Delhi District Court
State vs . Deepak Page 1 Of 20 Challan No. 955641 on 9 December, 2013
IN THE COURT OF MS. BABITA PUNIYA, MM (TRAFFIC)01
EAST, KARKARDOOMA COURTS, DELHI
Challan No. 955641
Challan Date: 10.09.2013
Vehicle No. DL2W4830
State ..................... Complainant
Versus
Sh. Deepak
S/o Sh. Ram Kishore,
R/o H.No. 1052, Gali No.15,
Mandoli,
Delhi. ........................ Accused
Offence complained of under section 184, 66(1)/192A, 6(1)/DMVR/177
& 7DMVR/177 M.V. Act.
Plea of the Accused : Accused pleaded not
Guilty
Date of institution of the Case : 11.09.2013
Date on which arguments heard : 03.12.2013
Date on which order was reserved : 03.12.2013
Date of decision : 09.12.2013
Final Order : Convicted
JUDGMENT: ‹ 1. Brief facts relevant for the disposal of the present challan are that on 10.09.2013 at about 02.10 PM at Tpoint, Brij Puri, accused State Vs. Deepak Page 1 of 20 Challan No. 955641 Deepak was found driving Gramin Sewa bearing no. DL2W4830 dangerously from the side of Gokul Puri to Bhajan Pura. Accused was carrying 10/11 passengers without wearing the prescribed uniform and Public Service Vehicle Badge. Therefore, he was challaned by ZO/ASI Ramavtar u/sec 184, 66(1)/192A, 6(1)DMVR/177 and 7DMVR/177 of the M. V. Act (herein after referred to as the Act). Thereafter, the challan was presented before the court.
2. Consequent to the filing of challan, cognizance of the offence was taken vide order dated 11/09/2013 and the accused was admitted to bail as the offences were bailable one.
3. On 11/09/2013, notice u/s 251 Cr. P.C. was framed and read over and explained to the accused in vernacular, 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 ZO/ASI Ram Avtar as PW1 and Ct. Devender as PW2.
5. PW1 ZO/ASI Ram Avtar in his examinationinchief stated that on 10.09.2013 he was posted as ZO in Khajuri Khas Circle. On that day State Vs. Deepak Page 2 of 20 Challan No. 955641 at TPoint, Brij Puri, he alongwith Ct. Devender was on vehicle checking duty in the circle. At about 02.10 PM, he saw one Gramin Sewa vehicle No. DL2W4830 coming from the side of Gokul Puri going towards Bhajan Pura. The driver of the aforesaid vehicle was driving the vehicle dangerously in Zigzag manner. The helper of the aforesaid vehicle was sitting on the window of the entry gate. Ct. Devender got stopped the vehicle at his instance. Excess passengers were sitting in the vehicle. 10/11 passengers were sitting in the vehicle apart from driving/accused and helper. The driver/accused was without uniform and could not produce the badge. He thereafter challaned the accused and impounded the vehicle. The challan is Ex.PW1/A which bears his signature at point 'A'. Offence Seizure Slip is Ex.PW1/B which bears his signature at point 'B'. The witness has correctly identified the accused.
In his crossexamination, PW1 stated that 10 adult passengers and one child passenger were sitting in the vehicle. The witness admitted that he had not given any warning to accused nor he inquired about the name and address of the person who was sitting on the window gate. PW1 further stated that he had asked the passenger sitting in the vehicle to join the investigation but none agreed. He further stated that he can impound the vehicle if the same is found carrying excess passengers. He denied the suggestion that a false State Vs. Deepak Page 3 of 20 Challan No. 955641 challan has been prepared against the accused.
l 6. Ct. Devender was examined as PW2. He stated that On 10.09.2013 he was posted as constable in Khajuri Khas Circle. On that day at T Point, Brij Puri, he alongwith ZO/ASI Ram Avtar was on vehicle checking duty in the circle. At about 02.10 PM, they saw one Gramin Sewa vehicle No. DL2W4830 coming from the side of Gokul Puri going towards Bhajan Pura. The driver of the aforesaid vehicle was driving the vehicle dangerously in Zigzag manner. The helper of the aforesaid vehicle was sitting on the window of the entry gate. He got stopped the vehicle at the instance of ZO. Excess passengers were sitting in the vehicle. ZO counted the passengers. He further stated that 10/11 passengers were sitting in the vehicle apart from driving/accused and helper. The driver/accused was without uniform and could not produce the badge. ZO thereafter challaned the vehicle and also impounded the vehicle.
l During his crossexamination by the ld. Defence counsel PW2 had stated that 10 adult and one child passenger were sitting in the vehicle but he cannot tell how many passengers were ladies and how many were gents. The witness admitted that ZO had not given any warning to accused before challan. ZO did not inquire about the name and address of the person who was sitting on the window gate but he had State Vs. Deepak Page 4 of 20 Challan No. 955641 asked the passengers to join the investigation but none agreed. He further stated that he cannot tell whether ZO can impound the vehicle if the same is carrying extra passengers.
