Delhi District Court
State vs . Jahir Abas on 9 May, 2018
IN THE COURT OF MR. SANDEEP GARG,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH),
NEW DELHI
F.I.R. No: 239/17
U/s 3 Delhi Prevention of Defacement of Property Act, 2007
P.S. Mehrauli
State Vs. Jahir Abas
Date of Institution of Case : 11.08.2017
Judgment Reserved on : 09.05.2018
Date of Judgment : 09.05.2018
JUDGMENT:
(a) The serial no. of the case : 3534/2017
(b) The date of commission of offence : On or before 15.04.2017
(c)The name of complainant : HC Krishan Kumar
: PIS No. 301/SD, PS Mehrauli,
: New Delhi.
(d) The name, parentage, of accused : Sh. Jahir Abas,
: S/o Sh. Maqsood Ali
: R/o H.No. 38/40,
: Satbari Village, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 3 Delhi Prevention of
: Defacement of Property Act,
: 2007
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 1 of 12
(h) The date of such order : 09.05.2018
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on an unknown date and time before 15.04.2017 at Budh Bazar Chowk, within the jurisdiction of PS Mehrauli, accused Jahir Abas affixed one blue colour poster on a govt. electric pole and one blue colour poster on the wall of DDA with an appeal to voters of Ward No. 71S to vote for Bahujan Samaj Party candidate Mr. Chaudhary Maksood Ali Numberdar with election symbol of Elephant and while doing so, accused defaced property in public view. Accused is thus alleged to have committed an offence punishable U/s 3 Delhi Prevention of Defacement of Property Act, 2007.
2. Charge sheet was filed in the court and in compliance of Section 207 Cr.P.C., copy of chargesheet and its annexures was supplied to the accused. Thereafter, vide order dated 28.08.2017, notice for commission of offence punishable U/s 3 Delhi Prevention of Defacement of Property Act, 2007 in terms of section 251 Cr.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate its case, the prosecution has examined five witnesses. Sh. Manas is the proprietor of printing press viz. M/s Chandra Printing Press situated at D56, Chattarpur Enclave, New Delhi who has been examined as PW01. ASI Kishan Chand is the duty FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 2 of 12 officer who registered the present FIR and has been examined as PW02. HC Krishan Kumar is the complainant as well as IO in this case who has been examined as PW03. Sh. Bantu Singh is a public witness and had witnessed the stickers being affixed and their recovery by the IO. He has been examined as PW04. Ct. Sandeep was accompanying the complainant and is another eye witness who has been examined as PW
05. After completion of prosecution evidence, accused was examined U/s 313 Cr.P.C., wherein he claimed himself to be innocent and falsely implicated in the present case. He preferred not to adduce evidence in his defence.
A brief scrutiny of the evidence :
4. PW01 Sh. Manas deposed that he was running a printing press in the name of M/s Chandra Printing Press situated at D56, Chattarpur Enclave, New Delhi. Police officials came to his shop and made inquiry regarding the poster and he had told them that accused Jahir Abas had placed an order for printing the sticker mentioning ''Ward No. 71S Bahujan Samaj Party Ke Partyashi Maksood Ali Ko Bhari Maton Se Vijayee Banaye''. He had printed 1000 stickers of 8''x5'' size and handed over the same to accused against bill no. 16, copy of which is Ex. PW 1/A. He had given said information to the police officials in writing on his letter head which is Ex. PW 1/B. He correctly identified accused as well as the said poster in court which is Ex. PW 1/C. FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 3 of 12
5. During his crossexamination, PW01 stated that he does not remember the exact date and time when police officials visited his shop. Police officials had visited his shop two times, but he does not remember the dates. Police had recorded his statement only once at his shop. However, he does not remember the date and time. He admitted that accused Jahir Abas had not signed on any receipt / bill book. He cannot tell the date when accused Jahir Abas had placed the order for printing sticker. He admitted that he does not have cash receipt. He cannot tell the date on which he handed over the said sticker to accused Jahir. He denied that he is deposing falsely at the instance of police officials or that accused Jahir Abas had not placed any order for printing stickers or that accused had not received the said supply.
