Delhi District Court
State vs Salman@Imran on 3 April, 2025
IN THE COURT OF MS. DEEKSHA SETHI, JMFC-08, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CNR No. : DLSW02-056301-2021 ID No. : 14481/2021 FIR No. : 822/2020 U/s : 25 Arms Act P.S. : Uttam Nagar State v/s Salman @ Imran a) Name & address of the : ASI Hans Kumar complainant No. 18/DW b) Name & address of : Salman @ Imran accused s/o Jalaluddin r/o B-21, JJ Colony, Uttam Nagar, Delhi. c) Date of Commission of : 30.09.2020 offence d) Offence complained of : 25 Arms Act e) Plea of the accused : Pleaded not guilty. f) Final Order : Acquitted. g) Date of Institution : 24.11.2021 h) Judgment Pronounced on : 03.04.2025 JUDGMENT
Brief facts
1. The prosecution version in brief is that on 30.09.2020 at about 8:20 PM, accused Salman @ Imran was found in possession of one revolver loaded with two live cartridge and one pistol loaded with two live cartridge without any valid permit and licence at Khera Park, Hanuman Mandir, Uttam Nagar, New Delhi. Thereafter, the complainant ASI Hans Kumar informed about the said incident to the duty State v/s Salman @ Imran Page 1 of 15 Cr. Case No. 14481/2021 officer at the police station and police official from PS Uttam Nagar reached at the spot. Thereafter, an FIR bearing no. 822/2020 u/s 25 Arms Act was registered at PS Uttam Nagar. Investigation of the case was thereafter handed over to Investigating Officer HC Raj Kumar.
Proceedings before the Court
2. On completion of investigation, a chargesheet u/s 25 Arms Act was filed against the present accused, i.e., Salman @ Imran. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of chargesheet along with documents were supplied to the accused in terms of Section 207 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'). On finding prima facie case against the accused, a charge under section 25 Arms Act was framed against him, to which he had pleaded not guilty and claimed trial.
4. During the trial, prosecution has examined the following witnesses:
(i) PW-1 ASI Hans Kumar has deposed that on 30.09.2020, he was posted at Special Staff Dwarka as ASI. On that time, Ct. Raj Kumar received an information that one person namely Salman @ Imran @ Maan would arrive at the spot at around 8 to 8.30 pm at Hanuman Mandir Kheda Park, Uttam Nagar with illegal weapons. Thereafter, he alongwith HC Anil Kumar, Ct. Raj Kumar, Ct. Upender, Ct. Praveen State v/s Salman @ Imran Page 2 of 15 Cr. Case No. 14481/2021 and Ct. Vipin went to the spot in government vehicle bearing no. DL1CM-9128. Thereafter, they arrived at the spot and he tried to make five to seven public witnesses to join the raiding party but none was ready to join the same. Thereafter, they took the position at the spot alongwith the informer. At around 8.20 pm, the accused arrived at the spot from the side of Angel Public School. He alongwith Ct. Raj Kumar apprehended him and found a pistol from his left side of his back and one revolver from his right side of his back. Both the pistol / revolver were loaded with two live cartridge each. Thereafter, he prepared sketches of pistol and cartridge Ex. PW1/A. He prepared sketch of revolver and cartridge Ex. PW1/B. He seized the arms and ammunitions vide seizure memo Ex. PW1/C. Thereafter, he prepared tehrir Ex.
PW1/D. Ct. Raj Kumar took the tehrir to PS Uttam Nagar and arrived at the spot after registration of FIR. In the meantime, IO HC Raj Kumar arrived at the spot and he handed over the sealed pullandas sealed with the seal of HK to the IO. IO prepared site plan Ex. PW 1/E. IO also recored his statement U/s 161 CrPC. Witness correctly identified the accused in the court. Witness also identified the case property and same was exhibited as Ex. P-1 and Ex. P-2 respectively. This witness was thoroughly cross examined by Ld. Defence counsel.
