Delhi District Court
State vs . Naseem Ahmad on 6 October, 2018
IN THE COURT OF SH. AMIT ARORA
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
KARKARDOOMA COURTS, DELHI.
STATE Vs. NASEEM AHMAD
FIR No.767/14
PS: Krishna Nagar
JUDGMENT:
A Case No. 5461/16
B Name of the Complainant ASI S.P. Hudda
Name of the accused & his Naseem Ahmad s/o Alimuddin C parentage and address Salmani R/o H. No. C-3/211 Yamuna Vihar Bhajan Pura, Delhi D Offence complained of : 3 D.P.D.P. Act Date of commission of 22.10.2014 E offence F Date of Institution 16.10.2015 G Offence charged 3 D.P.D.P. Act H Plea of the accused Pleaded not guilty I Order Reserved on 04.10.2018 J Date of pronouncement 06.10.2018 Final Order Acquitted of offence u/s 3 D.P.D.P. K Act.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS
1. The story of the prosecution as per charge sheet is as under:-
2. On 22.10.2014, PW4 SI Surender Pal Hudda (Investigating officer) was on patrolling duty vide DD No.25A. When he reached at Ghondli Chowk, he met PW2 Ct. Amit Kasana. While they were patrolling, they noticed FIR No.767/14 State v. Naseem Ahmad Page No.1 of 6 that one advertising hoarding board/pamphlet was affixed on an electric pole number 908 near Ghondhli Chowk over the road advertising regarding the business of accused i.e. "Wonder Cut Unisex Saloon" with name and mobile number of owner written over it. IO took photograph of the same from his mobile phone and removed the banner. Thereafter, a tehrir and FIR was registered. The board was seized vide memo Ex. PW2/B. During the course of investigation, IO also made inquiries from the Printer Ashish Sharma. After the completion of the investigation charge-sheet U/s 3 Delhi Prevention of Defacement of Property was filed.
3. Accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.
4. On the basis of the charge-sheet, a notice for the offence punishable under section 3 Delhi Prevention of Defacement of Property Act was framed against accused and read out to him, to which he pleaded not guilty and claimed trial.
DEPOSITION OF PROSECUTION WITNESSES:
5. In order to prove the above said allegations, the prosecution has examined four witness.
6. PW1 is Sh. Ashish Sharma who was running a printing business. He deposed that about two months prior to the complaint, accused came at his shop and gave order for the printing of hoarding for the advertising of his shop in the name and style of 'Wonder Cut Saloon'. He got printed FIR No.767/14 State v. Naseem Ahmad Page No.2 of 6 the same and handed over the same to the accused as per his order. However, with respect to the identity of the case property i.e. the hoarding seized in this case, the witness failed to identify the said hoarding through photographs. He was cross-examined by Ld. Counsel for the accused. In cross-examination, he refused that the poster in photograph Mark A was printed by him. He further denied that he was ever interrogated by the police officials.
7. PW3 is MHCM who got proved the case property Ex.P-1 and its entry in the register no.19 of the even date.
8. IO/SI Surender Pal Hudda, PW4 has deposed in terms of the prosecution case. He deposed that while he was patrolling alongwith another Constable he saw the hoarding board affixed on an electricity Pole. He deposed regarding the taking of photographs of the board and its seizure. He further deposed regarding the preparation of the Tehrir and the investigation conducted by him. He has proved the following documents i.e. tehrir prepared by him was proved as Ex. PW4/A, site plan is Ex. PW4/B, photograph of hoarding board is marked as Mark A (colly) and seizure memo is Ex. PW2/B.
9. PW2 is Ct. Amit Kasana who assisted the IO during investigation. He deposed on the same lines as of the IO regarding affixing of hoarding board, its possession, registration of FIR etc.
10.After completion of PE, statement of accused was recorded wherein he denied all the allegations.
