Delhi District Court
Guardian Cases/201969/2015 on 29 January, 2016
Challan No. 14420196915
IN THE COURT OF MS. SADHIKA JALAN, MM, TRAFFIC - 01 (NORTH
DISTRICT) ROHINI COURT COMPLEX, NEW DELHI.
State v. Bhagwan Dass
Challan no.: 14420196915
Vehicle No.: DL 9SU 6593
Circle: TNC
Date of institution of the challan : 13.04.2015
Date of Decision : 29.01.2016
JUDGMENT
(a) The date of commission of offence : 12.04.2015
(b) Name and Parentage of Accused : Bhagwan Dass
s/o Sh. Ram Lal
r/o D4/301, Sultanpuri, Delhi.
(c) Offence complained of : Section 3/181, 146/196, DMVR
99(1)/177, 185 M.V. Act
(d) Plea of both accused : Not Guilty
(e) The final order : Acquitted under Section 185
convicted under Section
3/181, 146/196 and 99(1)/177.
(f) The date of such order : 29.01.2016
Brief statement of reasons for the decision--
1. The accused person Bhagwan Dass was sent up for trial in this case under Section Section 3 Motor Vehicles Act (referred to as M.V. Act) read with Section 181 M.V. Act, Section 146 M.V. Act read with Section 196 M.V. Act, Delhi Motor Vehicle Rules (referred to as DMVR) 99(1) read with Section 177 M.V. Act and Section 185 M.V. Act.
2. The facts in brief as per the prosecution story are that on 12.04.2015 at about 09:43pm, the accused Bhagwan Dass, was found driving vehicle bearing registration number DL 9SU 6593. He appeared to be coming from the side of Kakrola Drain and going towards Meenakshi Garden. The accused was not able to show his driving licence, insurance and pollution under control certificate (PUCC) of the vehicle. He was thus challaned under Section 3/181, 146/196 and DMVR 99(1)/177 M.V. Act. The accused was also found to be under the influence of 52.7 mg of alcohol as per his sample from the breath analyser report. He was thus challaned under Section 185 M.V. Act.
3. Accused Bhagwan Das appeared in the Court and was informed of the substance of the allegation against him vide separate notice dated 13.04.2015, to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution examined two witnesses namely PW1 SI Padmesh Kumar and PW2 Ct. Satish.
5. PW1 in his examination in chief stated that on 12.04.2015 he was posted at TNC at Uttam Nagar Chowk. He was on duty along with Ct. Satish. His duty hours were from 08:00 am to 11:00 pm. On the day of the challan, they were on a drive for checking drunken driving. Ct. Satish stopped the accused who was driving a two wheeler from Kakrola drain to Meenakshi Garden. The constable then checked the accused by the breath analyzer machine wherein the accused was found under the influence of alcohol. The contents of the alcohol in his body was found to be 52.7 mg/100 ml of blood. Breath analyzer report is Ex PW 1/A bearing his signatures at point A. Thereafter, constable produced the accused before him and he then prepared challan Ex PW 1/B bearing his signatures at point A. As the accused was not able to show his DL, insurance and PUCC, he was also challaned the accused under those sections. The vehicle was impounded in the present matter. Copy of the challan was handed over to the accused and accused was informed about his date of appearance in Court.
In his cross examination, he stated that the incident occured around 09:40 pm. The accused was riding his bike alone at the time of the challan. He accepted that he did not check the accused with the breath analyzer machine. No public witness was joined in the investigation as no public witness is ready to join the investigation. He denied the suggestion that he was deposing falsely.
6. PW2 in his examination in chief stated that on 12.04.2015 he was posted at TNC at Uttam Nagar Chowk. He was on duty along with SI Padmesh Kumar and one other constable. His duty hours were from 07:00 pm to 10:00 pm. On the day of the challan, they were on drive for checking drunken driving. He saw the accused driving two wheeler bearing registration no. DL 9SU 6593 and going from Dwarka mod towards the nala from Uttam Nagar. He stopped the accused and checked the accused by the breath analyzer machine wherein the accused was found under the influence of alcohol. The contents of the alcohol in his body was found to be 52.7 mg/100 ml of blood. Breath analyzer report is Ex PW 1/A. He then produced the accused before the challaning officer. The ZO checked the documents of the accused. The accused did not have any documents of the vehicle Thereafter Challan Ex PW 1/B was prepared against the accused bearing his signatures at point B. The vehicle was impounded in the matter. Copy of the challan was handed over to the accused.
