Delhi District Court
State vs Imran @ Ashu on 30 April, 2025
IN THE COURT OF MS. SWATI SHARMA,
CHIEF JUDICIAL MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CNR No.DLSH020037972024
a Serial No. of the case : FIR No.: 94/2024
Police Station: Vivek Vihar
(Cr. Case No.1995/24)
b Date of the commission of : 20.02.2024
the offence
c Name of the Complainant : HC Amit Kumar
d Name of Accused person : Imran @ Ashu
and his parentage and S/o Sh. Sabir Ali
residence R/o H.No.77C/217, Gali
No.4, Circular Road,
Mukesh Nagar, Vivek Vihar,
Shahdara, Delhi.
e Offence complained of : U/s 25/54/59 Arms Act
f Plea of the Accused and his : Not guilty.
examination (if any)
g Final Order : Acquitted
h Order reserved on : 25.04.2025
i Order pronounced on : 30.04.2025
Brief statement of facts of the case and trial proceedings:
1.The case of the Prosecution against the Accused Imran @ Ashu is that on 20.02.2024 at about 14:50 hours, Near Ram Leela Ground, Shahdara, Delhi within the jurisdiction of PS Vivek Vihar, he was found in possession of one buttondar knife in State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 1 of 13 contravention of notification issued by Delhi Administration. On the said allegations, Accused was booked with the offence under Section 25/54/59 Arms Act and FIR was registered.
2. After investigation, charge-sheet was filed against the Accused on 20.03.2024 whereupon Cognizance was taken in this and upon appearance of accused, the copy of charge-sheet was supplied to the Accused in compliance of Section 207 Cr.P.C. Further, on 29.04.2024, charge was framed against the Accused under Section 25/54/59 Arms Act to which he pleaded not guilty and claimed trial.
3. Subsequently, Prosecution evidence was led and in order to prove its version, Prosecution examined three witnesses i.e., PW1 HC Amit Kumar, PW2 HC Sumit Kumar and PW3 HC Amit Malik. The remaining witnesses i.e., DO/ASI Jitendera Singh and HC Adesh Kumar as well as concerned dealing clerk of DCP Office were dropped from list of witnesses on account of statement of the Accused u/s 294 Cr.P.C dated 07.08.2024 wherein they admitted the registration of present FIR (Ex.C1), GD No.57A dated 20.02.2024 (Ex. C2) and DAD notification (Ex. C3).
4. After the conclusion of the Prosecution evidence, statement of Accused was recorded u/s 313 Cr.P.C. on 19.04.2025 separately wherein Accused claimed to be innocent and denied allegations against him. Accused stated that he has been falsely implicated in the present case and he is innocent. Accused stated that recovery has been planted upon him.
State vs. Imran @ Ashu
FIR No.94/2024
U/s 25/54/59 Arms Act
PS Vivek Vihar Pages 2 of 13
Despite opportunity Accused opted to not lead any Defence Evidence. Accordingly, bringing the trial to an end, final arguments were heard from Ld. LAC for the Accused as well Ld. APP for the State.
Appreciation of Evidence
5. The arguments were addressed by Ld. APP for the State as well as Ld. LAC for the Accused in detail.
Ld. APP for the State argued that the case of the Prosecution has been proved beyond all reasonable doubts on account of the unfeterred testimonies of the prime Prosecution witnesses i.e. the complainant and IO. Ld. APP for the State further argued that this case merits conviction of the Accused as the Prosecution case stands firmly on its own footing and merely because of absence of public witnesses, the veracity of public witnesses does not stand negated.
Vehemently, denying the arguments of Ld. APP for the State, Ld. LAC for the Accused argued that the Accused has been falsely implicated in the present case and he has been made only a victim of circumstances. It was further argued by Ld. LAC for the Accused that nothing was recovered from the possession of the Accused and this is the reason why no independent witness has been brought by Prosecution in this matter. Hence, Ld. LAC for the Accused strongly argued for acquittal of the Accused in this matter.
