Delhi District Court
State vs Pawan Kumar on 12 February, 2025
CNR NO.DLWT02-021412-2024
IN THE COURT OF MS. SAMIKSHA GUPTA,
CHIEF JUDICIAL MAGISTRATE, WEST DISTRICT, TIS HAZARI
COURTS, NEW DELHI
In the matter of :
STATE Vs. PAWAN KUMAR
FIR No. 169/2024
PS - (Hari Nagar)
1. ID No. of case 9439/2024
2. Date of institution 23.08.2024
3. Name of the complainant HC Vikas Kumar
4. Date of commission of offence 19.04.2024
5. Name of accused Pawan Kumar
S/o Nand Lal Kharbanda
R/o H. No. 1/226, Ground Floor,
Subhash Nagar, Delhi
6. Offence complained of U/s 3 of Delhi Prevention of
Defacement of Property Act.
7. Plea of accused Not gulity
8. Date of reserving the judgment 12.02.2025
9. Final order Acquitted.
10 Date of judgment 12.02.2025
CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 1 of 11
CNR NO.DLWT02-021412-2024
JUDGMENT
1. It is the case of prosecution that on 19.04.2024 at about 7.30 pm at wall grills of DDA Park in front of S.K. Premium Hotel, Hari Nagar, Delhi, accused Pawan Kumar had advertised one flex board / banner "Car Battery, Inverter Battery .........9625525110" on aforesaid grills and had defaced the said property. Thus, prosecution has set up a case under Section 3 of Delhi Prevention of Defacement of Property Act, 2007 ("DPDP Act", hereinafter) against him.
2. On the basis of investigation carried out by police, charge sheet was filed and copy of the same was supplied to accused. On the basis of charge sheet, notice for committing offence punishable under Section 3 of Delhi Prevention of Defacement of Property Act was served upon him to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined one witness, who is as under:
Sr.No Name of Prosecution Nature of Evidence Witness
1. HC Vikas Kumar Complainant / IO CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 2 of 11 CNR NO.DLWT02-021412-2024
4. Prosecution has relied upon the following documents:
S. no. Exhibits Documents
1. Ex.PW1/A Seizure memo
2. Ex.PW1/B Photographs
3. Ex.PW1/C Rukka / Tehrir
4. Ex.PW1/D Site plan
5. Ex. PW 1/E Arrest memo
6. Ex.A-1 DD No. 134A dated 18.04.2024
7. Ex.A-2 & A-3 Copy of FIR & Certificate
U/Sec.65B Indian Evidence Act
8. Ex.A-4 & A-5 DD No. 115A dated 29.05.2024
and Statement of HC Vijay Pal
dated 19.04.2024
5. Statement of accused under Section 313 Cr.PC was recorded wherein he stated that he had been falsely implicated in the present case.
6. The evidence of prosecution witnesses in the present case is discussed hereunder:
PW-1 HC Vikas Kumar has deposed that he was on patrolling duty along with HC Vijay Pal on 19.04.2024. When they reached in front of S. K. Premium Hotel at about 7.30 pm, they saw that a flex board was affixed CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 3 of 11 CNR NO.DLWT02-021412-2024 at grills of DDA Park and certain mobile numbers were mentioned on the said board / banner. He took photographs of the board and seized it vide seizure memo. This witness prepared tehrir and FIR was got registered through HC Vijay Pal. After registration of FIR, he prepared site plan, seizure memo and arrest memo of accused. He correctly identified the case property produced in court and accused present in court.
During cross-examination, he could not recall whether departure entry of the date of incident was recorded or not. No written notice was given to public persons, who refused to join the investigation. He denied the suggestion that accused has been falsely implicated.
7. Analysis & Findings:-
(a) Arguments heard. Record perused. (b) It is argued on behalf of accused that the board was not put up
by him. It was argued that accused was not seen by anyone while pasting the board on public property.
(c) To bring home the charge under Section 3 of Delhi Prevention of Defacement of Property Act, 2007 the prosecution is required to prove beyond reasonable doubt, the following components:-
(i) The accused has defaced (impairing/interfering with the appearance) a public property;
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(ii) Such property must be in public view;
(iii) Such defacement is by writing/marking with ink, chalk, paint or any other material; and
(iv) Such defacement is not for the purpose of indicating name/address of owner/occupier of the property in question.
