Delhi District Court
State vs Ashwani Kumar on 30 October, 2025
IN THE COURT OF SH. RAHUL SAINI,
JUDICIAL MAGISTRATE FIRST CLASS-08
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
DLSH020097552019
a Serial No. of the case : FIR No.: 199/2019
Police Station: Jyoti
Nagar
(Cr.Case No.5896/2019)
b Date of the commission of : 22.06.2019
the offence
c Name of the Complainant : HC Roop Kumar
d Name of Accused person : Ashwani Kumar S/o Late
and his parentage and Shri Rajesh Kumar R/o: H.
residence No. 1, Gali no. 1, Kachi
Kardampuri, 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 u/s 25/54/59 of
Arms Act
h Order reserved on : 30.10.2025
i Order pronounced on : 30.10.2025
Brief statement of facts of the case and trial proceedings:
1.The case of the Prosecution against accused is that on 22.06.2019, at about 10.00 PM at main Wazirabad Road, near Khudakhatta, Amar Colony, Delhi within the jurisdiction of PS Jyoti Nagar, accused was found in possession of one Desi Katta with two live cartridges as described in seizure memo Mark A Digitally signed by RAHUL RAHUL SAINI State vs. ASHWANI SAINI Date:
2025.10.30 FIR No. 199/2019 15:11:51 U/s 25/54/59 Arms Act +0530 PS Jyoti Nagar Pages 1 of 16 without having any permit of licence and had committed the offence punishable u/s 25/54/59 of Arms Act. 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 03.08.2019 whereupon Cognizance was taken in this matter on 04.08.2022. The copy of charge-sheet was supplied to the accused on his appearance. Charge was framed against the Accused under Section 25/54/59 Arms Act on 11.03.2025 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 Retired ASI Roop Kumar, HC Jhabar Ram, PW3 ASI Satish Kumar and PW4 Ct. Akbar.
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.
Digitally signed by RAHUL RAHUL SAINI SAINI Date:
2025.10.30 15:11:59 +0530 State vs. ASHWANI FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 2 of 16 Vehemently, denying the arguments of Ld. APP for the State, Ld. Proxy counsel 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. Proxy counsel 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. Legal Aid counsel for the Accused strongly argued for acquittal of the Accused in this matter.
Submissions have been duly heard. Record has been carefully perused.
6. A detailed scrutiny of the testimonies of the Prosecution witnesses has been done and is hereby discussed in detail.
6.1. PW:-1ASI Roop Kumar:-He deposed that on 22.06.2019, he along with Ct. Jhabar Ram were on patrolling duty. During patrolling duty they reached at beat no. 4, Amar Colony, and started checking of vehicles after putting barricades at Kudakhatta, Wazirabad Road, near Amar Colony. Thereafter, at about 10.00 pm, they saw one boy was coming on foot from the side of Loni Gol Chakkar and after seeing them in police uniform, he had turned back and going towards Loni Gol Chakkar. Thereafter, he with the help of Ct. Jhabar Ram apprehended said person after taking some distance and asked him why he had turned back, but he did not give any satisfactory answer. Thereafter, he took cursory search of the said accused and recovered one desi katta i.e. country made pistol from the left side dub from his lower and one live cartridge was recovered Digitally signed by RAHUL State vs. ASHWANI RAHUL SAINI SAINI Date:
FIR No. 199/2019 2025.10.30
15:12:06
U/s 25/54/59 Arms Act +0530
PS Jyoti Nagar Pages 3 of 16
from right side pocket of his lower. Thereafter, they came to know the name of the said person as Ashwani Kumar. He had given information to the PS. Thereafter, he had requested public persons to join the investigation but none agreed and went away without giving their names and addresses. He further deposed that he unloaded the said desi katta and recovered one live cartridges from inside of the said desi katta. Thereafter, he had put the said case property i.e. desi katta and two live cartridges on a white blank paper and prepared its sketch memo which is Ex. PW1/A. The measurement of the said desi katta was 41 cm, length of the barrel was 26 cms, length of handle was 12 cm and the body of said desi katta was 13 cm and the measurement of the total length of the live cartridge was 7.5 cms and 8 mm kf was written upon the bottom of the said cartridge. Thereafter, he had prepared pullanda of the said case properties and sealed it with the seal of RK and had seized the same vide seizure memo Ex. PW1/B. Thereafter, he had filled up the FSL Form. After using seal, he had handed over the same to Ct. Jhabar Ram and had prepared rukka which is Ex. PW1/C and handed over to Ct. Jhabar Ram for registration of the FIR. Accordingly, he went to PS and got registered the present FIR and he along with IO/ASI Satish Kumar and Ct. Akbar came back at the spot alongwith copy of FIR and original rukka and further investigation was marked to IO.
