Delhi District Court
State vs . Dev Raj on 29 August, 2022
IN THE COURT OF MS. SNIGDHA SARVARIA : LD. CMM :
NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW
DELHI.
CC No.15930/2018
State Vs. Dev Raj
FIR No. 157/2017
U/s 3 DPDP Act
P.S. Vasant Kunj (South)
1. Sr. No. of the Case : 66/02
2. Date of institution of case : 16.04.2018
3. Date of Commission of Offence : 20.04.2017
4. Name of the complainant : HC Hawa Singh
5. Name, parentage & Address : Dev Raj
S/o Sh. Jagdish Singh,
R/o A-158, Road No.4,
Mahipalpur, New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act 6. Plea of Accused : Accused pleaded not guilty for offence U/Sec. 3 DPDP Act
7. Date of reserving the judgment : 29.08.2022
8. Date of pronouncement of judgment : 29.08.2022
9. Final Order : Acquitted THE BRIEF BACKGROUND & GENESIS OF FIR :
1. The present FIR was registered on the complaint that on 20.04.2017 at 12:30 p.m on the electricity pole in front of L-180, Salman Furniture Work Shop, within the jurisdiction of PS Vasant Kunj(South), one advertisement board mentioning the words "Chaudhary Devi Lal Amar Rahe" was found affixed which was affixed by accused Dev Raj and he committed an offence punishable U/Sec.3 of DPDP Act.
State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 1 of 10
2. After completion of investigation, charge-sheet was filed. Copy of charge-sheet was supplied to the accused and notice U/Sec.251 Cr.P.C. was served upon the accused on 30.10.2019 for offence punishable under section 3 DPDP Act to which accused has pleaded not guilty for the notice and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 03 witnesses.
4. PW-1 is HC Hawa Singh who deposed that he was posted as Head Constable in PS Vasant Kunj(South) and on that day, he alongwith Ct. naresh were on patrolling duty at L-Block, Mahipalpur, Old Rangpuri, Delhi. He deposed that during patrolling, they saw that one advertising board was affixed on an electric pole near the corner of the street No.13 on which words "Om Prakash Chautala Jindabad in yellow colour and Indian Ntional Lokdal in white colour was written. He deposed that thereafter he took the photographs of the said board from his mobile and removed the said board with the help of Ct. Naresh. He deposed that he prepared the seizure memo. He deposed that after that he prepared tehrir/rukka Ex.PW1/A and handed over the rukka /tehrir to Ct. Naresh Kumar and sent him to PS for registration of FIR. After registration of FIR, Ct. Naresh Kumar came back at the spot and handed over the copy of FIR and original rukka to PW-1. He deposed that he prepared the site plan Ex.PW1/B and after that the case property was taken to PS and deposited in Malkhana. He produced the photocopy of seizure memo which is Mark A. The original seizure memo is not on record. PW-1 had no explanation regarding the whereabouts of original Seizure memo.
State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 2 of 10 PW-1 deposed that on 09.05.2017 he served the notice U/Sec.160 Cr.P.C to the accused which is Ex.PW1/C bearing his signature at point A. He deposed that on 11.05.2017 he served the notice U/Sec.41A Cr.P.C to the accused which is Ex.PW1/D. The case property Ex.P-1 was correctly identified by PW-1. PW-1 also identified the photographs Ex.P-2 and Ex.P-3. In his cross-examination, PW-1 admitted that there is no Certificate U/Sec.65B Indian Evidence Act regarding the abovesaid photographs. He took the photographs from his Samsung phone. He stated that there is no public witness in the present case and that he has not mentioned the electric pole number in the FIR. PW-1 further stated that electric pole number is not shown in the photographs. He stated that there is residential area surrounding the spot. He stated that the original seizure memo is not on the case file and he has filed only the copy of the seizure memo. He further stated that there is no list of documents attached with the case file. PW-1 denied the suggestion that he did not give any information to the electric department and inquiry regarding the electric pole. He denied the suggestion that no board was affixed at the spot that is why there is no public witness. He denied the suggestion that he is deposing falsely.
5. PW-2 is Ct. Naresh Kumar who deposed that on 20.04.2017 he was posted as Constable at PS Vasant Kunj(South) and on that day, he was on patrolling duty alongwith Hawa Singh and while doing patrolling duty they reached at Old Rangpuri Road, L-180, Salman Furniture Workshop. He deposed that they saw that one board was affixed at electric pole tied with the wires on which "Choudhary Devi State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 3 of 10 Lal Amar Rahe and Indian National Lok Dal" was written. He deposed that IO/HC Hawa Singh took the photographs of the board from his mobile phone. They untied the wires and removed the board and the measurement of the board was 5 feet long and 3 feet wide. He further deposed that IO seized the abovesaid board and prepared the seizure memo. He deposed that IO prepared rukka and handed over the same to him for registration of FIR and sent him to PS for registration of the FIR and after registration of FIR, he came back at the spot and handed over the copy of FIR and rukka/tehrir to IO. He deposed that IO prepared the site plan at the spot. After that they came to PS and deposited the board at Malkhana.
