Delhi District Court
Fir No. 21/2020, Police Station : ... vs Jishan on 12 October, 2022
FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan
IN THE COURT OF MS. SHIVANI CHAUHAN
CHIEF METROPOLITAN MAGISTRATE
SOUTH-EAST, SAKET COURTS, NEW DELHI
CNR number. DLSE02-008956-2020
Cr. Cases Number. 2587/2020
FIR No. 21/2020
Police Station : Kalindi Kunj
U/s: 3 of The Delhi Prevention of Defacement of Property
Act, 2007
STATE
VS
JISHAN
Date of Institution : 26.08.2020
Date of reserving the judgment : Not reserved
Date of pronouncement of judgment : 12.10.2022.
JUDGMENT
1. Serial No. of the case : 2587/2020
2. Name of the Complainant : Sub-Inspector
Rajbir Singh.
3. Date of commission of offence : 23.01.2020
4. Name of accused person :
Jishan S/o Sh. Aish Mohammad, R/o
House No. A-30, Kanchan Kunj,
Madanpur Khadar Extension, New
Delhi. Aged about 24 years.
5. Offence charged : S. 3, DPDP Act.
6. Plea of accused : Not guilty
7. Final Order : Acquitted
Page No. 1
FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan
JUDGMENT
1. In the present case, the accused has been facing the trial for the offence punishable under Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 (herein after referred the 3 the DPDP Act).
2. Brief facts of the case are that on 23.01.2020, complainant Sub-Inspector Rajbir Singh was on patrolling duty in the area along with Constable Bhagwan Sahay and Constable Samay Singh. At about 07:00 p.m., they reached at Yamuna Pushta Road near Star Dharam Kanta, Kanchan Kunj, Madanpur Khadar Extension 2 where they saw a board hanging on a pole containing the words "Jishan Chicken Shop Mob. No. 9650962427 Humare Yahan Par Murga Machli Bakra Pota Kaleji Boneless Milta Hai Note Humare Yahan Par Shaadi Va Partiyo ke order book kiye jaate hai. Add. A Block Kanchan Kunj Madanpur Khadar Extn. 2 Sarita Vihar, New Delhi 110076". Sub-Inspector Rajbir Singh took photographs of the said board and removed it with the help of staff. Thereafter, he Page No. 2 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan seized the board and prepared the rukka and handed over the same to Constable Samay Singh to get the FIR registered at the Police Station. After some time, Constable Samay Singh returned back to the spot alongwith copy of FIR and original rukka and handed over the same to Sub-Inspector Rajbir Singh. The investigation of the case was marked to Sub-Inspector Rajbir Singh himself. During the course of investigation, he prepared the site plan at the spot. Thereafter, the IO contacted on the mobile number mentioned on the board which was responded by the accused and the accused was asked to come to the spot. Accused reached at the spot after some time and the IO informed the accused about the commission of the offence and served notice u/s 41A Cr.P.C. upon him and the accused joined the investigation. IO interrogated the accused and the accused informed the reason for installing the board at the spot. During the course of investigation, IO deposited the case property in the Malkhana of the Police Station and recorded statement of witness Constable Nitin. During the course of investigation, IO obtained the CAF of mobile number 9650962427. After Page No. 3 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan completion of investigation the chargesheet was filed in the Court.
3. Cognizance of the offence under Section 3 of DPDP Act was taken by Ld. Predecessor of this Court. The accused was summoned. After compliance of the provisions of Section 207 Cr.P.C, notice for the offence under Section 3 of the DPDP Act in terms of Section 251 Cr.P.C was served upon the accused to which the accused had pleaded not guilty and claimed trial.