Submissions have been duly heard. Record has been State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 3 of 13 carefully perused.
6. A detailed scrutiny of the testimonies of the Prosecution witnesses has been done and is hereby discussed in detail.
6.1. PW1: HC Amit Kumar: He deposed that on 20.02.2024, he alongwith HC Sumit were performing patrolling duty in the area near Ram Leela Ground, Mukesh Nagar, Shahdara, Delhi and during patrolling, when they reached near Ram Leela Ground, one secret informer met them and disclose that one boy was roaming to commit offence in the area of Mukesh Nagar, if raid is conducted the said boy could be apprehended. He further deposed that thereafter, he shared the abovesaid information to the SHO PS concerned and SHO of the PS concerned instructed them to taken action. He further deposed that thereafter, he asked 4-5 public persons to join the investigation but none had agreed and left the spot without disclosing their names and addresses and thereafter, they alongwith secret informer reached near Ram Leela Ground, where secret informer pointed towards one person and confirm to them that the said person is roaming to commit offence and thereafter, secret informer left the spot. He further deposed that thereafter, they apprehended the said person and took cursory search, one buttodar knife was recovered from his right pocket of wearing pant and upon interrogation, he revealed his name as Imran @ Ashu. He further deposed that thereafter, he prepared sketch memo of the recovered buttondar knife, Ex. PW1/A and on measurement of the recovered buttondar knife total length 24 cm, length of handle 13 cm, length of blade 11 State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 4 of 13 cm, width of blade 2.5 cm and thereafter, he prepared pullanda and sealed with the seal of SK and seal after use was handed over to HC Sumit Kumar, Ex. PW1/X. He further deposed that thereafter, seizure memo was prepared, Ex. PW1/B and prepared rukka same Ex. PW1/C and same was handed over to HC Sumit. He further deposed that thereafter accordingly, HC Sumit went to the PS got registered the FIR and after registration of FIR, he alongwith 2nd IO/HC Amit Malik came at the spot alongwith copy of FIR and original rukka. He further deposed that he handed over case property as well as accused to 2 nd IO/HC Amit Malik and thereafter, IO 2nd IO/HC Amit Malik recorded disclosure statement of accused Imran @ Ashua Ex. PW1/D and thereafter, accused was arrested and personally searched arrest memo and search memos are Ex. PW1/E and Ex. PW1/F. He further deposed that 2nd IO/HC Amit Malik prepared site plan at his instance Ex. PW1/G and thereafter, they all came back at the PS and case property deposited in the malkhana. He correctly identify the accused as well as case property Ex. P1 in the court.
During his cross examination by Ld. LAC for accused, stated that no public witness was present at the spot when accused was arrested and at the time of recovery, no public witness as present. He admitted that the spot is a public place and public persons were coming and going there. He further stated that no notice was served upon the public persons to join in the investigation and no search was made in the raiding team at the time of recovery of knife. He further stated that all the documents were prepared while sitting at the PS and informed State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 5 of 13 the duty officer regarding the incident at about 4:30 p.m. He denied the suggestions that accused has been lifted from his house for that case property i.e. alleged knife has been planted upon the accused or that he deposed falsely at the instance of IO.
6.2. PW2 HC Sumit Kumar: He was present alongwith HC Amit Kumar during the patrolling duty at the time of the alleged incident and has deposed exactly on the lines of PW1.
During his cross examination by Ld. LAC for accused, stated that no public witness was present at the spot when accused was arrested and at the time of recovery, no public witness as present. He admitted that the spot is a public place and public persons were coming and going there. He further stated that no notice was served upon the public persons to join in the investigation and no search was made in the raiding team at the time of recovery of knife. He further stated that all the documents were prepared while sitting at the PS. He denied the suggestions that accused has been lifted from his house for that case property i.e. alleged knife has been planted upon the accused or that he deposed falsely at the instance of IO.
