Delhi District Court
State vs Tinku @Sivansh on 2 September, 2025
IN THE COURT OF SH. ABHINAV AHLAWAT JUDICIAL
MAGISTRATE FIRST CLASS-09 (SOUTH-WEST) DWARKA
COURTS: DELHI
State Vs. : Tinku @ Sivansh and anr.
FIR No : 154/2019
U/s : 337/387/440 IPC and 27 Arms Act
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020580282019
2. Date of commission of offence : 11.09.2019
3. Date of institution of the case : 18.11.2019
4. Name of the complainant : Sunder
5. Name of accused, parentage & : 1. Tinku @ Sivansh
address S/o Sukhbir
2. Ravi Kharb @ Dada
S/o Late Kuldeep
Singh
Both R/o Village
Mundhela Khurd,
Delhi.
6. Offence complained of : 337/387/440 IPC and
27 Arms Act
7. Plea of the accused : Pleaded not guilty
8. Final order : Acquitted
9. Date of final order : 02.09.2025
Argued by:- Mr. Parvez Alam, Ld. APP for the State
Mr. Neeraj Dahiya, Ld. Counsel for accused Ravi
Kharb.
Digitally signed
ABHINAV by ABHINAV
AHLAWAT
AHLAWAT Date: 2025.09.02
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 1 of 20 15:19:16 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. The present judgment pertains to accused Ravi Kharb only as accused Tinku @ Sivansh had expired during pendency of the proceedings and accordingly proceedings qua accused Tinku @ Sivanst abated vide order dated 21.02.2022.
2. Briefly stated, the case of the prosecution is that on 11.09.2019 at about 08:30 PM, at Spicy Kitchen Restaurant, Rawta Mod, J. P. Kalan, New Delhi, accused having made preparation for causing hurt or fear of hurt or death committed mischief by firing bullets at the Spicy Kitchen Restaurant and caused hurt to complainant Sunder and also caused wrongful loss and damage to victim/ owner of Restaurant namely Rajbir and in order to commit extortion, accused persons had put the victim/ owner of Restaurant namely Rajbir in fear of death and accordingly they committed offennce punishable under Sections 337/387/440 of IPC and Section 27 of Arms Act for which FIR no.154/2019 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
3. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused persons was filed. The Ld. Predecessor of this Court took the cognizance against the accused persons and summons were issued to the accused persons. On their appearance, a copy of the chargesheet was supplied to them in terms of section 207 of the Code of Criminal Digitally signed ABHINAV by ABHINAV AHLAWAT AHLAWAT Date: 2025.09.02 FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 2 of 20 15:19:22 +0530 Procedure, 1973 (hereinafter, "CrPC"). During the said proceedings, accused Tinku @ Sivansh passed away and proceedings qua accused Tinku @ Sivansh abated vide order dated 21.02.2022. On finding a prima facie case against accused Ravi Kharb, charge under Sections 337/387/440 of IPC and Section 27 of Arms Act was framed against the accused on 27.03.2023. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Sunder PW-2 Bijender PW-3 Rajbir Yadav PW-4 Suresh Kumar PW-5 Jai Karan PW-6 HC Deepak PW-7 Retd. SI Rambhaj PW-8 SI Banwari Lal PW-9 HC Rahul PW-10 SI Vikas PW-11 Gajanand DOCUMENTARY EVIDENCE Ex.PW1/A Statement of complainant Ex.PW1/B Site plan Ex.P1 Photograph of bullet Ex.PW6/A Kalandra u/S 41.1 (a) Cr. P. C. Ex.PW6/B Personal search memo Ex.PW6/C Disclosure statement of accused Tinku Ex.PW6/E Seizure memo qua motorcycle no.HR-60A-5157 Ex.PW6/F Seizure memo of case property Ex.PW7/A Tehrir Ex.PW7/B Seizure memo of case property Digitally signed ABHINAV by ABHINAV AHLAWAT AHLAWAT Date: 2025.09.02 FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 3 of 20 15:19:28 +0530 Ex.PW7/C Seizure memo of case property Ex.PW7/D Arrest memo qua accused Ravi Ex.PW7/E