Delhi District Court
Rajavalse vs . State 1999 Cr. Lj. Delivered By ... on 8 July, 2011
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03
(Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 3SBY1026
Challan No.: 20733132
Circle :MRC
U/S :185, 3/181, 146/196 & RRR 32/177 of MV Act
State
Versus
Sanjeev Kumar
Date of Filing the Challan :01.01.2011
Arguments Heard on :31.05.2011
Date of Judgment :08.07.2011
Plea of the accused :Not Guilty
Final Order :Convicted
J U D G M E N T
1. By this judgment, I will dispose off the present traffic challan filed by the prosecution on 01.01.2011 which challan was done on 31.12.2010 at about 06.15 pm at place MB Road, Asian Market. This challan has been made under sections 185 (drunken driving), section 3 r/w 181 (driving without licence), 146/196 (driving without insurance), 32 (Rules of Road Regulations, 1989) (hereinafter called as RRR) read with 177 (Central Motor Vehicle Rules) (hereinafter called as CMVR). All the above said offences except Rule 32 belong to MV Act. DL 3SBY1026 1/12
2. Notice was framed under all the above said sections under section 251 Cr. PC as accused did not plead guilty and claimed trial. Bail was granted to him on furnishing of bail bond as the said offences are bailable. Vehicle was released on superdaginama. The facts of the case as appearing from the evidence of PW1 Inspector Jyoti Maurya, PW2 Challaning Officer ASI Rajbir Singh and PW3 Ct. Pawan Ex. PW2/A which is the challan, Ex. PW2/B which is the alcometer slip and Ex. PW2/C which is the challan against registered owner of the vehicle. On 31.12.2010, the above said officials were posted at Asian Market, MB Road. At about 06.15 pm, the accused identified by them in the court came on motorcycle from the side of Asian Market and was going towards MB Road. He was stopped as he appeared to be driving the above said vehicle in an intoxicated state. Then, he was checked on alcometer. On taking sample of his breath, the content of alcohol reflected by the breath analyser/alcometer was found to be 449 mg in 100 ml of blood. The accused was also checked for documents and he was found driving the above said vehicle without driving licence (DL), insurance and RC. Hence, he was challaned vide Ex. PW2/A. The said prosecution witnesses were then crossexamined and then the statement of accused was recorded under section 313 Cr. PC. The accused in his examination under section 313 Cr, PC said that he did not wish to lead any defence evidence nor was, in fact, led in the present case. In his examination he does not dispute his identity at the spot. He also admits his guilt in reply to question no. 2 and 9 and prays for leniency. Then, on the basis of above said evidence, final arguments were led.
3. The Ld. APP for the State has argued that all the three prosecution witnesses have deposed on the lines of challan. There is no material contradiction in their evidence. They have identified the accused in the court. They have DL 3SBY1026 2/12 exhibited and proved the challan document and alcometer slip. Nothing has come out from the crossexamination of the said prosecution witnesses which may suggest that their evidence is tainted in any manner in the sense that there is no previous enmity nor any allegation of corrupt inducement nor any other motive of falsehood. In fact, the accused admits his guilt in his statement under section 313 Cr. PC. Hence, the case against the accused is proved beyond reasonable doubt and he is guilty for drunken driving under section 185 of Motor Vehicle Act.
4. PW1 says that he was present on the spot of the incident along with Challaning Officer ASI Rajbir, PW2 and Ct. Pawan PW3. He has identified the accused as the one whose vehicle driven by him was stopped at the relevant time and spot and checked on alcometer after which the alcohol content was found to be 499 mg in per 100 ml of blood. Then, accused was handed over to Challaning Officer PW2. The said PW2 also identified the accused as the one present on the spot on the day of incident and at the relevant time. Then, he was checked on alcometer and the alcohol content was found to be as above said. Then, he was also checked for documents. PW3 also repeats what is already said by PW2. They have exhibited and proved the challan and the alcometer slip.
