Delhi District Court
Khem Lal(Accused) Was Challaned On ... vs State Of Nct Of Delhi on 6 June, 2018
IN THE COURT OF SH. ANUJ KUMAR SINGH
METROPOLITAN MAGISTRATE 03, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
CHALLAN NO. 50802358/5916
TRAFFIC CIRCLE DFC
VEHICLE NO. DL8SAJ2461
STATE
VERSUS
KHEM LAL S/O SH. RADA NAND JOSHI
R/O D879, NEW FRIENDS COLONY,
NEW DELHI110 065.
DATE OF FILING OF CHALLAN 21.04.2018
DATE OF CONCLUSION OF ARGUMENTS 06.06.2018
DATE OF JUDGMENT 06.06.2018
PLEA OF ACCUSED NOT GUILTY
FINAL ORDER QUA ACCUSED CONVICTED.
JUDGMENT:
1. Khem Lal(Accused) was challaned on 08.06.2016 at 21.30 hours at Andrews Ganj. He was driving a vehicle bearing no. DL8SAJ2461 under the influence of alcohol (the content of which as per the report of the alcometer was found to be 49mg per 100 ml). Therefore, he was challaned under section 185 of the Motor Vehicle Act, 1988 (herein after referred to as the Act). It is also the allegation of the prosecution that he could not produce the Registration Certificate, valid insurance and valid pollution under certificate and thus he was challaned u/s. 32/177, 146/196 & 115/190(2) of the said Act.
2. Thereafter, the Challan was presented before the court.
3. Consequent to the filing of challan, cognizance of the offence under said sections was taken. Notice u/s. 251 Cr. P.C. was served upon the Accused and the same was read over and explained to him, to which he pleaded not guilty and claimed trial.
4. In order to prove the guilt of the Accused, prosecution has examined two witnesses namely SI Om Parkash as PW1 and Ct. Rakesh Kumar as PW2.
5. PW1 SI Om Parkash in his examinationinchief deposed as under :
" On 08.06.2016 at about 9.30PM I was posted as a ASI in Defenfe Colony traffic circle and performing my duty to check drunk driving at Andrewj Ganj Chowk. At around 9.30pm accused Khem Lal present in the court today ( correctly identified) was coming from Moolchand and was going towards South Ex on scooter bearing no. DL8SAJ2461. Accused was stopped and on checking by alcometer it was found that accused was drunk condition and alcohol content was found 49mg / 100mm. It was also found that he was not carrying RC, Insurance and pollution certificate of the vehicle which he was driving. Thereafter, I issued the challan was issued which is Ex PW1/A bearing my signature at point A. The slip of alcohol test is Ex PW1/B bearing my signature at point a. I also prepared 65B certificate under Indian Evidence Act regarding the challan this is Ex PW1/C which bears my signature at point A.
6. Prosecution also produced Ct. Rakesh Kumar as PW2 who deposed as under.
" On 08.06.2016 at about 9.30PM I was posted as a ASI in Defenfe Colony traffic circle and performing my duty to check drunk driving at Andrewj Ganj Chowk. At around 9.30pm accused Khem Lal present in the court today ( correctly identified) was coming from Moolchand and was going towards South Ex on scooter bearing no. DL8SAJ2461. Accused was stopped by me and ZO and on checking by alcometer it was found that accused was drunk condition and alcohol content was found 49mg/100mm. Thereafter, the challan was issued by ZO which is already Ex PW1/A bearing my signature at point B."
7. The said witnesses were duly cross examined by the counsel for the Accused. Thereafter, PE was closed.
8. Thereafter, statement of Accused was recorded u/s. 313 Cr.P.C. wherein the said accused stated that he did not commit any offence and he has been falsely implicated. The Accused did not avail the opportunity to lead defence evidence and hence the matter reached the stage of final arguments.
9. Final arguments heard and record perused.
10. Ld. APP for the State argued that prosecution witnesses have proved the case of prosecution beyond reasonable doubt and hence Accused should be held guilty. On the other hand, counsel for the Accused submitted that the Accused is innocent and has been falsely implicated in the present case and he was wrongly challaned. It is thus argued that the Accused should be acquitted of all charges.
11. I have heard the submissions of the ld defence counsel and carefully perused the material on record. The ld counsel for the accused has submitted that the prosecution has failed to prove the guilt of the accused. It is argued that it is duty of prosecution to prove its case. However, the prosecution has not been able to prove its case beyond reasonable doubt. The story of prosecution is full of contradiction and the material on the record is not sufficient to prove the guilt of the accused. Therefore the accused may be given benefit of doubt and he may be acquitted. The ld counsel has put various arguments in support of his claim. I shall deal with all the contentions one by one.
