Delhi District Court
State vs . Parveen Kumar on 12 September, 2022
IN THE COURT OF MS. VIDHI GUPTA ANAND,
ACMM-01, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI
STATE Vs. PARVEEN KUMAR
FIR No. 50/2020
PS: Lajpat Nagar
U/S: 3 DPDP Act
12.09.2022
ID No. : 09/2022
CNR No. DLCT12000066-2022
Date of commission of offence : 24.01.2020
Date of institution of the case : 27.02.2021
Name of the complainant : HC Dilip Singh
No. 1740/SE
PS Lajpat Nagar, New
Delhi.
Name of accused persons and : Parveen Kumar
addresses S/o Sh. P.N Deshmukh
R/o:- 2/38, 3rd Floor,
Nehru Nagar, New
Delhi.
Offence complained of : U/s 3 D.P. D.P. Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 12.09.2022
JUDGMENT
1. Vide this order the present case filed by the prosecution against MLA Praveen Kumar (hereinafter accused) u/s 3 of The State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 1 of 19 Prevention of Damage to Public Property Act, 2007 (DPDP Act) shall be decided and disposed off. Section 3 of the DPDP Act provides for penalty for defacement of property. The meaning of defacement and law related to it shall be discussed in detail in the later pages of this judgment.
Facts put forward by the Prosecution
2. Brief facts of the prosecution case are as follows:-
2.1 It is the case of the prosecution that on 24.01.2020 at around 10.30 am, when HC Dilip Singh alongwith Ct. Bharat, reached at SDMC Prathibha Vidayalaya, Block No. 10, Nehru Nagar, Delhi, they saw that on the main gate of the school a poster had been pasted and therefore, HC Dilip Singh took the photographs of the said poster and examined the same. 2.2 It is further the case of prosecution that the poster had dimensions of 15 cm x 22 cm and had photos of the Chief Minister Arvind Kejriwal as well as accused Parveen Kumar, MLA from Aam Aadmi Party. Allegedly, the poster contained the logo of Aam Aadmi Party and it was written on the poster Bijli Ka Bill Hamara Zero, Kejriwal Hamara Hero, Achey Beetey Paanch Saal, Lagey Raho Kejriwal.
2.3 As per the prosecution case, when attempt was made to take off the poster, the same was damaged.
In this background, proceedings were initiated against the accused Parveen Kumar U/s 3 of DPDP Act for defacing the public property.
Trial Proceedings
3. The chargesheet in this matter was filed in the Court on 27.02.2021 and after taking cognizance vide order dated State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 2 of 19 28.06.2022, the accused was summoned in the Court. Thereafter, upon his appearance in the Court on 11.07.2022, the accused was admitted to bail and copies U/s 207 Cr.PC were supplied to him.
4. Notice of accusation under Section 251 Cr.PC was served upon accused under section 3 of DPDP Act on 19.07.2022 to which he pleaded not guilty and claimed trial. Accordingly, the matter was listed for recording of Prosecution evidence.
5. Prosecution has listed three witnesses in the chargesheet to prove its case viz. HC Bharat Singh, HC Sandeep Singh (Duty Officer) and IO/HC Dilip Singh.
Vide separate statement of the Accused under Section 294 Cr.PC dated 19.07.2022, accused admitted to the registration of the FIR in this matter i.e. FIR No. 50/2020 PS Lajpat Nagar. Accordingly, FIR was exhibited as Ex. A1 and the Certificate under Section 65-B of the Indian Evidence Act thereto was exhibited as Ex. A2. Hence, duty officer HC Sandeep Singh was dropped from the list of witnesses.
6. Resultantly, in order to establish its case, prosecution has examined only two witnesses i.e. PW-1 HC Bharat Singh and PW2 HC Dilip Singh. No public witness has been examined by the prosecution. The crux of the testimonies of the Prosecution witnesses is given in the following paragraphs for ready reference.