4. The prosecution has examined three witnesses in support of its case.
5. Sub-Inspector Rajbir Singh was examined as PW1. He deposed that on 23.01.2020, he was posted as Sub-Inspector at Police Station Kalindi Kunj. On that day, he alongwith Constable Bhagwan Sahay and Constable Samay Singh were on patrolling duty at Yamuna Pushta Road, Kanchan Kunj, Madanpur Khadar Extension. At about 07:00 pm, they noticed that a board was hanging on a pole containing the words "Zeeshan Chicken Shop Mobile Number 9650962427 Humare Yaha Par Murga, Macchli, Bakra, Pota Kaleji Boneless Milta Hai, Note: Humare Yaha Par Shadi Va Page No. 4 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan Partiyo Ke Order Bhi Book Kiye Jaate Hain. Add A- Block, Kanchan Kunj, Madanpur Khadar Extension, Sarita Vihar". They took out the board and took photograph of the same. Thereafter, he prepared the rukka and handed over the same to Constable Samay Singh to get the FIR registered at the Police Station. After registration of the FIR, Constable Samay Singh returned to the spot and handed over the copy of FIR and the original rukka to him. Afterwards, he prepared the site plan at the spot Ex.PW1/B and seizure memo of the board in presence of Constable Samay Singh and Constable Bhagwan Sahay Ex.PW1/C. He identified the case property Ex.P-2. During the course of investigation, he also tried to search the accused at the spot and the accused was found at his shop. Thereafter, he served notice Ex PW1/D upon the accused u/s 41A Cr.P.C and the accused joined the investigation. He interrogated the accused vide interrogation report Ex.PW1/E. He also annexed DD No. 8B dated 23.01.2020 and DD No. 43A dated 23.01.2020 alongwith the FIR Ex.PW1/F and Ex.PW1/G. After completion of the investigation, he filed charge- sheet in the Court. He correctly identified the accused before the Court.
6. HC Samay Singh was examined by the prosecution as Page No. 5 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan PW2. He deposed that on 23.01.2020, he was posted as Constable at Police Station Kalindi Kunj and on that day, he was on patrolling duty alongwith Constable Bhagwan Sahay on that day. At about 07:00 pm, when they reached at Yamuna Pushta Road, near Star Dharam Kanta A Block, Kanchan Kunj, Madanpur Khadar - 2, Delhi, they noticed one board hanging on a pole containing the words "Zeeshan Chicken Shop" and they informed the said fact to Sub-Inspector Rajvir. Thereafter, they removed the board from the pole. In the meanwhile, Sub- Inspector Rajvir reached at the spot. The said board was seized by the IO Sub-Inspector Rajvir and photographs of the board were taken. Thereafter, IO prepared the Tehrir at the spot and handed over the same to him to get the FIR registered at the Police Station and then he went to Police Station and got the FIR registered and returned back to the spot and handed over the copy of FIR and original rukka to Sub-Inspector Rajvir. Investigation of the case was marked to Sub-Inspector Rajvir. IO prepared the site plan in his presence. During the course of investigation, they went to A-30, A-Block, Kanchan Kunj and Page No. 6 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan met the accused Jishan there and IO served notice u/s 41A Cr.P.C upon the accused. Accused joined the investigation and IO interrogated him. Thereafter, they went back to the Police Station and deposited the case property in the Malkhana of the Police Station. He correctly identified the accused and the case property before the Court. Photograph of the case property is Ex.P-1.
7. Head Constable Bhagwan Sahay was examined by the prosecution as PW3. He deposed that on 23.01.2020, he was posted as Constable at Police Station Kalindi Kunj and on that day, he was on patrolling duty alongwith Head Constable Samay Singh. At about 07:00 pm, they reached Kanchan Kunj, A-Block, Pushta Road, they noticed one board hanging on a pole containing the words "Zeeshan Chicken Shop Machli, Murga". They removed the board from the pole and Head Constable Samay Singh informed the said fact to Sub-Inspector Rajvir. Sub-Inspector Rajvir reached at the spot, took the photographs of the said board using his mobile phone and seized the board. Sub-Inspector Rajvir prepared the rukka and handed over the Page No. 7 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan same to Head Constable Samay Singh to get the FIR registered at the Police Station. After registration of the FIR, Head Constable Samay Singh returned to the spot and handed over the copy of FIR and original rukka to Sub-Inspector Rajvir. Sub- Inspector Rajvir then contacted on the mobile number mentioned on the board and the person who responded to the call, informed his address to the IO / Sub-Inspector Rajvir. Thereafter, they went to Police Station alongwith case property and got the same deposited in the Malkhana and accused was called at the Police Station. Accused came to the Police Station on the same day where IO interrogated him and the accused admitted that the said board belonged to him. Thereafter, IO obtained the ID of the accused Jishan and he was discharged by the IO. He correctly identified the acused and the case property before the Court.
