Delhi District Court
State vs . Mahamedhaa Nagar on 21 September, 2019
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : CENTRAL
TIS HAZARI COURTS : DELHI
FIR No. 408/17
U/S. 3 DPDP Act
PS Timarpur
State Vs. Mahamedhaa Nagar
Case ID No. 11198/18
JUDGMENT
1. Sr. No of case 11198/18
2. Date of commission of offence 9.9.2017
3. Name of complainant ASI Chander Shekhar
4. Name of accused person Mahamedha Nagar S/o Sh.
Sharad Nagar , R/o; H.No.D19
Patel NagarII Ghaziabad , U.P &
Office Delhi University Student
Union office , Probyin Road
Delhi .
5. Offence complained of U/s. 3 DPDP Act
6. Plea of accused persons Pleaded not guilty
7. Final order Acquitted.
8. Date of such order 21.9.2019
FACTS IN BRIEF/ CASE SET UP BY PROSECUTION:
1. Accused has been sent for trial on the allegations that on 09.09.2017, at about 8:30Pm under flyover Wazriabad Delhi , accused had defaced the public property by putting posters for campaigning Delhi University election on the pole /khamba pf said flyover and thereby committed an offence punishable u/s. 3 of Delhi Prevention of Defacement of Property Act, 2007 (hereinafter referred as State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 1-8 DPDP Act).
2. After completion of the investigation, chargesheet was filed by the police against accused. Cognizance of the offence was taken and the accused was summoned. Copy of the chargesheet was supplied to the accused and the matter was adjourned for arguments on charge.
3. Notice for offence punishable u/s. 3 DPDP Act was given to the accused persons, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined only two witnesses. The testimony of the said witness in brief is as under :
5. PW1 IO/ASI Chander Shekhar deposed that on 9.9.2017 , he was posted as PS Timarpur as ASI and on that day at about 8:30pm he was on patrolling duty alongwith HC Bache Singh reached at Wazirabad Flyover they saw that the posters were affixed at the pole of flyover on which Mahameda Nagar of ABVP candidate for the post of secretary was mentioned, that due to which the flyover pole was defaced, that he removed the posters from the pole , that he then took the photographs of the poster pasted from his personal mobile phone, that he prepared tehrir and handed over the same to HC Bache Singh to get the FIR registered, PW 1/A, that HC Bache Singh then came back at the spot alongwith original rukka and copy of FIR, that he prepared the site plan Ex. PW1/B, that he seized posters vide seizure memo Ex PW 1/C, that he deposited the posters in the malkhana, that he had also sent notice Ex PW 1/D to DU Election officer, Delhi University u/s 91 CrPC with regard to the same, that he had obtained election nomination form of accused and seized vide seizure memo Ex PW 1/E , that he recorded the statement of relevant witnesses. He correctly identified State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 2-8 accused and photographs Ex. P1(colly). During cross examination he deposed that it is correct that the accused was not found affixing the alleged posters, that it is also correct that they have not join any public witness at the time of investigation, that it is also correct that he had not filed the certificate u/s 65 B Indian Evidence Act qua the photographs Ex P1. He denied the suggestion that accused has been falsely implicated in the present case.
6. PW 2 HC Bache Singh deposed that on 9.9.2017 , he was posted as PS Timarpur as HC and on that day at about 8:30pm he was on patrolling duty alongwith ASI Chander Shekhar reached at Wazirabad Flyover they saw that the posters were affixed at the pole of flyover on which Mahameda Nagar of ABVP candidate for the post of secretary was mentioned, that due to which the flyover pole was defaced, that IO removed the posters from the pole and then he took the photographs of the poster pasted from his personal mobile phone, that IO prepared tehrir and handed over the same to HC Bache Singh to get the FIR registered, that he came back at the spot alongwith original rukka and copy of FIR, that IO prepared the site plan Ex. PW1/B, that IO then seized posters vide seizure memo already Ex PW 1/C, that IO had then deposited the posters in the malkhana, that IO recorded the statement of relevant witnesses. He correctly identified accused and photographs Ex. P1(colly). During his cross examination, he deposed that PW2 stated that no public persons join the investigation in the present case, who had seen the accused persons or any other associates of the accused persons, while pasting the posters. He further stated that accused persons were not found affixing the alleged boards/hoardings.
7. Statement of accused was recorded u/s. 313 Cr.P.C. wherein the incriminating evidence was put to the accused. In the said statement u/s. 313 Cr.P.C, accused State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 3-8 persons has denied the allegations. Accused chose not to lead any evidence in their defence.
ARGUMENTS OF LD. APP FOR STATE AND ACCUSED:
8. Ld APP for the State had argued that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld APP for the State had also argued that the factum of defacement of the public property by accused has been proved beyond reasonable doubt and therefore, accused is liable to be convicted in this case.
9. On the other hand, accused has stated that he was innocent and has been falsely implicated by the police.
REASONS FOR THE DECISION:
10. Before proceeding further, I need to discuss the relevant legal propositions applicable on to the facts of the case. It is a settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence & that in order to prove its case on judicial file, the prosecution is supposed to stand on its own legs whereby it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused persons. Further settled it is, that the primary burden of proof for proving the offences in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on to the accused persons.
11. It is no longer Res Integra that accused persons are entitled to benefit of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused persons to acquittal.
State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 4-8
12. In the light of the above discussed legal position, I shall now step forward to divulge my opinion on the respective fate of the accused.
13. Prosecution has placed on record the photographs of posters in question Ex. P1 (colly). As regards the photographs are concerned the same cannot be believed merely on its production by the IO. Prosecution has failed to bring on record Certificate u/s. 65 (B) of the Evidence Act rendering such record inadmissible. Reliance is placed upon the judgment titled as Anvar PV Vs. PK Bashir (2014) 10 SCC 473, wherein it is observed that: "....Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[1], a twoJudge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cellphones, it was held at Paragraph 150 as follows:
"150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 5-8 computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65." It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.
The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 6-8 secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
The appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, ExhibitsP4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground. The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act...
14. Now coming to the photographs of the posters in question, which placed on the record, the same were just placed on the record alongwith the chargesheet .
State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 7-8 Since the said posters in question were not sealed only photographs of the said posters have been filed. This also casts a doubt upon the prosecution version.
15. As per the testimony of PW1 and PW2, the spot in question was a public place. PW1 and PW2 during his cross examination had admitted that the no public persons have joined in the investigation at the time of investigation. Non joining of public witness is also fatal for the prosecution case.
16. Keeping in view the ratio held in aforesaid case, the case property cannot be admitted in evidence coupled with the fact that the case property in question were never sealed by the IO for the reasons best known to him.
CONCLUSION:
17. In my opinion framed in view of the above mentioned discussion, it can be safely concluded that prosecution has failed to prove its case on judicial file beyond reasonable doubt. The benefit of any lacunae left in the investigation, has to be given to the accused. There do exist such doubts & unexplained holes in the prosecution story and as such accused is given benefit of doubt and are hereby acquitted of the charge framed against her. Compliance of section 437A cr.p.c.
has been made in ordersheet. Digitally signed
by JITENDRA
JITENDRA SINGH
SINGH Date: 2019.09.23
16:38:25 +0530
Judgment dictated and JITENDRA SINGH
pronounced in the open Court ACMM:(C) DISTT:DELHI
i.e. 21st September 2019
(This judgment consists of 8 pages)
State Vs. Mahamedhaa Nagar; FIR No. 408-17; PS Timarpur 1-8