are as under: PW1 ASI Mangat Ram is the formal witness, who recorded the FIR on the basis of rukka and proved the copy of FIR as EX PW 1/A. PW2 Ct. Mritunjay deposed that on 25.10.08 during patrolling in the area of Jahangir Puri he saw that one banner was affixed on the electric pole . PW2 deposed that the photograph and name of Hari Kishan Jindal was printed on the said banner. PW2 deposed that the IO removed the said banner from the electric pole and seized the same vide seizure memo EX PW 2/A. He deposed that thereafter the IO prepared the Tehrir and he took the same to P.S. for registration of the FIR. PW2 correctly identified the accused and the case property. During crossexamination the PW2 admitted that the banner was hanged on the electricity pole and not pasted on the same. It is admitted that there were photographs of Ms. Sonia Gandhi, Ms. Sheela Dixit, Sh.J.P. Aggarwal, Sh. Sandeep Dixit and Sh. Jile Singh Chauhan. It is also admitted that the IO has not inquired regarding the Infratech Pvt. Ltd. Jagjit Singh ( MD), Mobile No. 9811157418 , which was printed in the said banner. It is stated that he do not know whether there was any complaint from the company which was maintaining the said pole.
5. PW3 H C Bhagirath deposed that on 25.10.08 during patrolling one banner in the wooden frame was found affixed on the electric pole. PW3 deposed that he took the photographs of the said banner with his mobile phone, FIR No. 539/08 S/V Hari Kishan Page No. 3/ 4 thereafter he removed the said banner from the electric pole and prepared the rukka EX PW 3/A. PW3 deposed that after registration of the FIR the banner was seized vide seizure memo EX PW 2/A. PW3 deposed that accused was arrested on 12.12.08 and was released on police bail. PW3 stated that the said banner was found containing the photograph of the accused. During crossexamination by the Ld. Defence counsel , it is admitted by the PW3 that the several public persons were passing on the road. It is admitted that the banner was hanging on the electric pole. It is stated that he did not seize the wooden frame or any other material with which the banner was hanging. It is admitted that he did not join any public person to become attesting witness to the seizure memo . It is stated that no negative/ CD is placed on record. It is admitted that the persons whose photographs, name and mobile numbers appearing on the banner were not interrogated by him neither any notice was given to them .
6. I have carefully perused the material on record and have gone through the submissions of Ld. APP for the State and Ld. Counsel for the accused persons.
7. In the present case, it is submitted by Ld. APP for the State that there is sufficient material on record to convict the accused for commission of the offence punishable u/s 3 of West Bengal Prevention of Defacement of Property Act. It is prayed that the accused may kindly be convicted.
FIR No. 539/08 S/V Hari Kishan Page No. 4/ 5
8. On the other hand, it is submitted by Ld. Counsel for the accused that there is no iota of evidence against accused for commission of the alleged offence. It is stated that all the witnesses are the police officials and no public witness was examined by the prosecution. Therefore, it is prayed that the accused may kindly be acquitted.
9. In the present case, the accused is charged for commission of the offence punishable u/s 3 of West Bengal Prevention of Defacement of Property Act.. There are allegations against the accused that he has fixed a hoarding on the public property and defaced the same.
10.The provision of Section 3 of West Bengal Prevention of Defacement of Property Act is reproduced for guidance: Section 3 (1) West Bengal Prevention of Defacement of Property Act 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 punished with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both."
11. In the present case PW2 Ct. Mritunjay and PW3 H C Bhagirath are the star witness of the prosecution, who deposed that on 25.10.08 during patrolling one banner in the wooden frame was found affixed on the electric pole. However, During crossexamination it is admitted by PW3 that the banner was hanging on the electric pole. But he did not seize the wooden FIR No. 539/08 S/V Hari Kishan Page No. 5/ 6 frame or any other material with which the banner was hanging. It is also admitted that he did not join any public person to become attesting witness to the seizure memo . It is stated that no negative/ CD is placed on record. It is admitted that the persons whose photographs, name and mobile number were not interrogated by him neither any notice was given to them . PW2 Ct. Mritunjay deposed on the same lines as deposed by PW3.
12. In the present case the PW3 did not seize the wooden frame or any other material with which the banner was hanging. He himself admitted that he did not join any public person to become attesting witness to the seizure memo neither any negative or CD of the photographs of banner is placed on record.
13. All the three witnesses examined by the prosecution are the police officials and no public witness was joined in the investigation. The nonjoining of the public person despite availability of the same throws shadow of doubt upon the story of the prosecution. It is not the case of the prosecution that public persons were not available, if the justified explanation is not given by the prosecution regarding nonjoining of the public persons despite availability then an adverse inference is liable to be drawn against the prosecution
14.I have also relied upon one judgment of Hon'ble Delhi High Court regarding Section 3 of West Bengal Prevention of Defacement of Property Act, 1976, titled as T.S. Marwah & Ors. Vs State reported in 2008 (4) JCC 2561 FIR No. 539/08 S/V Hari Kishan Page No. 6/ 7 wherein it has been held as under : "A bare look at Section 3(1) goes to show that the offences committed therein would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. There is nothing in the charge sheet filed against the petitioners to indicate that any property was defaced by writing or marking with ink, chalk, paint or any other material. The only allegation is that the banner was put on an electric pole. Mere putting of the banner will not get covered by Section 3(1) of The West Bengal Prevention of Defacement of Property Act, 1976. It is true that 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 only such type of defacement for the purpose of prosecution as is done by writing or marking with ink, chalk paint or any other material.
15.n the judgment ( supra) the Hon'ble Delhi High Court has made it crystal clear that the provision of West Bengal Prevention of Defacement of Property Act, 1976 are applicable when the defacement of the property is done by using the ink or other material. The present case is also on the same fact on which the Hon'ble Delhi High Court has already passed the judgment. The judgment ( supra) is squarely applicable in the present case.
16.In the present case the alleged banner was affixed on electric pole and it was neither pasted nor any ink was used . Therefore, it does not attract the provision of Section 3 of West Bengal Prevention of Defacement of Property Act, 1976.
FIR No. 539/08 S/V Hari Kishan Page No. 7/ 8
17. Therefore, considering all the facts and circumstances, I am of the considered opinion that prosecution has miserably failed to prove its case against the accused persons. Accordingly accused Hari Kishan is acquitted for the commission of offence punishable u/s 3(1) of West Bengal Prevention of Defacement of Property Act, 1976 . His personal bond and surety bond is extended for a period of six months U/S 437 (A) CrPC.
Announced in open Court (D.K.JANGALA)
Dated: 09.09.2013 Addl. Chief Metropolitan Magistrate
Rohini, Delhi
FIR No. 539/08 S/V Hari Kishan Page No. 8/