6.1. PW-1 HC Bharat Singh: He deposed that on 24.01.2020, while he was on patrolling duty alongwith HC Dilip Singh, at around 10.30 am, they reached at SDMC School Pratibha Vidyalaya, Block No. 10, Nehru Nagar, Lajpat Nagar and saw that one poster was pasted on the main gate of the school. He State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 3 of 19 stated that it was written on the poster "Bijli Ka Bill Hamara Zero Kejriwal Hamara Hero Achey Beetey Paanch Saal Lagey Raho Kejriwal" and it depicted the pictures of the Chief Minister of Delhi i.e. Sh. Arvind Kejriwal and the accused MLA Parveen Kumar. He specifically stated that he took the measurements of the above said poster which were 15 cm x 22 cm. He exhibited the photographs of the poster pasted on the gate of the school as Ex. P1 to P4. He further stated that IO handed over to him one tehrir upon which, he went to the PS and got the FIR registered through the Duty Officer and he was handed over with the copy of the FIR and the original tehrir by the duty officer which he then handed over to the IO. He also stated that during the course of investigation, IO had seized one ID of accused Parveen Kumar and the electricity bill vide seizure memo Ex. PW1/A. Lastly, he stated that IO has recorded his statement under Section 161 Cr.PC. He correctly identified the accused in the Court.
During his cross-examination, his statement under Section 161 Cr.PC was Marked A. The witness admitted it to be correct that he had taken the photographs of the spot of the incident from his mobile phone and also got the same printed from Kasturba Niketan, Main Gate from a photographer named Karan. He stated that he had got the photographs printed on the evening of the same day of the incident and handed over the same to the IO on the same day, later in the night.
Further, he admitted that in an attempt of taking off the poster, it was damaged but he did not take any photo of the torn poster, however, during re-examination of the witness by the Ld. APP for the State, he admitted that Ex. P-4 is the photo, State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 4 of 19 which depicts that the poster was damaged while taking it off. It may be noted that during his testimony, the witness stated at first that he had signed the tehrir written by the IO but later after looking at the tehrir on record, he stated that he had not signed the same. With respect to the measurements of the poster, he stated that he was carrying the scale with him at the time of taking the measurement of the poster. Lastly, he admitted that the torn pieces of the poster were removed by him and though the same were in his hands, IO did not seize the same. 6.2. PW-2 HC Dilip Singh: He started his testimony on the same lines as PW-1 and deposed that on 24.01.2020 at around 10.30 am, he along with PW1 reached at the main gate of the SDMC Pratibha Vidayala, Block No. 10, Nehru Nagar at about 10.30 am where they saw that one poster was pasted on the main gate having picture of Chief Minister Sh. Arvind Kejriwal and of accused MLA Parveen Kumar and it was written on the poster "Hamara Bijli Ka Bill Zero Aur CM Kejriwal Hero". He correctly identified accused Parveen Kumar in the Court.
Further, he stated that he took the photographs of the above said poster with his own mobile phone and after that, he tried to remove the above said poster with his bare hands, but, it was torn in the process of taking it off from the main gate. He added that he measured the said poster with the help of the IO Kit which he was carrying at that time and found the measurements of the said poster to be 15 cm x 22 cm. He also affirmed the photographs of the spot as Ex. P1 to Ex. P4.
Further, he stated that he prepared the tehrir Ex. PW2/A and handed over the same to PW-1 Ct. Bharat to get the State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 5 of 19 FIR registered and thereafter, upon his directions, Ct. Bharat left the spot. He stated that thereafter, he prepared the site plan of the spot i.e. Ex. PW2/B, and after that Ct. Bharat returned to the spot and handed over the copy of the FIR Ex. A1 along with the original tehrir to him.
