Delhi District Court
State vs . Randhir Kumar Rai on 24 February, 2023
IN THE COURT OF MS. SNIGDHA SARVARIA : CMM : NEW DELHI DISTRICT : PATIALA HOUSE COURTS: NEW DELHI. CC No.8512/2020 STATE Vs. RANDHIR KUMAR RAI FIR No. 16/2020 U/s 3 DPDP Act P.S. INDER PURI 1.
S. No. of the Case : 287/02
2. Date of institution of case : 04.12.2020
3. Date of Commission of Offence : 11.01.2020
4. Name of the complainant : Jasveer Singh
5. Name, parentage & Address : Randhir Kumar Rai
of accused S/o Sh. Umesh Rai,
R/o H. No. F-399, Budh
Nagar, Inder Puri,
New Delhi.
5. Offence complained of or proved : U/Sec.3 DPDP Act 6. Plea of Accused : Accused pleaded not guilty. 7. Final Order : Acquitted 8. Date of reserving the judgment : 14.02.2023
9. Date of pronouncement of judgment : 24.02.2023 THE BRIEF BACKGROUND & GENESIS OF FIR :
The present FIR was registered on the complaint that on 11.01.2020 at 8:30 p.m., at Tikona Park, A-Block, Inder Puri, within jurisdiction of PS Inder Puri, accused Randhir Kumar Rai affixed the poster on which Passport, PAN Card with your mobile number State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri 9999553665" was written on the box of MTNL and he thereby committed an offence punishable U/Sec.3 of DPDP Act.
2. After completion of investigation, charge-sheet was filed. Copies were supplied to the accused and notice U/Sec.251 Cr.P.C. was served upon the accused on 09.06.2022 for the offence punishable under section 3 DPDP Act to which accused has pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. To prove its case, prosecution has examined 04 witnesses.
PW-1 is ASI Satya Prakash Sharma deposed that on 05.02.2020 he was handed over the tehrir of the present case and thereafter he went to the spot and prepared site plan Ex.PW1/A. He deposed that he searched for the accused and after apprehending him, he arrested him vide arrest memo Ex.PW1/B. He deposed that he also prepared personal search memo of accused vide memo Ex.PW1/C and thereafter he released the accused on bail. HE deposed that he prepared the charge-sheet and filed before the Hon'ble Court. PW-1 correctly identified accused in the Court.
During cross-examination, PW-1 admitted that no complaint was filed by any public person with regard to the present case. He deposed that no public witness was found at the spot. He admitted that he had not seen the accused persons pasting/affixing the said poster/pamphlet on the MTNL Box at Tikona Park. It is correct that I have not seized the said poster. (Voltd. As it was torn while State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri taking it out by the complainant itself). It is correct that no CCTV Footage was found showing that accused pasting/affixing the said poster. He denied the suggestion that all the documents were prepared at the police station. He denied the suggestion that he is deposing falsely.
PW-2 is Ct. Tajinder Singh who deposed that on 03.10.2020 he joined the investigation with the IO HC Satya Prakash and they went to F-399, Inder Puri where they met with the accused and IO/HC Satya Prakash arrested the accused vide arrest memo as Ex.PW1/B and then IO released the accused on bail. PW-2 correctly identified the accused in the Court.
During cross-examination by Ld. Counsel for the accused, PW-2 admitted that no public witness was present at the spot when IO arrested the accused. He admitted that he went to spot with IO from police station. He denied the suggestion that he is deposing falsely.
PW-3 is HC Sanjay who has proved registration of FIR as Ex.PW3/A, his endorsement on rukka as Ex.PW3/B and Certificate U/Sec.65B of Indian Evidence Act as Ex.PW3/C. PW-3 was not cross-examined by Ld. Counsel for the accused despite opportunity given to him.