6. PW02 ASI Kishan Chand deposed that on 15.04.2017, he was posted as duty officer at PS Mehrauli. On that day, at about 7:00 PM, he received rukka from Ct. Sandeep sent by HC Krishan Kumar. On the basis of said rukka, he registered the present FIR, copy of which is Ex. PW 2/A. He made endorsement on the rukka which is Ex. PW 2/B and handed over copy of FIR and original rukka to Ct. Sandeep to hand over the same to HC Krishan Kumar for investigation. He also gave certificate U/s 65B of Evidence Act which is Ex. PW 2/C.
7. PW03 HC Krishan Kumar deposed that on 15.04.2017, he alongwith Ct. Sandeep were on patrolling duty in the area of Rajpur Khurd. During the course of patrolling, at about 6:00 PM, when they reached near FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 4 of 12 Budh Bazar Chowk, Rajpur Khurd, they saw that some posters were affixed on the electric pole and on the vacant wall of DDA on which it was mentioned that "71S Se Bahujan Samaj Party, Chunav Chinha, Hathi, Chaudhary Maksood Ali Numberdar Ko Bhari Maton Se Vijayee Banaye", printed by Chandra Printers. He clicked the photograph of said poster from his mobile phone and detached the same from electric pole and seized it vide seizure memo, Ex. PW 3/A. He correctly identified the said poster / sticker in court which is already Ex. PW 1/C. He prepared a rukka, Ex. PW 3/B and got the FIR registered through Ct. Sandeep. After registration of FIR, he prepared a site plan on his own which is Ex. PW 3/C. He searched for the person whose name was mentioned on the said poster / handbill, but no clue was found. He served a notice U/s 92 Cr.P.C. upon M/s Chandra Printers which is Ex. PW 3/D and received a reply that said poster / sticker was got prepared by Mr. Chaudhary Maqsood Ali Numberdar and his son accused Jahir Abas and the said poster was delivered to the accused. The said written reply is already Ex. 1/B and bill for the orders is already Ex. PW 1/A. He served a notice U/s 41A Cr.P.C., Ex. PW 3/E to accused Jahir Abas for joining investigation. He interrogated the accused and recorded his disclosure statement which is Ex. PW 3/F wherein accused disclosed that said posters / stickers were got printed by him and the same were affixed on electric pole through labourers, whose name he does not know. He had bound down the accused vide memo which is Ex. PW 3/G. He correctly identified accused as well as two photographs of the spot, clicked by him through his mobile, in court which are Ex. P1 (Colly). He admitted that he had not filed any certificate U/s 65B of Evidence Act FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 5 of 12 regarding said photographs. One public witness namely Mr. Bantu Singh had accompanied him at the time of taking photographs and seizure of said poster / sticker. He had recorded statement of witnesses, prepared challan and filed in court.
8. During his crossexamination, PW03 stated that he had made departure entry bearing DD No. 66B before leaving the PS. He left PS at about 5:00 PM and reached at the spot at about 6:00 PM. Many public persons were present at the spot and he had asked them to join investigation. One person namely Sh. Bantu Singh had joined the investigation. He clicked one photograph of the electric pole. He made inquiry from the public persons regarding the person who had affixed the said poster / sticker on the electric pole, but no clue was found. He admitted that no date is mentioned in the said poster / handbill. He had not kept the CD of the said photographs. He admitted that he had not seen the accused or his agents / labourers affixing the said poster / sticker. He admitted that he had not seen the accused at the spot. He denied that he never visited the spot or that no public person was joined during investigation. He denied that he did not take any photographs of the spot or that he is deposing falsely being IO of this case.
9. PW04 Sh. Bantu Singh deposed that he used to sell snacks on a rehri at Budh Bazar Chauhara. On 15.04.2017, at around 4:00 PM, police officials had detached a poster which was affixed on the electric pole on which Maqsood Ali Ko Vijayee was written. Police officials had FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 6 of 12 taken away the said poster / sticker with them. He correctly identified the said poster in court which is already Ex. PW 1/C.
