Delhi District Court
State vs . Yash & Ors. on 23 January, 2023
1
IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
CC No 3476/2020
State Vs. Yash & Ors.
FIR No. 109/2020
U/s 3 DPDP Act
P.S. Naraina
1. S. No. of the Case : 146/02
2. Date of institution of case : 31.08.2020
3. Date of Commission of Offence : 06.02.2019
4. Name of the complainant : ASI Sunil Kumar
5. Name, parentage & Address : 1. Yash
of accused S/o Sh. Baljeet Singh
R/o WZ-130, Dasghara Village,
New Delhi.
2. Robin
S/o Sh. Jai Kunwar
R/o WZ-130, Dasghara Village,
New Delhi.
3. Mohd. Salamul
S/o Mohd. Nazir
R/o H. No.2A, 3rd Floor, Front
side, Om Vihar, Phase-3, Uttam
Nagar, Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act
6. Plea of Accused : Accused persons pleaded not guilty for offence U/Sec. 3 DPDP Act
7. Final Order : Acquitted Date of reserving the judgment : 23.01.2023 State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 2 Date of pronouncement of judgment : 23.01.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on 06.02.2019 at about 12:45 a.m. at C-Block, near Khatta, Naraina Vihar, on the wall of kudadaan/garbage, within the jurisdiction of PS Naraina, accused Yash, Robin and Mohd. Salamul were affixing the stickers on the wall of kudadaan and they thereby committed an offence punishable U/Sec.3 of DPDP Act.
2. After completion of investigation, charge-sheet was filed. Copies were supplied to the accused persons and notice U/Sec.251 Cr.P.C. was served upon them on 27.05.2022 for offence punishable under section 3 DPDP Act to which accused persons have pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 05 witnesses.
PW-1 is ASI Ramotar who deposed that on 06.02.2020 he was posted as ASI at PS Naraina and on that day, Ct. Bhoop Singh handed over him a tehrir/rukka and copy of FIR, on the basis of which he alongwith Ct. Bhoop Singh reached the spot where ASI Sunil met and ASI Sunil handed over him the accused persons namely Yash, Robin and Mohd. Salalmul who were in the custody of ASI Sunil. ASI Sunil also handed over the stickers. He deposed that thereafter he prepared site plan Ex.PW1/A at the instance of ASI Sunil. He deposed that he State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 3 arrested the accused persons vide arrest memos as Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively and interrogated the accused persons and prepared Interrogation memos of accused Mohd. Salalmul, Robin and Yash Choudhary as Ex.PW1/E, Ex.PW1/F and Ex.PW1/G respectively. He deposed that thereafter accused persons were released on police bail after furnishing the bail bonds. He further deposed that after completion of investigation, he filed the charge-sheet in the Court.
PW-1 correctly identified all the three accused persons in the Court today.
During cross-examination by counsel for the accused persons, PW-1 admitted that the case property was handed over to him by the first IO in unsealed condition. He deposed that he did not verify regarding the printer of the stickers. He stated that he did not interrogate the person namely Rocky whose picture is mentioned on the stickers.
Photograph Mark A which is placed on record was shown to the PW-1 and PW-1 admitted that no public person was seen in the photograph Mark A. He admitted that accused persons are not seen in the photograph Mark A. He denied the suggestion that the stickers were falsely planted upon the accused persons. He further denied the suggestion that the case is false and fabricated and accused has been falsely implicated in the present case.
PW-2 is ASI Naresh Kumar who has proved registration of FIR as Ex.PW2/A, endorsement on rukka as Ex.PW2/B and Certificate U/Sec.65B of Indian Evidence Act as Ex.PW2/C. PW-2 was not cross-examined by counsel for the accused State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 4 persons despite opportunity given to him.
PW-3 is ASI Sunil who deposed that on 06.02.2020 he was posted as ASI at PS Naraina and on that day, he alongwith Ct. Bhoop Sing were on patrolling duty near C-Block, Naraina Vihar and when they reached near Khatta at about 12:45 p.m. they saw that 03 boys were pasting the stickers on the wall and after seeing them, they tried to run away but he alognwith Ct. Bhoop Singh apprehended all three boys and they disclosed their names as Yash, Robin and Mohd. Salamul. PW-3 deposed that he saw that they were pasting the stickers on which "Rocky haath chunav chinh, Congress pratyashi AC-39 Rajinder Nagar, Gram Sabha" and other stickers were "AAP ka nahi bahar ka hai, samast rajinder nagar" third sticker was "Kejriwal tujse bair nahi, Raghav teri khair nahi" were written. PW-3 deposed that the same stickers were pasted on the wall of the Community Centre. He took the photographs from his mobile phone. PW-3 further deposed that one person namely Nayan Sharma gave one written complaint at the spot to him. He deposed that thereafter, he seized the abovesaid stickers vide seizure memo Ex.PW3/A and prepared the rukka Ex.PW3/B and handed over the same to Ct. Bhoop Singh and sent him to PS for registration of FIR. He deposed that after registration of FIR Ct. Bhoop Singh came at the spot and handed over the copy of FIR and original rukka to him. PW-3 deposed that further investigation of the case was marked to ASI Ramotar. PW-3 correctly identified accused Yash, Robin and Mohd. Salamul in the Court today. PW-3 also identified the print outs of 06 photographs which is Mark A. PW-3 also State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 5 identified the case property i.e. stickers which are Ex.P-1(collectively).
