Delhi District Court
State vs . on 2 November, 2012
IN THE COURT OF SH. SANTOSH KUMAR SINGH
METROPOLITAN MAGISTRATE SOUTH WEST
DISTRICT(TRAFFIC) DWARKA COURTS DELHI
CHALLAN NO: 688846
CIRCLE: RKC
VEHICLE NUMBER: DL 1RE 2743
U/S: 185, 3/181, 130/177 and 119/177 of Motor Vehicles
IN THE MATTER OF:-
STATE
VS.
RAJESH KUMAR JAIN
S/O SH. NIRMAL KUMAR JAIN
R/O Budh Vihar, Near Mangol Puri, Delhi
Date of institution: 07.02.2012
Date of reserving Judgment/Order: 11.10.2012
Date of pronouncement of Judgment/Order: 02.11.2012
JUDGMENT
Brief statement of reasons for the decision of the case :
STATE VS. RAJESH KUMAR JAIN Page 1 of 12VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846
1. The brief facts of the case as contained in the challan are that on 07.02.2012 at about 3.40 PM, the accused was driving the vehicle bearing registration number DL 1RE 2743. While coming from the side of Ring Road, Moti Bagh and going towards Hyat Hotel side the accused jumped the red light of Ring Road, Moti Bagh. When his vehicle was stopped smell of alcohol was coming from the mouth of the accused. Thereafter, Breath Alcohol Analysis Test was conducted upon the accused and as per report vide serial number 281 the quantity of alcohol in blood was found to be 290.2 mg/100ml. Further, it has been alleged that accused was found driving the said vehicle without Driving License and also failed to produce any document of the vehicle at the spot.
2. That on the above mentioned facts, the accused was challaned accordingly under section 185, 3/181, 130/177 and 119/177 of Motor Vehicle Act (herein after referred as MV Act) and the vehicle in question was impounded under section 207 of the MV Act.
3. That the accused chose to contest the matter and accordingly bail was granted to the accused as offences being bailable one. Thereafter, particulars of offences of which he was accused were read over and explained to him vide separate notice framed on 08.02.2012 under section 185, 3/181, 130/177 and 119/177 of Motor Vehicles Act to which he pleaded not guilty and claimed trial.STATE VS. RAJESH KUMAR JAIN Page 2 of 12
VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846
4. That in order to prove the prosecution's case, two witnesses were examined. PW1 namely SI M. P. Singh, No. 1604D, RKC and PW2 namely Ct. Upender Sharma, No. 1586/Traffic. One witness HC Suresh No. 649T was dropped from the list of witnesses at the request of Ld. APP.
5. During the course of examination of Prosecution Witnesses, it is stated by PW1 SI M. P. Singh that one vehicle bearing registration number DL 1RE 2743 was coming from the side of Dhaula Kuan towards Hyat Hotel side. The above said vehicle was got stopped with the help of Ct. Upender on 07.02.2012. Smell of alcohol was coming from the mouth of the accused Rajesh who is present at the court (correctly identified). As the accused was smelling alcohol, therefore, Breath Alcohol Analysis Test was conducted upon him and the content of alcohol in blood was found to be 290.2mg/100ml as per report which is exhibited as PW1/A. The accused was also asked to produce his Driving License and other documents of the vehicle but he failed to produce any valid document at the spot. Accordingly, challan which is exhibited as PW1/B was prepared under section 185, 119/117, 3/181 and 130/177 of Motor Vehicle Act. The vehicle was also impounded in this case.
6. PW2 Ct. Upender Sharma has stated in his examination in chief that on that day i.e 07.02.2012 he was posted as Ct. at Moti Bagh STATE VS. RAJESH KUMAR JAIN Page 3 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 Red Light in circle of RKC. He along with SI M.P. Singh and HC Suresh was on duty. On that day a vehicle bearing registration number DL 1RE 2743 was coming from the side of Dhaula Kuan and going towards Hyat Hotel side. The above said vehicle was got stopped with the help of HC Suresh. Smell of alcohol was coming from the mouth of the accused/ driver namely Rajesh who is present in the court (correctly identified). Thereafter, Breath Analysis Test was conducted upon the accused and the content of alcohol in blood was found to be 290.2mg/100ml as per report which is already exhibited as PW1/A. The accused was asked to produce his Driving License but neither he produced Driving license nor any valid document of the above said vehicle. Accordingly, the challan was prepared which is already exhibited as PW1/B. The vehicle was impounded which is already exhibited P1.
Both PWs correctly identified the accused namely Rajesh during their examination.
