Delhi District Court
State vs Aarish on 7 July, 2025
IN THE COURT OF MS.BHARTI BENIWAL, JUDICIAL
MAGISTRATE FIRST CLASS-12, CENTRAL DISTRICT, TIS
HAZARI COURT, DELHI
FIR No.424/2023
PS Wazirabad
U/s 25 Arms Act
State Vs. Aarish
CNR No. : DLSW020145172023
Crl. Case No. : 7187/2023
Date of institution of the case : 03.06.2023
Date of commission of offence : 13.05.2023
Name of the complainant : HC Dharmendra Kumar
PS Wazirabad
Name of accused and address : Aarish @ Mamu
S/o Late Mohd Yamin
R/o A-73, Gali No.9,
Village Wazirabad, Delhi
Offence complained of : U/s 25 Arms Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of reserving judgment : Judgement not reserved
Date of judgment : 07.07.2025 Digitally signed
by BHARTI
BENIWAL
BHARTI Date:
BENIWAL 2025.07.07
16:52:23
+0530
State Vs. Aarish @ Mamu
FIR No.424/2023 ,PS Wazirabad
Page No. 1 of 10
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1.The brief facts of the case of the prosecution are that on 13.05.2023 at about 5:45 pm, near Nala, Near Mother Dairy, Wazirabad, accused Aarish was found in possession of a buttondar knife, in contravention with DAD notification dated 29.10.1980 without any permit and thereby committed offence punishable under Section 25 Arms Act.
2. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed u/s 25 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has examined 2 witnesses to prove its case.
4. Prosecution has examined HC Dharmender as PW1. He deposed that on 13.05.2023, he was on beat patrolling duty along with HC Vipin. At about 5:45 pm, they reached near drainage, Mother Dairy Wazirabad, and they saw one person coming from the side of Dairy in suspicious manner. On seeing the police officials, the said person got frightened and tried to ran away. They apprehended the person and upon his cursory research, one buttondar knife was recovered from his right pocket. They telephonically gave information to the Duty Officer and upon their call, investigating officer ASI Rajeev reached at the spot. Custody of the accused and the weapon were handed over to the IO. Sketch of the knife, which is Ex.PW1/8 was prepared by the IO. IO Seized the knife vide Ex.PW1/B and sealed it. Statement of the witness Ex.PW1/C was recorded by the investigating officer and thereafter, rukka was prepared. After the Digitally signed by BHARTI State Vs. Aarish @ Mamu BHARTI BENIWAL FIR No.424/2023 ,PS Wazirabad BENIWAL Date:
2025.07.07 Page No. 2 of 10 16:52:26 +0530 registration of the case, site plan Ex.PW1/D was prepared at instance of PW1. Disclosure statement of accused Ex.PW1/E was recorded. Accused was arrested and his personal search was conducted vide memos Ex.PW1/F and Ex.PW1/G. Witness correctly identified the accused as well as the case property (Ex.P-
1)in the court.
5. During his cross examination, the witness admitted that the spot is a busy and crowded area and several persons were present at the spot. He further admitted that several shops and houses were also situated near the spot and no passer-by or occupant were asked to join the investigation. He further admitted that no notice was served to any public person to join the investigation. That the police officials had not offered their search before taking the search of the accused. The witness could not remember the departure DD number and he further stated that he did not even make the departure entry. No arrival entry was either made at the police station. He denied the suggestion that accused was not apprehended at the spot and was lifted from his house to falsely implicate him.
6. Prosecution examined Investigating Officer SI Rajeev Kumar as PW2. He deposed that on 13.05.2023, investigation of the case was marked to him and accordingly, he reached at the spot, where he met with Head Constable Dharmender, who had apprehended the accused and the weapon. He prepared sketch of the knife on a white paper and prepared pullanda after the same. He seized the weapon vide Ex.PW1/B and his statement was recorded, which is Ex.PW1/C. He prepared the rukka and thereafter, the present case got registered. Site plan Ex.PW1/D was prepared and disclosure statement of accused Ex.PW1/E was recorded by the witness.
BHARTI
BENIWAL
State Vs. Aarish @ Mamu Digitally signed by
FIR No.424/2023 ,PS Wazirabad BHARTI BENIWAL
Page No. 3 of 10 Date: 2025.07.07
16:52:29 +0530
Accused was arrested and his search was conducted vide memo Ex.PW1/F and Ex.PW1/G. Thereafter, statement of all the witnesses were recorded by the investigating officer and after completion of the investigation, the charge sheet was filed in the court. The witness correctly identified the accused as well as the case property/weapon.
7. During his cross examination, the witness admitted that the spot is a busy and crowded area and several persons were present at the spot. He further admitted that several shops and houses were also situated near the spot and no passer-by or occupant were asked to join the investigation. He further admitted that no notice was served to any public person to join the investigation. That the police officials had not offered their search before taking the search of the accused. The witness could not remember the departure DD number and he further stated that he did not even make the departure entry. No arrival entry was either made at the police station. He denied the suggestion that accused was not apprehended at the spot and was lifted from his house to falsely implicate him.
8. Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents i.e. DAD notification issued by Delhi Administration vide Ex.A-4, FIR No.424/2023 vide Ex.A-1, Certificate under Section 65B of Indian Evidence Act vide Ex.A-2 and DD No.82A dt.13.05.2023 vide Ex.A-3 and entry in register no.19 vide Ex.A-5 which is Ex.P/1/A. Hence, the above documents were ordered to be read in evidence without its formal proof and the examination of these witnesses were dispensed with.
9. No other witness was examined by prosecution and hence, PE was Digitally signed by BHARTI State Vs. Aarish @ Mamu BHARTI BENIWAL FIR No.424/2023 ,PS Wazirabad BENIWAL Date:
2025.07.07 Page No. 4 of 10 16:52:33 +0530 closed.
10. Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to him, he has been falsely implicated in the present case. Accused chose not to lead any evidence in his defence and hence the matter was put up for final arguments.
11. Final arguments were thereafter heard on behalf of State as well as the accused.
12. After hearing.APP for the State and Learned Defence Counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegation beyond reasonable doubt.
13. The relevant portion of Arms Act is reproduced as under:
Section 25: Punishment for certain offences:
(1) whoever-
(a) Manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) Shortens the barrel of a firearm or converts an imitation firearm into a firearm in contravention of section 6; or 2[***] Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
State Vs. Aarish @ Mamu 2025.07.07
FIR No.424/2023 ,PS Wazirabad 16:52:36
+0530
Page No. 5 of 10
(c) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which not be less than three years but which may extend to seven years and shall also be liable to fine.
14. As per the prosecution case, in the rukka, it has been stated by the IO SI Rajeev Kumar and complainant HC Dharmendra Kumar that he had asked public persons to join the investigation but they all refused to join the investigation citing one reason or the other. Whereas, in his cross-examination, he has admitted that he did not examine any witness from the public despite availability of them. The alleged incident took place at a place, is very busy place and usually crowded and the said facts has been admitted by the IO, complainant and witness. Despite that, no public witness was joined by the IO. Rather, no sincere efforts can be seen on part of the investigating officer to join the investigation. Thus, the prosecution has failed to prove that any serious effort was made by PW1 and PW2 to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
15. In case law reported as "Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), High Court of Delhi had observed as under:-
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the Digitally signed by State Vs. Aarish @ Mamu BHARTI FIR No.424/2023 ,PS Wazirabad BHARTI BENIWAL Page No. 6 of 10 BENIWAL Date:
2025.07.07 16:52:39 +0530 raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
16. In a case law reported as "Roop Chand Vs. The State of Haryana" 1999 (1) C.L.R. 69, the Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will result into enmity between them and the petitioner".
"4. 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 Digitally signed by BHARTI BENIWAL State Vs. Aarish @ Mamu BHARTI Date:
FIR No.424/2023 ,PS Wazirabad BENIWAL 2025.07.07 16:52:47 Page No. 7 of 10 +0530 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 the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provision of law. The failure to do so 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".
17. Non joining of public witnesses despite availability casts a doubt on the fairness of the investigation. Reliance is placed on paragraph 6 of the judgment in Pawan Kumar v. The Delhi Administration, 1989 Cri.L.J. 127, wherein the Hon'ble High Court of Delhi had observed as under:
" ... According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhas Bazar, there would be no person present at a crucial time like 07.30 p.m. when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the Police officials but for that the prosecution has to lay a good foundation. At least one of them should deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible explanation from the side of the prosecution is forthcoming for not joining the independent witnesses in a case of serious nature like the present one. It may be that Digitally signed by BHARTI State Vs. Aarish @ Mamu BHARTI BENIWAL BENIWAL Date:
FIR No.424/2023 ,PS Wazirabad 2025.07.07 16:52:43 Page No. 8 of 10 +0530 there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused."
18. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
19. Further, IO and prosecution has remained completely silent on aspect of handing over the seal to any witness. It appears that the seal remained with a police official only and it has not been proved that the seal was handed over to any other independent public person and therefore, the possibility of sample being tempered with cannot be ruled out. Reference may be made to the judgment of Subeg Singh v. State of Haryana, reported as 1992(3) RCR (Criminal) 596. In the judgment titled as Karambir v. State of Delhi reported as 1997 JCC 520 it has been held that absence of proof that the specimen impression of the seal was deposited with MHCM(M) along with case property results in miscarriage of justice and is fatal to the prosecution.
Digitally signed by BHARTI State Vs. Aarish @ Mamu BHARTI BENIWAL BENIWAL Date:
FIR No.424/2023 ,PS Wazirabad 2025.07.07 Page No. 9 of 10 16:52:53 +0530
20. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
21. Thus, in view of the foregoing analysis, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused, who is entitled to be exonerated of the charges against him in the present case. The accused Aarish @ Mamu is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Pronounced in open Court on this 7th Day of July, 2025. This judgment consists of 10 pages and each page has been signed by the undersigned.
Digitally
signed by
BHARTI
BHARTI BENIWAL
BENIWAL Date:
2025.07.07
16:52:57
+0530
(BHARTI BENIWAL)
Metropolitan Magistrate-11
South West District, Dwarka Courts
New Delhi
State Vs. Aarish @ Mamu
FIR No.424/2023 ,PS Wazirabad
Page No. 10 of 10