Delhi District Court
State vs . Kuldeep Bidhuri on 11 December, 2017
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 784/15
PS : Kalkaji
U/s : 3 DPDP Act
State Vs. Kuldeep Bidhuri
Unique ID No. : 97275/2016
Date of institution of case : 08.09.2016
Date of reserving the judgment : 28.11.2017
Date of pronouncement of judgment : 11.12.2017
J U D G M E N T
1. S. No. of the Case : 109/05/16
2. Date of Commission of Offence : 10.09.2015
3. Name of the complainant : HC Goverdhan Singh,
No. 231/SE
PS Kalkaji
New Delhi
4. Name,parentage & address of accused : Kuldeep Bidhuri
S/o Sh. Ved Prakash
R/o H. No. C91/165, Mehla
Mohalla, Madanpur Khadar,
Sarita Vihar, New Delhi
5. Offence complained of or proved : u/s 3 DPDP Act
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted
Case of the Prosecution
1. The prosecution case is that on 10.09.2015 at about 4.30 pm at the boundary wall of DDA, Nehru Place, near Nehru Place flyover Delhi which is a public property within the jurisdiction of PS Kalkaji, a poster FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 1 of 6 on which "CYSS Candidate for DUSU" with the name of accused was found affixed which was got pasted by accused or with his authority, in public view on a public property which constituted commission of offence punishable u/s 3 of Delhi Prevention of Defacement of Property Act. FIR was registered and after investigation, chargesheet was filed against the accused Kuldeep Bidhuri for the offence u/s 3 DPDP Act.
2. Cognizance of the offence was taken and the accused was summoned, copies of chargesheet were supplied and thereafter, notice was framed against the accused for the offence punishable u/s 3 D.P.D.P Act to which the accused pleaded not guilty and claimed trial. Vide statement recorded u/s 294 Cr.PC accused admitted factums of registration of FIR as Ex.A1, certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A2 and reply of Prof. D S Rawat regarding list of candidates contesting DUSU Election 201516 as Ex.PW1/E.
3. In order to prove its case, prosecution examined three witnesses.
4. PW1 ASI Goverdhan Singh and PW2 HC Preet Pal deposed that on 10.09.2015 while patrolling at about 4.30 pm they reached near Nehru Place Flyover, Delhi where they noticed that on the government boundary wall of DDA alongside road, one poster on which "CYSS CANDIDATE FOR DUSU 5 KULDIP BIDHUDI FOR PRESIDENT VOTE FOR HONEST POLITICS" was written, was found pasted and as the said poster was pasted on a public property in public view, PW1/IO photographed the same by his private mobile phone camera and thereafter, he removed the poster and seized the same vide seizure memo Ex.PW1/A and prepared rukka Ex.PW1/B and got the FIR registered through PW2 Ct. Preetpal. After registration of FIR, PW1/IO prepared site plan Ex.PW1/C. PW1/IO further stated that during investigation, he served notice u/s 41A Cr.PC Ex.PW1/D upon the accused through Ct.
FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 2 of 6Satbir and accused joined the investigation of the present case on 30.08.2016. PW1/IO also procured the list PW1/E (colly 02 pages) of candidates who have contested the DUSU Election through ASI Ram Kumar which showed that the accused Kuldeep Bidhuri contested the election for DUSU. Witnesses also relied upon case property i.e one poster Ex.P1 and its four photographs as Ex.P2 (colly).
5. PW3 HC Satbir deposed that on 30.08.2016, on the instruction of IO/PW1, he served notice u/s 41A Cr.PC Ex.PW1/D upon the accused Kuldeep Bidhuri and accused joined the investigation.
6. Thereafter, PE was closed and statement of accused was recorded u/s 313 Cr.PC, during which all the incriminating evidence was put to the accused to which accused denied the prosecution case in its entirety and claimed innocence. No evidence was led by the accused in her defence.
