Delhi District Court
In Case Law Reported As "Anoop Joshi vs . State" 1992(2) C.C. Cases on 29 October, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
Rajat Chaudhary
FIR No.396/2017
P.S Saket
JUDGMENT
1. Sr. No. of case 3571/2018
2. Date of institution 01.08.2018
3. Name of the complainant SI Pancham Kumar
4. Date of commission of offence 29.08.2017 at 11:30 A.M.
5. Name of accused Rajat Chaudhary
S/o Sh. Balraj
R/o House No.1129, Churiya
Mohalla, Tuglakabad, New
Delhi.
6. Offence complained of 3 DPDP Act
7. Plea of accused Accused pleaded not guilty
8. Date of reserving the judgment 29.10.2018
9. Final order Acquitted
10 Date of such judgment 29.10.2018
FIR No.396/2017 PS Saket Page-1 of 10
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. That on 29.08.2017 at 11:30 A.M. at Malviya Nagar Metro Station Red Light, Saket New Delhi three posters were found affixed on traffic light on which "Welcome Fresher Rajat Chaudhary Join ABVP"
was written and thus while doing/getting so done, accused defaced property in public view. Hence, accused was chargesheeted under section S.3 of the Delhi Prevention of Defacement of Property Act 2007 (henceforth referred to as 'DPDP Act').
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 claimed trial.
3. In order to substantiate its case, the prosecution examined 04 witnesses in all.
3.1 PW-1 Sh. Deepak Prakash, Junior Assistant Cum Typist, DUSU Election Officer, Delhi produced the original record i.e nomination paper of accused. Copy of same is Ex.PW1/A. 3.2 PW-2 Sh. ASI Subhash Chand deposed that on 29.08.2017 at about 11:30 A.M he alongwith 1 st IO SI Pancham were on duty in the FIR No.396/2017 PS Saket Page-2 of 10 area of Malviya Nagar Metro Station Red Light where they found three posters affixed on traffic light on which "Welcome Freshers Rajat Chaudhary Join ABVP" was written. SI Pancham clicked the photograph of said three posters with his own mobile phone and removed the same with the help of ASI Subhash. Thereafter, 1 st IO SI Pancham prepared a tehrir at the spot. At about 01:05 P.M. he went to PS with original tehrir for registration of FIR. After getting the present case FIR registered, he came back at the spot with copy of FIR and original tehrir where 2 nd IO ASI Mukesh was also present there. After seizing the said three posters, ASI Mukesh prepared seizure memo of the same vide seizure memo Ex.PW2/A. Thereafter, 2nd IO ASI Mukesh recorded the statement of ASI Subhash Chand. He correctly identified the case property i.e. three posters which were affixed on traffic light. The posters are Ex.P-1.
3.3 PW-3 ASI Mukesh Kumar deposed that on 29.08.2017, he was posted as ASI at PS Saket. That day on the directions of SHO PS concerned investigation of the present case was assigned to him. Thereafter, duty officer gave original tehrir and copy of FIR to him. Thereafter, he alongwith ASI Subhash went to spot i.e. Malviya Nagar Metro Station where 1st IO SI Pancham met them and removed three posters which were affixed on traffic signal red light with red and blue ink bearing "Fresh joined ABVP Rajat Chaudhary" was written. He took the same into his possession and seized the same vide seizure memo Ex.PW3/A. Thereafter, he prepared the site plan at the instance of SI FIR No.396/2017 PS Saket Page-3 of 10 Pancham vide Ex.PW3/B. He also inquired about whereabouts of accused but in vain. Thereafter, he reached at the office of ABVP, Delhi University where he served a notice u/sec 91 Cr. P.C vide Ex.PW3/C. Thereafter, he received a photocopy of nomination form of accused from there. He made search of accused at his house but he could not be found there. Father of accused met there who was informed about the case against accused. Thereafter, he served a notice u/sec 41.A Cr. P.C. through speed post upon accused. The notice is Ex.PW3/D. Accused never came in PS. Accordingly, NBWs as well as proceedings u/sec 82 Cr. P.C were also initiated against him but in vain. Thereafter, accused appeared himself before the court. Accused was interrogated. He prepared the interrogation report vide Ex.PW3/E. He arrested accused vide arrest memo Ex.PW3/F and conducted personal search vide Ex.PW3/G. Accused produced his surety. As the offence being bailable, he was released on police bail. Thereafter, he prepared the charge sheet and filed the same before the court. Witness correctly identified accused before the court. Witness also correctly identified the case property i.e. three posters in question as the same posters which were affixed on traffic light. The posters are already Ex.P-1.
