Delhi District Court
State vs Sanjay Sharma on 27 July, 2024
CNR NO. DLWT02-011920-2020
IN THE COURT OF MS. SONAM GUPTA
CHIEF JUDICIAL MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State Vs. Sanjay Sharma
FIR No. 89/2020
PS Paschim Vihar East
JUDGMENT
1. ID No. of case 6817/2020
2. Date of institution 03.11.2020
3. Name of the complainant ASI Rajbir Singh, PIS Number
28903022.
4. Date of commission of offence 08.02.2020
5. Name of accused Sanjay Sharma
S/o Subhash Chand Sharma
R/o M-103, Capital Green
DLF, Karampura, Delhi.
6. Offence complained of U/s 3 of Delhi Prevention of
Defacement of Property Act.
7. Plea of accused Pleaded not gulity
8. Date of reserving the judgment 27.07.2024 State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 1 of 11 CNR NO. DLWT02-011920-2020
9. Final order Acquitted 10 Date of such judgment 27.07.2024 BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE
1. It is alleged in the charge-sheet that on 08.02.2020 at about 8:45 am at Radha Krishan Mandir to Adarsh Apartment, A1 & A2 Block Road, Paschim Vihar, Delhi, the accused was found to have advertised/displayed advertisement banners/flex board having photographs of Arvind Kejriwal on the said flex board with detailed description as per seizure memo Mark 'X' and screen shot Mark 'Y' on the public property i.e. electricity pole and while doing so, he defaced public property. Hence, the accused was charge-sheeted under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (henceforth referred to as 'DPDP Act').
2. In compliance of Section 207 Cr.P.C, copy of the charge-sheet and the documents annexed therewith were supplied to accused and he was served with notice u/sec 3 of Delhi Prevention of Defacement of Property Act, 2007 (in short 'DPDP Act') to which he pleaded not guilty and claimed trial.
State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 2 of 11CNR NO. DLWT02-011920-2020
3. In order to substantiate its case, the prosecution examined following witness in favour of its case:-
3.1 PW-1 (complainant/IO of the present case) ASI Rajbir Singh deposed that on 08.02.2020 he alongwith HC Rajesh Kumar was on emergency duty in Paschim Vihar East and received DD No. 7A regarding affixation of flex board near Radha Krishan Mandir. He deposed that upon receiving the said information, they reached at the spot i.e. Radha Krishan Mandir, A1 Block, Paschim Vihar where they met complainant Pramod Sehrawat who told that due to Delhi Assembly Elections, some persons had affixed nine flex boards on electricity poles and thereafter, complainant went away from the spot.
3.2 PW-1 deposed that he alongwith HC Rajesh Kumar looked at the said flex boards, the electricity pole, being the public property, the said flex boards were damaging the public property and thereby, prima facie an offence U/s 3 DPDP Act was found to have been committed.
He deposed that he took the photographs of the said board and with the help of HC Rajesh Kumar, they brought down the said boards from the poles. The witness deposed that he seized the said flex boards vide seizure memo Ex. PW-1/A, prepared the tehrir as Ex. PW-1/B and got State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 3 of 11 CNR NO. DLWT02-011920-2020 the FIR registered through HC Rajesh Kumar. The witness deposed that he prepared the site plan as Ex. PW-1/C and thereafter, they returned back to PS, the case property was deposited in the malkhana and he recorded the statement of HC Rajesh Kumar.
3.3 PW-1 further deposed that on 25.02.2020, he alongwith ASI Prithvi Singh contacted on the mobile number as mentioned on the flex boards and one person namely Sanjay Sharma was identified to be the one who got the said flex boards prepared and affixed. He deposed that the accused was arrested vide memo Ex. PW-1/D. He deposed that accused also provided a copy of his registration as Mark PW1/E (Colly) with NDMC as Advertiser. PW-1 further deposed that as the offence was bailable in nature, accused was released on bail and he alongwith ASI Prithvi Singh returned back to PS. He further deposed that he had recorded statement of ASI Prithvi Singh and after completion of investigation, filed the charge-sheet.
