Delhi District Court
State vs . Rajender Babu 1 Challan No. 936693 on 30 January, 2014
IN THE COURT OF MS. BABITA PUNIYA, MM (TRAFFIC)-01
EAST, KARKARDOOMA COURTS, DELHI
Challan No. 936693
Challan Date: 07.05.2013
Vehicle No. DL-1RT-2955
State ..................... Complainant
Versus
Sh. Rajender Babu,
S/o Late Sh. Chander Pal,
R/o H.No. A-142, Gali No.3,
Ambika Vihar, Shiv Vihar,
Delhi. ........................ Accused
Offence complained of under section 66(1)/192-A, 39/192, DMVR7/177 &
CMVR 138(3)/177 Motor Vehicles Act, 1988.
Plea of the Accused : Accused pleaded not
Guilty
Date of institution of the Case : 10.05.2013
Date on which arguments heard : 30.01.2014
Date on which order was reserved : Not reserved
Date of decision : 30.01.2014
Final Order : Convicted
JUDGMENT:-
1. Brief facts relevant for the disposal of the present challan are that on 07.05.2013 at about 08.22 AM at 5th Pushta, driver namely Rajender Babu was found driving Radio Taxi bearing no. DL-1RT-2955 from Khajoori State Vs. Rajender Babu 1 Challan No. 936693 Chowk side towards Shastri Park. It was alleged in the Challan that the driver was ferrying nine passengers and had fitted extra seat in the vehicle. It was further alleged that he was not wearing the uniform and seat belt. Therefore, he was challaned by ZO/SI Gunpal Singh u/sec 66(1)/192A, 39/192, DMVR 7/177 and CMVR 138(3)/177 of the Motor Vehicles Act, 1988 (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 10/05/2013 and the accused was admitted to bail as the offences were bailable one.
3. On 12/07/2013, notice u/s 251 Cr. P.C. was framed against the accused 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 only two witnesses namely ZO/SI Gunpal Singh as PW1 and Ct. Harender Singh as PW2.
5. PW1 ZO/SI Gunpal Singh in his examination-in-chief stated that on 07.05.2013 at about 8.15/8.20 AM he was posted as ZO in Khajuri Khas Circle. On that day at 5th Pusta Red Light, he alongwith Ct. Harender was on patrolling duty in the circle. He saw one Radio Taxi coming from Khajuri Chowk to Shastri Park. Ct. Harender got stopped the vehicle at his instance.
State Vs. Rajender Babu 2 Challan No. 936693 Nine plus one passengers were sitting in the vehicle. He asked the driver to get down from the vehicle but the driving dropped the passengers from the back door of the vehicle. He asked the driver to produce the documents. The driver produced all the documents of the vehicle but requested not to prepare the court challan and to compound the offence at the spot. Accused/driver had also fitted extra seats in the vehicle. He further deposed that accused/driver was not wearing the uniform. Therefore, he challaned the accused and impounded the vehicle. He also placed on record certain photographs of the offending vehicle in support of his evidence, which are marked as Ex.PW-1/A to Ex.PW-1/C. The challan and OSS Form are marked as Ex.PW-1/D and Ex. PW1/E, which bears his signature at point 'A' and 'B' respectively. The witness has correctly identified the accused.
In his cross-examination, PW1 stated that his duty hours start at around 8.00 AM. He further stated that he could not tell the direction from which the vehicle was coming. He stated that he did not ask any passenger to join the investigation because the accused had opened the back gate and allowed the passengers to go. He admitted that he did not record the statement of any passenger. He stated that he did not remember the colour of the vehicle in question. He further stated that there were four seats in the vehicle in question whereas there should have been three seats in the vehicle. He denied the suggestion that a false challan has been prepared against the accused as he refused to pay free entry fees.
6. Ct. Harender Singh was examined as PW2. He deposed on the same lines as deposed by the Challaning Officer.
State Vs. Rajender Babu 3 Challan No. 936693 During his cross-examination by the ld. Defence counsel PW2 had stated that the vehicle was challaned just before the red light. PW2 further stated that he could not tell the direction from which the vehicle was coming. The vehicle was coming in normal speed. He further stated that when the vehicle was got stopped, driver was sitting on his seat and he immediately came out of the vehicle. He further stated that they did not stop the passengers. He denied the suggestion that a false challan has been prepared against the accused as he refused to pay free entry fees. He further denied the suggestion that they had asked for a bribe of Rs.1,000/- from the accused. He admitted that accused had made a call on No.100.
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 stated that only three passengers were sitting in the vehicle. He also pleaded false implication as he refused to pay entry fee. However, he did not lead any evidence in his defence.
8. This Court has heard the rival submissions of the ld. APP for State and the ld. Defence counsel and perused the records very carefully.
9. It is argued by the ld. Defence counsel that false charges have been foisted against the accused as he refused to pay entry fee. He submitted that the no public person was examined to prove the allegations that the accused State Vs. Rajender Babu 4 Challan No. 936693 was ferrying nine passengers and had fitted extra seat in the vehicle. He further submitted that both the prosecution witnesses were traffic Police Officials, who could conveniently level allegations against the accused without any shred of objective evidence.
Admittedly, Challan/Ex. PW1/D has not been testified by any independent witness. As per the prosecution witnesses, nine passengers were sitting in the vehicle. It is settled proposition of law that when independent public persons are available at the spot and they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public persons were not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in the absence of the independent public witness.