State v/s Salman @ Imran Page 3 of 15 Cr. Case No. 14481/2021(ii) PW-2 SI Shyam Nandan has deposed that on 01.10.2020, he was posted as duty officer at PS Uttam Nagar. On receiving rukka from HC Sunil, he registered the present FIR Ex. X-1 vide DD no. 67A dated. 01.10.2020. Thereafter, he handed over the original rukka alongwith copy of FIR to HC Jagdish. This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
(iii) PW-3 HC Manoj Kumar has deposed that on 15.10.2020, he was posted as constable at Special Staff Dwarka. On that day, he took two sealed parcels FSL form, copy of FIR, DD number, seizure memo, sample seal, court consent and other relevant documents from the Malkhana of PS Uttam Nagar and deposited the same at FSL Rohini alongwith the exhibits. He received the receipt of the same and handed over to the same to MHCM. IO recorded his statement U/s 161 CrPC. He deposited the same vide RC no. 176/21/20 (Mark A). This witness was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
(iv) PW-4 HC Raj Kumar has deposed that on 30.09.2020, he was posted as constable at Special Staff Dwarka. At around 6.50 pm, a secret informer gave information about the accused person. He informed Inspector Naveen Kumar, Special Staff regarding the same who prepared a raiding party consisting of ASI State v/s Salman @ Imran Page 4 of 15 Cr. Case No. 14481/2021 Hans Kumar, HC Anil Kumar, Ct. Upender, Ct. Praveen, Ct Vipin alongwith him. Thereafter, they left for the spot in government vehicle no. DL1CM-9128. At around 7.55 pm, they reached near Kheda Park, Hanuman Mandir, Anand Vihar, Uttam Nagar where ASI Hans Kumar tried to join some public persons in the investigation but they refused to join. Thereafter, they took our respective positions. At around 8.20 pm, the accused persons came on foot from the side of Angel Public School. Thereafter, he alongwith ASI Hans Kumar apprehended the accused at the instance of the secret informer. He searched the accused and a revolver alongwith a pistol was found from the accused person. Both the revolver and pistol were loaded with two live cartridges each. IO ASI Hansraj prepared the sketch of the said revolver and pistol alongwith live cartridges Ex. PW1/B and Ex. PW1/A respectively. The case property was sealed with the seal of HK and the seal was handed over to him by the IO. The said case property was seized by the IO vide memo Ex. PW1/C. Thereafter, IO prepared tehrir which he took to PS Uttam Nagar and came back to the spot after registration of FIR. He handed over the copy of FIR alongwith original rukka to the second IO. Thereafter, he left the spot alongwith the second IO after completion of the proceedings. IO recorded his statement U/s 161 CrPC. The identity of accused was not disputed by Ld. Defence counsel. Case State v/s Salman @ Imran Page 5 of 15 Cr. Case No. 14481/2021 property was exhibited as Ex. P-1 and Ex. P-2 respectively. This witness was cross examined by Ld. Defence counsel.
(v) PW-5 HC Vipin Kumar has deposed that on 30.09.2020, he was posted as constable at Special Staff Dwarka. On that time, Ct. Raj Kumar received an information that one person namely Salman @ Imran @ Maan would arrive at the spot at around 8 to 8.30 pm at Hanuman Mandir Kheda Park, Uttam Nagar with illegal weapons. Thereafter, he alongwith HC Anil Kumar, Ct. Raj Kumar, Ct. Upender, Ct. Praveen and ASI Hans Kumar went to the spot in government vehicle no. DL1CM-9128. Thereafter, they arrived at the spot and ASI Hans Kumar tried to make five to seven public witness to join our raiding party but none agreed. Thereafter, they took the position at the spot alongwith the informer. At around 8.20 pm, the accused arrived at the spot from the side of Angel Public School. ASI Hans Kumar alongwith Ct. Raj Kumar apprehended him and found a pistol from his left side of his back and one revolver from his right side of his back. Both the pistol / revolver were loaded with two live cartridge. Thereafter, ASI Hans Kumar prepared sketches of pistol and cartridge (Ex. PW1/A). ASI Hans Kumar prepared sketch of revolver and cartridge (Ex. PW1/B). ASI Hans Kumar seized the arms and ammunitions vide seizure memo (Ex. PW1/C). Thereafter, ASI Hans Kumar prepared State v/s Salman @ Imran Page 6 of 15 Cr. Case No. 14481/2021 tehrir (Ex. PW1/D). Ct. Raj Kumar took the tehrir to PS Uttam Nagar and arrived at the spot after registration of FIR. In the meantime, IO HC Raj Kumar arrived at the spot and ASI Hans Kumar handed over the sealed pullandas which were sealed with the seal of HK to the HC Raj Kumar. HC Raj Kumar prepared site plan (Ex. PW1/E). During investigation HC Raj Kumar recorded the disclosure of accused Salman (Ex. PW5/A). Accused was arrested and his personal search was conducted vide memos Ex. PW5/B and Ex. PW5/C respectively. HC Raj Kumar also recored his statement U/s 161 CrPC. Witness identified the accused in the court. Case property was exhibited as Ex. P-1 and Ex. P-2. This witness was cross examined by Ld. Defence counsel.
