Delhi District Court
State vs . Naginder Benipal on 2 January, 2023
IN THE COURT OF MS. RAJANI RANGA, ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE-01, TIS HAZARI
COURT, CENTRAL: DELHI.
State Vs. Naginder Benipal
FIR No.62/19
PS: Subzi Mandi
Unique Case Identification No. 9984/2019
JUDGMENT
(b) Date of offence 19.03.2019
(c) Complainant ASI Harish Chander
(d) Accused Naginder Benipal S/o Sh.
Guruvachan Singh, R/o H.No. K-
101, Gulshan Ikerana, Sec-143,
Noida, Gautam Budh Nagar, U.P.
(e) Offence Section 3 of The Delhi Prevention
of Defacement of Property Act,
2007.
(f) Plea of accused Pleaded not guilty.
(g) Final Order Acquitted
(h) Date of institution 29.07.2019
(i) Date when judgment was 02.01.2023
reserved
(j) Date of judgment 02.01.2023
Prosecution case
1. The prosecution case, in brief, is that Naginder Benipal defaced the public property in public view by affixing poster on the FIR No.62/19 State Vs. Naginder Benipal Page 1 of 13 ACMM-01(CENTRAL)/02.01.2023 wall Near Gate no. 2, Tis Hazari Court, Delhi on which "HAPPY HOLI NAGINDER BENIPAL (ADVOCATE) FOR MEMBER EXECUTIVE DHCBA+9199993299" and his picture on its right side was printed and thereby he committed an offence punishable under Section 3 of The Delhi Prevention of Defacement of Property Act, 2007 (herein after referred to as the DPDP Act). The instant FIR was registered. Investigation was conducted. The poster was seized and accused were served with the notice under section 41A of The Code of Criminal Procedure, 1973 (in short shall be referred to as Cr.P.C). Upon completion of investigation, charge-sheet was filed in the Court.
Charge
2. After consideration of the charge-sheet, charge under Section 3 of DPDP Act was framed against all the accused to which he pleaded not guilty and claimed trial.
Statement of the accused under section 294 of The Code of Criminal Procedure code, 1973.
3. The name of ASI Jaswant, the Duty Officer who registered the instant FIR, was dropped from the list of witnesses as the genuineness of the instant FIR, Ex.A1, was not disputed by the accused in terms of section 294 of Cr.P.C.
Prosecution Evidence
4. During trial, prosecution examined two witnesses; PW1/IO/SI Harish Chander and PW2/Ct. Dharmender.
5. Before I proceed with the adjudicatory evaluation of material available on record and comment upon the merits, I deem it appropriate to take on record the brief testimony of the FIR No.62/19 State Vs. Naginder Benipal Page 2 of 13 ACMM-01(CENTRAL)/02.01.2023 prosecution witnesses.
6. As broadly testified by PW1/IO/SI Harish Chander and PW2/Ct. Dharmender, in the year 2019, they were on patrol duty and were present in the Tis Hazari Court Complex and noticed one poster which as deposed by PW1 was pasted on the right hand side wall of the Court Complex, Near the Entry Gate and as deposed by PW2 was found pasted on the Entry Gate No.1. The PW1 informed about the same to the Chowki Incharge who instructed him to take the appropriate action. The PW1 prepared the rukka, Ex. PW1/A and got the instant FIR registered through PW2. The PW2 corroborated the PW1. The PW1 prepared the site plan, Ex. PW1/B. The PW2 removed the said poster and clicked its picture, Ex. P2. The PW1 seized the said poster, Ex. P1, vide seizure memo, Ex. PW1/C. The PW1 contacted the accused and served a notice u/s 41 Cr.P.C., Ex. PW1/D, upon the accused. The PW2 has correctly identified the said posters and its photographs. The PW1 prepared the charge- sheet and filed the same in the Court. Both the witnesses has correctly identified the accused.
During cross-examination by the Ld. Counsel for the accused person, the PW1 and PW2 admitted that they have not seen anybody affixing the said poster on the spot. They both have also admitted that no statement of any public persons was recorded at the time of removing of the said poster. They admitted that no public persons was joined at the time of removing and seizure of the said poster. No disclosure statement of the accused was recorded. No inquiry was made regarding the printer and publishers of the said poster. Neither FIR No.62/19 State Vs. Naginder Benipal Page 3 of 13 ACMM-01(CENTRAL)/02.01.2023 any videography of the spot was made nor pictures were clicked of the spot.
Statement of the accused under section 313 CrPC
7. Prosecution evidence was closed. The statement of the accused was recorded under section 281 r/w 313 CrPC. He denied the allegations and pleaded innocence. He stated that neither he pasted the said poster nor instructed any person to paste the same on his behalf or for his benefit or get the same printed. He opted not to lead any evidence in defence. Defence Evidence was closed.
8. Final arguments have been heard. Record have been perused and considered.
Final Argument
9. It is submitted by the Ld. APP (Substitute) for State that the prosecution has been able to prove its case against the accused beyond reasonable doubt on the basis of the testimony of PW1 and PW2 as well as material available on record and pleaded for the conviction of the accused.
