Delhi District Court
State vs Krishan Kant Aggarwal on 22 August, 2025
IN THE COURT OF MS. SAMIKSHA GUPTA,
CHIEF JUDICIAL MAGISTRATE, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
In the matter of :
State Vs. Krishan Kant Aggarwal
FIR No. 250/2023
PS - Dwarka Sector-23
CNR No. DLSW02-060652-2023
1. Serial No. of case 13175/2023
2. Date of institution 28.11.2023
3. Name of the complainant HC Naveen
4. Date of commission of offence 19.08.2023
5. Name of accused Krishan Kant Aggarwal
S/o Late Sh. Ram Avatar
Aggarwal
R/o RZ-121, Gali No. 2, Sadh
Nagar, Palam Colony, Palam
Village, New Delhi
6. Offence complained of U/s 3 of Delhi Prevention of
Defacement of Property Act.
7. Plea of accused Not guilty
8. Final order Acquitted
9 Date of judgment 22.08.2025
FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 1 of 11
JUDGMENT
1. It is the case of prosecution that on 19.08.2023 at around 10.30 am at electric pole near Mother Dairy Booth, Village Amberhai, Sector-19, Dwarka, accused had advertised one hoarding bearing contents " Phone no. 9871156611......... K. K. Jewellers..... New Delhi-110045" 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 Witness Nature of Evidence
1. HC Naveen IO FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 2 of 11
4. Prosecution has relied upon the following documents:
S. No. Exhibits Documents
1. Ex.PW1/A Tehrir / rukka
2. Ex.PW 1/B Site plan
3. Ex.PW1/C Seizure memo of banner
4. Ex. PW1/D Notice under Sec. 41A Cr.PC
5. Ex. PW1/E Disclosure statement of accused
6. Ex. PW1/F Pabandinama
7. Ex. PX1 Photograph of banner
8. Ex.A-1 (Colly) FIR along with certificate under Sec.
65-B of Indian Evidence Act
5. Statement of accused under Section 281 Cr.PC was recorded wherein he stated that he had been falsely implicated in the present case. He did not lead any evidence in defence.
6. The evidence of prosecution witnesses in the present case is discussed hereunder:
6.1 PW-1 HC Naveen has deposed that on 19.08.2023, he was on patrolling duty along with Ct. Govind and when they reached near Mother Dairy Booth,Village Amberhai, Sector-19, Dwarka, they found that one banner bearing contents " Phone No. 9871156611, FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 3 of 11 9354030130 ........ K. K. Jewelers ...... New Delhi-110045" was affixed on electricity pole. The said banner was found to be defacing public property. He clicked the photograph of the said banner and took out the banner from the said electricity pole. He seized the said banner vide seizure memo, prepared tehrir and got registered the present FIR through Ct. Govind. After registration of FIR, he prepared site plan, served notice under Sec. 41A Cr.PC upon accused, recorded his disclosure statement and released him on furnishing pabandinama. He correctly identified accused present in Court. (Identity of case property was not disputed).
During cross-examination, he stated that he did not see who had affixed the banner on electricity pole and the banner was not recovered from accused. He stated the spot was a public place but he did not make any independent witness in the present case. He stated the he did not do any videography of the removal proceedings. He denied the suggestion that accused was falsely implicated in the present case and the case property was planted upon him.
7. Analysis & Findings:-
(a) Arguments heard. Record perused. (b) It is argued on behalf of accused that the banner was not put up FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 4 of 11
by him. It was also contended that accused was not seen by anyone while pasting the banner 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;
(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) Whether affixation of the banner amounts to defacement has been considered by way of several judicial precedents. Section 2(a) of DPDP Act defines 'defacement' as:
"defacement" includes 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.
FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 5 of 11 In the present case, admittedly, there is no allegation that the accused had defaced any public property with ink, chalk, paint or any other material. The only allegation is that he had pasted/affixed a banner on public property. Thus, the basic ingredient as to 'defacement' is not made out in the present case. Reliance in this regard is placed on the judgments of HDFC Bank Ltd. Vs. The State & Anr. of (Delhi High Court dated 08.08.2024) and T.S. Marwah & Ors. Vs. State : 2008 (4) JCC 2561.
(e) Even otherwise, there are several loopholes in the prosecution version and it is important to ascertain whether or not the banner in question was affixed by the accused on electric pole.
(f) At the outset, there is no eye-witness to the pasting of the disputed banner either from public or police. Not only that, there is no public person to witness the procedure of removal of the said banner board from the electric pole.
(g) Additionally, the banner 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 FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 6 of 11 same or 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 efforts have been made, particularly FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 7 of 11 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 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 FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 8 of 11 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 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 banner was removed from a public FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 9 of 11 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) 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 photograph of the spot was taken by the IO. No certificate u/s 65-B of Indian Evidence Act was placed in support of the photograph to prove the same. Further, the cell phone/device remained in possession of the IO throughout without any seal, under such circumstances, veracity of its contents comes under a cloud.
(j) Moreover, the seizure memo of the flex board Ex. PW1/C 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 Naveen 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.
FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 10 of 11
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 Krishan Kant Aggarwal S/o Late Sh. Ram Avatar Aggarwal is acquitted of the offence made punishable under Section 3, DPDP Act in the present case.
Pronounced in open Court on 22nd August, 2025 (SAMIKSHA GUPTA) Chief Judicial Magistrate, South West District Dwarka Courts: Delhi FIR No. 250/23 PS - Dwarka Sector-23 U/s 3 DPDP Act Page- 11 of 11