8. The witnesses were duly cross-examined by Ld. counsel for the accused. Thereafter, on the submissions of Ld. APP for the State, PE was closed vide order dated 02.09.2022. The statement of the accused under Section 313 Cr.P.C. r/w Section 281 Cr.P.C. recorded. The accused has denied Page No. 8 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan commission of the offence and has stated that he had been been falsely implicated in the present case. Accused did not lead any evidence independent in his defence. The matter was then fixed for final arguments.
9. It is submitted by Ld. APP for State that the prosecution has proved its case against the accused beyond reasonable doubts. The accused has failed to prove any defence. He has failed to produce any permission for installing the board on the public property. Hence, the accused is liable to be convicted.
10. On the other hand, it is submitted by the accused that the prosecution has failed to prove the case against him beyond reasonable doubts. There is no public witness examined by the prosecution. The complainant himself has conducted the investigation which vitiate the proceedings conducted during the investigation. There is no evidence available on record to prove that the hoarding board was installed on the instructions of the accused. The accused has been falsely implicated by the police officials to settle some personal score. No offence has been Page No. 9 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan committed by the accused. Hence, it is prayed the accused may be acquitted.
11. I have heard the submissions on behalf of both the parties and carefully perused the material available on record.
12. It is a settled proposition of criminal law that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. The primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution. Further, an accused is entitled to benefit of every reasonable doubt appearing qua the material facts.
13. 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 Page No. 10 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan renders the beneficiary of the act guilty of such offence unless he proves that the offence was committed without his knowledge or consent.
14. The term 'defacement' has been defined under Section 2(a) of the aforesaid Act, which includes impairing or interfering with the appearance or beauty, 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.
15. 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.Page No. 11
FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan (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.
16. 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.
17. Accused has argued that the complainant had also conducted the entire investigation in the present case and, therefore, the entire investigation has come under doubts. It is prayed that benefit of the said doubt may be given to the accused.
18. I have considered the submission. Hon'ble High Court of Delhi in Gurtej Singh Batth vs State, in Crl.A.39/2015, on 27 November, 2018, while relying upon the judgments of the Hon'ble Supreme Court of India in Mohan Lal v. State of Punjab, (2018) SCC OnLine SC 974 and Arif Khan v. State of Page No. 12 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan Uttarakhand, (2018) SCC Online SC 459, has held that in every criminal prosecution, it was essential that the investigation, on the face of it, had to be free, judicious and just, and that it had also to appear to be so, eschewing any conduct or impression which may give rise to a real and genuine, and not a mere fanciful, apprehension, in the mind of the accused, that the investigation was not fair. If, therefore, the informant police official in a criminal prosecution, especially one which carries a reverse burden of proof, who had made the allegations, was himself asked to investigate, serious doubts would naturally arise with regard to his fairness and impartiality. Actual proof of bias was not required in such a case. It would be illogical to presume and contrary to normal human conduct, that the Investigating Officer would, in such a case, conclude the investigation with a closure report, which would mean that he had falsely implicated the petitioner and would result in attendant consequences on the complainant himself.
19. However, the case of the prosecution cannot be disbelieved only because the investigation was conducted by the Page No. 13 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan complainant. There have to be some other grounds to disbelieve the present case of the prosecution.
