Delhi District Court
Sandeep vs State (Nct Of Delhi) on 11 January, 2019
THE COURT OF DR. NEERA BHARIHOKE
ADDL. SESSIONS JUDGE06:SOUTH EAST
SAKET COURT: NEW DELHI
Criminal Appeal No.489/2018
Sandeep
S/o Shri Pawan Kumar
R/o Village Talwandi Rukka,
District & Tehsil Hiasr,
Haryana
. . . .. . . . Appellant No.1
Satish Kumar
S/o Shri Govind Ram
R/o House No.548, First Floor,
Mahilla Mohalla,
Madanpur Khadar, Sarita Vihar,
Delhi
. . . .. . . . Appellant No.2
Versus
State (NCT of Delhi) . . . . . . Respondent
Date of Institution : 30.10.2018
Date of Arguments : 13.12.2018
Date of Judgment : 11.01.2019
JUDGMENT
1. Vide this judgment, I shall decide the present appeal filed against the impugned judgment dated 20.09.2018 convicting the appellant/driver Sandeep for offence punishable under sections CA No.489/18 Page 1 of 9 5/180, 184 and 179 of Motor Vehicles Act, 1988 (in short "MV Act") and RRR 32/177, RRR 129/177 and RRR 119/177 and appellant/accused Satish Kumar for offences under section 3/181 of MV Act and RRR 32/177 and order on sentence dated 24.09.2018 sentencing appellant/accused Sandeep to undergo simple imprisonment for a period of four months for offence punishable under section 184 MV Act and simple imprisonment for a period of three months for offence punishable under section 3/181 MV Act and fined to ₹500/ for offence punishable under section 179 MV Act and admonished for offences punishable under section 129/177 RRR, 119/177 RRR and 32/177 RRR. Sentences shall run one after another. In default of payment of fine, appellant/accused driver Sandeep shall be liable to undergo simple imprisonment of 15 days. Appellant/accused Satish owner has been sentenced to simple imprisonment for a period of one month for offence punishable under section 180 MV Act and admonished for offence punishable under section RRR 32/177.
2. Briefly stated the case of the prosecution is that on 02.02.2017 at 11:51 am, appellant/accused owner Satish allowed appellant/accused driver Sandeep to drive his vehicle bearing No.DL3SCC3874 [(wrongly mentioned) and correct vehicle bearing No.DL3SDC9046] without driving license and without original Registration Certificate (in short "RC") from Kalindi Kunj Border to Apollo. Upon being intercepted by traffic police, appellant/accused driver Sandeep was found to be driving the said CA No.489/18 Page 2 of 9 vehicle without helmet and in a zigzag manner. He also jumped red light and could not produce valid documents i.e. RC and valid driving license. He also misbehaved with the police officials and therefore appellant/owner Satish Kumar committed offences under sections 5/180 MV Act and RRR 32/177 and appellant/driver Sandeep committed offences punishable under sections 129/177 and 119/177, 3/181, RRR 32/177, 179 MV Act. Traffic challans were issued to both appellants for the said offences.
3. Prima facie, offences under section 5/180, RRR 32/177 of MV Act were made out against appellant/accused owner Satish Kumar and offences under sections 184 MV Act, 179 MV Act, RRR 119/177, 3/181, RRR 129/177, and RRR 32/177 were made out against appellant/accused driver Sandeep. Separate notices under section 251 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") were framed upon both appellants to which they pleaded not guilty and claimed trial.
4. To prove its case, prosecution examined two witnesses, PW1, ASI Jogender Singh and PW2, Ct. Murari Lal who both were on traffic duty at Road No.13E, Jasola Pedestal Red Light going from Kalindi Kunj to Apollo on the date of incident i.e 02.02.2017.
5. Learned trial court convicted both the appellants vide its judgment and sentenced them vide impugned order on sentence.
CA No.489/18 Page 3 of 96. Feeling aggrieved the present appeal has been filed by both the appellants. Both appellants have submitted that they had all the documents sought by the traffic police officials but due to their hot talk, police officials did not consider the documents shown to traffic police and issued the challan. The copy of the valid documents has been filed alongwith the appeal. The appellants have submitted that learned trial court erred in pronouncing the impugned judgment and order on sentence without proper application of judicious mind.
7. Learned counsel for the appellants submitted that the appellants were standing across the road and waiting for someone and all of a sudden, the traffic police reached there and asked them not to stop there. Hearing this, driver/appellant Sandeep replied whether standing there was an offence. However, the traffic police official could not tolerate the statement of appellant/driver and cut the challan under the aforementioned sections unnecessarily.
8. It has been argued by learned counsel for the appellants that for this reason, the appellants decided to contest as they did not make any mistake. He also argued that the appellants had all the relevant documents, helmet etc. but the traffic police officials deliberately issued the challan as the appellants did not obey them.
9. It was also argued on behalf of the appellants that learned Trial Court closed opportunity of defence evidence without considering the submissions of appellants thus depriving the appellants the CA No.489/18 Page 4 of 9 opportunity to prove their innocence.
10. The appellants have submitted that they could not be put to such a severe hardship for no fault of theirs and that closing the opportunity to prove their innocence adversely affected their case and they would suffer irreparable loss and injury.
11. Learned counsel for appellant submitted that appellant/driver Sandeep has already undergone sentence of imprisonment for two days whereas the appellant/owner Satish has already undergone sentence of imprisonment for four days. Both of them have prayed for setting aside the impugned judgment and order on sentence dated 20.09.2018 and 24.09.2018 respectively.