7. In cross examination of prosecution witnesses, PW1 SI M. P. Singh stated that there was no passenger when the vehicle was stopped by HC Suresh at the spot. He further stated that the accused himself drove the said vehicle upto the vehicle after impounding it by him and Ct. Upender accompanied the accused in the vehicle. He further stated that the result of the alcohol content came out to be 290.2 mg /100 ml. at first blow of air in the alcometer. He further stated that no blood test of the accused was conducted and the alcometer was in his possession at that time. He further stated that the accused was arrested under STATE VS. RAJESH KUMAR JAIN Page 4 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 section 202 M. V. Act at the spot and released the accused without filling the bail bond and was released the accused without filling the bail bond / personal bond. He further submitted that he did not take signatures of both witnesses on the challan and he filled alcometer report in his own handwriting. He denied the suggestion that the accused was not in the influence of alcohol when the accused was stopped. He further denied the suggestion that the accused did not make blow of air in the alcometer. He further denied the suggestion that he is deposing falsely.
8. PW2 Ct. Upender Sharma has stated in his cross examination that there was no passenger when the vehicle was stopped. He further stated that ZO was present at the spot when the vehicle was stopped. He further stated that the accused was asked to blow air in the alcometer for result and the accused blow for 2-3 times and thereafter, 290.2 mg/100 ml. was recorded by the alcometer which is Ex. PW1/A. He further stated that the ZO prepared the challan which is Ex. PW1/B of the said vehicle. He further stated that the distance of pit from the spot is about 1 km. and the accused drove the said vehicle upto pit after impounding the vehicle and he was pillion rider. He further submitted that no blood test was conducted upon the accused. He further submitted that he did not know whether the accused was arrested or not under section 202 of M. V. Act by the ZO. He further submitted that the challan does not bear his signatures. He denied the suggestion that the accused was not in the influence of alcohol. He further denied the suggestion that some other person has made a blow in the alcomter.
STATE VS. RAJESH KUMAR JAIN Page 5 of 12VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846
9. After the prosecution evidence, the statement of accused under section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused but he summarily rejected the same and said that he was wrongly challaned by the traffic police officials and the prosecution witnesses have deposed falsely. When accused was asked whether he wants to lead any defence evidence. Accused replied that he does not want to lead defence evidence and the matter was listed for arguments.
10. During the course of arguments Ld. APP for the state argued that PW1 and PW2 have identified the accused in court correctly. He also argued that from the testimonies of PW1 and PW2 it is clear that accused person was driving the vehicle under the drunken condition. Also Breath Alcometer report Ex. PW1/A and signature of the accused on this slip has not been denied by the accused which clearly shows that accused was driving the vehicle under the influence of liquor. Also alcometer slip has not been disputed by the accused in this case. Also PW1 and PW2 have stated in their testimonies that accused was driving the aforesaid vehicle without having valid Driving License and also failed to produce any valid document at the spot. Ld. APP for the state argued that chief of both witnesses have not been contradicted in any manner. Ld. APP also argued that PW1 and PW2 have denied the suggestion that accused person was not driven the vehicle under the influence of liquor. Also both PWs have denied the suggestion that some other STATE VS. RAJESH KUMAR JAIN Page 6 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 person had made a blow of air in the alcometer. Ld. APP also argued that instrument i.e. alcometer has not been disputed by the defence. Ld. APP for the state also argued that alcometer slip is admissible evidence under Motor Vehicle Act. PW1 and PW2 have stated in their testimonies that aforesaid vehicle was impounded by the challaning officer and this fact has not been disputed by the defence.
Ld. APP also argued that if one fact is proved by one witness then it is not necessary to prove that fact by another witness, therefore, he dropped Ct. Suresh one of the PWs in this case. Also Ld. APP for the state argued that defence has failed to prove that he committed the offence to prevent major offence. Therefore, defence u/s 81 IPC is not available to the accused in this case. Both PWs have corroborated each other on material particulars. Also both PWs have denied the suggestion that they were deposing falsely. Ld. APP for the state concluded the arguments submitting that prosecution have tried to prove the strong case against the accused.
11. Ld. Counsel for the accused argued that no public person was made a witness in the present case by the Challaning Officer. Ld. Counsel for the accused also argued that bail bonds were not furnished by the accused. Ld. Counsel for the accused also argued that the Traffic Officer allowed the accused to drive the said vehicle to the pit after impounding it and also allowed PW2 to accompany the accused in the vehicle up to the pit after impounding the vehicle. Ld. Counsel for the accused also argued that PW1 has stated in his cross examination that STATE VS. RAJESH KUMAR JAIN Page 7 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 the result of Breath Alcohol Analysis Test came out to be 290 mg/100 ml at first blow of air in the alcometer whereas PW2 has stated that the accused made two to three times blow of air and thereafter result came out to be 290 mg/100 ml. It is also argued by the Ld. Counsel for the accused that signature of PW2 i.e. Constable Upender had not been taken on challan by Challining Officer. Ld. counsel for the accused argued that blood test of the accused was not conducted. Also the prosecution has dropped one witness i.e. Constable Suresh from the list of witnesses. Ld. Counsel for the accused argued that the accused was wrongly challaned and, therefore, he be acquitted from the case.
12. After hearing the arguments of both sides i.e. prosecution side and defence side there are four controversies which are to be discussed.
