Delhi District Court
Vehicle No. : Hr51Av7506 vs (1) Davinder Kumar on 29 September, 2015
IN THE COURT OF MS. SONAM SINGH, METROPOLITAN
MAGISTRATE (TRAFFIC), SOUTH DISTRICT, SAKET COURT,
NEW DELHI
In the matter of :
Vehicle No. : HR51AV7506
Challan No. : 2288039909114
Circle : DFC
U/S. :185 Motor Vehicles Act, 1988, (in short "M.V. Act"), 3/181M.V,
32 Rules of Road Regulations,1989 (in short "RRR") r/w 177 M.V.
146/196 M.V. Act, 5/180 M.V. Act and Rule 115 of Central Motor
Vehicle Rules, 1989 (in short "CMVR") r/w 190(2) of M.V. Act.
State
Versus
(1) Davinder Kumar
S/o Sh. Mange Ram
R/o B89, Ayurvigyan Nagar,
New Delhi110049
(2) Smt. Bharti
W/o Sh.Avinash
B89, Ayurvigyan Nagar,
New Delhi110049
Date of Filing the Challan :20.12.2014
Arguments Heard on :08.09.2015
Date of Judgment :29.09.2015
Plea of the accused persons :Not Guilty
Final Order for both accused persons :Convicted
Present: Ld. APP for the State.
Both accused persons alongwith Ld. Counsel Sh. Vinod Kumar
Dubey.
Vehicle No. : HR51AV7506 Challan No. : 2288039909114 1 of 15
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 prosecution under section 185 Motor Vehicles Act, 1988, (in short "M.V. Act"), section 3 r/w section 181 M.V. Act, rule 32 Rules of Road Regulations, 1989 (in short "RRR") r/w section 177 M.V. Act, section 146/ section 196 M.V. Act, section 5/section 180 M.V. Act and rule 115 of Central Motor Vehicle Rules, 1989 (in short "CMVR") r/w section 190(2) of M.V. Act. The facts in brief as per the prosecution are that on 17.12.2014 at about 21:15 Hrs., the accused Davinder Kumar was driving one vehicle (twowheeler) bearing No. HR51AV7506 at Aurobindo Marg, INA market. He was driving the vehicle from Safdarjung Madarsa side and going towards AIIMS side. 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 503.3mg/100ml as per breath analysis report exhibited as Ex.PW2/B, which is beyond the permissible limit of 30 mg/100ml under Section 185 M.V. Act. Thereafter, the challaning officer asked the accused to produce his valid driving licence, registration certificate, insurance certificate and pollution under control certificate of the vehicle but he could not produce any of them. Therefore, the accused was challaned for the abovementioned violations vide challan bearing No. Vehicle No. : HR51AV7506 Challan No. : 2288039909114 2 of 15 22880399014 which is exhibited as Ex.PW1/A. Further, the owner of the vehicle, namely, Smt. Bharti was also challaned as the accused driver could not produce his valid driving license, insurance certificate and pollution under control certificate vide challan bearing No. 22880399114 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, this court on 20.12.2014 took cognizance of the offence and since the offences were bailable, the accused driver and the accused owner were admitted to bail.
On 15.01.2015, Notice of accusation was served upon the accused driver and on 24.01.2015, Notice of accusation was served upon the accused owner U/s 251 Code of Criminal Procedure, 1908 (in short 'CrPC') and it was read over and explained to the driver and owner in vernacular, to which they pleaded not guilty and claimed trial.
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 Witness Role in the present case
1. PW1 Const. Devlagan Singh Witness to the present challan
2. PW2 SI Prabhat Kumar Challaning officer Vehicle No. : HR51AV7506 Challan No. : 2288039909114 3 of 15
(ii) Documents on record The PWs also proved the challans on record which are exhibited as Ex.PW1/A and Ex.PW1/B and the breath analysis report which is exhibited as Ex.PW2/A and the O.S.S Form exhibited as Ex.PW2/B.