Thereafter, he handed over the accused, case property with documents to the IO. IO had prepared site plan at his instance RAHUL SAINI Digitally signed by RAHUL SAINI State vs. ASHWANI Date: 2025.10.30 FIR No. 199/2019 15:12:12 +0530 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 4 of 16 which is Ex. PW1/D. IO recorded his supplementary statement and relived him.
Witness had correctly identified the accused as well as the case property i.e. one desi katta and one live and used cartridge which are Ex. P1(Colly).
During cross examination by Ld. Legal Aid Counsel witness deposed that he had not made any separate departure entry before leaving PS. He had left the PS at about 8 pm and reached at the spot at about 8.10 pm. He admitted that the spot was a public place and public persons were coming and going there. He admitted that no written notice was served upon any public persons who refused to join and that the seizure memo and sketch memos were prepared prior to registration of the FIR and nothing was changed after registration of the FIR. He further admitted that he did not prepare seal handing over memo and receiving over memo. He further deposed in his cross examination that he handed over rukka to Ct. Jhabar Ram at around 11.40 pm and came back at the spot with copy of FIR at around 2.15 am. Thereafter, IO prepared site plan at about 3.00 am.
Witness had denied the suggestion that the case property was planted upon accused or that accused was falsely implicated in the present matter or that he was arrested from his house despite the spot or that he never visited at the spot or that all proceedings were conducted while sitting at PS. RAHUL SAINI Digitally signed by RAHUL SAINI Date: 2025.10.30 15:12:18 +0530 State vs. ASHWANI FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 5 of 16 PW: 2:HC Jhabar Ram:- He had deposed the similar version as deposed by PW1 Retired ASI Roop Kumar in his testimony as they both were on patrolling duty with him.
During his cross examination witness deposed that he had left the PS at about 10 pm and reached at the spot at about 10.10 pm. He further deposed during cross examination that HC Roop Kumar handed over rukka to him at around 11.40 pm and he came back at the spot with copy of FIR at around 1.40 am. Thereafter, IO prepared site plan at about 2.00 am and arrested accused at 3.00 am.
Witness had denied the suggestion that the case property was planted upon accused or that accused is falsely implicated in the present matter or that he was arrested from his house despite the spot or that he never visited at the spot or that all proceedings were conducted while sitting at PS. He further deposed that HC Roop Kumar did not request public persons to join investigation.
PW:-3ASI Satish Kumar:-He deposed that on 22/23.06.2019, he was present in the PS and the further investigation was marked to him in the present matter as per directions of the SHO and he had received copy of FIR and original rukka from Ct. Jabbar Ram. Thereafter, he along with Ct. Jabbar Ram and Ct. Akbar went to the spot at Wazirabad Road near Kudakhatta, where he met HC Roop Kumar and thereafter, he handed over accused and case property along with documents to him. Thereafter, he had prepared site plan at the instance of HC Roop Kumar which is already Ex. PW1/D. He Digitally signed by State vs. ASHWANI RAHUL RAHUL SAINI FIR No. 199/2019 SAINI Date:
2025.10.30 U/s 25/54/59 Arms Act 15:12:24 +0530 PS Jyoti Nagar Pages 6 of 16 further deposed in his examination in chief that he had interrogated accused and recorded his disclosure statement which is Ex.PW-3/A and arrested accused vide arrest memo and personal search memo which are Ex.PW3/B and Ex. PW3/C respectively. Thereafter, they along with accused and case property went to PS and case property was deposited in malkhana and accused was sent to lock up. After that, he had recorded statements of HC Roop Kumar, Ct. Akbar and Ct. Jabbar Ram and relieved them. On the next day, he had produced the accused before the court and sent him to J/C. Thereafter, he sent the case property to FSL through MHC(M).