1. Firstly, whether the accused was driving the vehicle in drunken condition without Driving License and also jump the red light at Moti Bagh.
2. Secondly, whether breath alcohol analysis test is admissible evidence and whether blood test of the accused is necessary or not.
3. Thirdly, why public person was not made a party in the present case.
4. Fourthly, why prosecution witness i.e. Suresh was dropped from the list of witnesses.
STATE VS. RAJESH KUMAR JAIN Page 8 of 12VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 It is established rule of Criminal Jurisprudence that while appreciating the prosecution evidence the minor discrepancy and contradiction can not render the entire prosecution evidence useless and irrelevant unless such contradiction adversely affect the core of prosecution case.
13. As regards to first controversy that accused was intoxicated with the alcohol at the time of challan. On reading the testimonies of PW1 and PW2 it makes clear that accused was driven the vehicle in drunken condition and moreover, neither any question nor suggestion has been put to both PWs by the defence in cross examination in this regard. The accused has not denied his signature on challan as well as on breath alcohol report which establishes his presence on the spot and to the fact that he was driving the vehicle under drunken state. Moreover, neither the accused has denied the fact in his statement under section 313 Cr.PC that he was not in drunken state at the relevant point of time. But he simply stated that he is innocent and has not commited any offence and has been challaned wrongly. It is also clear from the testimonies of PW1 and PW2 that the accused failed to produce valid Driving License at the spot. Even no question or suggestion was put to PWs regarding this fact which clearly shows that the accused was driving the vehicle without valid Driving License. Hence this fact stands proved. PW1 and PW2 also stated in their testimonies that above said vehicle was impounded and this fact has not been disputed by the defence. Hence impounding of vehicle stands proved. Therefore, STATE VS. RAJESH KUMAR JAIN Page 9 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 prosecution established the fact that accused was driving the vehicle under influence of liquor without Driving License at the relevant point of time. None of PWs has mentioned the fact in their chief that accused jump the red light at Moti Bagh. Therefore, this fact is not proved by the prosecution at all. Hence, accused is acquitted u/s 119/177 for the offence of red light jump.
14. That on the second controversy i.e admissibility of Breath Alcohol Analysis Test is concerned, no detailed discussions are required as the section 185 of MV Act makes it very clear that Breath Analysis Test is relevant and admissible piece of evidence and further section 203 authorized the police officer in uniform to conduct the Breath Analysis Test which is admissible piece of evidence. Therefore, Breath Alcohol Analysis Test is admissible piece of evidence under section 203 M. V. Act. Hence, the blood test of the accused is not necessary.
15. As regards the third controversy regarding the fact that why public person was made a witness in the case is concerned. In this regard I am of the view that no public person wants to become a witness in police case because they fear that they would be harassed by police and would face a lot of problems or inconvenience in attending the courts. Moreover the Hon'ble Supreme Court of India has held in various judgments that public witness is not necessary in each and every case because usually people do not come forward to become a witness. Hence, the arguments of Ld. Counsel for accused that no STATE VS. RAJESH KUMAR JAIN Page 10 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 public person was made a witness in the present case by the challaning officer seems to be in-convincing.
16. As regards the last and final controversy regarding the dropping of one prosecution witness Ct. Suresh from the list of witnesses is concerned. In this regard Ld. APP has already argued that if one fact is proved by one witness then it is not necessary to prove the same fact by another witness. It is a well established law that if one fact is proved by one witness then it is not necessary that the same fact has to be proved by another witness. Therefore, argument of the Ld. APP seems to be convincing one. Hence, dropping of one witness from the list of witnesses is not adverse to the present case.
17. In totality, the prosecution has established a strong case and the defence has not been able to shake the credit of the prosecution witnesses. From the corroborated testimonies of prosecution witnesses and the Breath Alcohol Analysis Report, it is apparent that alcohol content in blood of accused was found exceeding 30mg/100ml and influence to such an extent as to be incapable of exercising proper control over the vehicle. The defence has failed to raise any reasonable doubt against the prosecution version. In view of what has been discussed above, this court finds merits in the prosecution submission and hold the guilt of accused stands established beyond reasonable doubt. Thus, accused is hereby convicted for the offence punishable u/s 185, 3/181 and 130/177 of Motor Vehicle Act and the accused is hereby STATE VS. RAJESH KUMAR JAIN Page 11 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846 acquitted for the offence punishable under section 119/177 (Red light jump) as nothing has been stated by the PWs in this regard.
(ANNOUNCED IN THE OPEN COURT ON 02.11.2012) This Judgment contains 12 Pages and each paper is signed by me.
(SANTOSH KUMAR SINGH) METROPOLITAN MAGISTRATE SOUTH WEST DISTRICT (TRAFFIC-01) DWARKA COURTS, DELHI STATE VS. RAJESH KUMAR JAIN Page 12 of 12 VEHICLE NO. DL 1RE 2743 CHALLAN NO: 688846