Delhi District Court
State vs Dilsher @ Chhotu @ Nepali on 9 March, 2026
IN THE COURT OF MS. BHARTI BENIWAL, JUDICIAL
MAGISTRATE FIRST CLASS-05 (NORTH), ROHINI COURTS,
FIR No.42/2018
PS SB Dairy
U/s 25 Arms Act
State Vs. Dilsher @ Chotu @ Nepali
Crl. Case No. : 3491/2018
Date of institution of the case : 26.06.2018
Date of commission of offence : 25.01.2018
Name of the complainant : ASI Subhash Chand
No.2657/W AATS/Rohini
Name of accused and address : Dilsher @ Chhotu @ Nepali
S/o Sh.Mohd. Iliyas
R/o C-2/1650 Sector 27,
Rohini, Delhi
Offence complained of : U/s 25 of Arms Act
Plea of the accused : Pleaded not guilty
Final order : Acquittal
Date of judgment : 09.03.2026
JUDGMENT
1. The accused persons have been charge-sheeted for committing offence punishable under Section 25 of the Arms Act. BHARTI Digitally signed by BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:10 +0530 _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 1 of 13
2. It is the of the prosecution that on 25.01.2018 at 02 : 40 PM at Bawana Road, Sector 27, SB Dairy, accused was found in possession of one country made pistol and two live cartridges which is seized with a seizure memo as Mark X in contravention of the provisions of Arms Act, and thereby committed offence punishable under Section 25 of the Arms Act.
3. On receipt of chargesheet, cognizance of offence was taken and accused was summoned. After supply of copy of chargesheet, a formal charge was framed under Section 25 of the Arms Act against the accused persons to which they pleaded not guilty and claimed trial.
4. Prosecution has examined 2 witnesses to prove its case.
5. Prosecution examined Rtd. SI Subhash as PW1. He deposed that on 25.01.2018, he was on patrolling duty alongwith ASI Hari Krishan at about 02 : 15 PM, one secret informer came and told that one person would come opposite St.Xavior School having a pistol in his possession. Thereafter, they prepared a raiding party and alongwith the secret informer went near the school and they requested to 4-5 public persons to join the raiding party but all of them refused due to their personal reasons. That at around 02 : 40 PM, at the sign of the secret informer, they apprehended a person and made the search of him and found country made pistol from his left dub and found 1 live cartridge from the chamber of the pistol. He prepared the sketch of the pistol and live cartridges which is Ex.PW1/A. He also seized the pistol and live cartridges which is Ex.PW1/B. He sealed the pistol and cartridges with the seal _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 2 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:15 +0530 of SC. He handed over the seal of HC Yashvir. He prepared rukka which is Ex.PW1/C and handed over the same to Ct.Sandeep. He went to the PS alongwith rukka and after getting the FIR registered, he came back at the spot alongwith copy of FIR and original rukka alongwith IO ASI Hari Kishan at the spot. He handed over the case property to the IO and left the spot. The case property was also correctly identified by the witness. Accused, who was present in the court, correctly identified by the witness.
6. During his cross examination, the witness stated that they were doing the patrolling duty on private vehicle. They apprehended the accused at about 05 : 30 PM. He denied the suggestion that accused has been falsely implicated in the case by planting the case property on him and was nothing was recovered from his possession. The witness could not remember his departure entry. That the spot is a public place and people were coming and going frequently. That investigating officer had asked public persons to joint investigation but they refused and investigating officer did not issue any notice to the public persons.
