Delhi District Court
State vs Sri Bhagwan on 4 March, 2025
DLWT02-004083-2024
IN THE COURT OF MS. SAMIKSHA GUPTA,
CHIEF JUDICIAL MAGISTRATE, WEST DISTRICT, TIS HAZARI
COURTS, NEW DELHI
In the matter of :
State Vs. Sri Bhagwan
FIR No.702/2023
PS - Nangloi
1. ID No. of case 3790/2024
2. Date of institution 27.02.2024
3. Name of the complainant HC Praveen Bhati
4. Date of commission of offence 31.08.2023
5. Name of accused Sri Bhagwan
S/o Sh. Ramchander
R/o H.No.B-13, Tyagi Vihar,
Nangloi, 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 04.03.2025
CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 1 of 11
Digitally signed by Samiksha
Samiksha Gupta Gupta
Date: 2025.03.04 16:05:46 +0530
DLWT02-004083-2024
JUDGMENT
1. It is the case of prosecution that on 31.08.2023 at around 11:35 AM, at electricity pole situated near Dharma Complex, Main Nangloi, Rohtak Road, accused had advertised one board "Jai Siya Ram Plastic Furniture", 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 Praveen Bhati IO CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 2 of 11 Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:03 +0530 DLWT02-004083-2024
4. Prosecution has relied upon the following documents:
S. no. Exhibits Documents
1. Ex.PW1/A Seizure memo
2. Ex.PW1/B (Colly) Photograph
3. Ex.PW1/C Rukka/Tehrir
4. Ex.PW1/D Site Plan
5. Ex.PW1/E Arrest Memo
6. Ex.A1 DD No.91A dated 31.08.2023
7. Ex.A2 and Ex.A3 Copy of FIR & Certificate U/Sec.65B
Indian Evidence Act
8. Ex.A4 Statement of Ct. Anuj Kumar under
Section 161 Cr.P.C.
5. Statement of accused under Section 313 Cr.PC was recorded wherein he stated that he had been falsely implicated in the present case. He did not examine any witness in defence.
6. The evidence of prosecution witnesses in the present case is discussed hereunder:
6.1 PW-1 HC Praveen Bhati has deposed that he was on patrol duty along with Ct. Anuj on 31.08.2023. When they reached near Dharma CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Samiksha Page- 3 of 11 Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:10 +0530 DLWT02-004083-2024 Complex, Main Nangloi, Rohtak Road, Nangloi, they found that one flex board bearing contents "Jai Siya Ram Plastic Furniture" was affixed on electricity pole and one mobile number was mentioned on the said flex board. He took photographs of the board from his mobile phone and seized it. This witness prepared tehrir and FIR was got registered through Ct. Anuj. After registration of FIR, he prepared site plan, arrest memo and recorded statement of Ct. Anuj. He correctly identified the case property produced in court and accused present in court.
During cross-examination, he could not remember the DD number vide which he along with Ct. Anuj had left the PS for patrolling. Public persons were not examined as witnesses. He denied the suggestion that all the proceedings were conducted by him while sitting at PS. He denied the suggestion that the flex board has been planted upon the accused.
7. Analysis & Findings:-
(a) Arguments heard. Record perused.
(b) It is argued on behalf of accused that the board was not put up
Digitally signed by Samiksha Gupta
Samiksha Gupta Date: 2025.03.04 16:06:15 +0530
by him. It was argued that accused was not seen by anyone while pasting the board on public property.
CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 4 of 11 DLWT02-004083-2024
(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) So far as the first and second ingredients are concerned, there is no doubt that board found affixed on the electricity pole 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 electricity pole. Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:21 +0530
(f) At the outset, there is no eye-witness to the pasting of the disputed board either from public or police. Not only that, there is no CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 5 of 11 DLWT02-004083-2024 public person to witness the procedure of removal of the said board from the electricity pole.
(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 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. Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:28 CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 6 of 11 +0530 DLWT02-004083-2024 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 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: Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:34 +0530 CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 7 of 11 DLWT02-004083-2024 "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 Digitally signed by Samiksha Samiksha Gupta Gupta doubt on the prosecution case. In the present case also Date: 2025.03.04 16:06:39 +0530 admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 8 of 11 DLWT02-004083-2024 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". Samiksha Digitally signed by Samiksha Gupta Gupta Date: 2025.03.04 16:06:45 +0530 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 CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 9 of 11 DLWT02-004083-2024 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. 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 were taken by the IO by his private cell phone. No certificate u/s 65-B of Indian Evidence Act was placed in support of the photographs to Digitally signed by Samiksha Samiksha Gupta Gupta prove them. Further, the cell phone remained in possession of the IO Date: 2025.03.04 16:06:50 +0530 throughout without any seal, under such circumstances, veracity of its CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 10 of 11 DLWT02-004083-2024 contents comes under a cloud.
(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 Praveen Bhati 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, seizure memo of 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 Sri Bhagwan S/o Sh. Ramchander is acquitted of the offence made punishable under Section 3, DPDP Act in the present case.
Pronounced in open Court
on 04th March, 2025
Samiksha Digitally signed by
Samiksha Gupta
(SAMIKSHA Gupta
GUPTA) Date: 2025.03.04
16:06:55 +0530
Chief Judicial Magistrate, West District Tis Hazari Courts: Delhi CC No.3790/2024 PS - Nangloi U/s 3 DPDP Act Page- 11 of 11