Delhi District Court
Accused Should Be Driving Or Attempting ... vs Act And A Mere Breath on 31 August, 2015
Challan No. 16240097314 IN THE COURT OF MS. SADHIKA JALAN, MM, TRAFFIC - 01 (NORTH DISTRICT) ROHINI COURT COMPLEX, NEW DELHI. State v. Lalit Kumar Gaur Challan no.: 16240097314 Vehicle No.: DL 1RP 2072 Circle: PNC Date of institution of the challan : 14.03.2014 Date of Decision : 31.08.2015 JUDGMENT
(a) The date of commission of offence : 25.02.2014
(b) Name and Parentage of Accused : Lalit Kumar Gaur
s/o Prem Chand Gaur
r/o B223, Karam Pura
New Delhi 15
(c) Offence complained of : DMVR 11(9)/177 and
Section 66(1)/192A M.V.
Act
(d) Plea of accused : Not Guilty
(e) The final order : Acquitted
(f) The date of such order : 31.08.2015
Brief statement of reasons for the decision--
1. The accused person Lalit Kumar Gaur in this case is on trial for the commission of offence under Delhi Motor Vehicle Rules (hereinafter referred to as DMVR) 11(9 read with Section 177, Motor Vehicle Act ("M.V. Act") and Section 66(1)/192A, M.V. Act.
2. The facts in brief as per the prosecution story are that on 25.02.2014 at about 06:45pm at Patel Road, Moti Nagar the accused was found driving a TSR bearing registration number DL 1RP 2072. The accused refused to carry a passenger with him from Moti Nagar to Dabri. By refusing the accused was challaned under DMVR 11(9)/177 M.V. Act and as refusing is also a permit violation thus the accused was also challaned under Section 66(1)/192A M.V. Act respectively.
3. Accused Lalit Kumar Gaur appeared in the Court and was informed of the substance of the allegation against him, vide notice dated 12.05.2014 to which he pleaded not guilty and claimed trial.
4. To prove its case the prosecution examined two witnesses namely WSI Munni Yadav as PW1 and W.Ct. Kamlesh as PW2.
5. PW1 in her examination in chief stated that on 25.02.2014 she was posted at Patel Road, Moti Nagar as WSI alongwith W.Ct. Kamlesh. On that day she was checking vehicles for refusal by drivers to take passengers to their desired destination. She stated that she deputed W.Ct. Kamlesh as a decoy passenger for this task. At about 06:45pm, accused Lalit Kumar driving TSR bearing registration no. DL 1RP 2072, was coming from Patel Nagar side going towards Moti Nagar. She stated that when W.Ct. tried to board the auto of the accused and asked him to take her to Dabri Turn, the accused refused to carry her. Subsequent to which, she stated that then she prepared challan Ex. PW1/A (challan slip no. PNC 16240097314) bearing her signatures at point A. She identified the accused correctly in Court. She seized the fitness of the vehicle along with the challan. The challan generating machine was in proper working condition and she prepared a certificate under Section 65B Indian Evidence Act which is Ex.PW1/B. In his crossexamination, on 25.4.2014 her duty hours were from 8 am to 10 pm at Moti Nagar Chowk. She stated that didnot remember exactly how many challans she had prepared on that day. The TSR of the accused was stopped by W.Ct.Kamlesh. She stated that W.Ct. Kamlesh brought the accused to her when she was standing at Moment Mall, Moti Nagar. She denied the suggestion she was sitting in a private car/ govt. Vehicle. She stated that the TSR had been stopped at a distance of 5060 meters. She stated that she could hear the conversation between the constable and the driver. However, she didnot hear the accused or driver refuse the lady constable. She stated voluntarily that she asked the accused whether he had refused and he stated he had refused. She didnot record any separate statement of the accused. She stated that the lady constable was in civil dress. There is no written order for conducting a special drive. She didnot make any effort to join a public person in the investigation. No written complaint was made by the lady constable. She stated that the accused didnot ask for more money to go to Dabri. She stated that the accused flatly refused to go, no question of money was involved. No site plan was prepared. She denied the suggestion that she was deposing falsely.