(iii) Brief Scrutiny of the Evidence
(a) PW1 Const. Devlagan Singh in his Examinationinchief deposed that on 16.12.2014 at around 08.30 P.M., at INA market, he alongwith SI Prabhat Singh were standing. He further deposed that the vehicle number of the accused driver was HR51AV7506. Further, he also identified the accused in the court. He deposed that that accused was driving from INA market to Aurobindo Marg. He also deposed that he stopped the accused and asked him to blow out into his hands first and then when he smelt alcohol on his hands, he got the alcometer device and asked the accused to blow out into the alcometer device and the reading of the alcometer was approximately 500mg/100ml. He further testified that he subsequently, told SI Prabhat Singh regarding the accused driver indulging in drunken driving whereupon SI Prabhat Singh prepared the challan against the accused. He also deposed that the ZO asked the accused to produce his valid driving licence, registration certificate, insurance certificate and pollution under control certificate of the vehicle but he could not produce any of them. He further testified that he signed on the challans Ex. PW1/A and Ex.PW1/B, which bear his signatures at point "A".
Vehicle No. : HR51AV7506 Challan No. : 2288039909114 4 of 15 In his CrossExamination, PW1 deposed that his duty timings are 08.00 AM to 08.00 PM and on days when he posted for night duty, it is till 4.00 AM of the next morning. He further deposed that the checking on that day of the present challan was a routine checking. PW1 deposed that that accused was standing at Mohan Singh market, which is next to INA market. He further deposed that he asked the accused to blow out into the alcometre device and the alcohol quantity was approximately above 500mg/100ml. PW1 deposed that he does not know as to whether an accused can drive a vehicle under the influence of such high quantity of liquor. He further deposed that he did not know the maximum limit of the alcometer device, which can be recorded. He testified that he has been told by his superior officials as to how he was supposed to record and use the alcometre device. He also deposed that he did not get any medical test of the accused conducted and he did not join any public witness to the present challan. PW1 negated the suggestion of Ld. Defence Counsel that the accused driver was not driving the vehicle and the vehicle was illegally impounded. Further, PW1 denied the suggestion of Ld. Defence Counsel that the accused was not in a drunken condition.
(b) PW2 SI Prabhat Kumar, Challaning officer in his ExaminationInChief, deposed that on 17.12.2014, at about 09.15 PM they were conducting a special drive against drunken driving at INA. PW2 correctly identified the accused. PW2 deposed that the accused driver namely, Devender was driving twowheeler bearing registration No. HR51AV7506 and was coming from Safdarjung Vehicle No. : HR51AV7506 Challan No. : 2288039909114 5 of 15 Madarsa side towards AIIMS side. He further deposed that he asked Const. Devlagan to stop the vehicle of accused. He further deposed that Const. Devlagan conducted alcohol test with the help of breathometre device in his presence and the quantity of alcohol was depicted as 503.3mg/100ml. PW2 deposed that the accused did not have a valid driving licence, registration certificate, insurance certificate and Pollution under control certificate of the vehicle. Thereafter, he stated that he prepared the challans Ex.PW1/A and Ex.PW1/B bearing his signatures at point B. He deposed that he also prepared the breath analysis report Ex.PW2/A and also impounded the vehicle vide Ex.PW2/B bearing his signatures at point B. Thereafter, he testified that the accused was admitted to bail as it was a bailable offence and released on personal bond of Rs.5,000/.
In his CrossExamination, PW2 deposed that he was posted on the day of incident, at INA market. He further deposed that there were four constables with him on that day and he was the senior most officer amongst them. PW2 further deposed that they were standing near INA market bus stand. He further deposed that PW1 Const. Devlagan gestured the accused driver to stop the vehicle. He further testified that the alcohol test of the accused was conducted only once his vehicle was stopped and he was asked to come out of the vehicle. PW2 further deposed that he did not remember as to who else was present with the accused driver. PW2 also deposed that the accused was asked to blow out only once in the alcometer device. Further, PW2 also deposed that he does not remember the manufacturing company, which manufactured the vehicle of the accused. PW2 deposed that he did not get any medical test conducted and did not join any public Vehicle No. : HR51AV7506 Challan No. : 2288039909114 6 of 15 witness in the investigation. PW2 deposed that he does not have any fitness certificate of the alcometre device with him today. PW2 negated the suggestion of Ld. Defence Counsel that the accused driver was not driving the vehicle and the vehicle was lying stationary. He also negated the suggestion of Ld. Defence Counsel that the accused driver was standing on the road and waiting for his son to arrive back from the INA market. In the end, he negated the suggestion of Ld. Defence Counsel that the challan has been falsely prepared.
4. Statement of Accused U/s 313 CrPC After the completion of Prosecution Evidence, on 03.06.2015 the statements of both accused driver Davinder Kumar and accused owner Bharti were recorded U/s 313 CrPC.