(d) So far as the first and second ingredients are concerned, there is no doubt that board found affixed on the grill of park tantamounts to defacement of public property as defined under Section 2 of DPDP Act.
(e) Now, the question for consideration before this court is whether or not the board in question was affixed by the accused on the grill of park.
(f) At the outset, there is no eye-witness to the affixation of the disputed board either from public or police. Not only that, there is no public person to witness the procedure of removal of the said board from the wall of park.
(g) Additionally, the board is shown to have been recovered from a busy locality which is visited by several people. However, there is not a single public witness who saw the accused pasting the same or CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 5 of 11 CNR NO.DLWT02-021412-2024 any public person who saw the police officials removing the same. Under these circumstances, there is absolute non compliance of Section 100 (4) Cr. P.C which specifically provides that whenever any search or seizure is done by an investigating officer, the latter before making search or seizure shall join at least two independent respectable local inhabitants from the same locality in which search is to be effected.
(h) The word used in Section 100(4) Cr. P.C is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from other locality only when the witnesses from the same locality are either not available or they refuse to become witness. It appears that no sincere efforts were made to join independent witnesses from the same locality.
In case law reported as Anoop Joshi Vs. State 1992(2) C.C. Cases 314(HC), High Court of Delhi had observed as under:
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 6 of 11 CNR NO.DLWT02-021412-2024 efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court it was held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses form the public were available and they were CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 7 of 11 CNR NO.DLWT02-021412-2024 asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigating Agency 19.01.2013 should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 8 of 11 CNR NO.DLWT02-021412-2024 entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
The laxity on the part of the IO when he did not take sincere steps to join the public persons in the proceedings of the present case is beyond comprehension. The board was removed from a public place. There was ample opportunity for the IO to join public persons in the proceedings but he did not do so which casts doubt on the veracity of prosecution version.
(i) When the board in question was produced in court, the same was not sealed. The reason for the same is beyond comprehension.
CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 9 of 11 CNR NO.DLWT02-021412-2024 The board in question is crucial evidence of this case. IO was required to prepared a pullanda and to seal the board but no such act was done by the IO for the reasons best known to him. A board which could be prepared anywhere in any market was kept in the police station without seal for long. There was ample opportunity to tamper with the board which is the case property of this case. The benefit of this laxity on the part of IO should go to the accused.
(j) It is a settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The photographs of the spot as evident from Ex. PW-1/B `were taken from cell phone. It is not clear from evidence brought on record as to who had taken those pictures. No certificate u/s 65-B of Indian Evidence Act was placed in support of the photographs to prove them. No effort was made by prosecution to take cell phone in question in custody and ensure its safe custody to avoid tampering.
(k) Moreover, the seizure memo of the board Ex.PW1/A bears the FIR number while the same was prepared when the FIR was not even in existence. This is evident from the testimony of PW-1/HC Vikas CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 10 of 11 CNR NO.DLWT02-021412-2024 Kumar and the FIR itself. The fact that the FIR number is mentioned in the seizure memo reveals that the same was prepared after the registration of the FIR and the same is an ante-timed document. Accordingly, the seizure memo of the board which is the most crucial document of the present case has not been proved to be reliable.
8. In view of the aforesaid discussion, the case of the prosecution has several loopholes which go to the root of the matter. The prosecution has not been able to discharge the burden of proof beyond reasonable doubt. Accordingly, accused Pawan Kumar is acquitted of the offence made punishable under Section 3, DPDP Act in the present case.
Pronounced in open Court Digitally signed
by Samiksha
on 12th of February, 2025 Samiksha Gupta
Date:
Gupta 2025.02.12
16:10:36
+0530
(SAMIKSHA GUPTA)
Chief Judicial Magistrate, West District Tis Hazari Courts: Delhi 12.02.2025 CC No. 9439/2024 PS Hari Nagar U/s 3 DPDP Act Page- 11 of 11