6.3. PW-3 HC Amit Malik: He is the IO of the case. He deposed that on 20.02.2024, after registration of present FIR, further investigation was marked to him and the concerned DO had handed over copy of FIR and rukka to him upon which he along with HC Sumit went to the spot of incident i.e., near Ramleela Ground, Mukesh Nagar, Vivek Vihar and after reaching at the spot they met HC Amit Kumar who had handed over the State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 6 of 13 apprehended accused namely Imran @ Ashu and a sealed pullanda containing buttondar knife recovered from the possession of accused. He further deposed that he prepared the site plan already Ex.PW-1/G at the instance of HC Amit and also recorded the disclosure statement of accused already Ex.PW-1/D and arrested the accused already Ex.PW-1/E and conducted the personal search memo of the accused already Ex.PW-1/F. He further deposed that thereafter he along with HC Sumit and HC Amit had taken the accused to PS and after reaching there he had deposited the case property in the malkhana and thereafter HC Sumit along with accused went to Hedgewar Hospital and got conducted his medical examination and after the medical examination HC Sumit taken back accused to PS. He further deposed that thereafter, he put the accused behind the lockup and recorded statement of HC Sumit and HC Amit u/s 161 Cr.P.C.
He further deposed that on the next day he produced the accused before the concerned Ld. MM and accused was sent to JC and collected relevant DAD notification already Ex.C. He further deposed that after completion of investigation, he had prepared the final police report and submitted the same before the Hon'ble Court and also prepared the Kalandara u/s 53/116 D.P. Act against the accused. He correctly identify the accused as well as case property Ex. P1 in the court.
During his cross examination by Ld. LAC for accused, stated that he reached at the spot of incident at about 4:40 PM on 20.02.2024. He further stated that he did not serve any notice to State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 7 of 13 any public persons/passersby in order to join the investigation as none had agreed to join the investigation and left the spot without disclosing their names and addresses. He denied the suggestions that he did not serve the notice to any public person as he never visited the spot of incident at any point of time or that he prepared all the documents while sitting in the PS. He admitted that he had arrested the accused or that there was no cctv camera installed at or near the place of incident. He denied the suggestions that he along with HC Sumit and HC Amit falsely implanted the case property upon the accused due to previous involvement of accused in different matters and falsely implicated accused in the present matter or that he did not conduct proper and fair investigation in the present matter.
7. It is a settled proposition of criminal law that Prosecution is required to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, Prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Further, it is also a settled proposition of criminal law that burden of proof of the version of the Prosecution in a criminal trial throughout the trial is on the Prosecution and it never shifts on to the Accused. Also, it is a settled proposition of criminal law that Accused is entitled to the benefit of every reasonable doubt in the Prosecution story and such reasonable doubt entitles the Accused to acquittal.
State vs. Imran @ Ashu
FIR No.94/2024
U/s 25/54/59 Arms Act
PS Vivek Vihar Pages 8 of 13
8. Evaluating the facts and evidence discussed above, at the outset, it comes out that no independent witness was joined in the investigation. The Hon'ble Supreme Court in the matter titled as State of Punjab vs. Balbir Singh [AIR 1994 SC 1872], held that :
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the Accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well-settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions. [Emphasis supplied]"
9. At this stage, it is also crucial to observe that witnesses have admitted that no public persons have been made to join the investigation in this matter despite the fact that the spot of the incident is a public place where public persons were present. Further, no notice has been served to any of the public persons who did not join the investigation. It is also pertinent to note that the alleged incident has occurred on a busy public road and therefore, absence of public witnesses from the investigation becomes even more apparent.
State vs. Imran @ Ashu
FIR No.94/2024
U/s 25/54/59 Arms Act
PS Vivek Vihar Pages 9 of 13
Considering the above facts, it comes out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the search and strictly comply with the provisions of code of criminal procedure.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court of India in Hemraj vs. State Of Haryana [AIR 2005 SC 2110] as follows:
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the Prosecution case..."