Disclosure statement of accused Ravi Ex.PW7/F Pointing out memo at the instance of accused Ravi Ex.PW7/G Seizure memo qua pullanda of hospital Ex.PW8/A Arrest memo qua accused Tinku Ex.PW8/B Disclosure statement of accused Tinku Ex.PW9/A RC no.129/21/19 dated 30.10.2019 Ex.PW10/A Statement of accused Satender @ Sonu ADMITTED DOCUMENTS Ex.A1 FIR no.154/2019 alongwith Certificate under Section 65B IEA Ex.A2 DD No. 03A dated and 31A both dated 11.09.2019 Ex.A3 DD no.21B dated 18.09.2019 Ex.A4 Entry in register no.19 Ex.A5 Record of FIR no.273/19 PS Stars 1 Crime Branch R. K. Puram Ex.A6 CDR record of vodafone mobile no.7049670933 Ex.A7 MLC no.4417/19 Ex.A8 Crime team report and photographs Ex.A9 DD no.32B dated 19.09.2019 Ex.A10 Ballistic report no.CFSL-2019/F-993 dated 02.12.2019 Ex.A11 Ballistic report no.CFSL-2019/F-845 dated 04.11.2019
5. To prove its case, prosecution examined the following witnesses, the same are as follows:
PW1 Sunder deposed that in the year 2019, one day at about 8/8:30pm, he was present at a restaurant at Rawat Mor and was having dinner with one Yashpal (since deceased) and at that time, they were just served dinner when a bullet hit him on his back. He stated that he intimated the restaurant owner that he had been Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 4 of 20 AHLAWAT Date:
2025.09.02 15:19:33 +0530 shot on his back and thereafter, call to the police was made, however, he did not remember who made the said call. He stated that he along with Bijender who was also present with him at the restaurant went to RTRM hospital, where he was medically examined and after sometime, police reached the hospital and recorded his statement Ex.PW1/A. He stated that thereafter, he along with the police officials went to the spot of incident where the police officials prepared the site plan Ex.PW1/B. He stated that he stated to the police that he was not able to see the assailant who fired on him as the fire was shot from his back side. As PW1 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that the date of the incident was 11.09.2019 and it might be possible that the name of the said restaurant was Spicy Kitchen. He stated that the persons namely Jai Karan S/o Sh. Pyare Lal and Suresh S/o Sh. Soram had also came to the restaurant with Bijender S/o Late Sh. Balwan, when he was present at the said restaurant. He stated that there was a hole in the glass window through which he was shot. In the cross-examination, he stated that only two other public persons other than the persons named above and restaurant staff were present at the restaurant at the time of the incident. He stated that he could not see as to who was outside the restaurant as the door was tinted and there were CCTV cameras installed at the said restaurant.
6. PW2 Bijender deposed that in the year 2019, one day at about 9:00 pm, he along with his friends Jai Karan and Suresh went to Rawta Mor at a restaurant to have dinner. He stated that his fellow villagers namely Sunder and Yashpal were already present Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 5 of 20 2025.09.02 15:19:46 +0530 there when they reached and they had settled down for having dinner, suddenly they heard a loud nose and got scattered to save themselves. He stated that one bullet hit Sunder on his back and thereafter, Jai Karan and Sunder went to RTRM hospital. He stated that police came to the spot and recorded his statement. As PW2 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he stated that the date of incident was 11.09.2019 and the name of the restaurant was the Spicy Kitchen. The witness correctly identified the photographs of the spot Ex.P1 (colly).