(vi) PW-6 HC Kuldeep has deposed that on 30.09.2020, he was posted at PS Uttam Nagar as MHCM and on the directions of IO ASI Hans Kumar, he collected the sealed case property which was sealed with the seal of HK alongwith copy of seizure memo and other relevant documents and deposited it in the malkhana vide entry made at serial no. 5150 in register no. 19. The recorded was exhibited as ExPW6/A. On 15.10.2020, on the directions of IO, the samples of case property were handed over to Ct Manoj for getting the same deposited at FSL Rohini vide RC No. 176/21/20 (ExPW6/B) and entry with respect to the same was made in register no. 21. This witness State v/s Salman @ Imran Page 7 of 15 Cr. Case No. 14481/2021 was not cross-examined by Ld. Defence counsel despite having been given an opportunity to do so.
5. Vide separate statement of the accused u/s 294 CrPC, he had admitted the genuineness of the FIR no. 822/2020, Certificate U/s 65 B of Indian Evidence Act, DD no. 124A dated 30.09.2020, Sanction u/s 39 of Arms Act, DD no. 10A dated 01.10.2020 and FSL report dated 31.03.2021. The above-said documents were exhibited as Ex. X-1, Ex.X-2, Ex.X-3, Ex.X-4, Ex.X-5 and Ex. X-6 respectively. Accordingly, the concerned witnesses were dropped by the prosecution.
6. The prosecution evidence was closed and thereafter the statement of accused u/s 313 CrPC r/w section 281 CrPC was recorded wherein all the incriminating evidence appearing against the accused was put to him, which he had denied to be correct and submitted that he was innocent and falsely implicated. The accused chose not to lead any evidence in his defence.
7. It is argued by Ld. APP for the State that it is clear from the statement of the complainant and other witnesses as well as the documents appearing on record that the accused was in possession of one revolver and one pistol both loaded with two live cartridges each without any permit or valid licence. He has thus, submitted that the prosecution has proved its case beyond reasonable doubt against the accused and he be, therefore, held guilty and convicted for the above-said offence.
State v/s Salman @ Imran Page 8 of 15 Cr. Case No. 14481/20218. Per contra, Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt and since nothing incriminating has appeared against the accused, he be, therefore, acquitted for the offence charged.
9. I have heard the Ld. APP for the State and Ld. Defence counsel at length, perused the record, gone through the relevant provisions of law and given my thoughts to the matter.
Findings of the Court
10.It is a well settled principle of criminal law that the burden of proof is on the prosecution and the presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused beyond reasonable doubt.
11.The first argument of Ld. Counsel for the accused is that since no independent witness has been joined at the time of investigation, it is, therefore, difficult to believe the prosecution version as it creates a doubt on the veracity of the statement of police witnesses.
12. This court has given its thoughts to the above contention of Ld. Counsel for the accused. Perusal of the examination of PW-1 ASI Hans Kumar (the complainant), PW-4 HC Raj Kumar and PW-5 HC Vipin Kumar reveals that the IO had asked some public persons to join the investigation, but none of them had agreed. Thus, it is not the case of the prosecution that no public person was present at or near the spot of recovery. However, it is equally true that no steps are State v/s Salman @ Imran Page 9 of 15 Cr. Case No. 14481/2021 shown to have been taken to note down the names and addresses of those persons. It is a well settled proposition of law that non-joining of public witness throws doubt over the fairness of the investigation by police. Section 100 (4) of the CrPC also casts a statutory duty on an official conducting search to join two respectable persons of the society. However, no public person has been joined by the IO in the present case. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC OnLine Del 469, Hon'ble High Court of Delhi has observed as under:
"The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no Napoleon on the Bridge at Arcola.'' (Emphasis supplied)
13.In the present case also, non-joining of any public person as a witness creates doubt on the case of the prosecution. Although, this Court is conscious of the fact that it is a well settled law that the prosecution case cannot be thrown out or doubted on the sole ground of non-joining of public witnesses as they keep themselves away from the Court unless it is inevitable, however, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed in the later part of the judgment, which raise suspicion over the prosecution case.
State v/s Salman @ Imran Page 10 of 15 Cr. Case No. 14481/202114.It is observed that the complainant as well as the first IO in the present case is the same police official. Thus, the initial proceedings prior to registration of FIR and the subsequent investigation were carried out by the same official. In Mohan Lal Vs. State of State of Punjab, (2018) SCC Online SC 974, the Hon'ble Apex Court has held as under:
"If an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
It is therefore held that a fair investigation, which is but the very foundation of a fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in- laws carrying a reverse burden of proof."
