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[Cites 4, Cited by 0]

Delhi District Court

State vs Bhupesh Kumar on 20 July, 2015

       IN THE COURT OF MS. SONAM SINGH, METROPOLITAN 
      MAGISTRATE (TRAFFIC), SOUTH DISTRICT, SAKET COURT, 
                         NEW DELHI

In the matter of :
Vehicle No.  : DL­3SBS­8565
Challan No. : 2914­00683­15
Circle          :  MRC
U/S.          : 185 of Motor Vehicle Act, 1988 

State

Versus

Bhupesh Kumar
S/o Sh. Maldev Pawar
R/o D­105, Hari Nagar Extension, 
Jaitpur, Badarpur, New Delhi

Date of Filing the Challan                :17.04.2015
Arguments Heard on                        :09.07.2015
Date of Judgment                          :20.07.2015
Plea of the accused                       :Not Guilty 
Final Order                               :Acquitted

Present:        Ld. APP for the State.
                Accused in person alongwith Ld. Counsel Sh. Rajesh Bharadwaj.

J U D G M E N T

Brief reasons for the decision :­

1. Brief facts of the case as per Prosecution Vide this judgment, I shall dispose of the present challan filed by the Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 1 of 12 prosecution under Section 185 of Motor Vehicle Act, 1988 (in short 'M.V. Act' ). The facts in brief as per the prosecution are that on 06.03.2015 at about 16:30 Hrs., the accused Bhupesh Kumar was driving one vehicle (Two­wheeler) bearing No. DL­3SBS­8565 at M.G. Road, Aaya Nagar border. It is alleged that he was driving the vehicle from Aaya Nagar border side and going towards Andheria more. Further, the traffic police stopped him for the purposes of checking. He was examined on an alcometre device and on such examination he was found under the influence of alcohol and the alcohol content found in his blood on such alcometre examination was 552.6mg/100ml as per breath analysis report exhibited as Ex PW1/A, which is beyond the permissible limit of 30 mg/100ml under Section 185 M.V. Act. Therefore, the accused was challaned for the abovementioned violation vide challan bearing No.2914­00683­15 which is exhibited as Ex.PW­1/B.

2. Cognizance by the Court, Admission to bail and Framing of Notice Subsequent to filing of the challan before the court, cognizance of the offence was taken by this court on 17.04.2015 and since the offences were bailable, the accused driver was admitted to bail on furnishing of bail bond and surety bond in a sum of Rs.10,000/­. On 16.05.2015, Notice of accusation was served upon the accused driver U/s 251 Code of Criminal Procedure, 1908 (in short 'CrPC') and it was read over and explained to the Accused in vernacular, to which he pleaded not guilty and claimed trial.

Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 2 of 12

3. Prosecution Evidence

(i) Examination of Witnesses In order to prove and substantiate its case, the prosecution examined two (2) witnesses , namely:

Sr. No. Designation and Name of the Role in the present case Witness
1. PW1 Sub­Inspector Sunny Thomas Challaning Officer
2. PW2 Constable Rajan Singh Witness to the present challan
(ii) Documents on record PW1 also proved the challan on record which is exhibited as Ex.PW­1/B and the breath test report/ slip which is exhibited as Ex PW1/A.
(iii) Brief Scrutiny of the Evidence
(a) PW1 SI Sunny Thomas, the Challaning Officer in his Examination­ in­chief deposed that on the day of incident i.e. 06.03.2015 at about 04.30 P.M, they were conducting a special drive against drunken driving on the orders of their senior officials. PW1 deposed that Const. Rajan, who was witness to the challan, had stopped the vehicle and brought the accused to him for the purposes of conducting the alcohol test. He further deposed that during checking of the accused driver the alcohol metre reading of the accused by the use of alcometer was above 500mg/100ml. He also deposed that the accused was apprehended at Aaya Nagar border and the offending vehicle was coming from Aaya Nagar Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 3 of 12 border side and going towards Mehrauli. Thereafter, he stated that he prepared the challan Ex. PW­1/B which bears his signatures at point "X" and also the breath analysis report as Ex. PW­1/A which bears his signatures at point "Y". PW1 stated that he had impounded the RC and driving licence of accused. PW1 correctly identified the accused in court.

In his Cross­Examination, PW1 deposed that at the time of preparation of present challan, there were three or four other constables with him. PW1 deposed that he does not know the exact number and the names of other constables apart from Const. Rajan and he did not receive any written order regarding the special drive against drunken driving. PW1 deposed that he does not remember the make or colour of the vehicle. He voluntarily stated that it was a two­wheeler and the registration number was 8565. PW1 further deposed that he stopped many people for the purposes of conducting the alcohol test and the breathometer device was available on the spot. PW1 deposed that he does not have any certificate certifying the fitness of the device and also he does not remember as to how many people were sitting on the bike. He deposed that the bike was not stationary, it was a moving vehicle. PW1 further deposed that he did not join any public witnesses to the present challan. He further voluntarily stated that no public person was willing to join in the investigation. He also testified that he did not get any blood test of accused conducted. He further stated that he does not know whether a person can stand after consuming a quantity of 550mg/100ml of alcohol and he does not know as to whom he released the vehicle. He also deposed that he does not know whether the breath analysis machine goes under regular services. Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 4 of 12 PW1 negated the suggestion of Ld. Defence Counsel that the challan has been falsely prepared against the accused and he deliberately did not impound the vehicle as the accused was not in a drunken condition.