After completion of investigation, he had prepared the chargesheet and submitted the same in the court.
After preparation of FSL result, he had collected the same from FSL, Rohini and also obtained permission u/s 39 of Arms Act from DCP concerned and thereafter, he had prepared supplementary chargesheet and same was submitted in the court.
Witness had correctly identified the accused as well as the case property Ex.P1 (colly) in the testimony of PW1.
During cross examination by Ld. LAD witness deposed that he had not made any separate departure entry before leaving PS. He had left the PS at about 1.00 am and reached at the spot after 1.10 am. He admitted that the spot was a public place and public persons were coming and going there and he had requested 4-5 public persons to join the investigation but none agreed and went away without telling their names and addresses and he had not given any written notice to any public persons Digitally signed by RAHUL RAHUL SAINI State vs. ASHWANI SAINI Date:
2025.10.30 FIR No. 199/2019 15:12:30 +0530 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 7 of 16 who refused to join. Further he admitted that seizure memo and sketch memos were prepared prior to registration of the FIR and nothing was changed after registration of the FIR. No videography or photography were done by HC Roop Kumar at the time of recovery of alleged case property. He further admitted that HC Roop Kumar did not prepare seal handing over memo and receiving over memo. Further he deposed in his examination that he had arrested accused at about 3.00 am and had given information regarding arrest of accused to his uncle.
He had denied the suggestion that the case property was planted upon accused or that accused was falsely implicated in the present matter or that he was arrested from his house despite the spot. It is further wrong to suggest that he had never visited at the spot and all proceedings were conducted while sitting at PS or that he had never requested the public persons to join the investigation in the present matter or that he had not conducted fair investigation in the present matter.
PW:4 Ct. Akbar:- He deposed that on 22/23.06.2019, he was posted at PS Jyoti Nagar as Ct. On that day, he had joined the investigation in the present matter with IO/ASI Satish Kumar. Thereafter, he along with Ct. Jabbar Ram and IO went to the spot at Wazirabad Road near Kudakhatta, where they met HC Roop Kumar and he handed over accused and case property along with documents to IO. IO had prepared site plan at instance of HC Roop Kumar. Thereafter, IO interrogated accused and recorded his disclosure statement which is already Ex.PW- 3/A and arrested accused vide arrest memo and personal search RAHUL State vs. ASHWANI SAINI FIR No. 199/2019 Digitally signed by RAHUL SAINI U/s 25/54/59 Arms Act Date: 2025.10.30 PS Jyoti Nagar Pages 15:12:36 8 of 16 +0530 memo which are already Ex.PW3/B and Ex. PW3/C respectively. Thereafter, they along with accused and case property went to PS and case property was deposited in malkhana and accused was sent to lock up. IO recorded his statement, statement of HC Roop Kumar and Ct. Jabbar Ram and relieved them.
He had correctly identified the accused as well as the case property Ex.P1 (Colly).