On the other hand, in crux, it is submitted by the Ld. Counsel for the accused that there is no evidence in support of charge under Section 3 of the DPDP Act as none of the witnesses examined by the prosecution has deposed that the poster in question was affixed either by the accused person or at his instance or for his benefit. The Ld. Counsel also pointed out various contradictions and inconsistencies in the testimony of the witnesses examined by the Prosecution. It has also been submitted that the accused has been falsely implicated is evident from the fact that no public witness has been joined FIR No.62/19 State Vs. Naginder Benipal Page 4 of 13 ACMM-01(CENTRAL)/02.01.2023 either to the seizure of the said poster or the investigation. As submitted, the photographs produced in evidence are also remained unproved. The Ld. Counsel pleaded for the acquittal of the accused.
Relevant provision of law needs to be considered
10. It is pertinent to note that Section 3 is the penal provision and provides penalty for defacement of property. The sub-section (1), made a person liable to punishment provided therein who defaces 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 and in case that offence is committed for the benefit of some other person or a company or other body corporate or an association of persons (whether incorporated or not), the beneficiary, shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence as per its sub-section (3).
11. Section 2 (a) of the DPDP Act described the "defacement" 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.
12. Section 2 (c) described the "property" as including any building, hut, structure, wall, tree, fence, post, pole or any other erection and described the "writing" under Section 2(d) as including printing, painting, decoration, lettering, ornamentation etc., produced by stencil.
13. It is also pertinent to note that in the judgment titled as Anil FIR No.62/19 State Vs. Naginder Benipal Page 5 of 13 ACMM-01(CENTRAL)/02.01.2023 Bhatia & Ors v Government of NCT of Delhi & Ors, dated 19/02/2015, the Honorable High Court of Delhi, has held that putting of posters, banners, hoardings, boards on the building, walls etc. is the subject matter of the defacement Act and while referring to a precedent reported as Sunil Pandharinath Jadhav v State of Maharashtra, it was observed that poster, banner, hoarding, board which does not co-here with the surrounding is bound to have bearing on the appearance or beauty of the public place and is an eye sour to the viewers causing not only public nuisance but also violative of the Fundamental Right under Article 21 of The Constitution of India, robbing people of the clean and beautiful environment and surroundings free from any defacement and the directions were issued for removal of all illegal posters, banners, hoardings, boards on the building.
Examination of the material available on record including evidence and brief reasons for the decision
14.It is a settled principle of law that the prosecution has to prove the case against the accused beyond reasonable doubt and for this, the prosecution has to stand on its own legs.
15.As per the case of the prosecution the accused is the perpetrator of the crime as his picture was found printed on the seized poster which was allegedly found affixed on the public place. Neither it has been alleged nor deposed that the alleged poster was put on the spot for the benefit of the accused person. As alleged in the charge-sheet, the said poster was affixed by the accused himself. Therefore, the case is not covered under Section 3(3) of the DPDP Act.
FIR No.62/19 State Vs. Naginder Benipal Page 6 of 13ACMM-01(CENTRAL)/02.01.2023
16.Now, to decide the guilt or innocence of the accused person, it is to be examined if the case is covered by section 3(1) of the DPDP Act i.e if the accused person has defaced the property in public view by himself affixing the seized poster.
No independent witness joined
17. The entire case of the prosecution is based on the testimony of the police official and the documents exhibited in evidence. Admittedly, no public person has been joined to the seizure proceedings of the said poster. As deposed, the said poster was found affixed on the Main Gate, Near Gate No.2, Tis Hazari Court, Delhi, i.e. public place that too at around 09.00 pm. It is not the case of the prosecution that no public person was available on the spot. It has also not deposed by the witnesses that no public person was available on or near the spot. However, no plausible explanation came forward from the prosecution for not joining the public witness to the seizure proceedings or the investigation. No reasonable explanation has been offered by the prosecution for not joining the public witness. Although that by itself is not a reason to outrightly reject the prosecution case, it does warrant careful scrutiny of the testimony of the police officers.
18.Moreover, no departure and arrival entries are proved on record by the prosecution which could have established that the PW1 and PW2 actually visited the alleged spot and seized the said poster from the spot as alleged.
19.Thus, the testimony of official witnesses that the said poster was seized from the spot does not find any corroboration from any independent source. In this regard, it would be apt to note FIR No.62/19 State Vs. Naginder Benipal Page 7 of 13 ACMM-01(CENTRAL)/02.01.2023 the observations made by the honorable High Courts and Apex Court as below:
20.In case titled as Roop Chand Vs. State of Haryana reported as CC Cases 3 (HC), it was held as that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
21.In the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
22.In the case of Sahib Singh v. State of Punjab AIR 1997 SC 2417, it has been held as under:-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is FIR No.62/19 State Vs. Naginder Benipal Page 8 of 13 ACMM-01(CENTRAL)/02.01.2023 available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
23.In the case of Sadhu Singh Vs. State of Haryana 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
24.In the case of Massa Singh Vs. State of Punjab 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
25.In the case of Chanan Singh Vs. State, 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
FIR No.62/19 State Vs. Naginder Benipal Page 9 of 13ACMM-01(CENTRAL)/02.01.2023
26.In the cases of Gurbel Singh Vs. State of Punjab, 1991 Crl.Rev. No.504 (P&H) and Dhanpat Vs. State of Punjab, 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
27.In the instant case, no reasonable explanation has been offered by the prosecution either for not joining the public witnesses or making any inquiry from the printer or the publishers of the said poster to ascertain for whom or by whom the said poster was printed. The case of the prosecution is based on the testimony of police official which is not corroborated by any independent witness or material. Thus, the non-joining of public witness raises reasonable doubt to the prosecution case.