5. Ld. defence counsel Sh. S.K. Bharti for the accused had also led various arguments to show that it is a false and unjustified challan. Before dealing with the said arguments it is pertinent to lay down the law as enacted relating to the offence of drunken driving.
The necessary ingredients for proving the guilt of the accused in case of drunken driving as contained in section 185 of Motor Vehicle Act are:
a. The accused should have been driving the vehicle at the relevant time. DL 3SBY1026 3/12
b. He is tested by breath analyser. c. On such testing, the alcohol content in his blood should be more than 30 mg in per 100 ml of blood.
Once these ingredients are proved the accused is guilty for drunken driving and liable under section 185 of Motor Vehicle Act. It has been held in the case of Rajavalse Vs. State 1999 Cr. LJ. delivered by Karnataka High Court that to hold the accused guilty under section 185 of MV Act the prosecution has to prove that the blood of the accused contained alcohol exceeding 30 mg in per 100 ml of blood detected in a test by breath analyser. Hence, once the above said ingredients are fulfilled the accused is guilty for driving the vehicle in a drunken state. Section 203 subsection 1 authorises a police officer to stop any person driving a vehicle in a public place and suspected of drunken driving to give sample of his breath for breath test to determine the alcohol content in the blood of the accused. Such breath analyser is approved by the Government Agency. Under explanation given to section 203, it is provided that such breath test means a test for the purpose of obtaining an indication of the presence of alcohol in a persons blood carried out, on one or more specimens of breath provided by the accused by means of a device of the type approved by the Central Government, by notification in the official gazette for the purpose of such a test. Such device is approved vide notification S.O. 442 (E) dated 12.06.1989 and is device IV in the said notification and used in the present case. This provision also provides that such sample of breath can be required by the police officials one or more times. Under section 203 subsection 6, such evidence is made admissible.
6. The Ld. Defence counsel Sh. S.K. Bharti has raised various arguments to show that it was a case of false challan. However, he was asked whether he wants DL 3SBY1026 4/12 to file written submissions in the support of his oral arguments in order dated 31.05.2011 but he replied in the negative. Now, these arguments are dealt with hereinafter. The first argument raised is that there is no account in the challan as to how many breath testing pipes were used on that day when a particular number of violators were challaned for drunken driving under section 185 MV Act. In the evidence of PW2 and PW3, it has come that around 20 to 30 pipes were in stock for testing people for their breath to ascertain whether people are indulging in drunken driving. In my view, from this argument the Ld. Counsel wants to say that they had no stock of these breath pipes on which breath of the violators to ascertain their alcohol content is taken and that same pipe was used on all the accused on that day . Hence, the drunken level as reflected in alcometer slip Ex. PW2/B showing the highest possible alcohol content of 499 mg per 100 ml of blood beyond which the alcometer also stops belongs to the breath analysis of some other accused. However, it is clear from the evidence of Prosecution Witnesses that different pipe was used on many persons on that day. PW2 and PW3 clearly deny that same pipe was used on various persons who were challaned for drunken driving on that day. They, in fact, are clear that they had a stock of about 20 to 30 pipes for breath test. The accused has not rebutted their clear evidence in the court to his effect. In fact, the accused has chosen not to lead any defence evidence and has also admitted his guilt of driving under intoxication in public place as is clear from joint reading of question no. 1, question no. 2 and question no. 9 in his statement under section 313 Cr. PC Evidence Act. In answer to question no. 1, he admits that he was driving at the relevant time and place and in answer to question no. 2, he says that he was drunk. In answer to question no. 9, he is praying for a lenient view to be taken. Hence, this argument does not have any merit.
DL 3SBY1026 5/12
7. The second argument raised by the Ld. Counsel is that it is not clear from the evidence as to who tested the accused on alcometer among the Prosecution Witnesses. However, it is clear from the evidence of PW1 and PW2 that it was the TI PW1, who checked the accused on alcometer. PW1 says that he checked the accused on alcometer and after it was ascertained that the level of alcohol content is 499 mg in per 100 ml of blood accused was handed over to ASI Rajbir PW2, the Challaning Officer. This is again unrebutted by the accused. There is no inconsistency in the evidence of Prosecution Witnesses regarding the aspect of checking of the accused on alcometer nor is any inconsistency brought forth in their crossexamination. Hence, this argument also does not hold any water.
