Delhi District Court
State vs . Virender Pal Sharma on 6 January, 2022
IN THE COURT OF SH. ARUN KUMAR GARG
CHIEF METROPOLITAN MAGISTRATE
(NORTH-EAST), KARKARDOOMA COURTS, DELHI
IN THE MATTER OF :
CNR No. DLNE02-002343-2015
State Vs. Virender Pal Sharma
FIR No. 62/2015 PS Bhajanpura
U/s 3 of The Delhi Prevention of Defacement of Property Act, 2007
Cr. Case No. 465774/2015
Date of Institution : 17.03.2015
Date of reserving the judgment : 18.12.2021
Date of pronouncement of judgment : 06.01.2022
JUDGMENT
1. Serial No. of the case : 465774/2015
2. Name of the Complainant : HC Sandeep Kumar, No.
1349/ NE, PIS No.
28031462, PS Bhajanpura
3. Date of commission of offence : 17.01.2015
4. Name of accused person : Virender Pal Sharma S/o.
Sh. Deep Chand, R/o.
H.No. C-44/18, Gali No.
11, C-Block, Gamri Extn.,
Bhajanpura, Delhi
5. Offence charged : U/s. 3 of The Delhi
Prevention of Defacement
of Property Act, 2007
6. Plea of accused : Not guilty
7. Final Order : Acquitted
BRIEF REASONS FOR ORDER:
1. The accused in present case has been sent for trial for the offence under Section 3 of the Delhi Prevention of Defacement of State Vs. Virender Pal Sharma ARUN Digitally signed by FIR No. 62/2015 PS Bhajanpura ARUN KUMAR GARG Judgment dated 06.01.2022 KUMAR Date: 2022.01.06 Page No. 1 of 10 GARG 14:42:08 +05'30' Property Act, 2007 (herein after referred to as the DPDP Act). Brief facts of the case as per chargesheet are that on 17.01.2015, HC Sandeep from PS Bhajanpura was on duty and at about 08.10am, he found one banner board (hoarding board) of the size 3 feet x 2 feet, hanging on the telephone pole at the corner outside main gate of PS Bhajanpura with the writing "Janta Janti hai ki Kejriwal ka mahajhooth, dilli ko kabhi bijli pani free nahi diya" and name of the nivedak as Virender Pal Sharma. Thereafter, IO had taken photographs of the above said board with his mobile number and had seized the same and since, as per the IO, accused has defaced the government property i.e. the telephone pole by hanging the said banner board, he has committed the offence in terms of Section 3 of the DPDP Act.
2. After conclusion of the investigation, chargesheet was filed by IO against the present accused and the cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court vide order dated 03.06.2015 and after compliance with the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of DPDP Act in terms of Section 251 Cr.P.C was served upon the accused on 16.02.2019, to which the accused had pleaded not guilty and claimed trial.
3. The prosecution has thereafter examined two witnesses in State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura Judgment dated 06.01.2022 ARUN Digitally signed by Page No. 2 of 10 ARUN KUMAR GARG KUMAR Date: 2022.01.06 GARG 14:42:22 +05'30' support of its case. Duty Officer ASI Murari Lal, was examined as PW-1, who has proved the copy of FIR as Ex.PW-1/A and endorsement made by him on the rukka as Ex.PW-1/B. Complainant/IO, HC Sandeep, has been examined by prosecution as PW-2, who proved the seizure memo in respect of board as Ex.PW-2/ A, the Rukka Ex. PW-2/B and Arrest Memo of the accused as Ex.PW- 2/C. He has identified the accused as well as case property Mark A-1 and photograph of the board as Ex. P-1.
4. PW-1 was not cross-examined by the accused despite opportunity, whereas, PW-2 was duly cross-examined by Ld. Counsel for accused at length. Name of PW Harish Sharma s/o of accused who was a witness to the arrest of the accused, has thereafter been dropped from the list of prosecution witnesses by Ld. APP for State and on the submissions of Ld. APP for the State, PE was closed vide order dated 17.11.2021.