7. After completion of the evidence, statement of the accused was recorded u/s 313 Cr. P.C. to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication. However, he admitted that he was driving without wearing the prescribed uniform and PSV Badge. He also admitted that he was carrying 10/11 passengers. However, he did not lead any evidence in his defence.
8. This Court has heard the arguments and perused the records very carefully.
9. It is argued by the ld. Defence counsel that:
(i) no independent or public witness was examined
(ii) prosecution u/sec 184 of the Act is vitiated for noncompliance with the mandatory procedure prescribed under Section 209 of the Act, insofar as, the accused was not warned before initiating prosecution u/sec 184 of the Act.
(iii) Reliance cannot be placed upon the testimony of the police State Vs. Deepak Page 5 of 20 Challan No. 955641 witnesses. The contention raised on behalf of the accused is that the police officers would be interested witnesses, and in that situation, the possibility of a police officer falsely implicating innocent persons cannot be ruled out. It was submitted by ld. defence Counsel that in view of the above submissions, the accused deserves to be acquitted as the prosecution has failed to prove the guilt of the accused person beyond reasonable doubt.
0 (iv) vehicle was illegally impounded by the Challaning Officer on the ground that it was carrying excess passengers 0 0 0 10. Now I am dealing with the submissions of the ld. Defence counsel one by one.
00 No public witness 0 11. Foremost contention of the ld. Defence counsel is that no public person was made witness to the challan. Per contra, it is submitted by ld. APP for State that the Challaning officer had made efforts to join public persons to the challan but none agreed.
0 Testimony of both the prosecution witnesses show that efforts were made to join the passengers sitting in the vehicle to challan but none agreed.
State Vs. Deepak Page 6 of 20 Challan No. 955641 In my considered view, testimony of prosecution witnesses cannot be ignored merely on the ground that no public or independent witnesses were joined. It is settled principle of law that the testimony of police personnel should be treated in the same manner as testimony of any other witness. There is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It is noteworthy that during the course of the cross examination of the prosecution witness the defence did not even give any suggestion as to why they were falsely deposing against the accused. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely challan the accused. Further, PW1 Challaning Officer as well as PW2 during their cross examination deposed that the Challaning Officer had requested the passengers sitting in the vehicle to join the investigation but none agreed. The Hon'ble Supreme Court in Sanspal Singh Vs. State of Delhi 1999 Cr. L.J. 19 held 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 State Vs. Deepak Page 7 of 20 Challan No. 955641 the public witnesses no one was joined in the investigation. Testimony of the Challaning Officer shows that he made efforts to join independent person as witness but none was willing to associate in the investigation. Therefore, the contention raised by the ld. Defence Counsel that on account of nonexamination of a public witness, the testimony of the prosecution witnesses who are traffic police personnel, should not be relied upon cannot be accepted. In my considered view, sole testimony of a witness is sufficient to convict a person, if it is reliable, acceptable and trustworthy. In the present case, testimony of PW1 has been corroborated by PW2. Therefore, there is no reason to reject the testimony of PW1 when there is no evidence to prove that he was inimical or he had any motive to involve the accused in a false case.
Noncompliance of the provisions of Section 184 M.V. Act
12. The ld. Defence counsel has next contended that the prosecution u/sec 184 of the Act is vitiated for noncompliance with the mandatory procedure prescribed under Section 209 of the Act, insofar as, the accused was not warned before initiating prosecution u/sec 184 of the Act. It is further submitted that for conviction under Section 184, the accused should have been warned u/sec 209 of the Act at the time of commission of the offence that the question of prosecuting State Vs. Deepak Page 8 of 20 Challan No. 955641 him would be taken into consideration, which has not been done in the present case in hand. Per contra, it is submitted by the ld. APP for State that within twentyeight days of the commission of the offence, the accused not only appeared before the court but notice u/sec 251 Cr.P.C was served upon him. Hence, the prosecution u/sec 184 of the Act cannot be dropped.