During the examination of accused driver U/s 313 CrPC, all the incriminating evidence appearing against the accused persons were put to them and they were given an opportunity to give an explanation regarding the same. The accused driver in reply to his examination denied that he was driving the offending vehicle on the day of incident at Aurobindo Marg, INA Market. He stated that he was simply standing on the point next to the vehicle and waiting for his son namely Avinash to came back from the market. He further stated that he was not driving the vehicle though he had consumed alcohol and he was coming back from a function. He further stated that the ZO asked him to step aside and conducted his alcohol test. In short, in his statement, the accused denied to have committed any of the offences for which he was challaned. Vehicle No. : HR51AV7506 Challan No. : 2288039909114 7 of 15 During the examination of accused owner U/s 313 CrPC, all the incriminating evidence appearing against the accused owner was put to her and she was given an opportunity to give an explanation regarding the same. The accused owner in reply to her examination stated that the documents of the vehicle were with her husband.
5. Defence Evidence After examination of both accused driver and owner U/s 313 CrPC, they submitted that they wish to lead Defence Evidence. Thereafter, the matter was fixed for recording Defence Evidence.
DW1 Sh. Avinash in his Examinationinchief deposed that the accused is his father. He deposed that on the day of challan, there was a party, which was attended by his father, and he had gone to pick him up. DW1 deposed that he and his father stopped at INA market as he had to purchase something from the market. DW1 further deposed that he made his father stand next to the bike and went to the market. He further testified that after sometime, he returned to the place where the bike was parked and he was informed by his father that the bike has been impounded and the challan has been prepared against him. DW1 further deposed that his father was not carrying a phone with him and, thus, he could not inform about the incident. DW1 further deposed that he alongwith his father reached home by using auto rickshaw. In the end, DW1 deposed that the challan was falsely prepared as the vehicle was stationary and his father was not driving the vehicle.
Vehicle No. : HR51AV7506 Challan No. : 2288039909114 8 of 15 In his CrossExamination, DW1 deposed that his father had gone alone to the party by using an auto rickshaw. He further deposed that they left the party around 9.00 PM. DW1 also deposed that they paid Rs.50/ to the auto rickshaw driver from INA market to their home, after their vehicle was impounded. DW1 deposed that he did not remember the registration number of the auto rickshaw. He testified that he has a valid driving licence but he does not remember the number of his driving licence. DW1 also deposed that his father came back home and slept immediately. DW1 negated the suggestion of Ld. Substitute APP for the State that he was not driving the vehicle but his father was driving the vehicle. In the end, DW1 negated the suggestion of Ld. Substitute APP for the State that he is deposing falsely.
After completion of Defence evidence, the matter was fixed for hearing final arguments.
6. Final Arguments Thereafter, final arguments were heard on 08.09.2015 by both the parties as given as under:
(i) Arguments on behalf of Prosecution The Ld. APP for the State has argued that both the 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, PW2 correctly identified the accused in the court and the same was corroborated by the testimony of PW1. Further, the prosecution witnesses have exhibited and proved the challan Vehicle No. : HR51AV7506 Challan No. : 2288039909114 9 of 15 document and alcometer slip issued by them to the accused. He also argued that the witnesses have remained consistent in their depositions regarding the act of drunken 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 PW2/A. 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 non production of driving licence, registration certificate, insurance certificate and pollution under control certificate punishable under section 3 r/w section 181 M.V. Act, rule 32 of RRR r/w section 177 M.V. Act, section 146/ section 196 M.V. Act and rule 115 of Central Motor Vehicle Rules, 1989 (in short "CMVR") r/w section 190(2) of M.V.Act.
(ii) Arguments on behalf of Defence On the other hand, ld. Counsel for the accused pointed out several infirmities and contradictions in the testimony of both the prosecution witnesses. One of the contradictions he emphasized on was that PW1 had stated in his cross examination that the accused was stopped by him and thereafter, contradicted himself by stating that the accused was actually stopped by PW2, the challaning officer. Ld. Counsel also argued that the authenticity of the alcometer device is Vehicle No. : HR51AV7506 Challan No. : 2288039909114 10 of 15 doubtful as no calibration report/ certificate regarding fitness of the device has been attached with the slip or brought during the trial. The main contention of the Ld. Counsel for the accused was that PW1 in his crossexamination has stated that the accused was standing and thus the challan for offence of drunken driving is not made out against the accused. The Ld. Defence Counsel also submitted that the challaning officer deliberately did not join independent witnesses and this omission further raises suspicion on the prosecution story. Thus, he stated that 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.