5. Statement of accused under Section 313 Cr.P.C was thereafter recorded on 10.12.2021, after putting entire incriminating evidence against him. The accused has denied all allegations against him and stated that he has been falsely implicated in the present case as he had failed to meet the demand of complainant/IO of Rs. 5,000/-. Accused chose not to lead any evidence in his defence and hence, final State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by ARUN KUMAR GARG Judgment dated 06.01.2022 KUMAR Date: 2022.01.06 Page No. 3 of 10 GARG 14:42:33 +05'30' arguments were heard on behalf of both the parties on 18.12.2021.
6. It is submitted by Ld. APP for State that the prosecution has been able to prove its case against the accused beyond reasonable doubts on the basis of uncontroverted testimonies of PW-1 and PW-2. He submits that mere non-prosecution of the others, who had installed the other boards on the same pole, can not be a ground for acquittal of the accused. He has thus prayed for conviction of the accused for the offence u/s 3 of the DPDP Act, 2007.
7. On the other hand, it is submitted by behalf of counsel for accused that the prosecution has failed to prove the case against accused beyond reasonable doubts. He submits that it is beyond imagination of a reasonable man that the complainant/IO single handedly would have completed the entire investigation from bringing the ladder to taking down the board and subsequent arrest of the accused. He submits that admittedly there were four boards installed on the pole in question and names and photographs of several persons including of the Hon'ble Prime Minister and Home Minister were there on the board in question, however, the IO has admittedly not lodged any FIR against the remaining persons. He further submits that the testimony of the IO regarding the place of arrest of the accused and how he has pinned down at the name of State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by ARUN KUMAR Judgment dated 06.01.2022 KUMAR GARG Page No. 4 of 10 Date: 2022.01.06 GARG 14:42:43 +05'30' accused as the person responsible for installation of the board in question is contradictory.
8. It is further submitted by him that the alleged printer of the board from whom the IO had allegedly come to know about the name of accused as the person, who had got the board printed, has not been cited as a witness and the IO did not divulge his details either in the chargesheet or in his evidence. He submits that IO has admittedly not carried out a fair investigation to find out the person responsible for alleged defacement, which probablizes the defence of accused that he had demanded a bribe of Rs. 5,000/- from the accused after calling him in the police station and when the accused did not pay the said amount, he has falsely implicated the accused in the present case. Besides, according to him, the alleged act of hanging of board in question does not fall within the definition of defacement within the meaning of Section 3 of the DPDP Act. In support of his aforesaid submission, Ld. Counsel for accused has relied upon the judgment of Hon'ble Delhi High Court in T.S.Marwah & Ors. v. State 2008(4) JCC 2561 (Del). Ld. Counsel for accused has thus prayed for acquittal of the accused from the aforesaid charge.
9. I have heard the submissions on behalf of both the parties and have also carefully perused the material available on record.
State Vs. Virender Pal Sharma
FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by
ARUN KUMAR GARG
Judgment dated 06.01.2022
KUMAR Date: 2022.01.06
Page No. 5 of 10
GARG 14:42:53 +05'30'
10. 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.
11. 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) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
12. 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 State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by ARUN KUMAR Judgment dated 06.01.2022 KUMAR GARG Page No. 6 of 10 Date: 2022.01.06 GARG 14:43:04 +05'30' 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.
13. 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.
14. So far as the plea of counsel for accused regarding PW-1 doing the entire investigation from making the complaint to filing of chargesheet, single handedly, without joining any public witness is concerned, in my considered opinion, the same by itself is not sufficient to throw away the entire case of the prosecution and the aforesaid fact merely casts an additional duty on the court to be more vigilant while scrutinizing the testimony of PW-1.
15. In the case in hand, there are no allegations in the entire chargesheet that the banner board/hoarding Mark A-1 had been installed at the pole for the benefit of the accused and that is the State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by ARUN KUMAR GARG Judgment dated 06.01.2022 KUMAR Date: 2022.01.06 Page No. 7 of 10 GARG 14:43:15 +05'30' reason no notice for the offence under Section 3 (2) of DPDP Act was served upon the accused.