PW-4 is ASI Jasbir Singh who deposed that on 11.01.2020 he alongwith Ct. Rahul were on patrolling duty in A Block, Inder Puri. He deposed that when at about 8:30 p.m. they reached at Tikona Park, Inderpuri, they saw that one poster was pasted on the MTNL Box, on which "Passport PAN Card 9999553665 WZ242 First Floor Inderpuri" was written. He deposed that he tried to remove the poster but it was started torn so he took the photograph of the poster State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri along with MTNL box. He deposed that thereafter he prepared rukka Ex.PW4/A and handed over the rukka to Ct. Rahul and sent him to PS for registration of FIR. He deposed that Ct. Rahul after registration of FIR came back at the spot and handed over the copy of FIR and original rukka to him. He deposed that he recorded the statement of Ct. Rahul u/S 161 Cr.P.C. PW-4 deposed that the further investigation was marked to HC Satprakash. PW-4 correctly identified the photograph as Mark A. During cross-examination by Ld. Counsel for the accused, PW-4 admitted that MTNL box number is not seen in the photograph. He further admitted that he did not give any certificate under Section 65B Evidence Act regarding the photograph. He deposed that no other poster was pasted in the nearby area of the same nature. He deposed that he called on the said mobile number on the day of incidence. He deposed that he did not visit the office of the accused as mentioned in the poster. He deposed that there was electric pole near the MTNL Box. PW-4 admitted that no MTNL box is mentioned in the site plan.
He denied the suggestion that photograph which is on record is clearly seen that the same is taken in the day time. He admitted that there is no public witness in the present case. He deposed that he did not enquire from MTNL department regarding the box. He admitted that no public person is seen in the photograph. PW-4 further admitted that no date is mentioned on the photograph. He deposed that he did not examine the neighbours and the persons whose houses were in front of the MTNL box. He admitted that the case property was not sealed.
PW-4 denied the suggestion that no poster was affixed by State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri the accused. He further denied the suggestion that accused has been falsely implicated in the present case that is why no public witness was present at the spot. He denied the suggestion that he is deposing falsely.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C
4. Statement of accused Randhir Kumar Rai was recorded in the Court on 21.01.2023 wherein all the incriminating facts emerged during trial were put to him distinctly, separately and specifically. Accused stated that he is innocent and has been falsely implicated in the present case. He stated that he has nothing to do with the recovered board/banner rather he has been falsely implicated in the present case and poster has been planted upon him.
DEFENCE EVIDENCE
5. Accused chose not to lead any evidence in his defence.
EVALUATION OF THE PROSECUTION EVIDENCE
6. Accused was charged for offence under section 3 DPDP Act.
7. I have heard Ld. APP for the State and Ld. counsel for the accused, perused the record and have gone through the relevant provisions of the law.
RELEVANT PROVISIONS AND INGREDIENTS OF THE OFFENCE
8. At this juncture it is relevant to reproduce the relevant State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri provision of law, which is as under:
"Section 3 : Penalty for defacement of property. - (1) Whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and ad- dress of the owner or occupier of such property, shall be punishable with imprisonment for a term which may ex- tend to one year, or with fine which may extend to fifty thousand rupees, or with both.
(2) Where any offence committed under sub-section (1) is for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), then, such other person and every president, chairman, director, partner, manager, secretary, agent or any other officer or persons concerned with the management thereof, as the case may be, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.
(3) The aforesaid penalties will be without prejudice to the provisions of Section 425 and Section 434 of the Indian Penal Code, 1860 (45 of 1860) and the provisions of the relevant Municipal Acts."
9. It is significant to note that accused in the present case has been charged with the offence under Section 3 of The Delhi Prevention of Defacement of Property Act, 2007, which provides penalty for defacement of any property in public view by writing or marking with ink, chalk, paint or any other material except for the purpose of indicating the name and address of the owner or occupier of such property. Section 3 (2) of the Act further renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent. The term 'defacement' has been defined under Section 2 (a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri damaging, disfiguring, spoiling or injuring in any other way whatsoever, whereas, the term 'writing' has been defined in Section 2(d) of the Act, which includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. The term 'property' has been defined in Section 2(c) of the Act, so as to include any building, hut, structure, wall, tree, fence, post, pole or any other erection.
