Delhi District Court
State vs . Ganesh Mukhiya on 30 April, 2012
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
SOUTH EAST-03, NEW DELHI
STATE Vs. Ganesh Mukhiya
FIR NO: 483/06
P. S. Kalkaji
ID no. 02403R0514832006
Date of institution of case : 19.09.2006
Date on which case reserved for judgment : 30.04.2012
Date of judgment : 30.04.2012
Advocates appearing in the case :
Sh. Manish Kumar, Ld. APP for State
Sh. Gajender Singh Bisht, Counsel for accused
JUDGEMENT U/s 355 Cr.P.C.:
a) Date of offence : 18.05.2006
b) Offence complained of : U/s 25 Arms Act
c) Name of complainant : SI Digvijay Singh
d) Name of accused, his parentage, : Ganesh Mukhiya
local & permanent residence S/o Sh. Joginder Mukhiya
R/o M-9, GK-II,
2nd Floor, Greater Kailash
New Delhi
e) Plea of accused : He is falsely implicated.
f) Final order : He is acquitted
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. In the present case, accused Ganesh Mukhiya has been charged for offence u/s 25 Arms for recovery of buttondar knife without any licence at public place in contravention of Delhi Administration Notification, on 18.05.2006 at about 8 pm at Transit Camp, near C-Lal Chowk, Govindpuri, Kalkaji within jurisdiction of PS Kalkaji. Prosecution has examined two PWs on its behalf. FIR No. 483/06 PS Kalkaji State vs. Ganesh Mukhiya Page 1 of 4
2. PW1 is HC Ramesh Kumar who stated that on 18.05.2006, he was on patrolling duty alongwith SI Digvijay Singh and Ct. Jai Prakash in area of Govindpuri and on information of secret informer that one boy, who was working as a domestic worker in GK-II and having illegal knife in his possession, would be coming at Transit Camp Jhuggi. IO prepared raiding party and asked 4/5 public persons to join the raiding party, but the public persons refused to join the raiding party and at about 8 pm on pointing out of secret informer, accused Ganesh Mukhiya was apprehended and on his cursory search, one buttondar knife was recovered from right side pocket of accused. He states that IO prepared sketch of knife which is Ex.PW1/A, after taking measurement of knife and total length of knife was 23.05 cm, handle 13 cm and blade 10.5 cm. He stated that IO SI Digvijay Singh prepared pullanda of knife and sealed it with seal of DVS and taken into custody vide seizure memo which is Ex.PW1/B and accused made a disclosure statement which is Ex.PW1/C and after preparing rukka, he was sent to PS by IO and FIR was lodged and accused was arrested vide arrest memo Ex.PW1/D and his personal search was conducted vide Ex.PW1/E. He further stated that on disclosure of accused, they went to GK-II house where accused was domestic servant and five iron cutter and key bunch was recovered at the instance of accused vide recovery memo Ex.PW1/F. PW1 correctly identified the accused and case property in court.
3. PW2 is second IO HC Yogender who stated that on 18.05.2006 he was posted at Special Staff South District and on information of Duty officer, he reached at spot at about 9:40 and met with SI Digvijay Singh, Ct. Ramesh, Ct. Jai Prakash who handed him over accused Ganesh Mukhiya with one FIR No. 483/06 PS Kalkaji State vs. Ganesh Mukhiya Page 2 of 4 buttondar knife and he prepared site plan Ex.PW2/A at the instance of first IO SI Digvijay Singh. PW2 correctly identified the accused and case property in court and exhibited as Ex.P-1.
4. After closure of PE, statement of accused u/s 313 Cr.P.C. was recorded. Accused did not lead any defence evidence, hence final arguments were heard today and case was kept for order for today itself. BRIEF REASONS FOR DECISION AND DECISION THEREOF.
After hearing final arguments and after perusal of case file, this court is of the opinion that though the prosecution has tried to prove the case by bringing technically all the evidence on record, however, all the PWs have failed to give satisfactory reply why public persons were not made witness to the recovery of the weapon though the purported time of arrest of accused was about 8 pm and there were many public persons going to and fro near C-Lal Chowk, Govindpuri. They did not serve any notice to public persons to become party to the recovery. All this leads to reasonable doubt that recovery may not have been made at the spot as stated in prosecution case or recovery may not have been made from accused at all.
The Hon'ble Delhi High Court has held in case of Azim Khan Vs. State 1996 Crl.C.J. 3140 that recovery of case property at a crowded place like bus stand without making public persons as witnesses to recovery raises serious doubt on the very fact of recovery, hence in this case, the accused was acquitted on this ground of failure of police officials to make public persons as FIR No. 483/06 PS Kalkaji State vs. Ganesh Mukhiya Page 3 of 4 necessary witnesses to the recovery. In a similar case of recovery of opium from accused at a bus stand where no public witnesses were joined in the recovery, the Hon'ble Punjab and Haryana High Court in case titled Darshan Singh Vs. State of Haryana 1997 (3)RCR (Crm) 496 set aside the conviction of accused.
Secondly, though the alleged knife seized from accused was sealed in a pullanda but it was never sent to FSL for expert opinion regarding finger prints on the knife, hence in the absence of FSL report, it can not be said that the recovery of knife was made from accused only. The prosecution has to prove each and every case beyond reasonable doubt to warrant conviction of accused, but in this case, the very fact of arrest of accused and the fact of seizure of knife from him is shrouded in mystery which has been further aggravated by the omission of IO to send the knife to FSL for report. The omission to make public persons as witness of recovery further creates a reasonable suspicion upon the working of the police officials, whether the knife was recovered from accused at the said place at all or not. The prosecution has failed to prove the case beyond reasonable doubt and has failed to plug all the gaps in the story of prosecution and has left many doubts regarding recovery of knife from the possession of accused. Hence, the benefit of doubt in this case is granted to accused. Accused stands acquitted from charge u/s 25 Arms Act on benefit of doubt. Personal bond and surety bond of accused stands discharged. Original documents if any be released to the authorised persons on proper receipt and endorsement if any be cancelled. Case property be destroyed and report be filed. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 30th April, 2012 MM-03(SE), NEW DELHI
FIR No. 483/06 PS Kalkaji
State vs. Ganesh Mukhiya Page 4 of 4