Delhi District Court
State vs . Hari Godara on 1 May, 2019
IN THE COURT OF SH. JITENDRA SINGH
ADDL. CHIEF METROPOLITAN MAGISTRATE : CENTRAL
TIS HAZARI COURTS : DELHI
FIR No. 260-2017
U/S. 3 DPDP Act
PS Civil Lines
State Vs. Hari Godara
Case ID No. 10247-2018
JUDGMENT
1. Sr. No of case 10247-2018
2. Date of commission of offence 09.09.2017
3. Name of complainant HC Jitender
4. Name of accused Hari Godara
S/o. Sh. Navneet Godara
R/o; Village Kirdhan, PS
Bhatukala, District Fatehabad,
Haryana.
5. Offence complained of U/s. 3 DPDP Act
6. Plea of accused Pleaded not guilty
7. Final order Acquitted.
8. Date of such order 01.05.2019
1. FACTS IN BRIEF/ CASE SET UP BY PROSECUTION:-
Accused has been sent for trial on the allegations that on 09.09.2017, at about 10.45 pm, at Ludlow Castle School Wall Sham Nath Marg, Civil Lines, Delhi, accused had defaced the public property by putting posters on the wall of the abovesaid school and thereby committed an offence punishable u/s. 3 of Delhi Prevention of Defacement of State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 1/9 Property Act, 2007 (hereinafter referred as DPDP Act).
2. MISCELLANEOUS PROCEEDINGS:-
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 FRAMED AGAINST THE ACCUSED:-
Notice for offence punishable u/s. 3 DPDP Act was given to the accused, to which he pleaded not guilty and claimed trial.
4. EVIDENCE LED BY THE PROSECUTION:-
In order to prove its case, prosecution has examined three witnesses. The testimony of the said witness in brief is as under :-
(a)PW1 is ASI Karan Singh. PW1 deposed that on the basis of the rukka, he registered the FIR, which is Ex. PW1/A and also made endorsement on the rukka, which is Ex. PW1/B.
(b)PW2 is Ct. Vinay Tomar. PW2 deposed that on 09.09.2017, he was posted at PS Civil Lines as a Ct. On that day, he alongwith IO reached at Shamnath Marg during the surveillance and had seen one poster affixed on the wall of Ludlow Castle School regarding DUSU Election and it was State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 2/9 written "join ABVP Hari Godhara on the poster'. He further deposed that O had taken photographs from his mobile and seized the poster by making a pullinda and sealed with the seal of 'JK'. He further deposed that IO prepared the rukka and same was handed over to him. FIR was go registered.
He further deposed that IO prepared the site plan, which is Ex. PW2/A and seizure memo is Ex. PW2/B. He further deposed that IO recorded his statement.
(c) During cross examination, PW2 stated that the he had not seen anybody while affixing the posters on the wall of the school and he had not seen the accused nearby the spot when they reached there and site plan was not prepared in his presence.
(d)PW3 is Ct. Sanuj Chauhan. PW-3 deposed that on 29.05.2018, accused Hari Godara was arrested, vide arrest memo Ex. PW3/A and his personal search was also conducted, vide memo Ex. PW3/B.
5. STATEMENT OF ACCUSED:-
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 has denied the allegations. Accused chose not to lead any evidence in his defence.
State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 3/9
6. ARGUMENTS OF LD. APP FOR STATE AND ACCUSED:-
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.
On the other hand, accused has stated that he was innocent and have been falsely implicated by the police.
7. REASONS FOR THE DECISION:-
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. 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.
It is no longer Res Integra that accused is entitled to benefit State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 4/9 of every reasonable doubt(s) appearing qua the material facts of the prosecution's story whereby such reasonable doubt(s) entitles the accused to acquittal.
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.
Prosecution has placed on record the photographs of the posters in question Ex. P1 and P2. 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 two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 5/9 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 computers/servers by mechanical process and certified by a responsible official of the service-providing 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 65-B, 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 65-B 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 State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 6/9 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 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, Exhibits-P4, 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 State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 7/9 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..."
8. 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. 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. It is pertinent to mention here that the public persons in the area had not joined the investigation regarding the posters in question. Non joining of public witness is also fatal for the prosecution case.
State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 8/9
9. Keeping in view the ratio held in aforesaid case, the photograph cannot be admitted in evidence coupled with the fact that the posters in question were never sealed by the IO for the reasons best known to him.
CONCLUSION:-
10. 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 is hereby acquitted of the charge framed against his. Compliance of section 437A cr.p.c. has been made in ordersheet.
Digitally signed by JITENDRA JITENDRA SINGH SINGH Date: Judgment dictated and JITENDRA SINGH 2019.05.02 15:30:08 +0530 pronounced in the open Court ACMM:(C) DISTT:DELHI i.e. the 1st of May, 2019 (This judgment consists of 9 pages) State Vs. Hari Godara; FIR No. 260-17; PS Civil Lines 9/9
State Vs. Deepak; FIR No. 471-2017; PS Nangloi 2/2