3.4 PW-4 SI Pancham Kumar deposed that on 29.08.2017 after attending a PCR call vide DD No.15A he alongwith ASI Subhash came back to PS. In the meantime when he reached at Malviya Nagar Metro Station Red Light he saw three posters affixed on the red light that FIR No.396/2017 PS Saket Page-4 of 10 caused inconvenience to follow the signal lights. He took the photographs of the posters and de-affixed the said posters bearing the writing "Welcome Freshers ABVP Rajat Chaudhary". Since the said posters were causing defacement of the govt. property. He prepared a rukka and handed over to ASI Subhash for registration of FIR. He exhibited the rukka Ex.PW4/A. Further investigation was marked to HC Mukesh as per the directions of SHO PS concerned. Later HC Mukesh alongwith ASI Subhash came back at the spot. He handed over the said posters which HC Mukesh took in his possession through seizure memo. HC Mukesh prepared the site plan at the instance of SI Pancham. HC Mukesh recorded his statement in this regard. He correctly identified the photographs of the posters in question which were clicked by him. The photographs are Ex.P-2. Witness correctly identified the case property i.e. three posters in question as the same posters which were affixed on traffic light. The posters are already Ex.P-1.
4. Prosecution evidence was directed to be closed vide order dated 20.10.2018.
5. Statement of the accused U/s 313/281 Cr.P.C. was separately recorded wherein all the incriminating evidence was put to him for seeking his explanation. He stated that he is innocent and has been falsely implicated in the present case. Further in the nomination papers, spelling of his name was Rajat whereas in the alleged posters, spelling of the name was Rajatt. He has no knowledge about the posters and same FIR No.396/2017 PS Saket Page-5 of 10 were not pasted at his instance or on his authority. Same had been done by the members of NSUI so that he could be disqualified by the election of DUSU.
6. I have heard Ld. APP for the State and Ld. counsel for the accused. I have carefully perused the case file in light of the submissions advanced by the respective counsels.
Brief reasons for final decision
7. 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
8. So far as the first and second ingredients are concerned, there is no doubt that posters found pasted on the traffic light tantamounts to defacement of public property as defined u/sec 2 of DPDP Act.
9. Now, the question in consideration before this court is whether or not the posters in question were fixed by the accused on the traffic light.
FIR No.396/2017 PS Saket Page-6 of 10
10. At the outset, there is no eye-witness to the pasting of the disputed posters, either from public or any police witness. Not only that, there is no public witness to the procedure of removal of the said posters from the traffic light. Interestingly, the posters in question are not having any pasting marks reflecting that these were ever pasted or any marks reflecting that same were forcefully taken off, which makes the entire case of the prosecution questionable.
11. Additionally, the posters are 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 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 effort was made to join respectable witnesses from the same locality.
FIR No.396/2017 PS Saket Page-7 of 10
12. In this regard reliance is being placed on the following judgments. 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 the IPC".
In a case law reported as Roop Chand Vs. State of Haryana 1999 (1) C.L.R. 69, the Punjab & Haryana High Court 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".
FIR No.396/2017 PS Saket Page-8 of 10 "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 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 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".
13. 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. Further it is a settled proposition of criminal law that in order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also, accused is entitled to the benefit of every reasonable doubt in the FIR No.396/2017 PS Saket Page-9 of 10 prosecution story and such reasonable doubt entitles the accused to acquittal.
14. 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 posters had been affixed at the disputed site has been proved beyond reasonable doubt, I am of the opinion that the accused is entitled to be acquitted for offence u/sec 3 of DPDP Act.
Announced in the open
Court on 29.10.2018 (Pooja Talwar)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 10 pages and each page is signed by me.
(Pooja Talwar)
Digitally CMM (South), Saket Courts,
signed by
POOJA
New Delhi
POOJA TALWAR
TALWAR Date:
2018.10.30
14:40:26
+0530
FIR No.396/2017 PS Saket Page-10 of 10