8. The next argument raised by the Ld. Defence counsel is that it is not clear as to whether the Prosecution Witnesses were, in fact, on duty on that day. The reason stated by him for doubting the presence of Prosecution Witessess at the spot is that PW1 the TI says in his evidence that they were on duty for the entire day. PW3 says that they were on duty from 08.00 a.m. in the morning till 02.00 a.m. the next day on the day of incident. PW3 also says that there is an attendance register but they do not sign it. He further says that no signatures are required on the attendance register and duties are informed on the telephone. He further says that there is a Ravanagi in respect of departure. In my view, there is no contradiction this aspect of presence of the Prosecution Witnesses on the spot as PW1 means by saying that they were on duty entire day that being police officials it is their duty to be on vigil against crime twenty four hours seven days a week. No further crossexamination has been done on this point on PW1. Regarding the aspect of not signing, no duty officer was called who maintains the Ravanagi to challenge the presence of the Prosecution Witnesses who left their DL 3SBY1026 6/12 office to be on duty at the spot of the incident nor this point raised in cross examination. Hence, this argument does not hold any merit. The presence of the Prosecution Witnesses on the spot cannot be doubted in view of the above said observations.
9. Further, the Ld. Defence Counsel pleads that in view of the statement given by PW1 that though there is a course for operating alcometer but no certificate is given after completion of training, it is doubtful whether the alcometer was operated correctly showing the alcohol content of the accused. However, I am not convinced with this argument as alcometer slip has been clearly proved by the clear and credible evidence of all the Prosecution Witnesses. The said evidence remains unrebutted by the accused and, in fact, as above said in para no.6 , the accused admits his guilt.
10. The last argument raised by the Ld. Defence counsel is that PW3 says that there were twelve or thirteen people on duty but they have not been cited by the prosecution as witnesses in the present case and the reason for this is that the challan is false and unjustified. Again, this argument does not find favour with the court as it is not necessary under the settled law laid down by the Supreme Court that everybody at the spot of the crime has to be made a witness. It is not necessary to make a person a witness if he does not come in the category of material witness. Even otherwise, section 134 of The Evidence Act 1872 provides that no particular number of witnesses shall in any case be required for the proof of any fact. In Raja v. State, (1997) 2 Crimes 175 (Del) it has been held that it is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true DL 3SBY1026 7/12 and correct version of the case of the prosecution. The same law has been reiterated in Lallu Manjhi v. State of Jharkhand AIR 2003 SC 854.
11. In my view, the Prosecution Witnesses have undoubtedly and firmly proved that the accused was driving the above said vehicle in public place while under the influence of intoxication. Though they are official witnesses but just being official witnesses does not make their evidence doubtful in view of the law laid down.
There is a consistent line of judgments of the Apex Court and various High Court to the effect that mere nonjoining of public witnesses as independent source of corroboration does not affect the credibility of evidence of official witnesses and conviction can be based solely upon the evidence of official witnesses. Only condition is that it should be scrutinized carefully and accepted with caution if no taint of falsehood is found. Independent corroboration is only a rule of prudence and not a rule of law. The testimony of official witnesses is to be approached like the evidence of any ordinary witnesses. If evidence of such a witness is found entirely trustworthy, there is no need to seek corroboration. If they have no animus or hostility against the accused, their testimony would be relied upon to sustain conviction. The evidence of official witnesses must be discarded or accepted on merits of evidence and not merely because they are interested though as abovesaid caution should be applied in scrutinizing their evidence. These observations were made in Hazari Lal v. State (Delhi Administration), AIR 1980 SC 873 and Hari Obula Reddy v. State of Andra Pradesh, AIR 1981 SC 82. In State of Kerala v. M M Methew & Anr., 1978 Cr.L.J. it was held that " Presumption that evidence of official witnesses is to be considered as tainted runs counter to the basic principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence DL 3SBY1026 8/12 has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servant they are interested in the success of the case. Their evidence is to be tested and weighed by applying basic test of broad human probabilities." In Ahir Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217 it was held that it is wrong approach on the part of Magistrates to assume that government official abused his position and power in all cases as a matter of course where there is no reasonable basis for it to assume so from the evidence and surrounding circumstances. He should do so only when it appears that government servant like police officer, traffic official etc. abused his position. Otherwise, it is not a judicial approach to distrust and suspect them without grounds therefore. In Sh. Shadi Singh v. State of UT, Chandigarh 1981, Ch.Cr. C. 86 (P&H) it was held that the testimony of the official witness is to be corroborated by independent evidence is only a rule of prudence and not rule of law. If it were otherwise, it would be possible for any guilty person to escape punishment by resorting to device of bribing recovery witnesses. Merely on the ground that the conviction was based only upon the evidence of an official witness, it cannot assailed.
