Delhi District Court
Fir No. 631/2022 State vs Sonu on 29 May, 2023
FIR No. 631/2022 State Vs Sonu
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-003801-2023
Cr. Cases Number. 1481/2023
FIR No. 631/2022
Police Station : Lajpat Nagar
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
SONU
Date of Institution : 10.02.2023
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 29.05.2023.
JUDGMENT
1. Serial No. of the case : 14851/2023
2. Name of the Complainant : Head Constable
Amit Singh.
3. Date of commission of offence : 30.09.2022.
4. Name of accused person :
Sonu S/o Sh. Ram Singh, R/o House
No. 21, Suvidha Enclave, Gali No.
11, Near Lal Convent School,
Baprola Vihar, West Delhi. Aged
about 32 years.
5. Offence charged : S. 3 DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted.
Police Station : Lajpat Nagar Page No. 1 Of 18
FIR No. 631/2022 State Vs Sonu
JUDGMENT
1. In the present case, the accused has been facing the trial for the offence punishable under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred the 3 the DPDP Act).
2. Brief facts of the case are that on 30.09.2022, Head Constable Amit Singh was on patrolling duty in the area along with Head Constable Gyan Singh. At about 07:15 p.m., they reached at Railway Bharti Board Office, Lajpat Nagar, Jal Vihar Road, New Delhi where they noticed a board was affixed on a pole containing the words "The Albatross Unisex Salon Ganjapan Door Kare, Remove Baldness Hair Extensions For Women M-59 Lajpat Nagar 2nd Near Pind Balluchi Restaurant for Appointment 8527334044". Thereafter, Head Constable Amit Singh took the photographs of the said board and removed from the same from the pole. He then measured the said board and found it measuring 45 X 30 cms. Head Constable Amit Singh then prepared pullanda of the case property and seized it. He Police Station : Lajpat Nagar Page No. 2 Of 18 FIR No. 631/2022 State Vs Sonu then prepared the rukka at the spot and handed over the same to Head Constable Gyan Singh to get the FIR registered at the Police Station. After registration of the FIR, Head Constable Gyan Singh returned to the spot and handed over the rukka and copy of FIR to Head Constable Amit Singh as the investigation of the case was marked to him. During the course of investigation, Investigating Officer / Head Constable Amit Singh prepared a site plan on the spot. He then contacted on the mobile number which was mentioned on the board and it was responded by the accused. He informed him about the commission of offence punishable u/s 3 DPDP Act and asked him to come to the spot. After a while, accused came to the spot and met the IO. IO served notice u/s 41A Cr.P.C. upon the accused and bound down him in the present case. They then returned to the Police Station along with the case property and deposited the same in the Malkhana of the Police Station. IO then recorded the statement of Head Constable Gyan Singh u/s 161 Cr.P.C. After completion of investigation, the chargesheet was filed in the Court.
Police Station : Lajpat Nagar Page No. 3 Of 18
FIR No. 631/2022 State Vs Sonu
3. Cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act was served upon the accused to which the accused pleaded not guilty and claimed trial. Matter was then listed for Prosecutions evidence. The prosecution examined two witnesses in support of its case.
4. Head Constable Gyan Singh was examined as PW1. He was accompanying the IO on the date of incident as well as during the course of investigation in the present case. He deposed that on 30.09.2022, he was posted as Head Constable at Police Station Lajpat Nagar and on that day, he was on patrolling duty along with Head Constable Amit Singh. During patrolling duty, when they reached at Railway Bharti Board Office, Lajpat Nagar, Jal Vihar Road, New Delhi and noticed one board hanging on a pole containing the words "Albatross Unisex Salon, remove baldness Hair, Extensions for women M-59, Lajpat Nagar 2nd Near Pind Balluchi Restaurant for Police Station : Lajpat Nagar Page No. 4 Of 18 FIR No. 631/2022 State Vs Sonu appointment 8527334044". Head Constable Amit Singh then took the photographs of the said board and then removed the same from the pole. Head Constable Amit Singh then seized the same vide memo Ex.PW1/1. Head Constable Amit Singh then prepared the the rukka and handed over the same to him to get the FIR registered at the Police Station. He then left the spot and went to Police Station and handed over the original rukka to then Duty Officer. After registration of the FIR, he returned to the spot and handed over the copy of FIR and original rukka to Head Constable Amit Singh as the investigation of the case was marked to him. During the course of investigation, IO / Head Constable Amit Singh prepared the site plan at the spot vide memo Ex.PW1/2. Thereafter, IO contacted on the mobile number which was mentioned on the board and it was responded by the accused. IO informed him about the commission of the offence and asked him to come to the spot. After a while, accused came to the spot and met the IO. IO then served notice u/s 41A Cr.P.C. upon the accused and he joined the investigation in the present case. Thereafter, they returned to the Police Police Station : Lajpat Nagar Page No. 5 Of 18 FIR No. 631/2022 State Vs Sonu Station and IO deposited the case property in the Malkhana of Police Station Lajpat Nagar. He correctly identified the accused before the Court. He identified the case property from its photograph which is on judicial file. Photograph is Ex.P-1.
