Delhi District Court
State vs . Praveen Gupta on 3 September, 2022
CNR NO. DLWT02-005033-2020
IN THE COURT OF MS. KAPIL KUMAR
CHIEF METROPOLITAN MAGISTRATE (WEST)
TIS HAZARI COURTS, DELHI
In the matter of :
State Vs. Praveen Gupta
FIR No. 113/2020
P.S Punjabi Bagh
JUDGMENT
1. ID No. of case 2765/2020
2. Date of institution 10.07.2020
3. Name of the complainant HC Pankaj Kumar No. 507/W
4. Date of commission of offence 31.01.2020
5. Name of accused Praveen Gupta
S/o Late Sh. Inderjeet Gupta
R/o H. No. 336, BlockA, Pocket
1, Paschimpuri, New 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 03.09.2022
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CNR NO. DLWT02-005033-2020
9. Final order Acquitted.
10 Date of such judgment 03.09.2022
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. It is alleged in the chargesheet that on 31.01.2020 at about 08.30 pm at Murwala Chowk, Paschim Vihar, Delhi the accused got affixed one display/advertisement Board of "Phone number 9311415277, 9811415277, 9810673459 Bhumika Sales & Service thata all types of fancy dry fruits box address : 384 Pkt. L opposite dispensary Paschim Vihar" on the electricity pole and while doing so he defaced public property. Hence, accused was chargesheeted under section S.3 of the Delhi Prevention of Defacement of Property Act 2007 (henceforth referred to as 'DPDP Act'). thehehe
2. In compliance of Section 207 Cr.P.C, copy of the chargesheet 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 FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 2 of 11 CNR NO. DLWT02-005033-2020 claimed trial.
3. In order to substantiate its case, the prosecution examined following witnesses in favour of its case: 3.1 PW 1 ASI Pankaj Kumar deposed that on 31.01.2020, he was on patrolling duty along with Ct. Jayan. He deposed that at about 08.30 pm, when they reached at Murli Wala Chowk, Paschim Vihar, they saw one flex board/advertisement board "Phone number 9311415277, 9811415277, 9810673459 Bhumika Sales & Service thata all types of fancy dry fruits box address : 384 Pkt. L opposite dispensary Paschim Vihar" on the electricity pole. He deposed that he took photographs of the board and brought down the said board from the electric pole which was seized vide seizure memo Ex.PW1/A and tehrir Ex.PW1/B was prepared followed by the registration of FIR. He deposed that the site plan Ex.PW1/C was prepared. He deposed that during the inquiry he met accused Praveen Gupta (correctly identified) who was arrested vide arrest memo Ex.PW1/D and thereafter released on bail. He correctly identified the board when produced in the court. The board was given Ex.P2 while the photographs as Ex.P1.
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4. Since the most material witness of prosecution was examined, the prosecution evidence was directed to be closed.
5. Statement of accused under section 294 Cr.PC also recorded whereby he admitted the following documents without admitting the contents of same :
Copy of FIR is Ex.A1. Endorsement on rukka as Ex.A2. Certificate under section 65 (B) Evidence Act is Ex.A3. DD No. 049A dated 01.09.2020 is Ex.A4.
6. Statement of the accused U/s 313 Cr.P.C. r/w 281 Cr.PC 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.
7. This Court has heard Ld. APP for the State and Ld. Counsel for accused. Court has carefully perused the case file in light of the submissions advanced by the respective sides.
FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 4 of 11 CNR NO. DLWT02-005033-2020 Findings are as under :
8. It is argued on behalf of accused that the board was not put by him. It was argued that accused was not seen by anyone while pasting the posters / 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 board / posters found affixed on the govt. electricity pole tantamounts to defacement of public property as defined u/sec 2 of DPDP Act.
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11. Now, the question in consideration before this court is whether or not the board / posters in question were affixed by the accused on the govt. electricity pole.
12. At the outset, there are no eyewitness to the pasting of the disputed posters / flexboard, either from public or police. Not only that, there is no public person to witness the procedure of removal of the said posters / board from the government electricity pole.
13. 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 Cr.P.C. Sub Sec (4) 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 is "shall" which makes it mandatory. An investigating officer is granted liberty to join independent witnesses from FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 6 of 11 CNR NO. DLWT02-005033-2020 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.
14. 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 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 FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 7 of 11 CNR NO. DLWT02-005033-2020 the IPC".
15. 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 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 FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 8 of 11 CNR NO. DLWT02-005033-2020 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 nonjoining 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".
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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 board 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 put the case of the prosecution under cloud of doubt.
17. When the flex board in question produced in the court, the same was not sealed. The reason for the same is beyond comprehension. The board in question is the 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 reason best known to him. A flex board which could be prepared anywhere in any market was kept in the police station without seal for long. There was ample opportunity with the tempering with the board which is the case property of this case. The benefit of this laxity on the part of the IO should go to the accused.
18. 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 65B of Indian Evidence Act was placed in support of the photographs to prove them. Further, the FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 10 of 11 CNR NO. DLWT02-005033-2020 cell phone remained in possession of the IO throughout without any seal, under such circumstances, veracity of contents comes under a cloud.
19. Moreover, the seizure memo of the flex board Ex.PW1/A bears the FIR number while the same was prepared when the FIR was not even in existence. This reveals from the testimony of PW1 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 ante timed documents. Accordingly, the seizure memo of the flex board which is the most crucial document of the present case proved to be not reliable document and the same is fatal to the case of prosecution.
20. 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 board had been affixed at 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 Praveen Gupta is acquitted in this Digitally signed case. KAPIL by KAPIL KUMAR KUMAR Date: 2022.09.03 14:15:15 +0400 Announced in the open court (Kapil Kumar) on 03.09.2022 Chief Metropolitan Magistrate, West District,Tis Hazari Courts, Delhi FIR No.113/2020 PS Punjabi Bagh State Vs. Praveen Gupta Page- 11 of 11