6. PW2 in her examination in chief stated that on 25.02.2014 she was posted at Patel Road, Moti Nagar as W.Ct. alongwith WSI Munni Yadav. On that day she stated they were checking vehicles for refusal by drivers to take passengers to their desired destination. She stated that she was deputed as a decoy passenger by PW1 for this task. At about 06:45pm she saw accused Lalit Kumar driving TSR bearing registration no. DL 1RP 2072 coming from Patel Nagar side going towards Moti Nagar. She asked him to take her to Dabri Turn, however the accused refused. Subsequent to which, challan Ex. PW1/A (challan slip no. PNC 16240097314) bearing her signatures at point B, was prepared against the accused. She identified the accused correctly in Court.
In his cross examination, She stated that there is no special order for becoming a decoy passenger. She stated that public persons were present at the spot. She stated that no efforts were made to join public persons in the investigation. She stated that no other passenger had complained against the accused for refusal. Further stated that the accused didnot misbehave with her. She stated that the accused refused to take her as he would get a lot of traffic jam at the destination. She didnot remember whether the accused was shown his documents or not. No written complainant was made against the accused. She was at a distance of around 100 metres from the ZO. She would imagine that the ZO would not have been able to hear her conversation with the accused from such a distance. She stated her duty hours were from 8 am to 8 pm. She denied the suggestion that the challan was wrongly prepared.
7. Statement of the accused Lalit Kumar Gaur was recorded vide separate ordersheet under Section 313 of Criminal Procedure Code (hereinafter referred to as CrPC) on 10.07.2015. The accused states that on the day of the challan he was going from Kirti Nagar towards his house in Karman Pura, Moti Nagar. At around 10 metres from Moti Nagar Chowk he was stopped by two male traffic officials and asked to show his vehicles documents. He stated that he showed his papers. WSI Munni Yadav was sitting in a parked Wagon R next to the Moti Nagar Chowk. He stated that the constables asked him to go to PW1. He stated that PW1 then told him that she was going to make a challan of refusal against him. He told her that he didnot refuse any one but PW1 told him that she was under directions to issue atleast 10 challans for refusal by TSR drivers. Despite several requests, challan Ex. PW1/A was prepared against him, bearing his signatures at point C. He stated that he was told that he should be thankful that his vehicle was not being impounded in the instant matter.
8. Accused didnot wish to lead any defence evidence.
9. Before delivering of judgment, compliance of Section 437A CrPC was done. Accused has furnished his bail bond.
10. I have heard the both the parties and also perused the record.
11. The burden of proving a criminal case lies on the prosecution who is to prove its version beyond all reasonable doubt.
12. There is contradiction between the statements of both the witnesses. PW1 states that she was at distance of about 5060 metres from the accused and PW2. She stated in her cross examination that she could hear the conversation between the accused and PW2, however she didnot hear the accused refusing PW2. She however continues to state that on her asking the accused, accused told her that he had refused to take PW2. PW2 on the other hand states that PW1 was at a distance of around 100 metres and could in her understanding most probably not have heard her conversation with the accused. There appears to be a conflict in the testimony of PW1 itself as well as between PW1 & PW2. There is now doubt as to whether the challaning officer is testifying on evidence which she was a party to or is basing her evidence on hearsay of her decoy passenger. In criminal cases, where a doubt exists, interpretation of which can in one way can lead to conviction and the other acquittal, it is the duty of the Court to extend benefit of the doubt to the accused.
13. Further 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. Both witnesses stated that though public witnesses were present however, none were joined by them in the investigation. Thus in light of the doubt cast on the prosecution story and the fact of nocorroboration from public witnesses, prosecution story doesnot stand proved.
14. Therefore, I find that has failed to prove its case beyond reasonable doubt. Accused is thus acquitted under DMVR 11(9)/177 and Section 66(1)/192A M.V. Act. PRONOUNCED IN OPEN COURT DATED: 31.08.2015 (Sadhika Jalan) MM01/Traffic (North) Rohini/ New Delhi 31.08.2015 Challan No. 8240260015 IN THE COURT OF MS. SADHIKA JALAN, MM, TRAFFIC - 01 (NORTH DISTRICT) ROHINI COURT COMPLEX, NEW DELHI.