5. Head Constable Amit Singh was examined by the prosecution as PW-2. He is the complainant as well as the Investigating Officer in the present case. He deposed that on 30.09.2022, he was posted as Head Constable at Police Station Lajpat Nagar and on that day, he was on patrolling duty along with Head Constable Gyan Singh. At about 07:15pm, when they reached at Railway Bharti Board Office, Lajpat Nagar, Jal Vihar Board, New Delhi, they noticed one board hanging on the electricity pole containing the words "Albatross Unisex Salon, Remove Baldness Hair Extensions for Women M-59, Lajpat Nagar II, Near Pind Balluchi Restaurant for appointment 8527334044". He took the photographs of the same and then removed the same from the pole. He then seized it vide seizure memo Ex.PW1/1 and then prepared the rukka Ex.PW2/1. He handed over the rukka to Head Constable Gyan Singh to get the Police Station : Lajpat Nagar Page No. 6 Of 18 FIR No. 631/2022 State Vs Sonu FIR registered at the Police Station. After a while, Head Constable Gyan Singh returned to the spot and handed over the copy of FIR and original rukka to him as the investigation of the case was marked to him. During the course of investigation, he prepared the site plan at the spot vide memo Ex.PW1/2. He then contacted on the mobile number which was mentioned on the board and it was responded by the accused. He asked him to come to the spot and, subsequently, accused came to the spot and met him. He informed him about the commission of the offence punishable u/s 3 DPDP Act and inquired from him regarding the affixation of the said board at the pole. However, the accused could not give any satisfactory reply. He then served notice u/s 41A Cr.P.C. upon the accused. They then returned to th Police Station along with the case property and deposited the same in the Malkhana of Police Station Lajpat Nagar. He recorded the statement of witness Head Constable Gyan Singh u/s 161 Cr.P.C. in the present case. He correctly identified the accused and the case property from its photographs before the Court. Photograph is already Ex.P-1(colly). Police Station : Lajpat Nagar Page No. 7 Of 18
FIR No. 631/2022 State Vs Sonu
6. The witnesses were duly cross-examined by the accused. Thereafter, on the submissions of Sh. Sanjay Mishra Ld. Additional PP for the State, PE was closed. The statement of the accused was recorded under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. The accused has denied commission of the offence and has stated that he had been been falsely implicated in the present case. Accused did not lead any evidence independent in his defence. DE was closed. Final arguments were heard.
7. It is submitted by Sh. Sanjay Mishra Ld. Additional PP for State that the prosecution has proved its case against the accused beyond reasonable doubts. The accused has failed to prove any defence. He has failed to produce any permission for installing / affixing the board on the public property. Hence, the accused is liable to be convicted.
8. On the other hand, it is submitted by the accused that the prosecution has failed to prove the case against accused beyond reasonable doubts. There is no public witness examined by the prosecution. The complainant himself has conducted the investigation which vitiate the proceedings conducted during the Police Station : Lajpat Nagar Page No. 8 Of 18 FIR No. 631/2022 State Vs Sonu investigation. There is no evidence available on record to prove that the board was installed / affixed on the instructions of the accused. He has been falsely implicated by the police officials to settle some personal score. No offence has been committed by him.
9. Submissions heard on behalf of both the parties. Carefully perused the record.
10. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
11. 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 Police Station : Lajpat Nagar Page No. 9 Of 18 FIR No. 631/2022 State Vs Sonu 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.
12. 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.
13. 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 Police Station : Lajpat Nagar Page No. 10 Of 18 FIR No. 631/2022 State Vs Sonu 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.
14. 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.
15. Accused has argued that the complainant had also conducted the entire investigation in the present case and, therefore, the entire investigation has come under doubts. It is prayed that benefit of the said doubt may be given to the accused.