In his cross examination, he stated that the challan was prepared by the challaning officer. He did not remember the challan number. He stated that he could not recall the name of the constable who was present alongwith him on that day. No medical was conducted of the accused. Accused was asked to blow in the breath analyzer machine. He denied the suggestion that some other person was made to blow in the breath analyzer machine. The challan was made at a public place. No public witness was joined in the investigation as no public witness was ready to join the investigation. He stated that the challaning machine was being operated by ZO. The breath analyzer machine was operated by him. He stated that they had been given training as to how to use a breath analyzer machine from the concerned circle. The training was imparted to him when he joined the traffic force. He stated that no certificate was given for that training. The calibration report of the machine could be acquired from the concerned circle. He reasserted that the accused did not have any documents. He denied the suggestion that Rs. 700/ was demanded as a bribe from the accused. He denied the suggestion that he was deposing falsely.
7. Statement of the accused Bhagwan Dass was recorded vide separate order sheet under Section 313 of Criminal Procedure Code (hereinafter referred to as CrPC) on 17.12.2015. In his statement he stated that on the day of the challan he was coming from Uttam Nagar when he was stopped by Ct. Satish. Ct. Satish checked him with the breath analyzer machine thrice. He stated that no positive report came from the breath analyzer test. It was when the constable proceeded to check him again with the breath analyzer machine that he told the constable to take him to the challaning officer. The ZO kept him waiting for over half an over as they were making another challan of some other person who appeared to be very drunk. The ZO came to meet him after half an hour however by that time he had already prepared the challan. He impounded his vehicle. The accused stated that he pleaded with him not to make this challan as he was not drunk however he did not pay attention to his request and handed a copy of challan to him. Challan Ex PW 1/B was prepared against him which bears his signatures at point C.
8. The accused did not wish to lead any defence evidence.
9. I have heard the both the parties and also perused the record. In compliance of requirements under Section 437A CrPC, bail bond and surety bond of similar amount has been taken on record.
10. The burden in a criminal case lies on the prosecution, to prove its case beyond all reasonable doubt.
11. In the instant matter, it is stated by both witnesses that the constable had stopped the accused and had checked the accused with the breath analyser machine. It is contended by the defence that the constable doesnot have power to check the accused. The defence has however not produced anything to support the claim being set forth by the them. A plain reading of Section 203, Motor Vehicles Act, 1988 makes no distinction between the rank of the officer checking the accused. The contention of the defence thus does not hold.
12. It is further stated by PW1 that he produced the accused before the challaning officer. This statement seems to imply that the challaning officer was not present next to him when he checked the accused. However the breath analyser report Ex. PW1/A is signed by the challaning officer at point A. If both witnesses agree that the test was conducted by the constable, then the signatures so appended should have been those of the constable. This anomaly could still be explained if the case of the prosecution would have been that the challaning odfficer was standing there and the test was conducted under his directions. However the case of the prosecution is that the accused had to be produced before the challaning officer after getting checked by the breath analyser machine. In such a scenario the challaning officer could not have signed the breath analyser report and thus it does not stand proved in evidence.
13. It is also stated that public witnesses were not joined in the investigation. In the case of Sanspal Singh v. State of Delhi, 1999 Cr. L.J. 19, the Hon'ble Supreme Court has stated that nonjoining of public witnesses would not be fatal to the prosecution in the situation where there were no public witnesses available or none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation. Both witnesses stated that no public witness was joined in the investigation. The fact of not joining public witnesses further weakens the prosecution case in respect of Section 185, M.V. Act.