During his testimony, the witness has correctly identified the accused and advertisement/flex board through photographs. He was duly cross-examined by the Ld. LAC for accused.
4. Statement of accused under section 294 Cr.P.C also recorded whereby he admitted the following documents without admitting the State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 4 of 11 CNR NO. DLWT02-011920-2020 contents of same :
- DD No. 7A as Ex. A-1; - Copy of FIR No. 89/2020 as Ex. A2 and - Certificate U/s 65-B of Indian Evidence Act as Ex. A-3.
5. Since the material witness of prosecution was examined, the prosecution evidence was directed to be closed.
6. Statement of the accused U/s 313 Cr.P.C. r/w 281 Cr.P.C was recorded wherein all the incriminating evidence was put to him for seeking his explanation. He stated that he was innocent and had been falsely implicated in the present case. The accused opted not to lead any defence evidence.
7. This Court has heard Ld. APP for the State and the Ld. LAC for accused and have carefully perused the case file in light of the submissions advanced by the respective sides.
State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 5 of 11CNR NO. DLWT02-011920-2020 Findings are as under :-
8. It is argued on behalf of accused that the advertisement banner/flex board was not put by him. It was argued that accused was not seen by anyone while affixing the flex board on the public property.
9. In order to establish its case, the prosecution was required to prove the following ingredients:-
(a) Any act had been committed amounting to 'defacement' as defined in S. 3 of DPDP Act
(b) Such defacement was of the 'public property' and
(c) The act in question had been committed by the accused
10. So far as the first and second ingredients are concerned, there is no doubt that banner/poster found affixed on the public property i.e. Government electric pole tantamounts to defacement of public property as defined u/sec 2 of DPDP Act.
11. Now, the question in consideration before this court is whether State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 6 of 11 CNR NO. DLWT02-011920-2020 or not the banner/flex board in question were affixed by the accused on the public property.
12. At the outset, there are no eye-witness to the pasting of the disputed poster/banner, either from public or police. Not only that, there is no public person to witness the procedure of removal of the said poster/banner from the public property.
13. 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 same or any public person who saw the police officials removing the same. Under these circumstances, there is absolute non compliance of Section 100 Sub Sec (4) Cr.P.C which specifically provides that whenever any search or seizure is effected 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. The word used in sub Sec (4) of Sec. 100 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 State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 7 of 11 CNR NO. DLWT02-011920-2020 from the same locality are either not available or they refuse to become witness. It appears that no sincere efforts were made by the IO to join independent witnesses from the same locality.
14. In case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC), Hon'ble 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 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".
15. In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, it was held as under:
State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 8 of 11CNR NO. DLWT02-011920-2020 "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 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 State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 9 of 11 CNR NO. DLWT02-011920-2020 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".
16. 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 poster/banner was removed from a public place, there was ample opportunity with the IO to join public persons in the proceedings but he did not do so. This fact puts the case of the prosecution under cloud of doubt.
17. 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.
18. In view of the aforesaid, as neither there are any eye witnesses to the commission of the offence nor the chain establishing the circumstances in which the alleged banner/board had been affixed at State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 10 of 11 CNR NO. DLWT02-011920-2020 the disputed site have been proved beyond reasonable doubt, Court is of the opinion that the accused is entitled to be acquitted for offence u/sec 3 of DPDP Act by granting him the benefit of doubt, hence, accused Sanjay Sharma is acquitted in this case.
Announced in the open court on 27.07.2024 SONAM Digitally signed by SONAM GUPTA GUPTA Date: 2024.07.29 17:03:24 +0530 (Sonam Gupta) Chief Judicial Magistrate, West District, Tis Hazari Courts, Delhi State Vs. Sanjay Sharma FIR No. 89/2020 PS Paschim Vihar East Page 11 of 11