16. The only allegation against the accused, as per chargesheet, is that the banner board had been installed on the pole with the name of accused mentioned as "Nivedak" and hence, the accused has committed offence under Section 3 of DPDP Act. As has been alleged by Ld. Counsel for accused, there is not even an iota of evidence led by the prosecution to prove that the banner board/hoarding Mark A-1 was either installed by the accused herein or that the same was installed on his instructions.
17. In fact, the IO has failed to point out in the chargesheet as to how he had pinned down at the name of accused as the installer of the Board Mark-A1. The only allegation against the accused which can be inferred from the chargesheet is that the name of accused was written as "Nivedak" on the said board and the person who had removed the board from the pole has informed the IO about the address of accused. However, during his cross-examination, IO has deposed that he himself had taken down the board in question from the pole.
18. Although, during his cross-examination, Io had tried to improve upon the story by alleging that the mobile number of the printer was written on the said board and upon inquiry by him from the said Digitally signed by State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN KUMAR ARUN KUMAR GARG Judgment dated 06.01.2022 GARG Date: 2022.01.06 14:43:28 +05'30' Page No. 8 of 10 mobile phone, IO came to know that the board was printed at the instance of accused, however, admittedly, he had not carried out any investigation qua the details of subscriber of the said mobile number. In fact, IO has admittedly not even visited the office of the alleged printer, nor has he inquired about his name, much less, the said printer has been cited as a witness by the IO.
19. Under the aforesaid circumstances, the entire testimony of the complainant/IO on the aspect of identity of the accused as the person responsible for printing or for that matter hanging of the board in question on the pole is a hearse piece of evidence and hence, is inadmissible in evidence. As has already been noted hereinabove, prosecution has failed to lead any other evidence to establish the identity of accused as the person responsible for printing or for that matter hanging of the board in question on the pole.
20. Thus, in the absence of any proof as to the installation of the alleged banner board by or at the behest of the accused, much less, the proof beyond reasonable doubts 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.
21. In view of the aforesaid finding, the question as to whether the act of hanging of banner board in question falls within the purview of State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura ARUN Digitally signed by ARUN KUMAR Judgment dated 06.01.2022 KUMAR GARG Page No. 9 of 10 Date: 2022.01.06 GARG 14:43:40 +05'30' Section 3 of DPDP Act, 2007 or not, has become academic and hence not required to be dealt with at this stage. However, it may be noted that the issue before Hon'ble Delhi High Court in T.S.Marwah & Ors. v. State 2008(4) JCC 2561 (Del) i.e. the judgment relied upon by Ld. Counsel for the accused was regarding the interpretation of provisions of West Bengal Prevention of Defacement of Property Act, 1976 as applicable to Delhi during the relevant period and not with the provisions of DPDP Act, 2007. Although Section 3 of both the Acts are in pari materia, however, definitions of term "writing" in the two Acts are entirely different, in as much as, in the DPDP Act "writing" inter-alia includes printing and painting, whereas, it was not so in West Bengal Act.
22. In view of the aforesaid discussions, accused is entitled to be acquitted and is hereby acquitted of the charge u/s 3 of the DPDP Act.
23. Bail Bonds in terms of Section 437-A Cr.P.C. have already been furnished by the accused on 05.01.2022 and the same shall remain in force for a period of six months from today.
24. Ordered accordingly. ARUN Digitally signed by ARUN Pronounced through VC on this 6th day of January 2022. KUMAR KUMAR GARG This judgment consists of 10 digitally signed pages. Date: 2022.01.06 GARG 14:43:52 +05'30' (ARUN KUMAR GARG) Chief Metropolitan Magistrate North East, Karkardooma Courts: Delhi State Vs. Virender Pal Sharma FIR No. 62/2015 PS Bhajanpura Judgment dated 06.01.2022 Page No. 10 of 10