7. PW3 Rajbir Yadav, PW4 Suresh Kumar and PW5 Jai Karan deposed on the same lines that on 11.09.2019, they were not present at the spot at the time of incident and they did not remember whether they gave any statement to police regarding the incident. They stated that they could not identify the accused as they were not present at the spot at the time of the incident. As PW3, PW4 and PW5 did not support the case of prosecution on certain facts, the Ld. APP was granted permission to put them questions in the nature of cross-examination, wherein they denied the suggestion that they had deposed falsely to save the accused as they had already settled the matter with the accused outside the court.
8. PW6 HC Deepak deposed that on 17.09.2019 at about 04:00 pm, one secret informer came to his office and shared information regarding the accused persons Ravi Kharb @ Sunny Dada and Tinku @ Shivansh (both belongs to Pradeep Solanki and Satender gang) and secret informer also shared information with Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 6 of 20 AHLAWAT Date:
2025.09.02 15:19:52 +0530 him that both the accused persons also involved in shoot out at Spice Kitchen Restaurant at Rawta Mor. He stated that he produced the secret informer before the Inspector Kuldeep Singh and he shared the whole information with him and after taking instructions from Inspector Kuldeep Singh, he prepared a raiding team which include SI Krishan Kumar, Ct. Satbir, Ct. Ghan Shyam, Ct. Om Praksah and himself. He stated that he and secret informer and raiding team left the office and went to the spot and when they reached at Khaira Chowk, they asked some public persons to join raiding team but none of them agreed and left the spot without disclosing their names and addresses. He stated that at about 06:00 pm, they reached at the spot i.e. Mitraon Chowk road towards Khair Village and at about 06:15 pm, one motorcycle was coming from Najafgarh, secret informer identified the accused and pointed towards accused and thereafter, he left the spot. He stated that with the help of raiding team, they apprehended both the accused persons and during interrogation, they disclosed their names as Ravi Kharb and Tinku. He stated that during personal search of accused Ravi, one pistol with magazine (loaded with two live cartridges) recovered from his possession and he shared the said information with DO at his office. He stated that during interrogation, accused disclosed their involvement in Rawta Mor Restaurant shoot out and also disclosed that the motorcycle used by the accused persons today was robbed from Luksar, Haryana and regarding the same, FIR no.239/19 dated 11.09.2019 u/S 379 IPC PS Badli Haryana was registered. He stated that during investigation, he prepared tehrir regarding the recovery of arms from Ravi Kharb and separate FIR no.273/19 was registered against accused Ravi Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 7 of 20 AHLAWAT Date:
2025.09.02 15:19:58 +0530 Kharb PS Crime Branch. He stated that he arrested the accused Tinku in Kalandra U/s 41.1 (a) Cr. P. C. Ex.PW6/A, conducted his personal search vide personal search memo Ex.PW6/B, recorded his disclosure statement Ex.PW6/C, seized the motorcycle bearing registration no.HR-60A-5157 u/S 102 Cr. P. C. Ex.PW6/E and also seized the case property which was recovered from the possession of accused Ravi vide seizure memo Ex.PW6/F. He stated that after sometime, ASI Vishnu reached at the spot and he handed over the custody of accused Ravi Kharb, case property and seizure memos to ASI Vishnu and thereafter, he alongwith accused Tinku and raiding staff left the spot and reached at R. K. Puram office. He stated that after reaching the office, he shared the information regarding the arrest of accused with PS J. P. Kalan and on next day, he produced the accused Tinku before concerned court. The witness correctly identified accused Ravi Kharb present in court. He stated that he also prepared Kalandra u/S 41.1 (a) Cr. P. C. against the accused persons. In the cross-examination, he stated that he had no personal knowledge about the present case and he did not record any statement of public person in kalandra u/S 41.1 (a) Cr. P. C. He stated that no notice was served by me upon public persons who refused to join investigation and they reached at the spot by private car and motorcycle but he did not make entry of the abovesaid vehicles in DD entry at PS. He stated that Mitraon Chowk used to be a crowded place in the evening and many public persons used to pass through. He stated that the alleged pistol does not bear any special mark of identification and he had served a memo upon the accused persons to take his search prior to their search. He stated that he prepared the sketch and seizure Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 8 of 20 2025.09.02 15:20:04 +0530 memo of pistol at the first instance and thereafter, personal search memo was prepared.