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 ● In order to prove an offence U/s 185 of M. V. Act all the following Vehicle No. : HR51AV7506 Challan No. : 2288039909114 11 of 15 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.
• Additionally, it is clearly stated in section 203 (6) of M. V. Act that the blood alcohol analysis report is admissible in evidence.
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 both the witnesses have correctly identified the accused before the court and firmly stated that the accused was driving the vehicle. With respect to the argument raised by the Ld. Counsel for the accused, regarding the deposition given by PW1 in his cross examination that the "accused was standing" is irrelevant as the PW1 has categorically stated that he had stopped the accused driver. The same statement is corroborated by PW2 who stated in his examinationinchief as well as cross examination that he had asked Const. Dev Lagan to stop the vehicle of the accused. The minor contradiction pointed by the ld. Counsel is irrelevant. Thus, the first essential of Section 185 stands satisfied.
Vehicle No. : HR51AV7506 Challan No. : 2288039909114 12 of 15
(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 had consumed alcohol as he had gone to a function. This statement adds corroborative value to the testimonies by the PWs, which has been untainted. The Ld. Counsel has also vehemently disputed the authenticity of Ex. PW 2/A. He also stressed on the absence of a calibration certificate of the alcometer device. This defence is not sustainable, as the burden of proof was on the defence to show that the device was defective. It is always a presumption that public officers are performing their duties diligently and honestly with appropriate equipment, the burden to prove the reverse was on the defence. Thus, this argument being vague and beref of proof cannot stand. Explanation to Section 203 M.V. Act, as pressed by the Ld. Counsel for accused, no where prescribes that the fitness certificate of the device has to be brought to the court and this argument is also unsustainable. Thus, the second ingredient also stands proved.
(c) Let us examine the third ingredient of the offence. The quantity of alcohol content accused as per Ex. PW2/A is 503.3mg/100ml, which is beyond the permissible limit of 30mg/100ml. The same stands proved by PW2, the challaning officer who conducted the alcohol test on the accused. Section 203(6) of M.V. Act clearly states that the blood alcohol analysis report is admissible in evidence.
With respect to the defence raised by the Ld. Counsel regarding non joinder of independent witnesses is unsustainable in the eyes of law. It is a settled position of law that the testimony of prosecution witnesses/police officials cannot Vehicle No. : HR51AV7506 Challan No. : 2288039909114 13 of 15 be completely ignored simply on the ground that no independent witness has been joined. In case, where independent witness is not joined, then evidence on file is to be scrutinized with great caution and mere nonjoining of independents witnesses is not fatal.
It is also pertinent to note that the testimony of DW1, the son of the accused is not trustworthy as he has not stated the exact details of which place they had gone to and other material factors which could raise a suspicion on the prosecution story. His testimony does not inspire confidence and the police have no reason to falsely implicate the accused person.
In the case at hand, the testimony of prosecution witnesses is clear, convincing, reliable and inspires confidence of the court and all the ingredients necessary of prove an offence u/s 185 of M.V. Act have been proved beyond reasonable doubt a gainst the accused driver.
9. Hence, after carefully considering all the material on the record, the 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 proved its case against the accused Davinder beyond reasonable doubt u/s 185 of M. V. Act. Therefore accused Davinder is convicted for the offence punishable u/s 185 of M.V.Act. Since, the accused driver and owner could not produce valid documents, i.e, valid driving licence of the accused driver, registration certificate, insurance certificate and pollution under control certificate. Vehicle No. : HR51AV7506 Challan No. : 2288039909114 14 of 15 Accused driver is punishable under section 3 r/w section 181 M.V. Act, rule 32 of RRR r/w section 177 M.V. Act, section 146/ section 196 M.V. Act and rule 115 of CMVR r/w section 190(2) of M.V.Act and accused owner is punishable under Section 5 r/w Section 180 M.V. Act, Rule 32 of RRR r/w Section 177 M.V. Act, Section 146/196 of M.V. Act and rule 115 CMVR r/w Section 190(2) of M.V. Act.
Copy of this judgment be given free of cost to both the accused persons. Pronounced in the open court. Let both accused persons be heard on the point of sentence on 05.10.2015 at 2.00 p.m. Announced in the open court (Sonam Singh) on 29th day of September, 2015 Metropolitan Magistrate, Traffic, South District, Saket, New Delhi.
Vehicle No. : HR51AV7506 Challan No. : 2288039909114 15 of 15