Delhi District Court
State vs . Abhishek Dutt Date: on 31 October, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 148/15 Digitally signed
PS : Kotla Mubarakpur by MANISH
U/s : 3 DPDP Act KHURANA
MANISH
State Vs. Abhishek Dutt Date:
KHURANA 2018.11.01
11:02:52
Unique ID No. : 171/2018 +0530
Date of institution of case : 08.01.2018
Date of reserving the judgment : 22.10.2018
Date of pronouncement of judgment : 31.10.2018
J U D G M E N T
1. S. No. of the Case : 10/05/18
2. Date of Commission of Offence : 04.02.2015
3. Name of the complainant : SI Sanjay Kumar,
No. 1766/SD,
PS Kotla Mubarakpur,
New Delhi.
4. Name,parentage & address of accused : Abhishek Dutt
S/o Sh. K K Dutt,
R/o G35, Jangpura
Extension, New Delhi.
5. Offence complained of : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 04.02.2015 at 12.15 pm on the walls of Government Quarters at Sewa Nagar MBlock, Kotla Mubarakpur, Delhi within the jurisdiction of PS Kotla Mubarakpur, which is a public FIR No. 148/15 State Vs. Abhishek Dutt 1/9 property and in public view, various posters mentioning the name of accused and mobile number, were found pasted, which were affixed by the accused or at his behest on the said public property and in public view, which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused Abhishek Dutt for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused for the offence punishable u/s 3 D.P.D.P Act to which the accused pleaded not guilty and claimed trial. Vide statement recorded u/s 294 Cr.PC accused admitted the factum of registration of present FIR as Ex.A1, endorsement made by duty officer on the rukka as Ex.A2, certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3 and DD No. 11 dated 04.02.2015 as Ex.A4.
3. In order to prove its case, prosecution examined four witnesses.
4. PW1 ASI Krishan deposed that on 04.02.2015, he was posted as HC at PS Kotla Mubarakpur and on that day, he alongwith SI Sanjay Kumar was on emergency duty and after receiving DD No. 11A dated 04.02.2015, he alongwith SI Sanjay Kumar went to the MBlock, Sewa Nagar, New Delhi where they met Sh. Ramesh Kumar, Executive Magistrate who was on area patrolling AC42 alongwith his team. He further stated that on the wall of government quarters Sewa Nagar many posters were pasted and Sh. Ramesh Kumar, Executive Magistrate handed over IO a hand written complaint alongwith one poster and one Form Annexure57 Format for receipt to be given to persons from whom cash/articles is seized. He further stated that IO SI Sanjay prepared rukka and sent him for registration of FIR. He went to PS and got the FIR registered and FIR No. 148/15 State Vs. Abhishek Dutt 2/9 came back to the spot. He further stated that meanwhile 2 nd IO ASI Janardhan reached at spot to whom he handed over copy of FIR and original endorsed rukka and 2nd IO ASI Janardhan prepared site plan and 2Nd IO ASI Janardhan recorded his statement to the abovesaid effect u/s 161 Cr.PC and thereafter, he was relieved from the spot. During cross examination by Ld defence counsel he stated that he reached the spot at about 12.30 pm and there were many people in the team of the Executive Magistrate, however, he could tell their number. He further stated that the poster was removed in his presence, however, he could not tell as to who had removed that poster from the spot. He further stated that the complaint was not written in his presence as it was already written when he reached there. He further stated that he remained at the spot for about 1 hour and returned with the rukka at about 1.30 pm. He further stated that his statement was recorded at the spot. He did not remember the time when his statement was recorded. He further stated that no photographs of the posters or the spot were taken by the IO in his presence. He further stated that other posters were torn from the spot and only one poster was seized. He further stated that the site plan was prepared in his presence. He admitted that he had not signed the said site plan as a witness. He denied that he never joined the investigation. He admitted that he had not seen anybody affixing the said poster and he could not say as to who affixed the said poster at the spot. He did not see accused affixing the said poster on the spot. He did not know that the accused had not connection with the area politically or that it was a part of his constituency. He denied that the said poster was planted upon the accused to implicate him or that is why IO did not join any public person in the investigation. He denied that accused was nowhere connected with the said poster or that he was falsely implicated. He denied that he was FIR No. 148/15 State Vs. Abhishek Dutt 3/9 deposing falsely.