9. PW7 Retd. SI Rambhaj deposed that on 11.09.2019, he received DD no.30A and thereafter, he alongwith Ct. Krishan reached at the spot i.e. Spice Kitchen Restaurant, Rawta Mor, Delhi. He stated that he came to know that complainant/ victim went to RTRM Hospital and thereafter, he left the spot and reached at RTRM Hospital. He stated that he also received DD no.31A regarding MLC no.4417/19 and after reaching the hospital, he came to know that complainant admitted in the hospital vide MLC no.4417/19 and he recorded statement of complainant, on the basis of which, he prepared tehrir/rukka Ex.PW7/A. He stated that thereafter, he and complainant left the hospital and reached at spot and after reaching there, he got the FIR registered through Ct. Krishan. He stated that he made a call to District Crime Team and after sometime, District Crime Team reached at the spot and after taking instructions from him they clicked photographs of the spot and the used bullet led. He stated that he also prepared the site plan at the instance of complainant and during investigation, he also sealed used cartridge and bullet led which was found at the spot in two different small transparent boxes and sealed the same with the seal of RS and he also seized the case property vide seizure memo Ex.PW7/B and Ex.PW7/C. He stated that he left the spot and reached at PS and after reaching the PS, he deposited the case property at malkhana. He stated that during investigation, he came to know that accused namely Ravi Kharb produced before Dwarka in some other case and thereafter, on 19.09.2019, he moved an application before Digitally signed ABHINAV by ABHINAV AHLAWAT AHLAWAT Date: 2025.09.02 FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 9 of 20 15:20:10 +0530 the concerned court for production of accused Mark A. He stated that on 23.09.2019, he moved an application before concerned court for formal interrogation Mark B and thereafter, he arrested accused Ravi in present case vide arrest memo Ex.PW7/D, recorded disclosure statement of accused Ravi Ex.PW7/E and also prepared pointing out memo of the spot at the instance of accused Ravi and Tinku Ex.PW7/F. The witness correctly identified accused Ravi Kharb present in court. He stated that he also seized the pullanda which was handed over to him by the doctors of RTRM hospital which was sealed with the RTRM Hospital vide seizure memo Ex.PW7/G. The witness had correctly identified one empty cartridge and one bullet led as Ex.P1 and Ex.P2, cloth pullanda as Ex.P3 and one white colour mobile phone X-571 as Ex.P4. In the cross-examination, he stated that he went to the spot alongwith Ct. Krishan on his motorcycle. He stated that his name is Rambhaj, however, his seal was in the name of RS and he handed over the seal to Ct.
Krishan on the day of incident at about 12:00 - 01:00 midnight and received back his seal on 13.09.2019 at about 10:00 am. He stated that no handing over or taking over memo of seal was prepared and he mentioned the factum of giving seal to Ct. Krishan in the charge-sheet. He stated that no efforts were made to hand over the seal to any independent person who were present at the spot when he sealed the case property. He stated that he visited the spot prior to the arrest of accused.
10. PW8 SI Banwari Lal deposed that the investigation of the present case was marked to him in the month of September 2019 and during investigation, he came to know that accused Tinku @ Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 10 of 20 2025.09.02 15:20:16 +0530 Shivansh (proceedings against accused Tinku @ Shivansh abated vide order dated 21.02.2022 as he has expired) was arrested by Crime Team and produced before the concerned court. He stated that he reached at Dwarka Court and after taking permission from concerned court, he arrested accused Tinku @ Shivansh in the present case vide arrest memo Ex.PW8/A and recorded his disclosure statement Ex.PW8/B and thereafter, he produced accused before the concerned court and concerned court sent him to JC.