FIR No.767/14 State v. Naseem Ahmad Page No.3 of 6
11.Accused did not lead any defence evidence. Thereafter, final arguments were heard.
12.Ld. APP for state contended that the witness of the prosecution i.e. IO has proved beyond reasonable doubt that the hoarding board was affixed by the accused on the electricity pole over the road and the offence of 3 Delhi Prevention of Defacement of Property Act is made out. Per contra Ld. Defence Counsel has argued that accused has been falsely implicated in this case and prosecution has failed to prove that a poster as shown in photograph Mark A (colly) was actually affixed on an electricity pole. Ld. Counsel contends that being photographs taken from the mobile phone same requires a certificate u/s 65B and in the absence of same, photographs are inadmissible in evidence. Ld. Counsel further submits that the Printer, PW1 has also failed to identify the said poster and has denied that he has printed the same for the accused. It is further contended that the IO did not join any public witness despite their presence at the spot.
13. I have perused the entire record including the statement of witness and after careful scrutiny of the evidence led by the prosecution I am of the considered opinion that there are many lacunaes and loopholes in the prosecution case benefit of which ought to be given to the accused.
14.Firstly, the prosecution in this case was required to prove that a poster was actually affixed by the accused on an electricity pole. In this regard there is oral deposition of the police witnesses however, I find it difficult to rely upon them due to various other lacunaes. The IO had taken photographs of the said poster which are Mark A however, since the FIR No.767/14 State v. Naseem Ahmad Page No.4 of 6 photographs were obtained from mobile phone and is an electronic evidence, no certificate u/s 65B of Evidence Act was filed. In the absence of the same, the photograph cannot be taken into evidence. Once the photographs are taken away from consideration, what remains is the oral testimony of the police official. However, from their testimony it is an admitted position that the area where the hoarding was affixed was a commercial area meaning thereby that there were many shops. However, no efforts were made to join any independent shopkeeper to depose this fact.
15.Secondly, the prosecution case has further been weakened by the testimony of PW1 who during cross-examination had denied that he had printed the poster as shown in photograph Mark A for accused. Though this witness during his examination in chief has deposed that the accused has given him an order for printing of a hoarding for advertisement of his shop however, the same is not sufficient to infer that the hoarding involved in the present case was the same which was actually printed by PW1. PW1 has failed to identify the hoarding in this case. Now it is quite possible that the hoarding which the accused has got printed through PW1 were meant for affixing at the shop itself.
16.Thirdly, PW2 Ct. Amit who had participated in the investigation has admitted that the spot in question is a commercial area and public person were going and no one was joined. He further admitted that it was correct that there was a possibility of pasting said hoarding on the aforesaid pole by some rival shopkeeper in order to implicate the accused in false case. Strangely such a suggestion was admitted by none other than prosecution witnesses.
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17.In these circumstances, the accused is entitled to benefit of doubt.
CONCLUSION
18. In view of the above discussion, accused is acquitted of offence u/s 3 Delhi Prevention of Defacement of Property Act.
19. As per section 437-A of the Cr.P.C as inserted vide the Amendments Act which came into force on 31.12.2009, the accused shall furnish fresh personal bond and surety bond in sum of Rs. 10,000/- within one week from today which shall remain intact for a period of six months from today.
20. File be consigned to record room.
ANNOUNCED ON 06.10.2018 (AMIT ARORA) ACMM (E)/KKD/Delhi/06.10.2018 Certified that this judgment was directly typed by my personal assistant on computer on my dictation.
(AMIT ARORA) ACMM (E)/KKD/Delhi/06.10.2018 AMIT Digitally signed by AMIT ARORA DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e472 081070b034ee609e5ec0ad1936d9 ARORA 3a0429d51816814c, ou=HIGH COURT,CID - 6309251, postalCode=110092, st=Delhi, cn=AMIT ARORA Date: 2018.10.06 16:33:11 +05'30' FIR No.767/14 State v. Naseem Ahmad Page No.6 of 6