The photograph on record not proved
28.The prosecution has relied upon the said photograph, Ex.P2, which as testified by PW2 was clicked by him. From the photograph, Ex.P2, it cannot be ascertained the place where the said poster was affixed as it does not cover the place where the said poster was allegedly affixed. The said photograph, Ex.P2, was clicked by PW2 as mentioned in his statement claimed to be recorded u/s 161 Cr.P.C. during investigation through his mobile phone that is an electronic device. Significantly, the Certificate in terms of Section 65B of The Indian Evidence Act, 1872 supporting the said photograph has not been produced in evidence for which also no explanation has been offered by the prosecution. Thus, the said photograph, Ex.P2, remained unproved and can not be relied upon in support of the case of the prosecution that the alleged seized poster was affixed on the FIR No.62/19 State Vs. Naginder Benipal Page 10 of 13 ACMM-01(CENTRAL)/02.01.2023 spot.
Nexus between the accused persons and the crime
29. As per prosecution, the accused person is connected with the crime or is the perpetrator of the crime as his name and picture were printed on the said poster. However, there is no evidence on record as to the affixing of the said poster by the accused person as none of the witnesses examined has deposed that they saw the accused person affixing the alleged seized poster on the spot. Admittedly, both the witnesses have not seen any person pasting the said poster on the spot.
30. Significantly, no inquiry or interrogation at all has been made either from the accused person as there is nothing on record like his disclosure statement or public person or the printer or the publisher of the said poster which could have indicated that the accused person had affixed the said poster on the spot as alleged.
31. Thus, the identity of the offender is shrouded in doubt and the prosecution has failed to convincingly establish the identity of the accused person as the perpetrator of the crime who affixed the said poster on the spot.
32. There are other inconsistencies and discrepancies on the record which are inexplicit like inconsistent statement made both the witnesses on the point as to the place where the said poster was found pasted. As deposed by the PW1, it was found pasted on the right hand side wall of the Tis Hazari Court Complex, Near the Entry Gate whereas as deposed by PW2 it was found pasted on the Entry Gate i.e. Gate No.1. Thus, there is different version of the prosecutions witnesses as to the place where the FIR No.62/19 State Vs. Naginder Benipal Page 11 of 13 ACMM-01(CENTRAL)/02.01.2023 said poster was allegedly found pasted which cast doubt on the correctness of the prosecution version and erodes the credibility of the witnesses.
33. In view of the above examination of the material available, it is observed that the non joining of the independent witness to the alleged seizure of the poster or the investigation, failure to establish the nexus between the crime and the accused person, the inconsistencies observed in the testimony of the witnesses casts a shadow of doubt on the version of the prosecution. The prosecution was under obligation to remove the shadow which it has failed. The prosecution has failed to attain the standard of proof beyond reasonable doubt. In this regard, it would be apt to note the observations made in the judgment as below:
34.In the case of Mohd. Fazal Versus State Crl. Appeal No. 243/2009 dated 19th May, 2014, the Hon'ble High Court of Delhi noted as under:
"In criminal law, the burden of proving that the accused had committed the crime and that too beyond reasonable doubt, is on the prosecution. The said legal principle is virtuous, sacred and unexceptionable as it protects innocents but the said principle is not designed and intended to be applied in an impractical manner with unrealistically wide interpretation; that silence on the part of the accused is always and universally acceptable and under no circumstances the accused should be or is required to give an explanation"
35. It is cardinal principle of law that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the case of the prosecution should stand FIR No.62/19 State Vs. Naginder Benipal Page 12 of 13 ACMM-01(CENTRAL)/02.01.2023 on its own legs. The benefit of doubt, if any, must go in favour of the accused. It is apt to refer to the following observation in the case of Sadhu Singh V/s State of Punjab 1997 (3) Crime 55:
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
CONCLUSION
36.As observed above that the prosecution has failed to prove its case against all the accused persons beyond reasonable doubt, I give benefit of doubt to all the accused persons. Accordingly, accused person, namely, Naginder Benipal , is acquitted of the charge of offence of which they faced the trial.
37.Bonds accepted in terms of provision of section 437A, CR.P.C, shall remain in force for a period of six months from today.
File be consigned to record room after due compliance as per rules.
Announced in the open Court today i.e. on 02/01/2023.
Digitally signedRAJANI by RAJANI RANGA RANGA Date: 2023.01.02 10:27:40 +0530 (RAJANI RANGA) ACMM-01(CENTRAL)/THC/DELHI 02.01.2023 FIR No.62/19 State Vs. Naginder Benipal Page 13 of 13 ACMM-01(CENTRAL)/02.01.2023