Delhi District Court
State vs . Sarita Mishra Khurana Date: on 3 October, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
FIR No. 539/17
Digitally signed
by MANISH
PS : Amar Colony
U/s : 3 DPDP Act
MANISH KHURANA
State Vs. Sarita Mishra KHURANA Date:
2018.10.03
Unique ID No. : 4744/18 14:21:18 -0500
Date of institution of case : 01.08.2018
Date of reserving the judgment : 12.09.2018
Date of pronouncement of judgment : 03.10.2018
J U D G M E N T
1. S. No. of the Case : 116/05/18
2. Date of Commission of Offence : 19.11.2017
3. Name of the complainant : HC Surendra Kumar,
No. 384/SE
PS Amar Colony
4. Name,parentage & address of accused : Sarita Mishra,
W/o Sh. Rakesh Mishra,
R/o H. No. C24A, Kalkaji,
New Delhi.
5. Offence complained of : 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 19.11.2017 at 09:30 p.m on the electricity pole near E230, East of Kailash, Amar Colony, Delhi, which is a public property in public view within the jurisdiction of PS Amar Colony, a Flex board mentioning the words "Astrologer Jyotishachara, Sarita Mishra xxxxxxxxxxx" with mobile number of accused Sarita Mishra was found affixed which was got affixed by the accused or with her authority on the said public FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 1 property and in public view 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 Sarita Mishra 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 the factum of registration of present FIR as Ex.A1, endorsement made by duty officer on the rukka as Ex.A2 and certificate u/s 65B Evidence Act regarding registration of FIR as Ex.A3.
3. In order to prove its case, prosecution examined two witnesses.
4. PW1 HC Surender and PW2 Ct. Ashok deposed that on 19.11.2017 while patrolling at about 09.30 pm they reached near E230, East of Kailash, Amar Colony, Delhi and noticed that on one electricity pole one flex board, mentioning the words " Astrologer Jyotishachara, Sarita Mishra xxxxxxxxxxx"
with mobile number of accused Sarita Mishra was found affixed. As the said flex board was tied on an electricity pole which is a public property in public view, IO/PW1 photographed the same by his private mobile phone camera and thereafter, they removed the said flex baord and seized the same vide seizure memo Ex.PW1/A. Thereafter, IO/PW1 prepared rukka Ex.PW1/B and got the FIR registered through PW2 Ct. Ashok. After registration of FIR, IO/PW1 prepared site plan Ex.PW1/C. Thereafter, IO/PW1 recorded statement of PW2 Ct. Ashok u/s 161 Cr.PC. and they left for PS and PW2 Ct. Ashok deposited the seized case property in Malkhana. IO/PW1 HC Surender further deposed that during investigation, he contacted the accused on the mobile phone number mentioned on the board. He also issued notice u/s 41.1 Cr.P.C to accused Sarita Mishra and the same is Ex.PW1/D and joined her in the investigation of present case. He recorded statement of FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 2 witnesses and after completion of investigation filed the charge sheet against the accused in the court without arrest. IO/PW1 recorded statement of witnesses and filed the charge sheet against the accused in the court. PW1 and PW2 identified the accused and the photograph of case property placed on record as Ex.P1.
5. 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 which accused denied in its entirety and claimed innocence. Despite opportunity, no evidence was led by the accused in his defence.
6. 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
7. Allegation against the accused are that on 19.11.2017 at 09:30 p.m on the electricity pole near E230, East of Kailash, Amar Colony, Delhi, which is a public property in public view within the jurisdiction of PS Amar Colony, a Flex board mentioning the words "Astrologer Jyotishachara, Sarita Mishra xxxxxxxxxxx" with mobile number of accused Sarita Mishra was found affixed which was got affixed by the accused or with her authority on the said public property and in public view 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 Sarita Mishra for the offence u/s 3 DPDP Act.
8. 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 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, FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 3 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 building, hut, structure, wall, tree, fence, post, pole or any other erection.
9. In the case in hand, a hoarding/board was allegedly affixed on an electricity pole. The same question regarding the defacement of public property by hanging of a board on an electricity pole arose before Hon'ble Delhi High Court in the matter titled as T S Marwah & Ors Vs. State 2008 (4) JCC 2561 wherein it was held that mere putting the banner on a pole will not get covered by section 3(1) of West Bengal Prevention of Defacement of Public Property Act, 1976.
10. In view of the provisions contained in section 2(a) and 3(1) of Delhi Prevention of Defacement of Public Property Act, 2007 which is paramateria to the abovesaid West Bengal Prevention of Defacement of Public Property Act, 1976, it is clear that offence constituting defacement of public property is attracted when such type of defacement as mentioned in section 3(1) of the Delhi Prevention of Defacement of Public Property Act is done by writing or marking with ink, chalk, paint or any other material which is not the case herein.
11. PW1 HC Surender 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 FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 4 IO should not be the same person which is not the case before the court.
12. Further, PW1 as well as PW2 stated that they were on patrolling on the said day but could not tell the number of departure and arrival entry to primafacie show that they were on patrolling duty on the said day which is a crucial aspect left by the prosecution. 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.
13. Further, the prosecution has relied upon the photograph of the case property Ex.P1. PW1/IO HC Surender claimed to have clicked the photograph Ex.P1 from his private mobile phone but no certificate u/s 65 B Evidence Act in support of the photograph is placed on record. 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.
14. Further, no independent witness was joined in the investigation by the prosecution despite the fact that the alleged spot is a residential area. PW1 during his cross examination has stated that he did not join any public witness and he also did not come across any person who might have seen anyone affixing the flex board at the spot. It was within the reach of the IO to examine the independent witness to primafacie satisfy that the flex board was affixed on the electricity pole. No evidence has been brought on record to prove that the alleged flex board was affixed by the accused or with her authority. Further, the alleged flex board was affixed on electricity pole, however, no complaint was received from electricity company and IO admitted during his cross examination that he did not inquire from electricity company or MCD about the said pole or the alleged flex board. Further no proof has been produced on record that the mobile phone numbers FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 5 mentioned over the flex board belonged to accused.
15. Therefore, considering the 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 Sarita Mishra 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 Today on 03.10.2018 (Manish Khurana) CMM/SE/District Court, Saket New Delhi/03.10.2018 FIR No. 539/17 PS : Amar Colony State Vs. Sarita Mishra Page no. 6