During cross-examination by counsel for the accused persons, PW-3 admitted that he did not file any certificate U/Sec.65B Indian Evidence Act regarding the print out of the photographs attached with the case file. He further admitted that Mark A is a print out of the photograph and it is not a developed photo.
Seizure memo Ex.PW3/A was shown to the witness and he admitted that he seized 160 stickers of "Rocky chunav chinh congress pratyashi" but MHC(M) has produced only 159 stickers. He further admitted that he seized 25 stickers of "yeh AAP ka nahi bahar ka hai"
but MHC(M) has produced only 26 stickers. PW-3 further admtited that he seized 125 stickers of "Kejriwal tujse bair nahi, Raghav teri khair nahi" but MHC(M) has produced 164 stickers. PW-3 admitted that he did not put any seal on the stickers at the time of seizure memp but he only put the stickers in the polythne bag and polythene bag handed over to MHC(M) in Malkhana. He deposed that at the time of preparing of the seizure memo, public person Nayan Sharma was present. He admitted that there is no any signatures of independent public witness on the seizure memo. He denied the suggestion that he did not seize any stickers at the spot that is why there is a tampering in the counting of the stickers. He further denied the suggestion that accused persons are falsely implicated in the present case.
PW-4 is HC Bhoop Singh deposed on the similar lines s deposed by PW-3. He further deposed that ASI Ramotar prepared the site plan and ASI Ramotar also recorded the statement of Nayan Sharma and arrested the accused Mohd. Salamul, accused Robin and Yash State Vs.Yash & Ors.FIR No. 109/2020
PS Naraina 6 Chowdhary vide arrest memo already exhibited as Ex.PW1/B, Ex.PW1/C and Ex.PW1/D respectively. After furnishing the bail bonds, accused were released on bail.
PW-4 correctly identified accused Yash, Robin and Mohd. Salamul in the Court. He also identified print out of 06 photographs as Mark A and the case property as Ex.P1 (colly).
During cross-examination by counsel for the accused persons, PW-4 admitted that Mark A is a print out of the photograph and it is not a developed photo. He admitted that IO did not put any seal on the stickers at the time of seizure memo but IO only put the stickers in the polythene bag and polythene bag handed over to MHC(M) in Malkhana. He deposed that at the time of preparing of the seizure memo, public person Nayan Sharma was present. He admitted that there are no signatures of independent public witness on the seizure memo. He denied the suggestion that accused persons are falsely implicated in the present case.
PW-5 is Nayan Sharma who deposed that in in February, 2020 he was residing in Naraina Village on rent. He deposed that he is the permanent resident of Sirsa, Haryana. In February, 2020 he was staying in Naraina Village, Delhi, for the purpose of campaigning election. He did not remember the exact incident but he only remember that on 06.02.2020, police had apprehended some boys regarding pasting of posters and stickers. He did not know anything about the present FIR and the case. He stated that he did not give any complaint to the police. He further deposed that he did not know anything further.
PW-5 was cross-examined by Ld APP for the State with State Vs.Yash & Ors.FIR No. 109/2020
PS Naraina 7 permission of the Court and during cross-examination by Ld. APP for the State, DD No.4A dated 06.02.2020 is shown to the witness, the and he submitted that DD No.4A is Mark C. He deposed that he did not give any complaint to the police. The document Mark C does not bearing his signatures. He deposed that he did not know the accused persons Yash, Mohd. Salamul and Robin. He deposed that he did not give any statement to the police. He deposed that Mark C is not in his handwriting. The police only asked his name and address at the spot. He did not put his signatures on any documents.
He denied the suggestion that he deliberately not identifying the accused persons. He further denied the suggestion that he gave one complaint to the police. He further denied the suggestion that he was present at the spot when the accused persons were apprehended by the police officials. He denied the suggestion that the stickers were recovered in his presence.