Furthermore, in case titled as Roop Chand vs. State of Haryana [1999 (1)C.L.R 69], the Hon'ble High Court of Punjab & Haryana has held that:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the Prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 10 of 13 by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the Prosecution case highly doubtful..."
10. Moving further, this Court is conscious of precedent laid down by Hon'ble Delhi High Court in case titled as Safiullah vs. State, [1993 (1) RCR (Criminal) 622], that :
"The seals after use were kept by the police officials themselves. Therefore the possibility of tampering with the contents of the sealed parcel cannot be ruled out. It was very essential for the Prosecution to have established from stage to stage the fact that the sample was not tampered with. ..... Once a doubt is created in the preservation of the sample the benefit of the same should go to the Accused."
The case property in the present matter was lying in the Malkhana of the same police station where the police officials having the possession of seal were posted. There was ample opportunity for tampering with the case property. Hence, considering the legal position, the benefit of doubt should be given to the Accused.
11. Besides all this, in the present case, the aforesaid lapse on the part of police officials assumes significance on account of another grave contradiction apparent in the document Ex. PW1/A, Ex.PW1/B. The sketch memo of the knife Ex. PW1/A and seizure memo of the knife Ex. PW1/B bear the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the knife and seizure memos were prepared prior to registration of FIR. If that be so then it is questionable as to how the said documents bear the FIR number. This gives rise to two inferences that either the FIR was recorded prior to the alleged State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 11 of 13 recovery of the case property or number of the said FIR was inserted in the document after its registration. In both the situations, it seriously questions the veracity of the Prosecution version and creates a good deal of doubt about the recovery of the case property in the manner alleged by the Prosecution. That being so, the benefit arising out of such a situation must necessarily go to the Accused.
In this regard, reference is made to the judgment of Hon'ble High Court of Delhi in case titled as Mohd Hasim V/S State [1999 VI AD (DELHI) 569] wherein it was observed:
"...documents prepared before registering the FIR bears FIR numbers, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording of FIR, and in both cases, Prosecution case would collapse."
12. Further, in order to ensure fair investigation, the Prosecution witnesses must have offered their personal search to some independent witness. However, as no such precaution was taken by Prosecution witnesses the doubt as to the false plantation of the case property upon the Accused cannot be ruled out. In S. L. Goswami Vs. State Of M.P., [1972 CRI.L.J 511 (SC)], the Hon'ble Supreme Court held as under:
"... in our view, the onus to proving all the ingredient of an offence is always upon the Prosecution and at no stage does it shift to the Accused. It is no part of the Prosecution duty to somehow hook the crook. Even in case where the defence of the Accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the Accused to explain or controvert the essential elements in the Prosecution case, which would negative it. It is not however for the Accused even at the initial stage to prove something which has to be State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 12 of 13 eliminated by the Prosecution to establish the ingredient of the offence with which he is charged, and even if the onus shifts upon the Accused and the Accused has to establish his plea, the standard of proof is not the same as that which vests upon the Prosecution..."
This also raises doubt about the recovery of the said case property from the present Accused and strengthens the possibility of planting of the case property upon the Accused.
Conclusion
13. The onus and duty to prove the case against the Accused was upon the Prosecution and the Prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the Accused is entitled to benefit of doubt resulting in acquittal of the Accused.
14. In view of above said discussion, the Prosecution has failed to prove the guilt of the Accused beyond reasonable doubt. Accordingly, Accused Imran @ Ashu is acquitted of the charges u/s 25/54/59 Arms Act framed in the present case. Case property be confiscated to the State. Same be destroyed.
File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Swati
Sharma
Announced in the open court Digitally signed
by Swati Sharma
on 30.04.2025 Date: 2025.04.30
17:07:14 +0530
(Swati Sharma)
Chief Judicial Magistrate(Shahdara)
Karkardooma Courts, Delhi
[This judgment contains 13 signed pages] [This judgment has been directly typed to dictation.] State vs. Imran @ Ashu FIR No.94/2024 U/s 25/54/59 Arms Act PS Vivek Vihar Pages 13 of 13