Delhi District Court
State vs . Amit Chaudhary Khurana Date: on 4 September, 2019
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 513/15 Digitally
signed by
PS : South Campus
MANISH
U/s : 3 DPDP Act MANISH KHURANA
State Vs. Amit Chaudhary KHURANA Date:
2019.09.04
Unique ID No. : 58549/16 11:39:43
+0530
Date of institution of case : 03.08.2016
Date of reserving the judgment : 20.08.2019
Date of pronouncement of judgment : 04.09.2019
JUDGMENT
1. S. No. of the Case : 58549/16
2. Date of Commission of Offence : 09.09.2015
3. Name of the complainant : HC Gajender Singh
No. 22/SD
PS South Campus,
New Delhi.
4. Name,parentage & address of accused : Amit Chaudhary
S/o Sh. Vijay Pal Chaudhary
R/o WZ159, Gali No. 3 near
Ashok Nagar, Tihar Village,
Delhi.
5. Offence complained of : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
FIR No. 513/15 State Vs. Amit Chaudhary 1/7
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 09.09.2015 at 4.00 pm on the bus stand of Venkateshawar College, New Delhi, within the jurisdiction of PS South Campus, New Delhi, one poster mentioning the words "DUSU Candidate Amit Chaudhary for Secretary" was found pasted in public view which was affixed by the accused or at his behest 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 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 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 Sh. Deepak, Junior Assistant, DU Election Office, North Campus deposed that he was working as abovementioned and on 05.07.2016, IO of the present case came to his office and gave him a request letter for nomination form DUSU election 2015 and asked regarding student Amit Chaudhary (accused herein). He further stated that he handed over to the IO photocopy of nomination form and the IO recorded his statement to the abovesaid effect. He also brought the attested copy of nomination form Ex.PW1/A of student Amit Choudhary (accused herein) bearing seal of office of Chief Election Officer DUSU. During his cross examination by Ld defence counsel he admitted that the FIR No. 513/15 State Vs. Amit Chaudhary 2/7 nomination form Ex.PW1/A did not bear his signatures and that he did not have personal knowledge regarding the nomination filed in the name of student Amit Chaudhary.
5. PW2 Ct. Sumant Kumar and PW3 HC Gajender Singh deposed that on 09.09.2015 while they were on emergency duty at about 4.00 pm, they reached near Bus Stand Venkatswar College, within the jurisdiction of PS South Campus, New Delhi and saw that on the said bus stand one poster mentioning election campaigning words was found affixed/pasted. Thereafter, PW3/IO took the photograph of the spot from his mobile phone camera and they removed the said poster and PW3/IO seized the same vide seizure memo Ex.PW2/A and he prepared rukka Ex.PW3/A and got the FIR registered through PW2 Ct. Sumant and he also prepared site plan Ex.PW3/B. PW3/IO further stated that on 20.09.2015 he wrote a letter Ex.PW3/C to The Director/Registrar, Delhi University South Campus for providing details of nomination form of DUSU Election 2015 of student Amit Chaudhary and he also visited the office of Chief Election Officer, DUSU and got copy of nomination paper for the office of Secretary of candidate Amit Choudhary. PW3/IO further stated that on 08.04.2016 he called accused in the PS to which accused appeared in the PS and PW3/IO served notice u/s 41A Cr.PC Ex.PW3/D upon the accused. Witnesses also relied upon the case property i.e one poster as Ex.P1 and its one photograph as Ex.P2. These witnesses were cross examined by Ld defence counsel.
6. 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.
7. I have heard the Ld APP for the State and Ld counsel for the accused and FIR No. 513/15 State Vs. Amit Chaudhary 3/7 also carefully gone through the record.
Finding of the Court
8. Allegation against the accused are that on 09.09.2015 at 4.00 pm on the bus stand of Venkateshawar College, New Delhi, one poster mentioning the words "DUSU Candidate Amit Chaudhary for Secretary" was found pasted in public view which was affixed by the accused or at his behest 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 HC Gajender Singh 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 FIR No. 513/15 State Vs. Amit Chaudhary 4/7 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.
11. Further, PW2 as well as PW3 stated that they were on emergency duty on the said day but they could not produce/place on record the departure and arrival entry to primafacie show that they were on emergency duty or visited the spot on the said day which is a crucial aspect left by the police. PW2 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 PW2 and PW3 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
12. Further, the prosecution has relied upon one photograph of the poster Ex.P2. The photograph was allegedly taken through an electronic device. It is pertinent to note that certificate u/s 65B Evidence Act has not been placed on record. During his cross examination PW3/IO admitted that the certificate u/s 65B Evidence Act is not placed on record. Digital photograph by taken an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the police. 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 FIR No. 513/15 State Vs. Amit Chaudhary 5/7 IO. PWs have not explained in their testimony as to why the public witness was not joined in the investigation. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the poster was affixed/pasted on the spot. No evidence has been brought on record to prove that the alleged poster was affixed/pasted by the accused or with his authority.
14. The PWs who were allegedly visited the spot examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said poster at the spot and they also stated that they could not say as to who affixed the poster at the spot. They also stated that they did not come across any witness who might have seen any person affixing the posters at the spot.
15. Further, as per the testimony of PWs, the photograph was allegedly got developed from a nearby private photo studio lab, however, the IO did not join the developer of said photograph in the investigation nor he placed on record any receipt/bill regarding development of photograph nor the IO cited the said developer of photograph as the prosecution witness in the present case.
16. It is further pertinent to mention that spelling of the surname of the accused as given in the correspondence Ex.PW1/A with DUSU and the spelling of the surname mentioned in the seized poster is different. Though, the name of the accused finds mention on the poster, however, the prosecution has not examined any witness who had seen the accused while pasting the alleged poster nor any witness deposed that the said poster was affixed at the behest of the accused. In these circumstances, in my considered opinion, the material placed on record is not sufficient to prove its case against the accused beyond reasonable doubt.
17. Therefore, considering the totality of facts and circumstances, I am of the FIR No. 513/15 State Vs. Amit Chaudhary 6/7 opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
18. Accordingly, accused Amit Chaudhary is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. File be consigned to Record Room.
Announced in the open court Today on 04.09.2019 (Manish Khurana) CMM/NDD/Patiala House Courts New Delhi/04.09.2019 FIR No. 513/15 State Vs. Amit Chaudhary 7/7