12. The ld counsel has argued that prosecution has not examined any independent person as a witness to prove its case. PW1 and PW2 are interested witnesses. Therefore, their testimonies cannot be relied upon the absence of any independent witness to prove the case of the prosecution. The accused may be given the benefit of doubt.
13. In the present case , although no independent witness has been joined .
However as per the settled proposition of law the testimony of official witness cannot be discarded simply because no independent witness has been examined by the prosecution. The Hon'ble High Court of Punjab & Haryana in Balraj Singh Vs. State of Punjab has held;
"In case, independent witnesses was available but not joined by investigating officer, the story is not to be ignored. Question is why police official have deposed against the appellant / accused when he had no enmity with the police officials. Statement of police officials without any independent corroboration inspires no confidence, this submission of the defence counsel seems to be not correct one. In case the independent witness is not joined than evidence on file is to be scrutinized with great care and caution. Mere non joining of independent witness is not fatal.
In the present case, the ultimate question is whether the evidence of the official witnesses suffers from any infirmity. The court is under a duty to scrutinize the testimony of official witnesses with great caution and care."
14. The Hon'ble High Court of Delhi, in Mohd. Altaf Vs. State of NCT Of Delhi, decided on 30.11.2007, has also held that the testimony of official witnesses cannot be discarded only on the basis of the argument that no public person was joined as a witness. Hon'ble Mr. Justice, S.N.Dhingra, while delivering the judgment has held :
" 5. there is no doubt that the place from where the appellants were apprehended was a busy place. However, it is not necessary that if there are persons around on a busy place, they would be ready & willing to join the investigation on the request of police. It has come in the testimony of police official that request was made to public person to join the investigation but they refused to join. I considered that on the ground that no public witness was ready to associate, the case of the prosecution cannot be doubted. In P.P.Beeran Vs. State of Kerala, the Supreme Court observed that the testimony of police official cannot be rejected on the ground that police officials was the sole witness of recovery of opium and the public witnesses who was examined, turned hostile. The Supreme Court observed that the conviction can be based on the sole testimony of sub inspector if the other circumstances exist , shall corroborate the testimony.
6. This court in Jawahar Vs. State, Crl. Appeal No. 690/2000, decided on 23.03.2007, observed as under :
" As far as non association of public persons at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and the public witnesses who is associated has to spend hour at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with the investigation is harassment of the public witness that take place in the court. Normally, a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournment are given even in criminal cases on all excuses and if adjournment are not given it is considered as breach of the right of the hearing of the accused. These adjournment are taken by counsel for accused persons. When witnesses are present, just to see that witnesses get harassed by calling them again and again. The excuses normally given in the court are ; the counsel having urgent personal work ; left the court ; death of some near relatives ; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the court of sending witness back is a major cause of harassment which discourage the public from associating in the investigation of any case. Since the police is faced with this handicap , the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witness. The testimony of every witness whether from public or police has to be judged on its own merit and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses. I, therefore find that non joining of public witness could not be a ground to set aside the conviction".
Thus the testimony of official witnesses cannot be discarded. However court is under duty to carefully scrutinize the testimonies of the witnesses.
15. In view of the abovementioned facts and circumstances, this court is of the considered opinion that the prosecution has been able to prove its case beyond all reasonable doubt. Therefore, Accused stands convicted under u/s. 185 of the Motor Vehicles Act, 1988.
16. During the course of trial, accused shown the original registration certificate of vehicle no. DL8SAJ2461.
17. Again the factum that the accused did not have any insurance certificate and pollution under control has been categorically stated by PW1 at the time of challan. This fact has stood the test of crossexamination and nothing has come on record to disbelieve the said fact. Despite opportunity the Accused did not produce any insurance certificate to rebut the facts brought on record by the prosecution qua insurance certificate. Thus it is beyond reasonable doubt that the Accused herein drove the vehicle in question without valid insurance certificate in violation of 146/196 & 115/ 190(2) of the MV Act. Thus he is also convicted under 146/196 & 115 / 190(2) of the said Act.
18. Previous bail Bond of accused is retained for the purpose of Section 437A for a period of six months. Let the convict be heard on the quantum of sentence. ANUJ Digitally signed by ANUJ KUMAR KUMAR SINGH Date: 2018.06.06 SINGH 22:06:47 +0530 Announced in the open (ANUJ KUMAR SINGH) Court on 06.06.2018 MM / South Distt. Saket / New Delhi.