16. Hon'ble High Court of Delhi in Gurtej Singh Batth vs State, in Crl.A.39/2015, on 27 November, 2018, while relying upon the judgments of the Hon'ble Supreme Court of India in Mohan Lal v. State of Punjab, (2018) SCC OnLine Police Station : Lajpat Nagar Page No. 11 Of 18 FIR No. 631/2022 State Vs Sonu SC 974 and Arif Khan v. State of Uttarakhand, (2018) SCC Online SC 459, has held that in every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any conduct or impression which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair. If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality. Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the Investigating Officer would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.
17. However, the case of the prosecution cannot be disbelieved only because the investigation was conducted by the Police Station : Lajpat Nagar Page No. 12 Of 18 FIR No. 631/2022 State Vs Sonu complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
18. In the present case, as the record would reveal that no independent public witness had joined the investigation at any point of time with respect to recovery of the incriminating board. The place of recovery of the board in question is clearly shown to be located in an area where public persons would be readily available. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on Police Station : Lajpat Nagar Page No. 13 Of 18 FIR No. 631/2022 State Vs Sonu both sides and Police Station nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
19. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, this Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and Another v. State of Gujarat, AIR 1988 SC 696. The aforesaid fact merely casts an additional duty on the Court to be more vigilant while scrutinizing the testimony of the police witnesses. However, in the present case, there are other circumstances too, which raise suspicion over the prosecution version.
20. The witnesses PW-1 and PW-2 have stated that they were on patrolling duty when they had noticed the board on a Police Station : Lajpat Nagar Page No. 14 Of 18 FIR No. 631/2022 State Vs Sonu pole. They had removed the board and seized it. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty.
This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
"Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
21. In the present case, DD entry record of the presence of PW1 and PW2 on the spot on patrolling duty has not been proved by the prosecution. Hence, the fact of presence of the complainant and the Head Constable on the spot on the relevant date and time has come under the clouds of reasonable doubt. As already stated the public witness who could have deposed Police Station : Lajpat Nagar Page No. 15 Of 18 FIR No. 631/2022 State Vs Sonu regarding the presence of the witnesses on the spot have not been examined by the prosecution which also creates reasonable doubt on the case as projected by the prosecution.
22. The witnesses PW1 and PW2 who had allegedly seen the board have not stated that they had seen anybody or the accused while affixing the said board at the spot and they could not say as to who had affixed the board at the spot. The prosecution also did not examine any witness who might have seen any person affixing the board at the spot. As argued by the accused, there is not even an iota of evidence led by the prosecution to prove that the board in question was either installed / affixed by the accused herein or that the same was installed / affixed on his instructions.
23. The only allegation against the accused is that the board had been installed / affixed on a pole, a public property.
24. Prior to enactment of the DPDP Act, the West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of the West Bengal Prevention of Defacement of Property Act is similar to Section 3 of DPDP Act Police Station : Lajpat Nagar Page No. 16 Of 18 FIR No. 631/2022 State Vs Sonu which reads as under:
"Whoever defaces any property in public view by writing or marking with ink, chalk, paints or any other material, except for the purpose of indicating the memo and address of the owner or occupies of such property, shall be punishable with punishment prescribed."
25. Hon'ble High Court of Delhi in case title "T.S. Marwah & Ors. Vs. State 2008 (4) JCC 2561" has held that the offence u/s 3(1) of the Act 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. Mere putting of the poster will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
26. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 is similar to the Section 3(1) of the West Bengal Prevention of Defacement of Property Act except with one change in the definition of word "Writing". Section 2(d) of the Delhi Prevention of Defacement of Property Act, 2007 defines writing as including printing, painting, decoration, lettering, ornamentation etc. produced by stencil. In West Bengal Police Station : Lajpat Nagar Page No. 17 Of 18 FIR No. 631/2022 State Vs Sonu Prevention of Defacement of Property Act, word "Writing" has been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except this difference in the definition of writing, the provisions of both the Acts are same. Therefore, the ratio of the judgment of the Hon'ble High Court of Delhi in "T.S. Marwah(supra)"' still holds good for the present case as the facts of the present case are similar to the facts of the case in that of "T.S. Marwah's case (supra)".
27. In the present matter, in view of the discussion herein above, it can be safely held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is entitled to the benefit of reasonable doubt and is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 29th Day of May, 2023.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:New Delhi Police Station : Lajpat Nagar Page No. 18 Of 18