Reference may be made to the judgment passed by the Hon'ble Supreme Court of India in the case tilted as Sanspal Singh Vs. State 1999CrLJ wherein it was held that non-joining 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.
PW1/SI Gunpal Singh/Challaning Officer during his cross-examination by the ld. Defence counsel had stated that "I did not ask any passenger to join the investigation because the accused had opened the back gate and allowed State Vs. Rajender Babu 5 Challan No. 936693 the passengers to go." PW2 during his cross-examination had stated "we did not stop the passengers."
Perusal of Challaning Officer's testimony shows that he had not made any sincere efforts to join any public witness. The explanation given by the Challaning Officer during his cross-examination does not inspire confidence. The failure to do so by the Challaning Officer who is a Sub-Inspector in the present case is suggestive of the fact that the explanation for non-joining the witnesses from the public is an afterthought and is not worthy of credence. Even otherwise, had there been any passenger present in the vehicle, the immediate action/reaction would have been to ask them to join the investigation and get their statement recorded. Failure on the part of prosecution to make sincere efforts to join independent public witnesses in the proceedings despite their availability creates reasonable doubt in the prosecution case. Further, the photographs/Ex. PW1/A to PW1/C in my considered view are not sufficient to prove that the accused had fitted extra seats in the vehicle, especially when the same are not proved on record in accordance with the Evidence Act. A Division Bench of the Hon'ble Bombay High Court in the case of Laxman Ganpati Khot and others Vs. Anusuyabai and another, AIR 1976 Bombay 264I, held that:- "It is only when the person who takes a photographs and develops it into a negative himself comes into the box and deposes to both these facts, that a negative become admissible in evidence. As far as the enlarged print is concerned, the position is still worse for no print or enlargement can be admitted in evidence without its negative being produced and proved in the manner indicated above."
State Vs. Rajender Babu 6 Challan No. 936693 In the present case, neither the negatives nor the certificate required u/sec 65-B of the Evidence Act have been placed on record by the prosecution. Further, these photographs/Ex. PW1/A to PW1/C cannot be said to have been legally proved on record having not been proved by photographer. Therefore, that evidence has to be totally ignored being inadmissible. Even otherwise, I have perused the photographs Ex/PW1/A to PW1/C. PW1/B is the front of a vehicle. From the perusal of PW1/B it is not clear whether it is the photograph of the vehicle in question and even if it is the offending vehicle, it is not helpful to the prosecution as it does not show fitting of any extra seat. PW1/C is the rear side of the vehicle in question. This photograph is also of no use to the prosecution. Third photograph/Ex. PW1/B is also of no use as it is not clear whether it is of the vehicle in question.
All these facts taken together make the prosecution case highly doubtful as far as the allegations of carrying extra passengers and fitting extra seat are concerned and it would be unsafe to convict the accused on the testimony of police officials in the absence of independent corroboration whatsoever.
10. Further, as per Ex. PW1/D, the accused had not tied the seat belt but before the court, none of the prosecution witnesses has stated anything about the same in their evidence. The story narrated by the Challaning Officer in Ex. PW1/D/Challan differs substantially from what narrated by him in his evidence before the court. This also creates a serious dent in the prosecution case.
State Vs. Rajender Babu 7 Challan No. 936693
11. It is fundamental principle of criminal jurisprudence that accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. This general burden never shifts and it always rests on the prosecution. I am of the considered opinion that the prosecution has failed to discharge the burden of bringing home the guilt of the accused qua the charge u/sec 66(1)/192A, 39/192 and CMVR 138.3/177 of the Act beyond reasonable doubt.
Admission of guilt by the accused during the statement recorded u/sec 313 CrPC
12. When the accused was being examined U/s 313 Cr.P.C, he admitted that he was not wearing the uniform. 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.
13. 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 Cr.P.C reads as under:-
State Vs. Rajender Babu 8 Challan No. 936693
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-
(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).
No oath shall be administered to the accused when he is examined under sub-section (1).
The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. 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.
Sub-section (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. (Dharnidhar Vs. State of U.P. (2010) 7 SCC 759 and Ashok Kumar Vs. State of Haryana 2012 (12) SCC 55) .
State Vs. Rajender Babu 9 Challan No. 936693
14. In view of the above it is no more res integra 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.
15. It is the case of the prosecution that the accused was driving the vehicle without wearing the uniform. Further, both the prosecution witnesses in their examination-in-chief have stated that the accused was not wearing the uniform. Both the prosecution witnesses were not even cross-examined by the ld. Defence counsel on the aspect of uniform. Hence, the statement goes un-rebutted and un-challenged so far as the allegations of not wearing the uniform is 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.
16. Keeping in view the overall conspectus of the case, I am of the considered opinion that the prosecution has proved its case beyond reasonable doubt under DMVR 7 punishable u/sec 177 of the Act against the accused. However, it has failed to prove the charge u/sec 66(1)/192A, 39/192 and CMVR 138.3/177 of the Act beyond reasonable doubt against the accused. The result is that the accused is entitled to the benefit of reasonable doubt and is hereby acquitted qua the charges u/sec State Vs. Rajender Babu 10 Challan No. 936693 66(1)/192A, 39/192 and CMVR 138.3/177 of the Act. However, the accused is convicted under DMVR 7 punishable u/sec 177 of the Act.
17. Let the convict be heard on the quantum of sentence.
Announced in the open (BABITA PUNIYA)
Court on 30.01.2014 MM (Traffic)-01/KKD/
Delhi/30.01.2014
State Vs. Rajender Babu 11 Challan No. 936693