11. PW9 HC Rahul deposed regarding deposit of case property at CFSL Lodhi Colony vide RC no.129/21/19 Ex.PW9/A and also obtained receiving of the same from CFSL Lodhi Colony.
12. PW10 SI Vikas deposed that investigation of the present case was marked to him in the year 2021-2022 after registration of FIR and during investigation, he obtained FSL result and verified address of Gajanandan whose ID was used for issuing the mobile Sim no.7049670933, which was used by the accused persons for making ransom call to the complainant through HC Rajesh. He stated that he also moved an application before the concerned court to interrogate the accused Satender @ Sonu @ Bhinda and also recorded statement of witnesses u/S 161 Cr. P. C. He stated that he also recorded statement of accused Satender @ Sonu @ Bhinda Ex.PW10/1 and after completion of investigation, he submitted the charge-sheets before the concerned court.
13. PW11 Gajanand deposed that in the year 2010, he purchased a mobile phone in which he was using a sim of mobile no.7049670933. He stated that the said phone was stolen in the Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 11 of 20 2025.09.02 15:20:20 +0530 year 2019 and he tried to search the same but could not find the same. He stated that he did not remember the make and model number of the same and he did not make any police complaint in that regard.
14. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined; hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
15. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against them, the statement of the accused was recorded without oath under section 281 r/w 313 Cr. P. C., wherein he has stated that he is innocent and has falsely been implicated in the present case. Accused further stated that he did not want to lead defence evidence.
FINAL ARGUMENTS
16. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
17. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 12 of 20 AHLAWAT Date:
2025.09.02 15:20:26 +0530 testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
18. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF OFFENCE
19. The allegations levelled against accused are segregated into two parts: The first set of allegations revolves around commission of offences u/s 337/387/440 IPC and the second set regarding the commission of offence u/s 27 Arms Act, which shall be discussed hereinafter.
20. Let us deal with first set of allegations revolving against the accsued u/S 337/387/440 IPC. The said provisions are as under:
Section 337 IPC provides as under:
Section 337 Indian Penal Code, 1860, deals with the offense of "Causing hurt by an act endangering life or personal safety of others". It criminalizes causing hurt to any person through a rash or negligent act that endangers human life or personal safety.
Section 387 IPC provides as under:
Section 387 Indian Penal Code, 1860, This section focuses on the preparatory stage of extortion, punishing the intent and the act of Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 13 of 20 2025.09.02 15:20:32 +0530 instilling fear, rather than requiring the extortion itself to be completed.
Section 440 IPC is reproduced as under:
Section 440, Indian Penal Code: Whoever commits mischief, having made preparation for causing to any person death, or hurt, or wrongful restraint, or fear of death, or hurt, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
APPRECIATION OF EVIDENCE
21. It is the case of the prosecution that accused Ravi Kharb @ Dada used fire arm in rash and negligent manner after making preparation for causing hurt or death in order to commit extortion by putting the owner / victim of restaurant namely Spice Kitchen and thereby committed mischief by firing bullets in the restaurant of complainant which caused injuries to one person namely Sunder Singh who was present in the said restaurant.
Prosecution examined injured Sunder as PW1, who stated that in the year 2019 as he was unable to recall the exact date at about 08:00 - 08:30 pm, when he was present at restaurant at Rawta Mor where he was having dinner with one Yashpal, since deceaed. PW1 further stated that they were just served with dinner when one bullet hit him on his back whereupon he immediately informed the restaurant owner that he was being shot in his back. PW1 further stated that after the said act, he went to RTRM Hospital with one Bijender and in some time police reached at the hospital where his statement Ex.PW1/A was recorded. PW1 further deposed that he was unable to see the person who had fired towards him as his back was towards the said person.