Further, he stated that during investigation he served notice U/s 41.A Cr.PC upon accused (Ex. PW2/C), upon which, accused joined the investigation and gave reply of notice U/s 91 Cr.PC i.e. Mark X. He also affirmed the seizure of photocopy of the ID proof (Mark Y) and electricity bill of the accused (Mark Z) vide seizure memo Ex.PW1/A. He also exhibited Pabandinama of the accused vide Ex. PW2/D. During his cross-examination, he contradicted PW-1 stating that PW-1 did not take any photo of the spot and he himself had taken the photos of the posters. Further, he stated that he had mentioned the name of the accused on the site plan with the understanding that the accused Parveen Kumar had pasted this poster on the school gate. He admitted that he did not record the statement of any school employee inquiring as to who had pasted the alleged poster on the school gate or whether there was any eye witness to the incident. He admitted that he did not seize the torn poster. Further, he admitted that he did not examine any public witness in regard to the alleged incident. Further, he admitted that no bill was procured by him to establish that alleged poster was got printed by the accused. When confronted with the statement of Ct. Bharat recorded U/s 161 Cr.PC i.e. Mark A, witness stated that the photographs taken by PW-1 were not got printed and only the photographs taken from his own State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 6 of 19 mobile phone were got printed and placed on record.
He denied the suggestion of the Ld. Counsel for the accused that all the documents of the case have been prepared while sitting at the police station itself or that he has not done proper investigation in this matter or that he was not entrusted with the investigation in this matter by any higher police official. Lastly, he denied the suggestion that accused is innocent and no poster was found at the gate of the school
7. After completion of the prosecution evidence, statement of the accused under Section 313 Cr.PC was recorded wherein all the evidence brought by the prosecution was put to the accused. Accused denied the prosecution case and stated that neither he himself pasted the alleged poster nor he got the same pasted. He further stated that no proceedings were conducted at the spot and this is a false case. Lastly, he stated that the witnesses are interested witnesses and he is innocent and has been falsely implicated in this matter.
When questioned as to whether he wanted to lead evidence in his evidence, accused answered in negative and accordingly, the matter was thereafter taken up for final arguments.
Final Arguments
8. Ld. APP for the State as well as Ld. Counsel for the accused addressed detailed arguments in favour of their respective cases.
9. Ld. APP for the State pressed upon conviction of the accused stating that the prosecution has proved the case against the accused beyond all reasonable doubts with the unfettered State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 7 of 19 testimonies of the prosecution witnesses.
9.1. It was argued by Ld. APP for the State that only because the witnesses are police witnesses and not public witnesses, their testimonies cannot be discarded. Further, it was asserted that there is no cardinal rule of law that in absence of public witnesses, the case of Prosecution is not to be believed.
9.2. Ld. APP further stated that discrepancies, if any, in the testimonies of the police witnesses in this case are minor in nature and do not affect the nature of the case and rather prove the culpability of the accused. Further, Ld. APP for the State argued that the minor inconsistencies in the testimonies of the police witnesses rather go ahead to prove that the testimonies are not tutored and can therefore be definitely relied upon.
9.3. Ld. APP for the State argued that undoubtedly it has been proved on record that the accused Parveen Kumar pasted his poster on the main gate of the SDMC Pratibha Vidyalaya, Block no.10, Nehru Nagar and therefore, he is liable to be punished.
9.4. Lastly, Ld. APP for the State vehemently pressed upon conviction of the accused arguing that being a public servant, it was bounden duty of the accused/MLA to follow the laws and serve an example for the residents of his constituency to follow, however, on the contrary he has broken the law and therefore, he deserves to be awarded maximum punishment so that it serves as a deterrent for others.
Hence, Ld. APP for the State concluded his arguments by praying for conviction of the accused.
10. On the other hand, Ld. Counsel for the accused strongly State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 8 of 19 pressed upon acquittal of the accused stating that the accused is not guilty and has been framed in this matter on account of political issues.
10.1. It was argued by Ld. Counsel for the accused that this is a false case and entire investigation of this case has been done by the IO while sitting in the PS itself as no case property has been seized and there is no public witness in any of the investigation documents.
10.2. Ld. Counsel for the accused also argued that the falsity of the prosecution case is apparent from the contradictions in the testimonies of the two prosecution witnesses examined on record. He added that despite being together during the entire investigation, the prosecution witnesses i.e. HC Bharat Singh and HC Dilip Singh have given contradictory statements; rather it seems that both have assumed the role of the IO.
10.3. Further, it was argued by Ld. Counsel for the accused that absence of the public witnesses from the dock also proves the fact that accused has been intentionally framed in this matter. He also argued that the Guard of the school gate on which poster has been allegedly pasted has not been examined by the IO in this matter which again questions the truthfulness of the Prosecution case.