(b) PW2 Const. Rajan Singh in his Examination­In­Chief, deposed that the checking for drunken driving is conducted between 07.00 to 10.00 PM everyday. PW2 deposed that he does not remember the date or the time of the present challan. He deposed that the vehicle was coming from Gurgaon side towards Delhi. He further deposed that he does not remember the registration number of the vehicle. PW2 further deposed that he can not identify the accused. Further, he stated that the challan was prepared by ZO Sunny Thomas and he did not sign on the challan. PW2 further deposed that the accused was challaned for drunken driving punishable under Section 185 M.V. Act and the alcohol content of the accused was around 550 mg/100ml. PW2 also deposed that he had stopped the vehicle on the instructions of the ZO and checked the accused with the alcometer device.

Ld. APP for the State sought permission from the court to ask leading questions from PW2 and in response to the same, PW2 deposed that he is not sure about the date and time of incident but it may be 06.03.2015 at 4.30 PM.

Ld. APP for the State further asked the witness whether it is the same person (on pointing to accused) who was driving the vehicle on the date of incident. In reply, PW2 replied that he does not know and cannot identify the accused. Further, PW2 deposed that it is correct that the vehicle was bearing Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 5 of 12 registration No.DL­3SBS­8565.

In his Cross­Examination, PW2 deposed that on the day of incident, there were two persons who were riding the bike. PW2 deposed that he does not remember the make and colour of vehicle. He stated that the alcometer device was available on the spot and before conducting the test, he checked the alcometer device which was depicting 'zero' mg. PW2 further deposed that he had not enclosed the breath analysis report depicting zero mg and he did not get the blood test conducted of the accused. PW2 also deposed that he does not have any fitness certificate of the alcometer device available with him. PW2 further stated that there were five traffic police personnel on the spot. PW2 negated the suggestion of Ld. Defence Counsel that he was not present on the spot and he did not see the present incident. PW2 further denied the suggestion that he cannot identify the accused as he was not present on the spot at the time of incident.

4. Statement of Accused U/s 313 CrPC After the completion of Prosecution Evidence, on 03.07.2015, the statement of accused driver, Bhupesh Kumar was recorded U/s 313 CrPC. During the examination of accused U/s 313 CrPC, all the incriminating evidence appearing against the accused was put to him and he was given an opportunity to give an explanation regarding the same. The accused in reply to his examination accepted the fact that he was driving the offending vehicle on the day of incident at M.G. Road, Aaya Nagar border. He further stated that he was not indulging in drunken driving and he was not drunk. He also stated that the challaning officer did not Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 6 of 12 change the pipe of the breath analyser, despite his request. He further stated that he only cleaned the breath analyser with the piece of cloth. He had also asked the challaning officer as to what proof there is to verify that the breath analyser slip is his, the challaning officer replied that he is not bound to furnish proof to him. In short, in his statement, the accused denied to have committed the offences for which he was challaned.

5. Defence Evidence After examination of accused/driver U/s 313 CrPC, he submitted that he does not wish to lead Defence Evidence. Thereafter, the matter was fixed for hearing of final arguments.

6. Final Arguments Thereafter final arguments were heard on 09.07.2015 by both the parties as given as under:

(i) Arguments on behalf of Prosecution The Ld. APP for the State has argued that both prosecution witnesses have supported the case of the prosecution and deposed on the lines of challan. It was also pointed out that the challaning officer PW­1 correctly identified the accused in the court and the accused also himself admitted to driving the offending vehicle in his statement U/s 313 CrPC. Further, the prosecution witnesses have exhibited and proved the challan document and alcometer slip issued by them to the Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 7 of 12 accused. He also argued that the witnesses have remained consistent in their depositions regarding the act of drunken and dangerous driving by the accused and there are no contradictions in their evidence. He also took up the argument that witnesses may lie but documents will not and the act of drunken driving by the accused is well manifested in the alcometer slip exhibited as PW1/B. He also submitted that the ink on the breathometer slips gets wiped off over period of time but that will not remove the culpability of the accused who has indulged in drunken driving. Finally, he stated that nothing has emerged from the cross­ examination of the said prosecution witnesses which may suggest that their evidence is tainted in any manner, in the sense that there is any motive due to previous enmity or allegations of corruption Hence, he argued that the prosecution has been able to prove the case against the accused beyond reasonable doubt and he is guilty for drunken driving under section 185 of M.V. Act and for dangerously driving under section 184 of M.V. Act.