14. In relation to the other offences of showing a valid driving licence, insurance and PUCC it is stated by both witnesses that the accused was not able to show his documents when asked, which is also reflected in challan Ex. PW1/B. The accused was unable to produce those documents during the course of the trial. The prosecution had thus been able to prove its case beyond reasonable doubt for these offences.
15. It is settled proposition of criminal law that prosecution is supposed to prove its case beyond reasonable doubt by leading cogent and convincing evidence. Therefore, I find that prosecution has failed to prove its case beyond reasonable doubt in respect of Section 185, M.V. Act and therefore accused Bhagwan Dass is acquitted. However in repsect of offences punishable under Sections 3/181, 146/196 and DMVR 99(1)/177 M.V. Act the accused is convicted.
16. Sentence on conviction to be announced after hearing the accused. Copy of judgement be given to the accused.
PRONOUNCED IN OPEN COURT DATED: 29.01.2016 (Sadhika Jalan) MM01/Traffic (North) Rohini/ New Delhi 29.01.2016 Challan No. 14000247414 IN THE COURT OF MS. SADHIKA JALAN, MM, TRAFFIC - 01 (NORTH DISTRICT) ROHINI COURT COMPLEX, NEW DELHI.
State v. Ajay
Challan no.: 14000247414
Vehicle No.: DL 1RM 7037
Circle: PNC
Date of institution of the challan : 13.08.2014
Date of Decision : 29.01.2016
JUDGMENT
(a) The date of commission of offence : 19.07.2014
(b) Name and Parentage of Accused : Ajay
s/o Radhey Shyam
r/o 4/148, Rao Vihar,
Nangloi, Delhi41
(c) Offence complained of : Section 66(1)/192A of
M.V. Act.
(d) Plea of accused : Not Guilty
(e) The final order : Acquittal
(f) The date of such order : 29.01.2016
Brief statement of reasons for the decision--
1. The accused person Ajay in this case is on trial for the commission of offences under Sections 66(1) of M.V. Act read with Section 192A of Motor Vehicles Act, 1988 ("M.V. Act").
2. The facts in brief as per the prosecution story are that on 19.07.2014 at about 01:40pm the accused was driving vehicle bearing registration number DL 1RM 7037 on Rohtak Road at Anand Parvat. He appeared to be coming from the side of Anand Parvat and going towards Zakhira. The accused was found carrying goods in his TSR and there was no passenger in the vehicle. Accused was thus challaned under section 66(1)/192A M.V. Act.
3. Accused Ajay appeared in the Court and was informed of the substance of the allegation against him, vide notice dated 27.09.2014 to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution examined two witnesses namely PW1 SI Munni Yadav and PW2 Ct. Jaswant.
5. PW1 in his examination in chief stated that on 19.07.2014 she was posted at Anand Parvat along with Ct. Jaswant. She stated that at around 01:40 pm she and Ct. Jaswant saw a TSR bearing registration no. DL 1RM 7037 coming from the side of Anand Parvat and going towards Zakhira. They noticed that that TSR was carrying no passenger and was instead only carrying goods. She then asked Ct. Jaswant to stop the vehicle. She stated that when she started to make the challan, the accused misbehaved with her and also tried to snatch the challan machine from her hand. She stated that accused kept telling her that he was coming from prepaid and that she had no power to stop him as by the prepaid slip he was allowed to carry goods. She told the accused that even if he was coming by prepaid he would atleast have to have one or two passengers sitting inside the TSR whose bags he may then be carrying. She stated that accused repeatedly tried to snatch the machine when she was making the challan and thus she had to make a call at 100 number. She prepared a challan Ex PW1/A against the accused which bears her signatures at point A. She stated that accused refused to sign the challan. She gave a copy of the challan to the accused. She also got a call from the local thana asking her whether she was still facing any difficulty or if she had challaned the accused. A PCR van even came to the spot. She told them she had already prepared the challan and she no longer needed their assistance.