12. Not only there is clear, consistent, credible and satisfactory evidence of Prosecution Witnesses to prove the guilt of the accused but the accused also clearly admits his guilt of driving the vehicle in the said public place while under the influence of alcohol beyond permissible limit laid down by section 185 MV Act.
13. Hence, I convict the accused for the offence of drunken driving under section 185 of MV Act. I also convict the accused for driving the above said DL 3SBY1026 9/12 vehicle without driving licence under section 3/181 of MV Act. However, I acquit the accused for the charge of driving the vehicle without insurance, as it is recorded in the order dated 01.01.2011 by the Ld. Link M.M. that he has produced the insurance before the court. I also acquit the accused under Rule 32/177 as it is again recorded in the order 01.01.2011 that the said vehicle is a new purchase which will take some time according to law to get the RC. The accused owner has already pleaded guilty under section 5/180 MV Act and paid fine vide order dated 01.01.2011.
Let accused be heard on the point of quantum of sentence.
Copy of this judgment be given to the accused free of cost.
Announced in the open court (Ashok Kumar)
on 08.07.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 3SBY1026 10/12
In the Court of Sh. Ashok Kumar, Metropolitan Magistrate03 (Traffic), South District, Saket Court, New Delhi.
In the matter of :
Vehicle No. : DL 3SBY1026 Challan No.: 20733132 Circle :MRC U/S :185, 3/181, 146/196 & RRR 32/177 of MV Act State Versus Sanjeev Kumar Date of Filing the Challan :01.01.2011 Arguments Heard on :31.05.2011 Date of Judgment :08.07.2011 Plea of the accused :Not Guilty Final Order :Convicted Present: Accused in person.
Order on Quantum of Sentence In the present case, the accused has been convicted vide a separate judgment announced today of the offence of drunken driving section 185 MV Act as well as not having of driving licence under section 3/181 MV Act. The accused has been found guilty of driving in an intoxicated state in public place at the spot mentioned in the challan with a very high alcohol content of 499 mg per 100 ml of blood.
DL 3SBY1026 11/12
The accused has been heard. He prays for leniency in view of the fact that he is the sole bread winner of the family and he is also taking care of his brother suffering from blood cancer which fact has been recorded vide order dated 01.03.2011. Now, the accused states that his brother has expired only yesterday.
Considering this plea of leniency, I sentence the accused to TRC as well as a fine of Rs. 1,000/ under section 185 of MV Act as well as Rs. 500/ under section 3/181 of MV Act. The accused states that he does not have any driving licence and hence there can be no compliance of section 20 of MV Act regarding suspension of licence. The total fine payable is Rs.
1,500/. In default of payment of fine, he is sentenced to two days' simple imprisonment. Fine paid.
The copy of this order as well as judgment be given to the accused free of cost. Documents be disposed of, as per rules.
File be consigned to record room.
Announced in the open court (Ashok Kumar)
on 08.07.2011 Metropolitan Magistrate03,
Traffic, South District,
Saket, New Delhi.
DL 3SBY1026 12/12