10.4. Another argument taken by the Ld. Counsel for the Accused was that IO has not conducted fair and independent investigation in this matter. He stated that even though IO has stated that in the process of being removed, the poster was torn, the torn pieces of the poster have not been seized by the IO State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 9 of 19 which was relevant to the investigation being case property.
10.5. Lastly, it was argued on behalf of the IO that in this matter that complainant has himself assumed the charge of the IO and he has not shown any authorization from the SHO concerned to conduct investigation in this matter.
Hence, Ld. Counsel for the accused pleaded for declaring the accused innocent and holding him not guilty.
11. This Court has patiently heard the arguments of Ld. APP for the State as well as Ld. Counsel for the accused. The chargesheet and the documents filed alongwith it as well as the evidence brought on record has been carefully perused.
Law on Defacement of Property
12. Before proceeding on to appreciation and evaluation of evidence, it is important to discuss and understand the law related to defacement of property.
12.1 From 28.09.1983 onwards, the region of NCT of Delhi was governed by the West Bengal Prevention of Defacement of Property Act, 1976. However, in the year 2009, The Delhi Prevention of Defacement of Property Act, 2007, (DPDP Act) came into force containing specific provisions pertaining to offense of defacement of property which were akin to the West Bengal Act mentioned above.
12.2 Section 2(a) of the DPDP Act, defines defacement as follows:
"defacement" includes 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;
State v. Parveen Kumar
FIR No.50/2020,
PS Lajpat Nagar page no. 10 of 19
Further, the Act specifically mentions that the offence of defacement is cognizable in nature. The Act provides for penalty for defacement under section 3(1) as follows:
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 address of 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 fifty thousand rupees, or with both.
12.3 The meaning and constituents of Defacement have been discussed and elucidated upon in some leading judgments of the Hon'ble High Court of Delhi.
At the outset, it may be noted that Hon'ble High Court of Delhi in its judgment titled as T.S. Marwah vs. State [2008 (4) JCC 2561] held that putting up of banners on the electricity pole does not attract the offence of defacement. It was held that:
A bare look on Section 3 (1) goes to show that the offence committed therein would be punishable only if defacement is done in respect of property in public view by writing or marking with ink, chowk, paint or any other material. There is nothing in the charge sheet filed against the petitioners to indicate that any property was defaced by writing or marking with ink, chowk, paint or any other material. The only allegation is that the banner was put on an electricity pole. Mere putting up the banner will not get cover by Section 3 (1) of the West Bengal Prevention of defacement of Property Act, 1976.
However, later, the Outdoor Advertising Policy, 2007, was brought into execution vide judgment of the Hon'ble Apex Court of India in the matter titled as M.C.Mehta vs. Union of India & ors. [W.P. (C) No.13029/1985 decided on 12.10.2007] wherein State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 11 of 19 it has been specified that Defacement is of four types i.e. (i) Posters, (ii) Banners, (iii) Writing on the Walls and (iv) Illegal Hoardings/Flexes/Digital Banners. Hence, the scope of provisions of the DPDP Act have been widened.
Further, in the judgments titled as Colonel Shiv Raj Kumar vs. South Delhi Municipal Corporation and others [CWP No.3367/2015 decided on 28.02.2018] as well as Indian Outdoor Advertising Association vs. South Delhi Municipal Corporation and Others [WP (C), 4238/2015 decided on 06.05.2015], directions were given for invoking the provisions of the DPDP Act against such banners/posters which cause defacement.
Thus, the law is settled on the aspect that for commission of offence of defacement, it need not only be a writing or marking with ink, chalk etc. and it can also be in the form of banners, posters, etc. In the case at hand, one poster of the Aam Aadmi Party has been allegedly pasted by the Accused on the main gate of a government school and hence, prima facie the case is covered within the ambit of DPDP Act.
12.4 From the above discussion, two ingredients of the offence of defacement u/s 3 of DPDP Act can be made out as follows:
a) Defacement of property by the Accused - It must be proved that the act of defacement has been committed by the Accused or at his instructions be it through writings/banners/posters or any other mode.
b) Property must be in public view - The property which is defaced, be it public or private, must be in public view i.e. visible State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 12 of 19 to public at large.