(ii) Arguments on behalf of Defence On the other hand Ld. Counsel for the Defence pointed out several infirmities and contradictions in the testimony of all prosecution witnesses. He argued that the witness to the present challan, PW2 failed in identifying the offending vehicle. Ld. Counsel for the accused further submitted that PW2 could not even recall the date and time of the incident. He also emphasized that PW2 had not even signed on the challan. Thus, he argued that all these factors cumulatively make the presence of PW2 on the spot on the date of the offence doubtful. Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 8 of 12 Ld. Counsel further highlighted the contradictions in the testimonies of the prosecution witnesses. He submitted that PW1 did not even remember the exact number and names of Constables present whereas, PW2 stated that there were five traffic police personnel present on the spot. Further, he highlighted the contradiction with respect to the number of persons sitting on the offending vehicle, PW1 did not remember the number of persons on the bike whereas, PW2 categorically stated that two persons were riding on the bike Another contradiction between the testimonies of the witnesses , was with respect to person to whom the vehicle was released. He emphasized that the authenticity of the alcometer device is doubtful as no calibration report/ fitness certificate regarding fitness of the device has been attached with the slip or brought during the trial.. He also argued that it was incumbent to get blood test of the accused done and even absence of public persons in the investigation, weakens the case of the prosecution. Thus, the prosecution has failed in proving the guilt of the accused beyond reasonable doubt. Perusal of Record and Right of Hearing Given To Both The Parties.

7. I have heard both the sides and have perused the records of the case. It is well settled that the onus to prove its case in criminal trial is always on the prosecution and the said onus is to be discharged by leading evidence beyond reasonable doubts. In case, there are any doubts in the prosecution story, its benefit has to go to the accused.

Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 9 of 12

8. Settled law and legal propositions Before dealing with appreciation of facts, evidence and the arguments of both the sides, it would be pertinent to lay down the law regarding the offence of drunken driving U/s 185 of M.V. Act.

(i) Section 185 M.V. Act­ Drunken Driving

1. In order to prove an offence U/s 185 of M. V. Act all the following essentials have to be established by the prosecution:­

(a) Accused should be driving or attempting to drive a motor vehicle in a public place; 

        (b)       He must be tested by a breath analyzer; and

        (c)       After breath analyzer test, the accused is found to have more than 30 

                  mg of alcohol per 100 ml of blood.

9. Appreciation of facts, evidence, and arguments on both sides

(i) Section 185­ Drunken Driving

(a) With respect to the first ingredient that the accused should be proved to have been driving or attempting to drive the motor vehicle, several contradictions have been pointed out by the Ld. Counsel for the defence but the accused has clearly in his statement U/s 313 stated that he was driving the vehicle on 06.03.2015 at 16:30 Hrs at M..G. Road, Aya Nagar. PW1 has successfully identified the accused. Thus, the first essential of Section 185 stands satisfied. Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 10 of 12

(b) As far as the second ingredient is concerned regarding checking by a breath analyzer, the accused has stated in his statement U/s 313 that he was never examined by any alcometre device and it was never inserted in his mouth. This court observes glaring contradictions and inconsistencies in the testimonies of the prosecution witnesses.. The absence of PW2's signatures on the challan, PW2 being unable to recall the date and time of the offence, the material contradictions between the PWs testimonies with respect to presence of other traffic police personnel, the persons sitting on the offending vehicle and the person to whom the vehicle was released cumulatively make the court question whether the accused was actually tested by the breath analyzer or not. Additionally,the challan was prepared in broad daylight at 16:40 and the challaning officer could have made earnest efforts to have joined any public person as a witness. Omission to join any public person as a witness which further weakens the case of the prosecution

(c) The satisfaction of the third essential need not be discussed, as all three essentials are to be satisfied cumulatively for the guilt of the accused to be established.

All these infirmities casts a shadow of doubt on the case of the prosecution and seriously questions the veracity of the prosecution version given by the prosecution witnesses with respect to commission of offence under Section 185 M.V. Act.

10. Hence, after carefully considering all the material on the record, the Vehicle No. : DL­3SBS­8565 Challan No. : 2914­00683­15 11 of 12 evidence by all the prosecution witnesses, the statement of the accused and hearing the arguments on both the sides, the court is of the opinion that the prosecution has failed to discharge its burden beyond reasonable doubt and therefore, the accused is acquitted of the charge levelled against him U/s 185 of M.V. Act.

Issue notice to DCP (South) to give an explanation on an affidavit as to why witnesses to the challans are not signing on the challan. In the present case, Constable Rajan Singh, No.4287T admitted to not have signed on the challan. He could not even remember the date and time of the challan. This itself makes his presence doubtful. Such omissions by the public officers need to be taken seriously.

Now to come up for explanation on an affidavit by DCP on 05.08.2015. 

Announced in the open court                                           (Sonam Singh)
on 20thday of July, 2015                                              Metropolitan Magistrate,
                                                                      Traffic, South District,
                                                                      Saket, New Delhi.




Vehicle No.  : DL­3SBS­8565                Challan No. : 2914­00683­15                 12 of 12