5. PW2 SI Sanjay Kumar deposed that on 04.02.2015 he was posted as SI PS KM Pur and on that day he received DD No. 11A in PS KM Pur and he alongwith HC Karshan reached at M Block, Sewa Nagar, K M Pur, New Delhi where they met Executive Magistrate Sh. Ramesh Chandra alongwith his team and he handed over a written complaint to him and showed him poster pasted on the wall of government quarters of MBlock, Sewa Nagar, KM Pur, Delhi on which words "Abhishek Dutt Nigam Parshad Andrewj Ganj xxxxxxxx etc" were written which was of a dimension of about 2 ½ feet. He further stated that thereafter, he endorsed the complaint and prepared rukka Ex.PW2/A and got FIR registered through HC Karshan and after registration of FIR, investigation was marked to ASI Janardhan who reached spot and prepared site plan on his instance. He further deposed that except complaint which he endorsed, nothing was handed over to him by Executive Magistrate Sh. Ramesh Chandra. Ld APP for the State sought permission of the Court to cross examine this witness and during cross examination by Ld APP for the State he denied that Executive Magistrate also handed over format for receipt to be given to persons from whom cash/articles were seized annexure57 alongwith seized poster. He also denied that he handed over the said poster alongwith abovementioned format to ASI Janardhan. During cross examination by Ld defence counsel he stated that he was present at the police station when he received the phone call regarding DD No. 11A. He did not make any departure entry in the police station on 04.02.2015 regarding leaving the police station for the spot and he reached at the spot at about 12.40 pm. He admitted that the spot was surrounded by residential area and number of public persons were present there. He stated that public FIR No. 148/15 State Vs. Abhishek Dutt 4/9 persons were not asked to join the investigation. He stated that he did not get videography of the spot of incident done where the alleged posters were pasted. He further stated that no poster was being removed by the Executive Magistrate in his presence. He admitted that no photograph of the alleged poster was exposed by him or the Executive Magistrate and that he did not seize the alleged poster in this case. He admitted that in the site plan PW2/D1 he did not mention the place where the executive team was standing at the spot. He admitted that his position was also not depicted in the site plan Ex.PW2/DA. He did not know as to whether the Sewa Nagar was under the constituency represented by the accused as Councilor. He further stated that he had not inquired any person or the inhabitants of the government quarters where the alleged posters were pasted. He denied that he did not visit the spot of incident or that no such complaint made by Executive Magistrate was received by him or that alleged posters were planted upon accused or that he mechanically prepared rukka. He denied that he was deposing falsely.
6. PW3 ASI Mahavir Singh deposed that he received the case file of present case on 29.10.2017 from MHC(R) and he issued notice u/s 41.1 Cr.PC Ex.PW3/A upon the accused. During his cross examination he stated that he did not carry any further investigation. He could not tell as to who affixed the poster in question. He denied that he was deposing falsely.
7. PW4 ASI Janardhan Singh deposed that on 04.02.2015 after registration of FIR, the present case file was marked to him and he reached the spot at M Block, Sewa Nagar, KM Pur, Delhi and met SI Sanjay Kumar and SI Sanjay briefed him regarding present case and he inspected the spot and also prepared site plan Ex.PW2/DA and he recorded statement of witnesses. During his cross examination he stated FIR No. 148/15 State Vs. Abhishek Dutt 5/9 that he reached at the spot at around 2.30 pm. He stated that he was handed over the FIR at the PS before proceeding to the spot. He further stated that he did not remove the poster from the spot. He further stated that he was shown the location where the poster was pasted. He did not take any photograph of the location where the poster was pasted. He further stated that before he reached the spot, the poster in question was already removed. He further stated that he could not come across any witness who might have seen any person pasting the poster at the spot. He further stated that he did not take signatures of any witness on the site plan and he did not record the statement of accused at any point of time or interrogated him. He stated that the location where the alleged poster was pasted was a government flat. He did not inquire the occupant of the said government flat and he stated that it was locked. He did not inquire the concerned officials of CPWD under whose control the flats of Sewa Nagar were situated. He denied that he never visited the spot or did not conduct any proceedings in the present case. He did not receive or deposit the case property in the present case as it was done by SI Sanjay. He did not know as to whether accused Abhishek Dutt was candidate of Delhi Assembly Election at the relevant time or not. He denied that the accused was falsely implicated in the present case or that he was deposing falsely.
8. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
9. I have heard the Ld Addl. PP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
FIR No. 148/15 State Vs. Abhishek Dutt 6/9
10. Allegation against the accused are that on 04.02.2015 at 12.15 pm on the walls of Government Quarters at Sewa Nagar MBlock, Kotla Mubarakpur, Delhi, which is a public property and in public view, various posters mentioning the name of accused and mobile number, were found pasted, which were affixed by the accused or at his behest and by the said act accused committed the offence punishable u/s 3 DPDP Act.
11. Section 3(1) of the Act provides that whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purposes of indicating the name and address of the owner or occupier of such property, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to 50,000 rupees or with both. Defacement has been defined by Section 2 (a) of the Act as including 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.
Writing has been defined by Section 2 (d) of the Act which says that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. Property has been defined by Section 2 (c) of the Act which says that it includes any building, hut, structure, wall, tree, fence, post, pole or any other erection.
12. PW2 SI Sanjay who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any illwill or bias against the accused. The mindset of the complainant ordinarily is holding a grievance against somebody whereas the mandate of the investigating officer is to ascertain the truth. Therefore, in order to allay any fear of bias or illwill, it is in the fitness of FIR No. 148/15 State Vs. Abhishek Dutt 7/9 things that the complainant and the IO should not be the same person which is not the case before the court.
13. Further, PW1 as well as PW2 stated that they were on emergency duty on the said day but could not tell the number of departure and arrival entry to primafacie show that they were on emergency duty or visited the spot on the said day which is a crucial aspect left by the police. PW2 admitted during his cross examination that no DD entry was made by him at the time of leaving the PS for the spot. PW1 and PW2 being present at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing link in the prosecution case. Therefore, the testimony of PW1 and PW2 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
14. Further, in the case in hand, PWs examined by prosecution deposed that they did not remove the poster from the spot nor the photographs of the spot were taken in their presence. PW2 SI Sanjay stated that the alleged poster and a written complaint was handed over to him by Executive Magistrate Ramesh Chandra who could not be examined by the prosecution. However, during his cross examination PW2 SI Sanjay deposed that no poster was removed by Ramesh Chandra in his presence. The aforesaid facts which came to light during evidence creates substantial doubt over the case of the prosecution. Further, during their cross examination PW1 ASI Krishan, PW2/first IO SI Sanjay as well as PW4/2nd IO ASI Janardhan admitted that no photograph was taken at the spot.
15. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot i.e government quarters at Sewa Nagar, Delhi is a residential area. PW2/first IO and PW4/2nd IO during their cross examination stated that they did not join any public FIR No. 148/15 State Vs. Abhishek Dutt 8/9 witness into investigation of the present case and they also did not come across any person who might have seen anyone affixing the poster at the spot. It was within the reach of the IOs to examine the independent witness to primafacie satisfy that the poster was pasted on the wall of government quarters. No evidence has been brought on record to prove that the alleged poster was affixed by the accused or with his authority.
16. It is pertinent to mention that the poster was allegedly pasted on the wall of government quarters at Sewa Nagar but PW4/2nd IO admitted during his cross examination that he did not inquire the concerned officials of said quarters or any inhabitant of said quarters about the posters. The PWs examined by the prosecution categorically stated that they had not seen anybody or the accused while affixing the said posters at the spot and they also stated that they could not say as to who affixed the said posters at the spot.
17. Further, it is pertinent to mention that Sh. Ramesh Chandra, the then Executive Magistrate, who was present at the spot on the day of incident and gave a hand written complaint, was not traceable during the trial and he could not be examined so as to prove his complaint against the accused.
18. Therefore, considering the facts and circumstances, I am of the opinion that prosecution has failed to prove the case against the accused beyond reasonable doubts.
19. Accordingly, accused Abhishek Dutt is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. Announced in the open court Today on 31.10.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/31.10.2018 FIR No. 148/15 State Vs. Abhishek Dutt 9/9