7. Prosecution examined Rtd. ASI Hari Kishan as PW2. He deposed that on 25.01.2018, he was posted at PS SB Dairy as ASI. That on that day, he was on patrolling duty alongwith SI Subhash, Ct.Sandeep and HC Yashvir. That at about 02 : 15 PM, one secret informer had informed them that one person, having a pistol in his possession, would come from opposite side of St.Xavier School and accordingly, they prepared a raiding party. That they requested the 4-5 passersby to join the _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 3 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:19 +0530 investigation but they left the spot without disclosing their names and addresses. That due to paucity of time, no notice was served upon them for refusal to join the investigation due to paucity of time. That at about 02 : 40 PM, at the signal of secret informer, they stopped the said person, whose name was revealed as Dilsher. That upon cursory search, a country made pistol was found from his left dub and one live cartridge was found from the right pocket of his pant. SI Subhash had checked the pistol and found the live cartridge, Ex.PW1/A. SI Subhash seized the said pistol and live cartridge vide memo Ex.PW1/B. He prepared rukka Ex.PW1/C and handing over the same to Ct.Sandeep for onward transmission to the DO. After registration of FIR, they came back at the spot. He arrested the accued vide memo Ex.PW2/A, conducted his personal search vide memo Ex.PW2/B, recorded disclosure statement Ex.PW2/C and accused was medically examined. Accused was correctly identified by the witness. Case property was handed over to MHCR and was correctly identified by the witness.
8. During his cross examination, he stated that no photographs or videography of the case property was done. That public persons were present at the spot but no notice was served to any one and no particulars of such persons were noted. He denied the suggestion that case property was planted upon accused.
9. Prosecution examined ASI Dalbir as PW3. He deposed that on 01.02.2018, he received present case from Reader for investigation. That he sent the case property to FSL on 02.02.2018 through Ct.Sombir. That the case property was not tampered and the seal remained intact till it was in his _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 4 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:23 +0530 possession. He recorded the statement of relevant witnesses. On 07.05.2018, he received the FSL report which was placed on record. He applied for Sanction under Section 39 of Arms Act. On 15.05.2018, he received the sanction under Section 39 of Arms Act and the same was placed on record. After completion of investigation, he filed the charge sheet in court.
10.Vide separate statement recorded u/s 294 Cr.P.C, accused had admitted the documents - FIR No.42/2018, which is Ex.A-1, Section 65B of IEA Ex.A-2, DD No.9 dt.25.01.2018 as Ex.A3, MHCM with register no.19 and 21 Ex.A-4, Role of Ct.Sombir Ex.A-5, FSL No.2018/F-978 dt.17.04.2018 Ex.A6 and Sanction under Section 39 of Arms Act Ex.A-7, were put to the accused. Hence the above documents were ordered to be read in evidence without its formal proof.
11.No other witness was examined by prosecution and hence, PE was closed.
12.Statement of accused under Section 313 Cr.P.C. was recorded wherein the entire incriminating evidence was put to him. According to accused person, 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.
13. Final arguments were thereafter heard on behalf of State as well as the accused.
14. After hearing Learned Assistant Public Prosecutor for the state and Learned Counsel for the accused person and having gone through the case file carefully and meticulously, it is observed _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 5 of 13 Digitally signed BHARTI by BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:26 +0530 by the court that it is the case of prosecution that on the fateful day accused was found in possession of magazine and cartridges. 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.
15. 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[***]
(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.
16. In my considered opinion as a cumulative effect of the following reasons, accused is entitled to be acquitted for the charge against him by reasons of reasonable doubts in the prosecution story. The reasons are:
17. From the evidence on record, it emerges that the accused was allegedly found at the place of the incident and was intercepted by PW1. However, this court fails to comprehend why, in the absence of any specific suspicion or prior information, the police officials would stop a person and subject the occupant to _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 6 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.03.09 16:44:31 +0530 a cursory search. Even if they were on routine patrolling duty, it is not reasonably understandable that they would randomly stop the persons and conduct personal searches without any justifiable cause. The manner in which the alleged recovery has been affected, coupled with the admitted absence of any independent public witness, despite the place being a public area, cast a serious doubt on the prosecution version and create suspicion regarding the genuineness of the alleged recovery.