Based on the above parameters, this court shall now proceed on to decide upon the culpability of the Accused in the present matter.
Appreciation of Evidence
13. At the outset, it may be noted that there are two cardinal principals of criminal jurisprudence which govern the decision in any criminal trial; one, that Accused is presumed to be innocent unless proven guilty and two, the guilt of the Accused has to be proved by the Prosecution beyond all reasonable doubts. Meaning thereby that the burden to prove the guilt of the Accused is on the Prosecution and even if no defence is led by the Accused, he can still rebut the case of the Prosecution by creating preponderance of probabilities in his favour.
In the leading judgment of Hon'ble Supreme Court of India in matter titled as Anand Ramachandra Chougule v. Sidarai Laxman Chougala [2019 (SCC online) SC 974], elucidating upon the onus of proof in a criminal trial, it was held that:
9. The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes a defence, which is not improbable and appears likely, there is material in support of such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt.
State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 13 of 19 Also, Narinder Kumar v. State (NCT of Delhi) [(2012) 7 SCC 171], it was held by the Hon'ble Apex Court that:
However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
14. In respect of the case at hand, in order to prove the commission of the offence of defacement by the Accused, the first and foremost ingredient which is to be proved by the Prosecution is that the poster was pasted by the Accused himself or the same was posted at his behest and as per the settled principles of law discussed above, the same has to be proved beyond all reasonable doubts. Mere insinuation that the poster was pasted by the Accused because the poster bears his photo does not prove the Prosecution case; an act on the part of the Accused completing the offence has to be proved.
15. Upon perusal of the record as well as testimonies of the witnesses, the first and foremost and the most crucial fact which surfaces is that not even a single eye-witness has been brought on record by the Prosecution who has seen the Accused either himself pasting the poster or instructing someone to do the same. Rather none of the witnesses examined on record have seen the incident at the time of its occurrence and they have merely conducted investigation after taking off the poster.
16. It has been admitted by PW2 in his testimony that no witness from the school was examined by him who would have State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 14 of 19 seen the poster being pasted or who have known the person who had pasted the same on the school gate. Undoubtedly, the school guard, manning the main gate could have been an important witness to the case, however, IO preferred not examine him at any point of time. It may be noted that absence of public witnesses per se does not render the Prosecution case doubtful, however, when there was an opportunity to have public witnesses and despite that IO does not include public witnesses in the investigation, then the case certainly becomes tainted. In the case at hand, the poster was seen by the PWs at around 10:30 a.m. on 24.01.2020, which was a working day. Thus, it is apparent that IO had sufficient opportunity to join public witnesses during investigation.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court in the matter titled as Hemraj vs State of Haryana [AIR 2005 SC 2110] wherein it was held that:
"the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case..."
Furthermore, in case titled as Roop Chand vs State of Haryana [1999 (1)C.L.R 69], the Hon'ble High Court of Punjab & Haryana held that:
"It is well settled principle of the law that the Investigating Agency 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 State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 15 of 19 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 he witnesses from the public had refused to 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..."
Hence, the absence of eye-witnesses as well as other independent public witnesses does bring the case of Prosecution in a grey area and casts a shadow of doubt in it. More so, because the place of occurrence of the incident is a public place and there was no lack of time and opportunity with the IO to associate some independent witnesses in the investigation.
17. The issue of absence of public witnesses in the present case becomes even more crucial for this case as the only two witnesses examined in this matter i.e. PW1 HC Bharat and PW2 IO/HC Dilip Singh have given contradictory statements. While PW1 states that he had taken the measurements and photographs of the spot, PW2 has stated that it was him only who had taken the photographs of the spot and also taken measurements from his IO kit. Even though PW1 has stated that he had taken the Photographs of the spot, got them printed from Kasturba Niketan from a photographer named Karan and handed over the same to the IO; IO has completely denied this fact and rather stated that photographs taken by PW1 were never got printed. Further, while State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 16 of 19 PW1 has deposed that he had taken off the poster, PW2 has stated that he had taken off the poster with his bare hands. Hence, only a public witness could have given clarity on this issue had he been joined in the investigation process. To the utter dismay of Prosecution, the inconsistencies in the testimonies of PW1 and PW2 create confusion rather than bringing clarity to the case.