7. I have heard the Ld APP for the State and Ld counsel for the accused and also carefully gone through the record.
Finding of the Court
8. Allegation against the accused are that on 10.09.2015 at about 4.30 pm at the boundary wall of DDA, Nehru Place, near Nehru Place flyover Delhi which is a public property within the jurisdiction of PS Kalkaji, a poster on which "CYSS Candidate for DUSU" with the name of accused was found affixed which was got pasted by accused or with his authority, in public view on a public property and by the said act the accused committed the offence u/s 3 DPDP Act.
9. Section 3(1) of the Act provides that whoever defaces any property in public view by writing or marking with ink, chalk, paint or any other material except for the purposes 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 FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 3 of 6 which may extend to 50,000 rupees or with both. Defacement has been defined by Section 2 (a) of the Act as including 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.
Writing has been defined by Section 2 (d) of the Act which says that the same includes printing, painting, decoration, lettering, ornamentation etc., produced by stencil. Property has been defined by Section 2 (c) of the Act which says that it includes any wall. Poster is a sort of writing which is included in definition of writing under the Act.
10. PW1 ASI Goverdhan Singh who is the investigating officer in the present case is also the complainant of the present case. It is well settled law that complainant should not be the investigating officer in the case so as to rule out any illwill or bias against the accused. The mindset of the complainant ordinarily is holding a grievance against somebody whereas the mandate of the investigating officer is to ascertain the truth. Therefore, in order to allay any fear of bias or illwill, it is in the fitness of things that the complainant and the IO should not be the same person which is not the case before the court.
11. Further, PW1 as well as PW2 stated that they were on patrolling on the said day but no DD entry has been placed on record either by PW1 or by PW2 to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the police. PW1 and PW2 being present at the spot at the alleged time has to be proved beyond doubt and in the present case, it is a vital missing link in the prosecution case. Therefore, the testimony of PW1 and PW2 leaves much to be desired in order to prove the prosecution case beyond reasonable doubt.
12. Further, the prosecution has relied upon four photographs of the poster FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 4 of 6 which is Ex.P2 (colly). PW1/IO ASI Goverdhan Singh claimed to have clicked the said photographs Ex.P2 (colly) from his private digital camera. Digital photograph by an electronic device is a piece of electronic evidence and electronic evidence can only be proved by way of certificate u/s 65B of the Evidence Act which has not been done in the present case for reasons best known to the IO. Merely filing of a photograph does not suffice and does not make it an admissible piece of evidence. It implies that the photograph of the spot remain unproved in the present case and cannot be relied upon in support of the prosecution case.
13. Further, Ld counsel for accused has argued that no independent witness was joined by the prosecution despite the fact that the alleged spot i.e Nehru Place was a thickly populated area. PW1 during his cross examination has stated that he did not join any public witness and he also stated that he also did not come across any person who might have seen anyone affixing the poster at the spot. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the poster was affixed on the boundary wall of DDA which is a public property. IO even did not know the name of the developer of the photographs taken by him nor he made him a witness in the present case.
14. It is further pertinent to mention that spelling of the name of the accused as given in the DUSU list and the spelling of the name mentioned in the seized poster is different and PW1/IO also affirm this fact in his cross examination. Though, the name of the accused finds mention on the poster, however, the prosecution has not examined any witness who had seen the accused while pasting the alleged poster nor any witness deposed that the said poster was affixed at the behest of the accused. In these circumstances, in my considered opinion, the material placed on record is not sufficient to prove its case against the accused beyond FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 5 of 6 reasonable doubt.
15. Therefore, considering the fact that photographs of the poster remained unproved, non examination of independent witness, non filing of certificate u/s 65B Evidence Act regarding taking of photographs from the private mobile phone by the IO, lack of evidence regarding the factum of PW1 and PW2 being present on the spot at the alleged date and time, non production of DD entries and the complainant himself being the investigating officer, the poster bearing the wrong spelling of the name of the accused and considering the totality of facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubts.
16. Accordingly, accused Kuldeep Bidhuri is held "not guilty" and is accordingly acquitted of the offence punishable u/s 3 D.P.D.P Act.
Announced in the open court on 11.12.2017 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/11.12.2017 FIR No. 784/15 State Vs. Kuldeep Bidhuri Page 6 of 6