10. PW04 was declared hostile and was crossexamined by ld. APP for the State. During his crossexamination by Ld. APP, he denied that site plan was prepared in his presence. However, he admitted that seizure memo of said poster / sticker was prepared in his presence at the spot which is already Ex. PW 3/A. He admitted that IO had taken photographs of said electric pole where the said poster / sticker was affixed. He correctly identified the said photographs in court which are already Ex. P1 (Colly).
11. During his crossexamination by ld. defence counsel, PW04 admitted that he had not seen as to who had affixed the said poster on the said electric pole. Police officials did not record his statement. Police officials had taken two photographs from mobile phone, but he does not know its make and colour. He does not know as to who was the owner of said mobile phone. He admitted that the said photographs were not developed in his presence. Police officials had not shown the photographs in the mobile phone to him at the spot and that is why, he cannot say that the said photographs, Ex. P1 (Colly) are the same which were taken by the police officials at the spot. Police officials did not call any other public person at the spot. He denied that he never joined investigation of the present case or that the said poster / sticker was not detached in his presence or that the seizure memo was not prepared in his presence or FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 7 of 12 that he had put the signatures on seizure memo later on at PS. He denied that he is a stalk witness or that he is deposing falsely.
12. PW05 Ct. Sandeep deposed that on 15.04.2017, he alongwith HC Krishan Kumar were on patrolling duty in the area of Rajpur Khurd. During the course of patrolling at about 6:00 PM, when they reached near Budh Bazar Chowk, Rajpur Khurd, they saw that some posters affixed on the electric pole and the wall of vacant land of DDA. The said posters were of blue colour and words i.e. '71S Se Bahujan Samaj Party, Chunav Chinha, Haathi, Chaudhary Maksood Ali Numberdar Ko Bhari Maton Se Vijayee Banayin' printed by Chandra Printers were written on it. HC Krishan took the photographs of the said posters affixed on said electric pole from his mobile phone, detached the same from the electric pole and seized the same vide seizure memo, already Ex. PW 3/A. He correctly identified the said poster / sticker in court which is already Ex. PW 1/C. HC Krishan prepared a rukka, already Ex. PW 3/B and handed over to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR, he returned at the spot with original rukka and copy of FIR and the same were handed over to IO HC Krishan. IO prepared a site plan on his own which is already Ex. PW 3/C. IO searched for the person whose name was mentioned in the said handbill here and there, but no clue was found. After that, they returned to PS and IO recorded his statement. He correctly identified two photographs, which were taken by IO from mobile phone, in court which are already Ex. P1 (Colly).
FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 8 of 12
13. During his crossexamination, PW05 stated that IO had made departure entry bearing DD No. 62B before leaving the PS. He reached at the spot at about 6:00 PM. IO had taken photographs of the said poster / sticker in question from his mobile phone, but he does not know the make and colour of said mobile pnone. He does not remember the exact time when IO had taken the photographs. He does not know the accused. He admitted that he does not know as to who had fixed the said poster / sticker on the electric pole and wall of DDA. He had not shared the said incident with any senior police officers. He had taken the rukka to PS at about 6:30 PM and returned back at the spot at about 7:307:45 PM. IO had prepared site plan in his presence. IO had not developed the said photograph in his presence. IO had taken two photographs of the said poster / sticker affixed on electric pole. IO had not sealed the case property i.e. said poster / sticker and that is why no handing over memo of seal was required to be prepared. He volunteered that said poster / sticker was placed in file. IO had not deposited the said poster / sticker in malkhana. No certificate U/s 65B of Evidence Act was prepared by the IO in his presence pertaining to the said photographs. He denied that he never visited the spot or that no public person was joined in investigation by IO. He denied that IO did not take any photographs of the spot. He denied that the said sticker / poster was falsely attributed to the accused in connivance with rival political party member or that he is deposing falsely at the instance of IO.
14. The court has examined the record and has heard ld. APP for FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 9 of 12 the State and ld. defence counsel for the accused.