Digitally signed by ABHINAVABHINAV AHLAWAT AHLAWAT Date:
2025.09.02 FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 14 of 20 15:20:38 +0530
22. As PW1 failed to disclose the entire facts, Ld. APP cross- examined PW1 wherein he admitted that other person namely Jai Karan and Suresh were also present at the said restaurant with Bijender. PW1 further admitted that the shot towards him was fired through a hole in the glass window. PW1 further categorically stated that the bullet led was taken out from his back by him only and he had dropped the same at the spot which was later on recovered by the police from the spot. PW1 further correctly identified the spot of incident through photographs showcasing one bullet on the road side through photograph Ex.P1.
During his cross-examination by Ld. Defence counsel, PW1 again stated that he could not see as to who was outside the restaurant as the glass door was tinted.
23. Apart from PW1 prosecution examined PW2 Bijender who was alongwith his friends Jai Karan and Suresh at the said restaurant who stated that his fellow villager namely Sunder and Yashpal were also present there when he heard a loud noise and he found out that Sunder was hit by a bullet in his back whereafter Jai Karan and Sunder went to RTRM hospital. PW2 failed to identify the accused person.
Similarly, prosecution examined PW3 Rajbir, PW4 Suresh and PW5 Jai Karan who completely failed to support the prosecution case and stated that they were not present at the time of incident at the spot. Apparently, PW3 Rajbir admitted in his cross-examination as done by Ld. APP that he was running the restaurant in the name of Spice Kitchen but nothing further material came in the said examination. Accordingly, no private Digitally signed by ABHINAV ABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 15 of 20 2025.09.02 15:20:44 +0530 witnesses as examined by the prosecution identified accused being one of the assailant who had fired at the abovesaid restaurant injuring PW1.
24. Before proceedings further, it is relevant to see as to how the criminal law was set into motion. As per PW7 IO SI Rambhaj upon receiving DD no.30A dated 11.09.2019 Ex.A2 wherein PCR call was made describing, "caller ke upper firing ki hai" . IO PW7 thereafter went to the spot where he came to know that injured went to RTRM Hospital as in the meantime IO had also received DD no.30A Ex.A2 (colly) after receiving information from RTRM Hospital that injured was admitted by his friend Jai Kishan. IO PW7 thereafter recorded statement of complainant Ex.PW1/A wherein injured had also stated that some unknown person had fired in which he had received injury.
25. Since, all the material witnesses brought by the prosecution to prove the charge under Section 337/387/440 IPC have not identified accused being the person who had fired bullets at Spice Kitchen Restaurant in order of committing extortion from the owner of the said restaurant, thereby in absence of any incriminating evidence given by PWs, the prosecution could never hope to prove the allegations levelled against the accused. The testimony of all the witnesses as examined by prosecution even if taken together would also be insufficient to prove the allegations against the accused.
26. Accordingly, the prosecution has failed to prove the charges u/S 337/387/440 IPC and accordingly accused deserves to be acquitted for offence u/s 337/387/440 IPC.
Digitally signed by ABHINAVABHINAV AHLAWAT Date: AHLAWAT 2025.09.02 FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 16 of 20 15:20:50 +0530
27. The second set of allegations against the accused person revolves around commission of offence u/s 27 Arms Act. The provisions are as under:
"Section 27 -Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine."
"Section 5. Licence for manufacture, sale, etc., of arms and ammunition."
28. It is the case of the prosecution that accused used the fire arm for causing mischief by firing bullets at the Spice Kitchen Restaurant thereby injuring PW1. The present incident of 11.09.2019 whereas accused was arrested on 17.09.2019 as per arrest memo Ex.PW7/D. As per PW6 HC Deepak who stated that after receiving secret information, Inspector Kuldeep Singh prepared a raiding team and thereafter they reached at Kair Chowk and apprehended both accused Ravi and Tinku and in the personal search of accused Ravi one pistol loaded with two live cartridges was recovered. PW6 further stated that he prepared tehrir regarding recovery of arms from Ravi and a separate FIR no.273/2019 was registered against accused Ravi PS Crime Branch. IO PW7 in his testimony stated that during investigation of present case he came to know that accused Ravi was produced before court in some other case whereafter he moved an application before the court for formal interrogation Mark B whereafter accused Ravi was arrested and he disclosed his involvement in the present case.