\ 209. Restriction on conviction. No person prosecuted for an offence punishable under Section 183 or Section 184 shall be convicted unless \ (a) he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration, or \ (b) within fourteen days from the commission of the offence, a notice specifying the nature of the offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or the person registered as the owner of the vehicle at the time of the commission of the offence, or \ (c) within twentyeight days of the commission of the offence, a summons for the offence was served on him:
\ (d) Provided that noting, in this section shall apply where the court is satisfied that \ (a) the failure to serve the notice or summons referred to in this sub section was due to the fact that neither the name and address of the State Vs. Deepak Page 9 of 20 Challan No. 955641 accused nor the name and address of the registered owner of the vehicle could with reasonable diligence have been ascertained in time, or $ (b) such failure was brought about by the conduct of the accused. $ The provisions contained in Section 209 of the Act provide certain checks on conviction u/sec 184 of the Act. In the instant case, the statutory requirements had not been complied with at the time of challan. Challaning Officer as well as Ct. Devender, during their crossexamination, have admitted that no warning u/sec 209 of the Act was given to the accused. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the offender aware of such right. However, the said right was flouted with impunity by the Challaning officer in the present case. Be that as it may, prosecution u/sec 184 of the Act cannot be dropped as subsec (c) of section 184 of the Act provides that no person prosecuted for an offence punishable u/sec 184 of the Act shall be convicted unless within 28 days of the commission of offence, a summons for the offence was served on him. In the case in hand, accused was challaned on 10/09/2013, inter alia, for the offence punishable u/sec 184 of the Act. Admittedly, no State Vs. Deepak Page 10 of 20 Challan No. 955641 warning was given to the accused at the time of challan but within 28 days of the commission of offence not only notice u/sec 251 of CrPC was served upon him but evidence and his statement u/sec 313 CrPC were also recorded. Hence, the contention of the ld. Defence counsel that prosecution u/sec 184 of the Act is bad for noncompliance of sec 209 of the Act, is liable to be rejected.
0 Further, both the prosecution witnesses during their examinationin chief have deposed that the accused was driving the vehicle dangerously in zigzag manner. The witnesses were not even cross examined by the ld. Defence counsel on this aspect. Hence, the testimony goes unrebutted and unchallenged. 0 Both the prosecution witnesses were interested witnesses 0 13. It is next contended by the ld. Defence counsel that the statement of PW1 and PW2 cannot be relied upon by the court for the ground that they are interested witnesses.
Interested witness was defined by the Hon'ble Supreme Court in the case of Ram Bharosey Vs. State of UP AIR 1954 SC 704 in the following words "An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice."
State Vs. Deepak Page 11 of 20 Challan No. 955641 The Hon'ble Supreme Court in the case of Girja Prasad (Dead) by Lrs Vs. State of M. P. 2007(7) SCC 625 while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration.
[(1996) 3 SCC 338],
In Tahir v. State (Delhi) dealing with a similar
question, the Court held as under:"6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be State Vs. Deepak Page 12 of 20 Challan No. 955641 interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." In view of the above discussion, it is clear that the statement of a police officer can be relied upon and even form the basis of conviction if it is reliable, trustworthy and preferably corroborated by other evidence on record.
Now let us revert to the facts of the present case in the light of above principle. As already noticed, the prosecution has examined only two witnesses. Prosecution witnesses were crossexamined by the ld. Defence counsel. Both the prosecution witnesses during their examination in chief were consistent. The witnesses withstood cross examination and did not give room for any doubt to the factum of the occurrence and the accused involved. Nothing adverse came on record in the crossexamination of the witnesses. Both the witnesses have corroborated each other. It is, therefore, not correct for this court to reject the prosecution version only on the ground that no independent witness was examined. It is also not proper to reject the case for want of corroboration by independent witnesses as the testimony of State Vs. Deepak Page 13 of 20 Challan No. 955641 prosecution witness inspire confidence.
\
\ Vehicle was illegally impounded
\ 14. Next it is argued by the ld. Defence counsel that the vehicle was impounded by the Challaning Officer on the ground that it was carrying excess passenger.
\ PW1/Challaning Officer during his crossexamination has stated that he can impound the vehicle on the ground of excess passenger. As per Ex.PW1/A accused was found carrying 1011 passengers in the vehicle whereas as per the permit seating capacity of the vehicle is 6+1.
\ Section 207(1) of the Act deals with the power of the police officer to detain and seize the vehicle. Section 207 of the Act reads as under: \ 207. Power to detain vehicles used without certificate of registration permit, etc. (1) Any police officer or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of section 3 or section 4 or section 39 or without the permit required by sub section (1) of section 66 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, in the prescribed manner State Vs. Deepak Page 14 of 20 Challan No. 955641 and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle:
Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used in contravention of section 3 or section 4 or without the permit required by sub section (1) of section 66 he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgment in respect thereof.
