Delhi District Court
State vs . Devraj Sehrawat on 19 December, 2019
IN THE COURT OF SH. PURSHOTAM PATHAK,
CHIEF METROPOLITAN MAGISTRATE, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FIR No. 164/17
PS : Vasant Kunj North
U/s : 3 DPDP Act
State Vs. Devraj Sehrawat
Unique ID No. : 169/18
Date of institution of case : 16.04.2018
Date of reserving the judgment : 19.12.2019
Date of pronouncement of judgment : 19.12.2019
JUDGMENT
1. S. No. of the Case : 169/18
2. Date of Commission of Offence : 15.04.2017
3. Name of the complainant : ASI Sant Lal
No. 348/SD
PS Vasant Kunj North,
New Delhi.
4. Name,parentage & address of accused : Devraj Sehrawat
S/o Sh. Jagdish Sehrawat
R/o H. No. A158, Gali No. 11,
VillageMahipalpur,
New Delhi.
5. Offence complained of : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
FIR No. 164/17 State Vs. Devraj Sehrawat 1/6
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 15.04.2017 at about 10.00 am on the electricity pole at Road No. 6 near Amrosia Hotel opposite TNT Cargo, within the jurisdiction of PS Vasant Kunj North, one flex board mentioning the words "Chaudhary Devilal Amar Rahen xxxxxxxx" was found affixed which was affixed by the accused or at his behest, 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 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 on the rukka as Ex.A2 and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3.
3. In order to prove its case, prosecution examined two witnesses.
4. PW1 ASI Sant Lal and PW2 HC Namo Narayan deposed that on 15.04.2017 at about 10.00 am while they were on patrolling duty at Road No. 6, Near Ambrosia Hotel, Opposite ENT Cargo, Mahipalpur, Delhi, they saw that one flex board/banner mentioning the words "CHAUDHARY DEVI LAL AMAR RAHE, NATIONAL LOK DAL ZINDABAD AND DEVRAJ SEHRAWAT (HABLU), VOTE AND SUPPORT" was affixed/hanging on the said electric pole. They further deposed that photograph of accused was also printed on that board. They further deposed that they removed the said flex board/banner from the FIR No. 164/17 State Vs. Devraj Sehrawat 2/6 electricity pole and seized the same vide seizure memo Ex.PW1/A. PW1/IO took the photograph of the said flex board/banner by his mobile phone and he prepared rukka Ex.PW1/B and handed over to the rukka to PW2 Ct. Namo Narayan and got the FIR registered through PW2. PW1/IO also prepared the site plan Ex.PW1/C. PW1/IO further deposed that on 07.07.2017, he served notice u/s 41 Cr.PC Ex.PW1/D upon the accused Devraj Sehrawat and he also executed Pabandinama Ex.PW1/E of the accused. Witnesses relied upon photograph of alleged flex banner/ board Ex.P1. These witnesses were cross examined by Ld defence counsel.
5. Thereafter, PE was closed and statement of accused was recorded u/s 313 r/w s. 281 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.
6. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
7. Allegation against the accused are that on 15.04.2017 at about 10.00 am on the electricity pole at Road No. 6 near Amrosia Hotel opposite TNT Cargo, one flex board mentioning the words "Chaudhary Devilal Amar Rahen xxxxxxxx" was found affixed/hanging which was affixed by the accused or at his behest, in public view which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act.
8. 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 FIR No. 164/17 State Vs. Devraj Sehrawat 3/6 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.
9. In the case in hand, one flex board/banner was allegedly affixed on an electricity pole. The same question regarding the defacement of public property by hanging of a board on an electricity pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
10. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which is para materia to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other material which is not the case herein.
11. PW1 ASI Sant Lal who is the investigating officer in the present case is FIR No. 164/17 State Vs. Devraj Sehrawat 4/6 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 things that the complainant and the IO should not be the same person which is not the case before the court. Reliance placed on the judgment of Hon'ble Supreme Court in the case titled as Mohan Lal Vs. State of Punjab, MANU SC/0857/2018.
12. Further, PW1 as well as PW2 stated that they were on patrolling duty on the said day but they could not produce/place on record the departure and arrival entry to primafacie show that they were on patrolling duty or visited the spot on the said day which is a crucial aspect left by the police. 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.
13. Further, the prosecution has relied upon one photograph of the flex board Ex.P1. The photograph was allegedly taken through an electronic device. It is pertinent to note that certificate u/s 65B Evidence Act has not been placed on record. During his cross examination PW1/IO admitted that he did not place certificate u/s 65B Evidence Act on record. Digital photograph by taken an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the police. Merely filing of a photograph does not suffice FIR No. 164/17 State Vs. Devraj Sehrawat 5/6 and does not make it an admissible piece of evidence. It implies that the photograph of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
14. Further, no independent witness was joined in the investigation by the IO. PWs have not explained in their testimony as to why the public witness was not joined in the investigation. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the flex board/banner was affixed on the spot. No evidence has been brought on record to prove that the alleged flex board/banner was affixed by the accused or with his authority.
15. It is also pertinent to mention that the flex board/banner was allegedly affixed on BSES electricity pole, however, no complaint was received from BSES regarding the said flex board/banner.
16. Therefore, considering the totality of facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
17. Accordingly, accused Devraj Sehrawat is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act. File be consigned to Record Room.
Announced in the open court Today on 19.12.2019 (Purshotam Pathak) CMM/NDD/Patiala House Courts New Delhi/19.12.2019 FIR No. 164/17 State Vs. Devraj Sehrawat 6/6