In her crossexamination, she stated that the record of the call she made at 100 number had not been placed alongwith the challan. She agreed that accused had also made a call at 100 number. She did not register any complaint against the accused for his misbehaviour as she had already prepared a challan against the accused. She denied the suggestion that she did not register a complaint because no misbehaviour had been done by the accused. She had stopped the vehicle near gali no. 10, Anand Parvat and their cabin had been at least 1520 minutes away, towards the side of Zakhira, from the spot where the challan had been prepared. She denied the suggestion that a passenger in the name of Rajiv Thakur was sitting in the TSR alongwith his luggage when the challan had been prepared. She denied the suggestion that Ct. Jaswant had demanded a bribe from the accused which is why the challan had been prepared. She agreed that the place where the challan had been made was a busy road. No public witness had been joined by her at the time of making the challan. She agreed that she did not even ask any public witness to join the investigation.
6. PW2 in his examination in chief stated that he was posted in Patel Nagar Circle at gali no. 10, Anand Parvat along with SI Munni Yadav. He stated that at around 01:40 pm they saw a TSR bearing registration no. DL 1RM 7037 coming from the side of Anand Parvat and going towards Zakhira. On the instruction of ZO SI Munni Yadav he stopped the vehicle and it was carrying big bags. The vehicle was being driven by the accused Ajay. Accused was correctly identified by him. Accused was taken to SI Munni Yadav. He stated that when SI Munni Yadav prepared the challan against the accused, accused tried to snatch away the challan machine. Thereafter SI Munni Yadav made a call at 100 number. He stated that challan Ex PW 1/A was issued to the accused under section 66(1)/192A,which bearing his signatures at point B. He stated that accused Ajay refused to sign the challan.
In his cross examination, he stated that the cabin of SI Munni Yadav was on the same side where he had stopped the vehicle of the accused Ajay. He agreed that he was aware that accused had made a call on 100 number. He stated that a PCR van had come to the spot in the presence of the accused. He denied the suggestion that accused was coming from the side of Zakhira and going towards Anand Parvat. He also denied the suggestion that SI Munni Yadav was sitting in the cabin when the challan was made. He stated that there was no passenger present in the TSR when the challan was prepared. He denied the suggestion that accused did not misbehave with him. He also denied the suggestion that a bribe was demanded from the accused.
7. On 21.12.2015, statement of accused under Section 313 read with Section 281 Code of Criminal Procedure was recorded, after explaining and putting to the accused all the evidence that was moved against him. Accused stated that on the day of the challan he was coming from Ram Pura side and going towards Karol Bagh through Zakhira in his TSR bearing registration no. DL 1RM 7037. Two constables stopped him at the red light and told him that he can not carry goods in the TSR. He told the constables that the goods in the vehicle belonged to the passenger who was also sitting in the TSR. He stated that constables took the documents of his vehicle and went across the road, to the other side where SI Munni Yadav was sitting in the police cabin. He stated that SI Munni Yadav started preparing challan against him. He made a call at 100 number. He stated that PCR van never came to the spot. He refused to sign the challan. SI Munni Yadav handed to him a copy of the challan. He stated that after this he took the passenger to Karol Bagh and dropped him to his rightful destination.
8. In defence evidence, two witness i.e. DW1 Rajeev Kumar and DW2 Ajay Kumar were examined.
9. DW1 in his examination in chief stated that the challan was made in the month of July, 2014. He was coming from Ram Pura to Karol Bagh in TSR bearing registration no. DL 1RM 7037. He stated that the accused was stopped by one traffic constable, who was wearing another vest over his shirt, at the red light which comes after the Zakhira fly over. He asked the constable as to why he was stopping them for carrying goods i.e small box of things in the TSR. He told the constable that it would not make any sense for him to hire another vehicle to carry such a small box. He stated that constable told him to keep quite. Constable took the accused to the other side of the road. He stated that after sometime accused came back and told him that he had been challaned. He stated that accused told him that normally Rs.10 was charged as extra fare for carrying goods in the vehicle and that he would not charge any extra fare for goods if he agreed to come to Court as and when required.