During cross-examination by counsel for the accused persons, PW-5, Ex.PW3/A, Ex.PW1/B, Ex.PW1/B and Ex.PW1/C were shown to the witness. He admitted that these documents do not bear his signatures. He further admitted that the police officials did not ask him to put his signatures on any of these documents. He deposed that he was only present near the spot as he was staying in Delhi at Naraina Village for the purpose of campaigning in election. PW-5 voluntarily stated that the police officials unnecessary put his name in the present case and he did not give any complaint). PW-5 deposed that he did not know whether the police officials seized any stickers in front of him.
State Vs.Yash & Ors.FIR No. 109/2020
PS Naraina 8 STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. Statement of accused Yash, Robin and Mohd. Salamul was recorded in the Court on 10.11.2022 wherein all the incriminating facts emerged during trial were put to them distinctly, separately and specifically. Accused persons stated that they are innocent person and have been falsely implicated in the present case. DEFENCE EVIDENCE
5. Accused persons chose not to lead any evidence in their defence.
EVALUATION OF THE PROSECUTION EVIDENCE
6. Accused persons were charged for offence under section 3 DPDP Act.
7. I have heard Ld. Substitute APP for the State and Ld. counsel for the accused persons, perused the record and have gone through the relevant provisions of the law.
RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE
8. At this juncture it is relevant to reproduce the relevant provision of law, which is as under:
"Section 3 : 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 ex- cept for the purpose of indicating the name and address of the owner or occupier of such property, shall be punish- able with imprisonment for a term which may extend to State Vs.Yash & Ors.FIR No. 109/2020
PS Naraina 9 one year, or with fine which may extend to fifty thousand rupees, or with both.
(2) Where any offence committed under sub-section (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.
(3) The aforesaid penalties will be without prejudice to the provisions of Section 425 and Section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
9. 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 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. 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) State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 10 of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
10. 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 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.
11. 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.
11A. All the witnesses except PW-5 Mr. Nayan Sharma, are police witnesses and PW-5 was declared hostile by the prosecution as he did not support the prosecution case.
12. No other independent witness was joined in the investigation by the IO. PWs have not explained in their testimonies as to why the public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the stickers in question were affixed on the spot, failure State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 11 to do so raises adverse inference qua prosecution case with respect to accused persons were arrested from the spot
13. The prosecution witnesses have failed to bring on record any register to show timings regarding when they left PS and returned back to PS after patrolling, so it raises adverse inference with respect to prosecution case regarding accused persons having been arrested from the spot.
14. The prosecution has relied upon photograph of spot. The photographs were allegedly taken through an electronic device. However, certificate u/s 65B of Indian Evidence Act has not been placed on record. Digital photograph taken from an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of Indian Evidence Act, which has not been filed in the present case. Merely filing of 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. Also, the photographs even if believed to be true, do not bear any date and there is no photographs of accused at the spot which raises adverse inference qua prosecution case.
15. The fact that the stickers in question were not even sealed after seizure and the number of stickers seized were different from the number of stickers produced by MHC(M) before the Court raises State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 12 adverse inference qua prosecution case.
16. In a case titled as T.S. Marwah & Others Vs. State, 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Defacement of Property Act, 1976. It is true Section 2 (aa) defines de- facement 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 to only such type of deface- ments for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
17. Thus, in the absence of any proof as to the affixation of the alleged stickers plastic poster by or at the behest of the accused persons, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused persons being guilty for the offence of defacement of the public property within the meaning of Section 3 of DPDP Act.
18 In view of the aforesaid discussions, accused persons Yash, Mohd. Salamul and Robin are entitled to be acquitted and are hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
CONCLUSION
19. In view of the aforesaid discussions, accused Yash, Mohd. Salamul and Robin are hereby acquitted for the offence punishable U/Sec. 3 of the DPDP Act.
State Vs.Yash & Ors.
FIR No. 109/2020PS Naraina 13
20. Previous Bail bonds and supardarinama, if any, are cancelled. Sureties, if any, are discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
21. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused persons today. Considered. Accepted. The same shall remain in force for a period of six months from today.
File be consigned to Record Room after due compliance.
Announced in the open Court Digitally signed
by Snigdha
on 23.01.2023 Snigdha Sarvaria
Sarvaria Date:
2023.01.23
16:32:17
(Snigdha Sarvaria ) +0530
CMM/NDD/PHC
New Delhi/23.01.2023
State Vs.Yash & Ors.
FIR No. 109/2020
PS Naraina