12. Learned Additional Public Prosecutor for State / respondent argued that there is no merit in the present appeal and that the prosecution proved its case by examining two witnesses who have supported each other in all material particulars and that their testimonies remained unchallenged and unshaken by the appellants before learned trial court. He has prayed for dismissal of the present appeal.
13. On perusal of statements of appellants/driver and owner of the vehicle recorded under section 313 Cr.P.C. before learned trial court, it is noticed that though both of them had stated that police officials had falsely implicated them and they misbehaved with the CA No.489/18 Page 5 of 9 appellants and also that they stated that they had produced the driving license and RC of the vehicle to the police at the spot however they did not take the same on record. It is noticed that both of them did not lead any evidence to prove these submissions rather they refused to lead defence evidence. Thus there is no merit in the plea of the appellants that they were deprived the opportunity to lead defence evidence. Rather they failed to prove their defence by refusing to lead defence evidence.
14. On the other hand, both witnesses of prosecution i.e. PW1 and PW2 have deposed that at around 11:15 AM, the driver of the motorcycle bearing No.DL3SDC9046 was coming from Kalindi Kunj jumping red light and driving in zigzag manner without driving license, without RC and the pillion rider also misbehaved with them. Both of them asked the said driver/appellant Sandeep to produce the documents of the said vehicle but he could not produce the same. The said vehicle was impounded and challan, Ex. PW1/A, was issued to him. The challan, Ex. PW1/B, was also issued to the owner of the vehicle/appellant Satish Kumar. PW1 as well as PW2 correctly identified both the appellants in the court on the day of recording of their evidence. They also stated that they can identify the motorcycle, Ex. P1.
15. Learned counsel for the appellants has argued that the appellants were standing across the road and waiting for someone and all of a sudden, the traffic police reached there and asked them CA No.489/18 Page 6 of 9 not to stop there. However, in the cross examination of PW1 and PW2, suggestion was put to them that they had stopped the vehicle of the appellants while moving. The said stand of the appellants before learned trial court is contradictory to the stand taken by the appellant at this stage. Rather both PW1 and PW2 specifically stated in the cross examination that they had stopped the accused persons, appellants herein while they were driving dangerously. All the suggestions put to them were denied by them.
16. Thus while the appellants failed to prove their defence, the prosecution proved its case beyond reasonable doubt. However learned trial court wrongly convicted the appellant Sandeep/driver for the offence punishable under section 5/180 of MV Act. Under the said section, the offence is punishable for allowing an unauthorized person to drive and thus the conviction should have been pronounced against the owner/appellant Satish under the said section. Similarly, learned trial court wrongly convicted the appellant Satish/owner for the offence punishable under section 3/181 of MV Act. Under the said section, the offence is punishable for driving without license and thus the conviction under the said provision should have been pronounced against the driver/appellant Sandeep under the said section.
17. Thus the judgment dated 20.09.2018 is corrected / modified and appellant Sandeep/driver is convicted for the offence punishable under section 3/181 of MV Act for driving without license and not CA No.489/18 Page 7 of 9 under section 5/180 of MV Act and appellant Satish/owner is convicted for the offence punishable under section 5/180 of MV Act and not under section 3/181 of MV Act. The remaining part of the judgment dated 20.09.2018 is upheld.
18. Further in the order of sentence, it is noticed that learned trial court admonished appellant Sandeep/driver for the offences punishable under section 129/177 RR, 119/177 RR and 32/177 RR and has sentenced appellant Sandeep/driver for the offences punishable under section 184 and 179 MV Act and awarded punishment of simple imprisonment for a period of four months & fine of ₹500/ respectively. Further the sentence has been imposed on him for the offence punishable under section 3/181 of MV Act i.e. simple imprisonment for a period of three months. Learned trial court has directed that both the sentences shall run one after another. The punishment awarded is harsher and thus the order of appellant Sandeep on sentence is modified. Appellant Sandeep is sentenced to undergo simple imprisonment for a period of one month for offence punishable under section 184 of MV Act. Benefit of section 428 Cr.P.C shall be given to appellant Sandeep. He is sentenced to pay fine of ₹500/ for offence punishable under section 179 MV Act. He is also sentenced to pay fine ₹500/ for offence punishable under section 3/181 of MV Act. In default of payment of fine, appellant/accused Sandeep shall be liable to undergo further simple imprisonment for a period of 15 days. Total fine amount of Rs.1,000/ paid.
CA No.489/18 Page 8 of 919. Similarly in case of owner/appellant Satish, learned trial court admonished him for offences under RRR 32/177. Learned trial court convicted him for the offence punishable under section 180 of MV Act which this court has modified to section 5/180 MV Act. The appellant/accused Satish is sentenced to pay a fine of Rs.1,000/ for the offence punishable under section 5/180 MV Act and in the event of default of payment of fine, appellant/accused Satish shall be liable to undergo simple imprisonment for a period of 15 days. Fine of Rs.1,000/ paid by appellant Satish.
20. The appeal is disposed of in these terms.
21. The appellant Sandeep is present in the court. He is taken into custody to suffer the period of imprisonment of sentence.
22. Copy of the Judgment has been given to both appellants free of charges. A true copy of the judgment alongwith TCR be sent to learned trial court.
Digitally signed by NEERA BHARIHOKE
23. Appeal file be consigned to record room. NEERA BHARIHOKE Date:
2019.01.14 11:25:31 +0530 Announced in the open (DR.NEERA BHARIHOKE) court today i.e. 11.01.19 Addl. Sessions Judge06 SouthEast, Saket Courts, New Delhi CA No.489/18 Page 9 of 9