18. Yet another aspect which questions the Prosecution case is that no attempts have been made to recover a CCTV footage of the alleged incident from the spot which could have shed some light on the truth of the matter. If recovered, it could have been another crucial piece of evidence for the prosecution case.
19. A technical aspect which also needs to be dealt with here is that the digital evidence brought on record, i.e. photographs of the spot, have not been supported by a certificate u/s 65B of the Indian Evidence Act. As per mandate of Section 65B of the Indian Evidence Act, secondary evidence pertaining to an electronic record is admissible only if it is supported by a certificate u/s 65B of the Indian Evidence Act, which in this case has not been filed. Rather from the inconsistencies in the testimonies of PW1 and PW2, it is not even clear as to who took the photographs of the spot and got them printed. A certificate u/s 65B of the Indian Evidence Act could have brought some clarity to the issue, however, damaging the Prosecution case beyond repairs, no such certificate has been placed on file. Moreover, the photo-studio or photographer from where the said photographs have been developed has not been made a witness in this case and therefore, an open end is left out on the aspect as to from where and when were the photographs printed.
State v. Parveen Kumar
FIR No.50/2020,
PS Lajpat Nagar page no. 17 of 19
20. Another aspect which shows lack of proper investigation is that the torn pieces of the alleged poster have not been seized by the IO which could have served as the case property in this matter. IO has himself admitted that he had taken off the poster from the school gate with his bare hands. No cogent reason has been given by the IO for not seizing the torn pieces and nothing has been mentioned as to what did he do to those pieces i.e. whether they were destroyed or thrown away at the spot itself.
21. Also, it is pertinent to note that no evidence has been brought on record by Prosecution to establish that the alleged posters were in fact got printed by the Accused. No investigation has been done in regard to the printing press from where such posters may have been printed. A notice has been issued to the IO u/s 91 Cr.P.C. asking the Accused to furnish details of the printing press as well as the person who printed the alleged posters. However, in his reply Mark X, Accused has stated that the posters were posted without his knowledge and he has already submitted the bill as well as name and address of the printer to the election commission. Thereafter, no further inquiry was conducted by the IO to find out the details of the printer or as to who paid the bill of printing or at whose instructions were such posters circulated, etc. Hence, this turns out to be a lacuna in the Prosecution case which has broken the link between the Accused and the alleged posters.
Brief reasons for the decision
21. From the scrutiny of evidence discussed above, it is apparent that even though the act of defacement as such has been brought on record by the Prosecution, Prosecution has miserably State v. Parveen Kumar FIR No.50/2020, PS Lajpat Nagar page no. 18 of 19 failed to bring any evidence on record that it was committed by the Accused. Neither any ocular evidence nor any documentary evidence viz. Video footage, bills of printing, etc. has been brought on record which proves that the posters were in fact pasted by the Accused himself or at his instructions. Further, Prosecution could not even prove that the posters were got printed at the instance of the Accused.
22. Undoubtedly, the first essential of the offence of defacement i.e. commission of defacement by the Accused has not been proved by Prosecution. There are several lacunae in the Prosecution case which remained open till the end of trial. The only connection of the Accused with the posters which could be established by Prosecution was that the poster contains his photo which by no means is sufficient to bring home the guilt of the Accused. As already mentioned above, the onus is on the Prosecution to prove the guilt of the accused beyond all reasonable doubts. On the basis of mere allegations, the Accused cannot be held liable for the alleged offence.
Conclusion
23. In view of the discussion held above as well the documents and evidence brought on record, Accused Parveen Kumar is held not guilty u/s 3 of DPDP Act and thereby acquitted for the same.
Announced in the open Court, On 12th September,2022. (Vidhi Gupta Anand) ACMM-01,RADC/New Delhi This judgment has been directly typed to dictation.
State v. Parveen Kumar
FIR No.50/2020,
PS Lajpat Nagar page no. 19 of 19