15. It has been emphatically contended by ld. defence counsel for accused that none of the prosecution witnesses have deposed that they had seen the accused or any of his agents / labourers pasting the alleged sticker. The accused had indeed got handbills / stickers printed from M/s Chandra Printing Press for distribution amongst the voters. However, he never got those handbills / stickers pasted anywhere. The accused is the son of candidate viz. Mr. Maksood Ali Numberdar who had contested election from Ward No. 71S, Bahujan Samajwadi Party. It appears that due to political vendetta, someone has got the handbills / stickers distributed by the accused deliberately pasted on DDA wall and electric pole, near Budh Bazar Chowk, Rajpur Khurd, New Delhi with the ulterior motive of falsely implicating him in the present case. Admittedly, no certificate U/s 65B of Indian Evidence Act was prepared and filed, proved by the IO. Moreover, there are material contradictions / inconsistencies in the testimonies of PW03 and PW04. While, PW03 IO HC Krishan Kumar stated that the said poster / sticker was detached at about 6:00 PM, PW04 stated that police officials had detached the same at about 4:00 PM. PW 03 has deposed that many public persons were present at the spot and he had asked them to join investigation. However, PW04 Sh. Bantu Singh has deposed that police officials did not call any other public person at the spot. Since the prosecution evidence is not credible, the same deserves to be discarded. The prosecution has miserably failed to establish that the accused had either himself pasted the sticker in question or had got the FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 10 of 12 same pasted through his servants / agents. Therefore, he deserves to be acquitted of the charges leveled against him.
16. Per contra, it is emphatically contended by ld. APP for the State that prosecution has been able to establish that accused had defaced the wall of DDA and electric pole by getting his father's election sticker pasted. Original sticker, Ex. PW 1/C and photographs, Ex. P1 (Colly) establish photograph and name of father of the accused. PW03 HC Krishan Kumar, PW04 Sh. Bantu Singh and PW Ct. Sandeep have been able to establish that the handbill / sticker in question was affixed on the wall of DDA and electric pole. PW01 Sh. Manas has proved that the handbill / sticker in question, Ex. PW 1/C was got printed from him by the accused. There is no merit in the contention of ld. defence counsel and therefore, accused deserves to be convicted.
17. The court is of the considered opinion that there are material contradictions in the testimonies PW03 and PW04. While, PW03 IO HC Krishan Kumar stated that the said poster / sticker was detached at about 6:00 PM, PW04 stated that police officials had detached the same at about 4:00 PM. PW03 has deposed that many public persons were present at the spot and he had asked them to join investigation. However, PW04 Sh. Bantu Singh has deposed that police officials did not call any other public person at the spot. Admittedly, no certificate U/s 65B of Indian Evidence Act was prepared, filed and proved by the IO in support of the photographs purportedly taken by him from a mobile phone. In the FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 11 of 12 absence of the said certificate, the photographs, Ex. P1 (Colly) cannot be read into evidence.
18. A perusal of the evidence adduced by the prosecution shows that none of the prosecution witnesses have deposed that they had seen the accused or any of his servants / agents pasting the alleged sticker. The possibility of claim of the accused that due to political vendetta, someone had got the sticker distributed by him deliberately pasted on the wall of vacant land of DDA and electric pole, near Budh Bazar Chowk, Rajpur Khurd, New Delhi with the ulterior motive of falsely implicating him in the present case, being true, cannot be ruled out. Therefore, the court holds that the prosecution has not been able to establish its case against the accused beyond reasonable doubts. Accordingly, the accused is acquitted of the charge levelled against him. He is directed to furnish bail bonds in terms of Section 437A Cr.P.C. forthwith. Original documents, if any, be returned to its rightful owner after cancellation of endorsement, if any.
SANDEE Digitally signed by SANDEEP GARG DN: c=IN, o=DISTRICT AND SESSIONS File be consigned to Record Room. JUDGE SOUTH DISTRICT, 2.5.4.20=c0638bd0f6b2591ae536772d72e 898dfdef5a6e0dfd0e0a8b83c0396a01104 P GARG 7f, ou=DISTRICT AND SESSIONS JUDGE SOUTH DISTRICT,CID - 4281206, postalCode=110017, st=Delhi, cn=SANDEEP GARG Date: 2018.05.10 18:05:30 +05'30' Announced in the open (Sandeep Garg) Court on 09.05.2018 ACMM (South), New Delhi.
FIR No. 239/17, PS Mehrauli State Vs. Jahir Abas 12 of 12