18. As per the prosecution case, the sketch memo of the weapon i.e. Ex.PW1/A and seizure memo Ex.PW1/B were prepared before the preparation of rukka. However, the said documents contained the number of the FIR which shows that either the FIR number was inserted later on or they were prepared before the time they have been shown to be prepared. Furthermore, the weapon and cartridges have been seized by the complainant himself on 25.01.2018. As per the FSL report, the same was deposited in the FSL on 02.02.2028. Although it has come on record that the investigating officer had handed over the seal to Constable Rtd. SI Subhash, but in the cross-examination, both the witnesses have admitted that no seal handing over memo was prepared. Thus, the chances of tampering with the case property cannot be ruled out and the delay in sending the articles for examination is fatal for the prosecution. While holding so, I am relying upon judgment of Apex Court in Deshraj @ Dass Vs. State 83 (2000) DLT 262, wherein Apex Court while relying upon judgments of Hon'ble Supreme Court in Baldev Vs. State of Punjab 1991 CAR 81 and Santa Singh Vs. State of Punjab AIR 1956 SC 526, had held that delay of 50 days in sending the samples to CFSL proved fatal to the prosecution.
_____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 7 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:35 +0530
19. In the rukka Ex.PW1/A, it has been stated that police officials did ask 4-5 public persons to join the proceedings, however, they refuse citing just reasons. Further PW1 and PW2 stated that they requested 4-5 persons to join investigation but none agreed and left the spot without disclosing their name and address. However, all the witnsses in their cross examination admitted that the place of incident is a public place. IO admitted that he had not served any written notice to any passersby to join the investigation. The complainant and IO did not even bother to note down name, address or description of the persons to whom he made request. Further, there is nothing on record to show 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 shrowds doubt over the fairness of the investigation by police.
20. 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 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 _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 8 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:40 +0530 their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
21. 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 investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 9 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:46 +0530 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".
22. 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 there is an apathy on the part of the _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 10 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:51 +0530 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."
23. 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 suscpicion over the prosecution version.
24. Further, the seal remained with Rtd. SI Subhash 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.
25. In the present case, it was stated by PW1 that he was on patrolling duty on the day of incident, however, the prosecution has not placed any duty roaster on record to show the same. No _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 11 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:44:56 +0530 departure entry was made by the complainant before leaving the police station.
26. The present case totally rests upon the alleged recovery of the case property from the possession of the accused at the relevant time. When the public persons were not joined the investigation, then in such case, the arrival and departure entries of the police official i.e. PW1 who was allegedly present at the spot and apprehended the accused with the case property is a vital piece of evidence have also been proved on record. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per PPR Rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under :
"22.49 Matters to be entered in Register no.II - The following matters shall, amongst others, be entered :
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the Police Station or elsewhere with the statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the letter personally by signature or seal.
27. It is dogmatic in criminal jurisprudence that the prosecution is under the obligation to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is well settled _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 12 of 13 Digitally signed by BHARTI BHARTI BENIWAL BENIWAL Date:
2026.03.09 16:45:01 +0530 proposition that benefit of doubt goes in favour of accused.
28. Considering the facts that no independent witness were cited or examined, DD entries not proved, seal was not handed over to independent person, case property remained in possession of the complainant/IO for 7 days, appearance of FIR, case particulars on the seizure memo and sketch memo and conducting of investigation by the complainant himself, when kept in juxtaposition to each other, shrouds clouds of suspicion over the prosecution version.
29. 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 Dilsher @ Chotu @ Nepali is hereby acquitted of the offence punishable under Section 25 of Arms Act.
Pronounced in open court on 09.03.2026 in open court. This judgment contains 13 pages and each page has been signed by the undersigned.
Digitally signed byBHARTI BHARTI BENIWAL BENIWAL Date: 2026.03.09 16:45:05 +0530 (BHARTI BENIWAL) JUDICIAL MAGISTRATE FIRST CLASS-5, NORTH, ROHINI COURTS, DELHI _____________________________________________________________________________ State Vs. Dilsher @ Chhotu @ Nepali FIR No.42/2018 Page No. 13 of 13