20. In the present case, as the record would reveal that no independent public witness had joined the investigation at any point of time with respect to recovery of the incriminating board. The place of recovery of the board in question is clearly shown to be located in an area where public persons would be readily available. From a perusal of the record, no serious effort for joining public witnesses appears to have been made. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. Section 100(4) of the Cr.P.C. also casts a statutory duty on an official conducting search to join two respectable persons of the society. Same has not been done in the present case. This casts a doubt on the fairness of the investigation. In the case titled as Nanak Chand Vs. State of Delhi, Crl. Revision No. 169/81, decided on 07.11.1990, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on Page No. 14 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan both sides and shoPolice Station nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.''
21. In the present case, non-joining of any public person as a witness creates doubt on the case of the prosecution. However, this Court is conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable. I get strength from the judgment of the Hon'ble supreme Court of India in Appabhai and Another v. State of Gujarat, AIR 1988 SC 696. The aforesaid fact merely casts an additional duty on the Court to be more vigilant while scrutinizing the testimony of the police witnesses. However, in the present case, there are other circumstances too, which raise suspicion over the prosecution version.
22. The witnesses PW-1, PW-2 and PW-3 have stated that Page No. 15 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan they were on patrolling duty when they had noticed the board on an electricity pole. They had removed the board and seized it.
23. The witnesses PW1, PW2 and PW3 who had allegedly seen the board have not stated that they had seen anybody or the accused while affixing the said board at the spot and they could not say as to who had affixed the board at the spot. The prosecution also did not examine any witness who might have seen any person affixing the board at the spot. As argued by the accused, there is not even an iota of evidence led by the prosecution to prove that the hoarding board in question was either installed by the accused herein or that the same was installed on his instructions.
24. The only allegation against the accused is that the hoarding board had been installed on the electricity pole, a public property.
25. Prior to enactment of the DPDP Act, the West Bengal Prevention of Defacement of Property Act, 1976 was prevalent in Delhi. Section 3 of the West Bengal Prevention of Defacement Page No. 16 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan of Property Act is similar to Section 3 of DPDP Act which reads as under:
"Whoever defaces any property in public view by writing or marking with ink, chalk, paints or any other material, except for the purpose of indicating the memo and address of the owner or occupies of such property, shall be punishable with punishment prescribed."
26. Hon'ble High Court of Delhi in case title "T.S. Marwah & Ors. Vs. State 2008 (4) JCC 2561" has held that the offence u/s 3(1) of the Act would be punishable only if the defacement is done in respect of property in public view by writing or marking with ink, chalk, paint or any other material. Mere putting of the banner will not get covered u/s 3(1) of the West Bengal Prevention of Defacement of Property Act.
27. Section 3 of the Delhi Prevention of Defacement of Property Act, 2007 is similar to the Section 3(1) of the West Bengal Prevention of Defacement of Property Act except with one change in the definition of word "Writing". Section 2(d) of the Delhi Prevention of Defacement of Property Act, 2007 defines writing as including printing, painting, decoration, Page No. 17 FIR No. 21/2020, Police Station : Kalindi Kunj State Vs Jishan lettering, ornamentation etc. produced by stencil. In West Bengal Prevention of Defacement of Property Act, word "Writing" has been defined as including decoration, lettering, ornamentation etc. produced by stencil. Except this difference in the definition of writing, the provisions of both the Acts are same. Therefore, the ratio of the judgment of the Hon'ble High Court of Delhi in "T.S. Marwah(supra)"' still holds good for the present case as the facts of the present case are similar to the facts of the case in that of "T.S. Marwah's case (supra)".
28. In the present matter, in view of the discussion hereinabove, it can be safely held that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The accused is entitled to the benefit of reasonable doubts. Hence, the accused is given benefit of reasonable doubts and is hereby acquitted. Ordered accordingly.
Pronounced in the open Court on this 12th Day of October, 2022.
(Shivani Chauhan) Chief Metropolitan Magistrate South East, Saket Courts:
New Delhi.Page No. 18