From the reading of the above, it is clear that a motor vehicle can be impounded by any Police Officer who is authorized in that behalf by the State Government for contravention of the provisions of the Sections 3, 4, 39 or without permit as required by Sec. 66(1) of the Act. In addition, a motor vehicle can also be detained and seized if there is contravention of any condition of such permit relating to route on which or the area in which or the purpose for which the vehicle may be used. It is only in the above mentioned cases that the police officer can detain and seize a motor vehicle under the Act. The Hon'ble Supreme Court in the case of State of Maharashtra & Ors vs. NandedPrabhani Z.L.B.M.V AIR 2000 SC 725 = 2000(1)CTC 502 held that "..........condition of permit relating to the route on which or the area in which or the purpose for which the vehicle could be used if contravened, would only authorize the police State Vs. Deepak Page 15 of 20 Challan No. 955641 officer to detain the vehicle and not each and every condition of permit on being violated or contravened, the police officer would be entitled to detain the vehicle. ....But carrying passengers more than the number specified in the permit will not be a violation of the purpose for which the permit is granted."
In view of the judgment of the Hon'ble Supreme Court, it is no more resintegra that carrying passengers beyond the number mentioned in the permit would not be a violation of the conditions of permit relating to either the route or the area or the purpose for which the permit is granted. There can be no doubt that carrying passengers in excess of the permissible limit amounts to contravention of the provisions of Section 66(1) of the Act justifying prosecution of the accused. However, such a contravention does not authorize the Challaning Officer to detain and seize the vehicle u/sec 207 of the Act. I view of the above discussion, this court has no hesitation in holding that detention and seizure of the vehicle by the Challaning Officer in the present case is unauthorized and illegal.
Earlier also on number of occasions, this court had put at notice, not only TI's but all concerned authorities in the District, requiring them to show compliance to the orders of Hon'ble Supreme Court and this Court. The conduct of these Officials clearly reflects their callousness and lack of will to obey the orders of the Court/s. Copy of the order State Vs. Deepak Page 16 of 20 Challan No. 955641 be sent to DCP(NE)(T) to ensure that no motor vehicle be detained without strictly following the provisions of the Act. Any violation of the above legislature mandate and the judgment passed by the Hon'ble Supreme Court in NandedPrabhani (supra) would be viewed seriously.
Admission of guilt by the accused during the statement recorded u/sec 313 CrPC d 15. When the accused was being examined U/s 313 Cr.P.C, he admitted that he was not wearing the seat belt and PSV badge. He further admitted that he was carrying 10/11 passenger in the vehicle. It is submitted by the Ld. Defence Counsel that the accused cannot be convicted on the basis of admissions made under Section 313 Cr.P.C. Per contra, it is submitted by the ld. APP for State that accused can be convicted on the basis of admissions made u/sec 313 Cr.P.C. d d 16. The very purpose of introducing Sec 313 in the scheme of criminal trial is to afford an opportunity to the accused personally and that too, without administering any oath to explain the circumstances appearing against him during the trial. Sec 313 CrPC reads as under:
313. Power to examine the accused. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court State Vs. Deepak Page 17 of 20 Challan No. 955641
(a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary;
(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case:
Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under subsection (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Subsection (4) to Section 313 provides that admissions and confessions made by an accused in the said statement can be given due weightage and considered along with other admissible evidence. There are catena of judicial pronouncements highlighting the usefulness of these statements and as to how it empowers the courts to take into consideration the answers given by the accused.
State Vs. Deepak Page 18 of 20 Challan No. 955641 (Dharnidhar Vs. State of U.P. (2010) 7 SCC 759 and Ashok Kumar Vs. State of Haryana 2012 (12) SCC 55) .
17. It is settled proposition of law that the statement made by the accused u/s 313 Cr.P.C can be used by the court to the extent that it is in line with the case of the prosecution, however, the same cannot be the sole basis for convicting the accused.
18. It is the case of the prosecution that the accused was ferrying 10/11 passengers in the offending vehicle without wearing the prescribed uniform and Public Vehicle Service Badge. Further, both the prosecution witnesses in their examinationinchief have stated that the accused was carrying 10/11 passengers in the vehicle without wearing the seat belt and failed to produce the badge. Both the prosecution witnesses were not even crossexamined by the ld. Defence counsel on the aspect of seatbelt and badge. Hence, the statement goes unrebutted and unchallenged so far as the allegations of not wearing the seat belt and PSV Badge are concerned. Further, the statement of the accused recorded u/sec 313 Cr.P.C before this court not only corroborates the prosecution case but also falls in the line with the case of the prosecution.
Having regard to the above discussion, and taking into consideration State Vs. Deepak Page 19 of 20 Challan No. 955641 the overall conspectus of facts as emerging from the evidence on the record, this court is of the considered opinion that the prosecution has proved the case beyond reasonable doubt against the accused/Deepak. Hence, the accused is convicted for the offence u/DMVR 6 and 7 punishable u/sec 177, 184 and u/sec 66(1)/192A of the Act.
19. Let the convict be heard on the quantum of sentence.
,
,
Announced in the open (BABITA PUNIYA)
Court on 09.12.2013 MM (Traffic)01/KKD/
Delhi/09.12.2013
State Vs. Deepak Page 20 of 20 Challan No. 955641