10. In view of the aforesaid provisions, before an accused is convicted for the offence under Section 3 (1) of DPDP Act, the prosecution is required to prove following facts beyond reasonable doubts:- (1) That the accused has defaced any property by writing or marking with ink, chalk, paint or any other material. (2) That the said property is situated in a public view. (3) That the writing or marking on the property in a public view was not for indicating the name and address of the owner and occupier of the said property.
11. In order to secure conviction of the accused for the offence under Section 3(2) of the Act, the prosecution was required to prove that the offence as per Section 3(1) of the Act had been committed for the benefit of the accused.
12. No independent witness was joined in the investigation by the IO. PW-4 has not explained in his testimony as to why the public witnesses were not joined in the investigation. It was within the reach of the IO to examine the independent witness to prima facie satisfy that the poster in question was affixed on the spot, failure to do so raises adverse inference qua prosecution case. Also, if public persons State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri refused to join the investigation, then appropriate action under the law should have been taken. Also, why no written notice was given to the public persons, was also not explained. This raises an adverse inference qua prosecution case.
13. The witnesses PW1, PW-2 and PW-4 have failed to point out as to how accused was pinned down as the installer of the poster in question as much as, IO has neither recorded the statement of public persons working/residing in the locality where the poster in question was found affixed nor has he recorded the statement of the printer, nor any eye-witness was found.
14. PW-4 did not bring on record any register to show timings regarding when he and Ct. Rahul left PS and returned back to PS after patrolling, so it raises adverse inference with respect to prosecution case that Ct. Rahul and PW-4 were on patrolling duty on the date and time mentioned in FIR.
15 None of the witnesses examined by the prosecution in its evidence have stated that they had seen the accused putting up the poster in question.
16. The photograph was allegedly taken through an electronic device. But certificate U/Sec.65B of Indian Evidence Act to prove photograph has also not been filed on record. Thus, photograph has not been proved as per Indian Evidence Act. The prosecution has not State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri proved the CAF/CDR that the mobile number on the banner is of the accused.
17. In a case titled as T.S. Marwah & Others Vs. State, 2008 (4) JCC 2561, it has been held by Hon'ble High Court of Delhi: -
"... ... ... mere putting of the banner will not be covered by Section 3 of the West Bengal Prevention of Deface- ment of Property Act, 1976. It is true Section 2 (aa) de- fines defacement which includes impairing or interfering with the appearance, beauty, damaging, distinguishing, spoiling or injuring in any other way whatsoever, but Section 3 (1) is not all embracing and it refers to only such type of defacements for the purpose of prosecution as is done by writing or marking with ink, chalk, paint or any other material."
18. Thus, in the absence of any proof as to the affixation of the alleged poster by or at the behest of the accused, much less, the proof beyond reasonable doubts qua the said fact, there is no question of the accused being guilty for the offence of defacement of the public property within the meaning of Section 3 of DPDP Act.
19. In view of the aforesaid discussions, accused Randhir Kumar Rai is entitled to be acquitted and is hereby acquitted of the offence punishable U/Sec. 3 of the DPDP Act.
CONCLUSION
20. In view of the aforesaid discussions, accused Randhir Kumar Rai is hereby acquitted for the offence punishable U/Sec. 3 of the DPDP Act.
State Vs. Randhir Kumar Rai FIR No. 16/2020 PS Inder Puri
21. Previous Bail bonds and supardarinama, if any, is cancelled. Surety, if any, is discharged. Endorsement, if any, be cancelled. Originals, if any, be returned.
22. Fresh Bail Bonds in terms of Section 437-A Cr.PC have been furnished by the accused today. Considered. Accepted. The same shall remain in force for a period of six months from today.
File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed
on 24.02.2023 by Snigdha
Snigdha Sarvaria
Sarvaria Date:
2023.02.24
(Snigdha Sarvaria ) +0530
15:56:25
CMM/NDD/PHC
New Delhi/24.02.2023
State Vs. Randhir Kumar Rai
FIR No. 16/2020
PS Inder Puri