(Emphasis supplied)
15.Thus, it is a settled proposition of law that the informant and the investigator must not be the same person. In the present case, ASI Hans Kumar is the complainant as well as the first IO of the present case and in view of the law laid down by the Hon'ble Apex Court, the same raises doubts over the nature of investigation carried out and thus, creates a dent on the prosecution version.
State v/s Salman @ Imran Page 11 of 15 Cr. Case No. 14481/202116.Perusal of the tehrir (Ex. PW1/D) prepared by IO ASI Hans Kumar reveals that the IO had first prepared the sketch of pistol and live cartridges and revolver and live cartridges (Ex. PW1/A and ExPW1/B respectively) and the seizure memo of the case property Ex. PW-1/C and after that rukka was prepared and sent to the police station for registration of FIR through PW-4 HC Raj Kumar and thereafter, present FIR was registered. It is, therefore, clear that the sketch of the case property as well as its seizure memo were prepared before the rukka was handed over to the police official for registration of the FIR. The FIR was thus, registered after the preparation of the sketch of pistol and live cartridges and revolver and live cartridges (Ex. PW1/A and ExPW1/B respectively) and the seizure memo of the case property Ex. PW-1/C, however, surprisingly, sketch of pistol and live cartridges and revolver and live cartridges (Ex. PW1/A and ExPW1/B respectively) and the seizure memo of the case property Ex. PW-1/C bear the FIR number and it is thus, amazing since the number of the FIR could have come to his knowledge (PW-1) only after a copy of the FIR was brought to the spot. Thus, the number of FIR in no circumstances could have been mentioned by the IO on sketch of the case property and its seizure memo, which came into existence before registration of the FIR. However, as discussed above, the sketch of pistol and live cartridges and revolver and live cartridges (Ex. PW1/A and ExPW1/B respectively) and the seizure memo of the case property Ex. PW-1/C bear the FIR number and case details. In this context, Hon'ble High Court State v/s Salman @ Imran Page 12 of 15 Cr. Case No. 14481/2021 of Delhi in one of the case titled Pawan Kumar v. The Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in paragraph 6:
"... Learned counsel for the State concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex. PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a constable. In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
(Emphasis supplied)
17.In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del 859, the Hon'ble High Court of Delhi while dealing with an appeal under the Narcotic Drugs and Psychotropic Substances Act, 1985 has also observed about the discrepancy, i.e., appearance of FIR number on seizure memo and other documents before registration of FIR and it runs as under:
"... Surprisingly, the secret information (Ex. PW7/A) received by the Sub-Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of the Act (Ex.State v/s Salman @ Imran Page 13 of 15 Cr. Case No. 14481/2021
PW5/A) alleged to have been served on the appellant, the seizure memo (Ex. PW1/A) and the report submitted under State v. Om Prakash Section 57 of the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstance number of the FIR (Ex. PW4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
(Emphasis supplied)
18.In the present case also, it remains unexplained as to how the FIR No. and its details figure on the top of the documents, i.e., sketch of pistol and live cartridges and revolver and live cartridges (Ex. PW1/A and ExPW1/B respectively) and the seizure memo of the case property Ex. PW-1/C. This creates serious doubt on the prosecution version and alleged recovery of revolver and pistol both loaded with two live cartridges and it leads to only one conclusion that either the said documents were prepared later on or that the FIR was registered earlier in point of time. In both the aforesaid eventualities, a reasonable doubt has been raised on the version of the prosecution.
19.Thus, in light of the above discussion which throws doubt on the authenticity of the prosecution version, this court is of the opinion that prosecution has failed to prove its case State v/s Salman @ Imran Page 14 of 15 Cr. Case No. 14481/2021 beyond reasonable doubt that a revolver and pistol both loaded with two live cartridges were recovered from the possession of the accused. The accused Salman @ Imran is, therefore, acquitted of the offence u/s 25 Arms Act.
20.This judgment contains 15 pages and the same has been pronounced by the undersigned in open court today and each page bears my signatures.
21.Let a copy of the judgment be uploaded on the official website of District Courts, Dwarka forthwith.
Digitally
signed by
DEEKSHA
DEEKSHA SETHI
ANNOUNCED IN THE OPEN COURT SETHI Date:
2025.04.03
TODAY, i.e., ON 03.04.2025 16:02:35
+0530
Deeksha Sethi
Judicial Metropolitan First Class-08
South-West District/New Delhi
03.04.2025
State v/s Salman @ Imran Page 15 of 15
Cr. Case No. 14481/2021