PW-2 correctly identified the board as Ex.P-1. During cross-examination, PW-2 admitted that there is no public witness in the present case. PW-2 admitted that electric pole number is not shown in the photographs. He admitted that there is residential area surrounding the spot. PW-2 admitted that the original seizure memo is not on the case file. He stated that there is no list of documents attached with the case file. He denied the suggestion that no board was affixed at the spot that is why there was no any public witness. He further denied the suggestion that accused has been falsely implicated in the present case. He denied the suggestion that he is deposing falsely.
6. PW-3 is HC Sunil Kumar is the the MHC(M) in the present case. He produced the Register No.19 bearing the entry serial No.1054/17 of the present FIR and proved the said entry at serial No.1054/17 as Ex.PW3/A (OSR).
He deposed that on 20.04.2017, IO HC Hawa Singh handed State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 4 of 10 over him one board for depositing the same in Malkhana and as per the abovesaid entry, he deposited the board in the Malkhana.
7. Admission and denial of documents i.e. registration of FIR as Ex.A1, endorsement on rukka as Ex.A-2 and and Certificate U/Sec.65B Indian Evidence Act as Ex.A-3, wherein accused admitted the said documents.
8. STATEMENT OF ACCUSED PERSON UNDER SECTION 313 Cr.P.C Statement of accused Dev Raj was recorded in Court wherein all the incriminating facts emerged during evidence were put to him distinctly, separately and specifically. Accused stated that he is innocent and he did not affix any board on the electric pole.
DEFENCE EVIDENCE Accused chose not to lead any defence evidence.
9. EVALUATION OF THE PROSECUTION EVIDENCE Accused is charged for offence punishable under section 3 DPDP Act.
10. I have heard Ld. APP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
11. RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE 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) State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 5 of 10 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 pun- ishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thou- sand 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."
12. 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., State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 6 of 10 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 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 persons 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 person.
15. As has been alleged by Ld. Counsel for accused, the original seizure memo has not been brought on record, so seizure of case property i.e. advertisement board is doubtful.
16. In fact, the witnesses PW1, PW-2 & PW-3 have failed to point out as to how accused was pinned down as the installer of the Board in question in as much as, IO has neither recorded the statement of residents of the locality where the board in question was found affixed nor has he recorded the statement of the printer.
State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 7 of 10
17. None of the witnesses examined by the prosecution in its evidence have stated that they had seen the accused putting up the Board in question.
18. The prosecution has relied upon photograph of spot. The photograph was allegedly taken through an electronic device i.e. mobile phone. 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.
19. There is nothing on record to show that board in question was affixed on the electricity pole in front of L-180, Salman Furniture Work Shop, within the jurisdiction of PS Vasant Kunj(South).
20. Furthermore, no independent witness was joined in the investigation by the IO. PW1 and PW2 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 board in question was affixed on the spot.
21. The prosecution has also not proved the departure entry from PS State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 8 of 10 and return entry to the police station to show that PW-1 and PW-2 were on patrolling duty on 20.04.2017 to prove prosecution version.
22. 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 Deface- ment of Property Act, 1976. It is true Section 2 (aa) de- fines 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 to only such type of defacements for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
23. Thus, in the absence of any proof as to the installation of the alleged board by or at the behest of the accused, much less, the proof beyond reasonable doubt qua the said fact, there is no question of the accused being guilty for the offence of defacement of the property within the meaning of Section 3 of DPDP Act.
24. In view of the aforesaid discussions, accused Dev Raj is entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec.3 of the DPDP Act.
16. CONCLUSION
25. In view of the aforesaid discussions, accused Devraj is hereby acquitted for the offences punishable U/Sec. 3 of the DPDP Act.
26. Previous Bail bonds and supardarinama, if any, is cancelled. State v. Dev Raj FIR No. 157/2017 PS Vasant Kunj(South) Page 9 of 10 Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
27. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused today. Considered. Accepted. The same shall remain in force for a period of six months from today.
SNIGDHA SARVARIA
Digitally signed
Digitally signed by SNIGDHA SARVARIA
Date: 2022.08.30 16:20:30 +0530
Announced in the open court SNIGDHA by SNIGDHA
SARVARIA
on 29.08.2022 SARVARIA Date: 2022.08.30
16:20:47 +0530
(Snigdha Sarvaria )
CMM/NDD/Patiala House Courts
New Delhi/ 29.08.2022
State v. Dev Raj
FIR No. 157/2017
PS Vasant Kunj(South) Page 10 of 10