In his cross examination, he stated that he hired the TSR to go to Karol Bagh from CNG pump, Ram Pura. He stated that accused issued him one fare slip, however, he can not produce the same in Court. He voluntarily stated that slip had been destroyed. He stated that in the TSR he was carrying a T.V. packed in a box. He replied to a Court question that a call was made at 100 number by the accused. He stated that no PCR van came to the spot despite the call. He agreed that he has no relation with the accused/driver. He denied the suggestion that he was not travelling in the TSR that is why he can not tell exact date. He denied the suggestion that he is deposing falsely.
10. DW2 in his examination in chief stated that on the day of the challan he was coming from Ram Pura side and going towards Karol Bagh through Zakhira in his TSR bearing registration no. DL 1RM 7037. Two constables stopped him at the red light and and asked him to show the documents of his vehicle. He stated that constables took the documents of his vehicle and went to the other side the road to the other side where SI Munni Yadav was sitting in a police cabin. He stated that after five minutes the constable asked him to come to the cabin. When he reached the cabin they handed over him challan. He asked the constable as to why the challan had been made. Traffic officials replied that he as carrying goods in his TSR. He stated that he then told that there was also a passenger in the TSR and the goods belonged to the passenger. He thus called at 100 number and reported that a bribe had been demanded and as he failed to pay that a challan had been prepared against him. He stated that he took the challan from the traffic officials when the PCR van did not come to spot even after half an hour. He refused to sign the challan. After around one hour he got a call from SI Diler Singh, PS Anand Parvat asking him to come to PS. There they only took his name and address and then asked him to leave. No action was taken against the traffic officials. A photocopy of GPS receipt which is Mark A was filed as the original was printed on fax paper which does not remains legible over a long period of time.
In his cross examination, he stated that after the challan was made, he called 100 number and waited for the PCR for around 3040 minutes at the spot. He denied the suggestion that no passenger was travelling in his TSR on the day of challan. He denied the suggestion that he repeatedly tried to snatch the machine from the traffic officials. He denied the suggestion that he did not make a call at 100 number. He stated that he has given the GPS receipt provided to the passengers from the meter of my TSR. He agreed that he did not have original GPS receipt. He voluntarily stated that original receipt was handed over to the passenger i.e Rajiv. He denied the suggestion that the call made by him on 100 number was false and fabricated. He denied the suggestion that he is deposing falsely.
11. I have heard the both the parties and also perused the record.
12. The burden of proving a criminal case lies on the prosecution who is to prove its case beyond all reasonable doubt.
13. The defence has stated that DW1 who is a public witness has given a testimony in favour of the accused and has stated that he was present in the vehicle. They have further argued that the challan was made as the accused had refused to pay a bribe and was made only to harass the accused. It is further contended that the challan is wrongfully made and this is evident from the copy of the GPS receipt which is Mark A. The GPS receipt indicates that the accused had started a journey at 13:07 on the day of the challan which had ended at 14:52. The challan has been made at around 13:40 which would then be indicative of the fact that the accused maybe the accused was carrying a passenger at the time. However the receipt Mark A can not be relied upon as it is neither primary nor secondary evidence.
14. In the present matter, the versions put forth both by the defence and prosecution appear plausible. However just this sheer fact of plausibility and no independent corroboration for the testimonies of the prosecution, has created a doubt in the story so woven by the prosecution. It is settled position of law as laid down in the case of Sanspal Singh v. State of Delhi, 1999 Cr. L.J. 19 by the Hon'ble Supreme Court that nonjoining of public witnesses would not be fatal to the prosecution in the situation where there were no public witnesses available or none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation. However, it is stated by the challnging officer that though public persons were present however she did not join any public witness. Thus the fact of not joining public witnesses by PW1 has proven fatal for the matter at hand.
15. Therefore, I find that has failed to prove its case beyond reasonable doubt. Accused is thus acquitted under Sections 66(1)/192A M.V. Act.
PRONOUNCED IN OPEN COURT DATED: 29.01.2016 (Sadhika Jalan) MM01/Traffic (North) Rohini/ New Delhi 29.01.2016