State v. Pankaj Jain
Challan no.: 8240260015
Vehicle No.: DL 1CR 2450
Circle: RGC
Date of institution of the challan : 26.06.2015
Date of Decision : 31.08.2015
JUDGMENT
(a) The date of commission of offence : 23.05.2015
(b) Name and Parentage of Accused : Pankaj Jain
s/o Madan Pal Jain
r/o BK 91, West Shalimar
Bagh, Delhi.
(c) Offence complained of : Section 185 M.V. Act
(d) Plea of accused : Not Guilty
(e) The final order : Conviction
(f) The date of such order : 31.08.2015
Brief statement of reasons for the decision--
1. The accused person Pankaj Jain in this case is on trial for the commission of offence under Section 185 Motor Vehicles Act, 1988 (referinafter referred to as M.V. Act).
2. The facts in brief as per the prosecution story are that on 23.05.2015 at about 08:50 pm on Road 29 at Mehta Chowk while coming from Rajdhani College and going towards Ghode wala Mandir the accused was found under the influence of 392.8 mg/100ml of alcohol as per sample breath analyser report while the permissible limit is 30mg/100ml and thus committed an offence under Section 185 MV Act.
3. Accused Pankaj Jain appeared in the Court and was informed of the substance of the allegation against him, vide notice dated 26.06.2015 to which he pleaded not guilty and thus claimed trial.
4. To prove its case the prosecution examined two witnesses namely ASI Butta Singh as PW1 and Ct. Sandeep as PW2.
5. PW1 in his examination in chief stated that on 23.05.20145 he was on duty in Rajouri Garden Traffic Circle. On that day PW2 Ct. Sandeep were checking for drunken driving and were posted at Mehta Chowk. At around 8:50 pm, he saw a car bearing registration number DL 2450 coming from the side of Rajouri Garden Main market and going towards Raghubir Nagar. He signalled the the accused to stop and checked the motorcyclist by the breath analyser machine and found he was drunk. Accused was found to be under 392 mg/100ml of alcohol. The report of the breath analyser machine is Ex. PW1/B bearing his signatures at point A. He then prepared the challan Ex. PW1/A bearing his signatures at point A. He has correctly identified the accused in Court today.
In his crossexamination, he deposed that he had not brought his duty roaster. No site plan was prepared. He stated that pipes used were not made case property. He stated that no photographs were clicked of the accused when he was was tested by the alchometer. He stated no public witnesses agreed to join the investigation. He stated that no medical of the accused was conducted from any government hospital. He denied the suggestion that he is deposing falsely.
6. PW2 in his examination in chief stated that on 23.05.2015 he was on duty in Rajouri Garden Traffic Circle. On the day of challan, he and PW1 ASI Butta Singh were checking for drunken driving and were posted at Mehta Chowk. At around 8:50 pm, he saw a car bearing registration number DL 1CR 2450 coming from the side of Rajouri Garden Main market and going towards Raghubir Nagar. He signalled the the accused to stop and give his licence. He stated that he gave the licence to PW1. They then checked the motorcyclist by the breath analyser machine and found he was under
the influence of alcohol. PW1 ASI Butta Singh then prepared the challan Ex. PW1/A bearing his signatures at point B. He has correctly identified the accused in Court today.
In his crossexamination, he deposed that he had not brought his duty roaster. No site plan was prepared. He stated that the nozzle was changed when the alcho meter was used. He stated that pipenozzles were not made case property. He stated that no photographs were clicked of the accused when he was was tested by the alchometer. He stated no public witness agreed to join the investigation despite his asking. He stated that no medical of the accused was conducted from any government hospital. He denied the suggestion that he is deposing falsely.
7. On 19.08.2015, 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 on the day of the challan he had gone to celebrity gym. He stated that he was going home i.e towards Shalimar Bagh when one traffic official stopped his car just before the red light near Vishal Cinema. He stated that this official asked him to park his car on the side of the road and asked him to show him his DL and RC. He stated that he was told that he should call someone from his house as his vehicle was going to be impounded. He stated that he was told he was under the influence of alcohol. He stated that he was not checked by any alchometer. He stated that he was under the impression that the traffic officials were doing a routine check. Challan Ex. PW1/A was prepared against him bearing his signatures at point C. He also signed alchometer slip PW 1/B bearing his signatures at point B.
