Delhi District Court
State vs Sudama Paswan on 24 June, 2013
IN THE COURT OF SH MANOJ KUMAR
METROPOLITAN MAGISTRATE (TRAFFIC)02/SOUTH WEST
DISTRICT DWARKA COURTS: NEW DELHI
Vehicle No. DL ILP 1570
Challan No. 615511
Circle KHC
State .............Complainant
Versus
Sudama Paswan S/o Sh. Bhim Paswan,
R/o Post Office Powan, PSHarnaut,
Nalanda, Bihar ..............Accused
a) Challan No. of the case : 615511
b) Date of commission of offence : 25.05.2012
c) Name of the complainant : State
d) Name of the accused, and his : Sudama Paswan S/o Sh. Bhim
parentage and residence Paswan R/o Post Office Powan,
PS Harnaut, Nalanda, Bihar.
e) Offence complained of : U/s 66(1)/192A & CMVR
138(3)/177 MV Act.
f) Plea of accused : Pleaded not guilty and claimed
trial.
g) Final order : Acquitted u/s 66(1)/192A &
Convicted under CMVR
138(3)/177 MV Act.
h) Date of such order : 24.06.2013
i) Date of institution of the case : 26.05.2012
j) Date of reserving the judgment : 08.11.2012.
k) Date of pronouncing the judgment : 24.06.2012
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JUDGMENT
1. The case in brief is that on 25.05.2012 at 11.55 A.M., the accused was driving vehicle bearing registration number DL ILP 1570 and while coming from Gurgaon, Rajokari, NH8 Flyover side and going towards Mahipalpur side, he overtook a Commercial vehicle (DTC Bus) bearing no. DL IPC 8608 near Rajesh Bhardwaj Nursury from right side in running condition. Furthermore, it was also found that accused was driving his vehicle without wearing seat belt. Thereafter, ZO ASI Dharam Pal issued a challan bearing no. 615511 dated 25.05.2012 u/s 66(1)/192A & 138(3)/177 MV Act.
2. The accused appeared in the Court and was admitted to bail on furnishing bail bond as the offences were bailable in nature. Vide a separate order dated 26.05.2012, the vehicle in question was released on superdari on furnishing superdarinama in the sum of Rs. 4,00,000/ only. The notice of the accusation served upon the accused u/s 251 Cr.P.C. vide order dated 26.05.2012 to which the accused pleaded not guilty and claimed trial.
3. In order to prove the guilt of the accused, two prosecution witnesses namely PW1 ASI Dharam Pal, No. D2528 & PW2 Ct. Rajesh, No. 4913/T stepped into the witness box. PW1 proved the challan against the accused which was exhibited as Ex.PW1/A bearing his signatures at point "A". The witnesses was cross examined and thereafter the evidence of the prosecution was closed vide order dated 06.07.2012.
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4. PW1 ASI Dharam Pal in his cross examination stated that offending vehicle and other commercial vehicle were plying in two different lanes. He further stated that the driver of the offending vehicle firstly changed the lane and thereafter overtook another vehicle. He further stated that the overtaken vehicle was not stopped by them. Volunteered due to Traffic. He further stated that no notice was issued to the owner of the overtaken vehicle for making the driver of that vehicle a witness in this challan. He further stated that no person was made a witness in this challan. Volunteered no public person was there on the spot. He further stated that all the documents were inspected and checked by him at the spot. He further denied the suggestion that the accused is persecuted in this case with malicious intention.
5. PW2 Constable Rajesh in his cross examination stated that both the vehicle i.e. offending vehicle and overtaken vehicle were plying in the same lane. He further stated that the offending vehicle changed the lane and then overtook another vehicle. He further stated that that the number of the overtaken vehicle is DL IPC 8608. He further stated that he exactly cannot tell the distance between the two vehicles after overtaking as they got busy in stopping the offending vehicle. He further stated that the distance between the vehicle No. DL ILP 1570 which was ahead of the overtaken vehicle may be 20 - 30 meters. He further stated that the overtaken vehicle was not stopped by them. He further stated that no public witness was made.
6. The statement of the accused u/s 313 of Cr.P.C. was recorded by putting the entire incriminating evidence to him by the Court. The accused in his reply thereunder stated that he was wrongly challaned by the ZO and (3/5) he did not overtake any vehicle and he was driving his vehicle with wearing seat belt. Accused did not lead defence evidence.
7. Heard the defence counsel. He raised the followings defences: (1) Allegation of overtaking is mentioned in the challan but no allegation of lane changing.
(2) That offending vehicle was in front of other vehicle. So, question of overtaking does not arise.
(3) Public witness was not made.
Heard. File perused.
8. PW1 stated that offending vehicle and other commercial vehicle were plying in different lanes. PW2 stated that both the vehicles were plying in the same lane. Moreover, challaning officer i.e. PW1 has not mentioned this fact in the challan. In challan, it is written that offending vehicle overtake commercial vehicle in same direction. Thus, there is major contradiction in all these statements.
9. PW1 stated that he neither stopped the overtaken vehicle nor any notice was issued to the owner of that vehicle. PW1 stated that he failed to stop the other vehicle due to traffic. But, if the statement of PW1 is taken as correct then the overtaken vehicle must be behind the offending vehicle. So, that vehicle can easily be stopped by the Challaning Officer. But, Challaning Officer failed to make driver of the other vehicle as a witness. No other public witness joined by the Challaning Officer. Thus, without the testimony of any public witness story of prosecution cannot be relied upon.
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10. Thus, mere writing the number of commercial vehicle which was overtaken, in my considered view does not make out a challan of overtaking. Prosecution need to brought in some more material on record to make out a case against the accused.
11. So, the Court is of the opinion that the offence against the accused stands not proved beyond reasonable doubt. Accordingly, the accused stands acquitted u/s 66(1)/192A MV Act.
12. As far as the allegation of driving without seat belt is concerned. Accused himself admitted during the course of final argument that he was driving the vehicle without seat belt. Moreover, prosecution witnesses consistently stated in their examination that accused was driving the vehicle without wearing seat belt. So, offence under CMVR 138(3)177 MV Act stands proved.
13. Let the accused be heard on quantum of sentence under CMVR 138(3)/177 MV Act.
(PRONOUNCED IN THE OPEN COURT ON 24.06.2013) (MANOJ KUMAR) MM(Traffic)02/SW/Dwarka New Delhi/ 24.06.2013 (5/5) State Vs Sudama Paswan Vehicle No. DL ILP 1570 Challan No. 615511 Circle KHC 24.06.13 At 03.30 PM.
ORDER ON SENTENCE I have heard the convict on the point of sentence. The convict is a driver by profession and only earning member of family. He is guilty of his conduct.
Accordingly, keeping in view the nature of the offence and the given facts and circumstances of the present case alongwith the aggravating and mitigating factors related thereto, convict is hereby sentenced to fine of Rs. 100/ under CMVR 138(3)/177 MV Act and in default of payment of fine SI for 01 day.
Fine stands paid.
Copy of the judgment be given to the convict free of cost. Documents if any, be released to the convict. Bail bonds stands cancelled. Endorsement, if any, be cancelled. Surety stands discharged.
Superdarinama, if any, stands cancelled.
File be consigned to the Record Room as per rules. (PRONOUNCED IN THE OPEN COURT ON 24.06.13) (MANOJ KUMAR) MM(Traffic)02/SW/Dwarka New Delhi/ 24.06.13