During cross examination by Ld. LAC for the accused witness deposed that he did not make any separate departure entry before leaving PS. He had left the PS at about 1.00 am and had reached at the spot after 1.10 am. He admitted that the spot was a public place and public persons were coming and going there. Further IO had requested 4-5 public persons to join the investigation but none agreed and went away without telling their names and addresses. He admitted that no written notice was served upon any public persons who refused to join and that seizure memo and sketch memos were prepared prior to registration of the FIR and nothing was changed after registration of the FIR. He further deposed in his cross examination that no videography or photography were done by HC Roop Kumar at the time of recovery of alleged case property. He admitted that HC Roop Kumar did not prepare seal handing over memo and receiving over memo. Further he had arrested accused at about 3.00 am and had given information regarding arrest of accused to his uncle. Digitally signed by RAHUL RAHUL SAINI SAINI Date:
2025.10.30 15:12:44 +0530 State vs. ASHWANI FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 9 of 16 He had denied the suggestion that the case property was planted upon accused or that accused is falsely implicated in the present matter or that he was arrested from his house despite the spot and or that he never visited at the spot or that all proceedings were conducted while sitting at PS. He had further denied the suggestion that IO had never requested the public persons to join the investigation in the present matter or that IO never conducted fair investigation in the present matter.
7. Statement of the accused was recorded u/s 313 Cr.P.C and all incriminating evidence appearing on record against the accused are put to him to on 26.09.2025 which accused stated that he has been falsely implicated in the present case. He refused to lead any evidence in his defence. Hence, DE stands closed.
8. Final arguments heard.
9. 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 Digitally signed by RAHUL RAHUL SAINI State vs. ASHWANI SAINI Date:
2025.10.30 FIR No. 199/2019 15:12:56 +0530 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 10 of 16 benefit of every reasonable doubt in the Prosecution story and such reasonable doubt entitles the Accused to acquittal.
10. 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]"
11. 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 Digitally signed by RAHUL RAHUL SAINI State vs. ASHWANI SAINI Date:
FIR No. 199/2019 2025.10.30
15:13:30
+0530
U/s 25/54/59 Arms Act
PS Jyoti Nagar Pages 11 of 16
the alleged incident has occurred on a busy public road and therefore, absence of public witnesses from the investigation becomes even more apparent.
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 OF [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 Digitally signed by State vs. ASHWANI RAHUL RAHUL SAINI FIR No. 199/2019 SAINI Date:
2025.10.30 U/s 25/54/59 Arms Act 15:13:41 +0530 PS Jyoti Nagar Pages 12 of 16 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 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..."
12. 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."
Digitally signed by RAHUL RAHUL SAINI SAINI Date:
2025.10.30 15:13:48 State vs. ASHWANI +0530 FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 13 of 16 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.
13. 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 and Ex. PW1/B. The sketch memo of the desi katta and cartridges is Ex. PW1/A and seizure memo of the same is Ex. PW1/B bear the number of FIR. As per the rukka and testimony of witnesses, the sketch memo of the desi katta and cartridges 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 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:
RAHUL SAINI Digitally signed State vs. ASHWANI by RAHUL SAINI Date: 2025.10.30 FIR No. 199/2019 15:14:15 +0530 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 14 of 16 "...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."
14. 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 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..."
Digitally signed by RAHUL RAHUL SAINI SAINI Date:
2025.10.30 15:14:24 +0530 State vs. ASHWANI FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 15 of 16 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
15. 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.
16. In view of above said discussion, the Prosecution has failed to prove the guilt of the Accused beyond reasonable doubt. Accordingly, Accused Ashwani Kumar S/o Late Shri Rajesh Kumar is acquitted of the offence punishable u/s 25/54/59 Arms Act framed in the present case. Case property be confiscated to the State. Same be destroyed.
17. Accused is directed to furnish the bonds u/s 437A Cr.P.C.
18. File be consigned to record room after all necessary compliance. Digitally signed by RAHUL RAHUL SAINI Announced in the open court SAINI Date:
2025.10.30 15:14:32 on 30.10.2025 +0530 (Rahul Saini) JMFC-08(Shahdara) Karkardooma Courts, Delhi 30.10.2025[This judgment contains 16 signed pages] [This judgment has been directly typed to dictation.] State vs. ASHWANI FIR No. 199/2019 U/s 25/54/59 Arms Act PS Jyoti Nagar Pages 16 of 16