8. The accused examined one witness Smt. Sherry Singh in his defence. She stated that she had a recieved a call from her cousin brother Mr Pankaj Jain on 25.05.2015. Pankaj Jain asked her to come to Vishal Cinema near the red light. When she reached Vishal Cinema in an auto, the police official present there asked her for her driving licence. She drove the vehicle of the accused, along with the accused and returned to their house in Shalimar Bagh. The Ld. APP for state decided to not cross examine the witness despite opportunity being given.
9. I have heard the both the parties and also perused the record. Bail bond in pursuance of section 437A Cr.P.C has been taken on record.
10. The burden of proving a criminal case lies on the prosecution who has to prove its case beyond all reasonable doubt.
11. In order to prove an offence under Section 185 M.V. Act following ingredients have to be fulfilled:
1. Accused should be driving or attempting to drive a Motor Vehicle.
2. He must be tested by breath analyser
3. After breath analsyer test, accused must be found to have more than 30mg of alcohol per 100ml of blood.
12. Both PWs state that the accused was driving the the vehicle on the day of the challan. This fact is also corroborated by the statement of the accused under Section 313 CrPC wherein he himself has stated that he was driving and was asked to stop near Vishal Cinema.
13. Furthermore both prosecution witnesses have led corroborating evidence that the accused was tested by a breathe analyzer. However, it is the contention of the defence, that as the nozzle used has not been made case property, the breath analyser test conducted cannot be relied upon. However, procedure as prescribed in Section 185, Section 203 and other sections in Motor Vehicles Act, doesnot make it relevant for the traffic official to do so. Section 203 (5) Motor Vehicles Act make the results of the a breath test made in pursuance to the provisions of the Act admissible in evidence. In the instant matter both prosecution witnesses stated that the accused was found under the influence of alcohol after having being tested. Though PW2 however doesnot remember the exact amount of alcohol. PW1 states that the alcohol level indicated was 392 mg/100 ml of blood. The breath analyser slip is Ex. PW1/B which is signed by both the accused and the challaning officer PW1 which states that the alcohol content in the blood of the accused was 392.8mg/100ml.
14. It is also the contention of the defence, that medical test by a government hospital is essential to make out an offence under Section 185 of M. V. Act and a mere breath test does not suffice. This contention however is not backed up any support. The provision of breath tests was introduced in the M. V. Act, to curb the increasing incidents of road accidents resulting due to people driving under the influence of alcohol. After the inclusion breath tests in themselves were sufficient proof of drunkenness. Medical tests are no longer required as an additional proof expect in certain situations. In the case of State v. Sanjeev Nanda, (2012) 8 SCC 450 the hon'ble Supreme Court stated that for in cases where the fault of the driver is that he was driving drunk on the road, then a test conducted by a portable breath analyser is sufficient to book the accused in Section 185, Motor Vehicles Act.
15. Furthermore, it is 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. In the matter at hand, both prosecution witnesses has stated that they had tried to join public witnesses however none of them were willing. In such a case where there is corroboration and no major contardiction exists in the testimonies of both the witnesses, the fact that public witnesses could not be joined in the investigation despite their attempt is not relevant to cast aside the entire prosecution version.
16. Lastly, the defence examined Smt. Shery Singh as a witness in support of their case. However, Smt. Shery Singh mentions that date of challan was 25.05.2015 whereas the offence occured on 23.05.2015. even if that is considered a mistake, the testimony of the witness is as to facts after the challan has been preapred and bears no relevance to the facts being proved.
17. Therefore I find that prosecution has proved its case beyond all reasonable doubt for the offence of Section 185 M.V. Act and the accused is thus convicted under all charges. Order on sentencing shall be passed after hearing the convict. Copy of this judgment be given dasti to the accused.
PRONOUNCED IN OPEN COURT DATED: 31.08.2015 (Sadhika Jalan) MM01/Traffic (North) Rohini/ New Delhi 31.08.2015