Digitally signed by ABHINAVABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 17 of 20 2025.09.02 15:20:56 +0530
29. Apparently, IO PW7 after reaching the spot at Spice Kitchen restaurant seized used cartridge and bullet led which was found at the spot vide seizure memo Ex.PW7/B and Ex.PW7/C respectively. The said two sealed pullandas were sent to FSL vide RC Ex.PW9/A. The ballistic reports received are Ex.A10 and Ex.A11 respectively. Perusal of CFSL report dated 02.12.2019 Ex.A10 reveals that the parcel sent for examination were containing two cartridges i.e. one 7.65 mm cartridge Mark C/1 and the other 7.65 mm deformed bullet Mark BC/1. The said articles of the parcel are the subject property of the present case which were seized vide seizure memo Ex.PW7B and Ex.PW7/C respectively.
30. As per the above CFSL report Ex.A10, the following was the result of examination, "Results of examinations:- On the basis of examination carried out in the Laboratory examination with scientific aids, the results of the examination are as under.
On the basis of microscopic examination under the Digital Comparison Microscope. it is opined that the 7.65mm fired cartridge case (marked C/1) contained in Parcel No. 1 & the 7.65mm bullet (marked BC/1) contained in Parcel No. 2 had been fired from the country made pistol (chambered for 7.65mm cartridges) (marked W/l) received in CFSL vide case No. CFSL-19/F-845 in question."
31. Furthermore, perusal of CFSL report dated 04.11.2019 Ex.A11 reveals that the parcel sent for examination was containing one country made pistol (chambered for 7.65 mm cartridge) alongwith its empty magazine Mark W/1 and two 7.65 mm cartridges Mark C/1 and Mark C/2.
32. As per the above CFSL report Ex.A11, the following was the result of examination, Results of Examinations:- On the basis of examination carried out in the laboratory examination with scientific aids. the results of the examination are as under:-
Digitally signed by ABHINAVABHINAV AHLAWAT AHLAWAT Date:
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 18 of 20 2025.09.02 15:21:05 +0530
(i) On the basis of physical examination and test firing conducted in the laboratory with scientific aid, it is opined that the country made pistol (chambered for 7.65mm cartridges) (marked W/1), contained in Parcel No. P-1 is a "Fire-Arm" as defined in the Arms-Act 1959 & is in working order in its present condition.
(ii) On the basis of physical examination and test firing conducted in the laboratory, it is opined that two 7.65mm cartridges (marked C/1 & C/2) also contained in Parcel No. P-1 are "Ammunition" as defined in the Arms-Act, 1959 & were live ones.
33. It is the prosecution case that the pistol which was recovered from accused Ravi which was found to be in working condition as per CFSL report Ex.A11 was used in the firing incident of the present case as established vide CFSL report Ex.A10 which showed that the fire cartridge case and the deformed bullet as recovered from the spot had been fired from the country made pistol as recovered from accused Ravi. However, without going into detail as to whether recovery of the said fire arm was recovered from the possession of accused Ravi which is already the subject matter of other FIR no.273/2019 dated 17.09.2019 under Section 25 Arms Act PS Crime Branch Delhi, prosecution in the present case mandated to establish accused Ravi had used the said firearm in the incident of the present case. As already discussed in the preceding paragraphs none of the prosecution witness including the injured was able to identify accused to be the person who had fired the bullet. Further, regarding appreciation of scientific evidence it would be fruitful to advert the ratio in Nivrutti Vs. State of Maharashtra 2024 BHC- AUG:23219-BB, where the eye-witnesses had turned hostile and prosecution was based on scientific evidence alone and conviction of the accused in the said case is set aside. In the instant case as well there is no direct witness to the incident who had identified accused to be the person who had fired a shot. The recovery of country made pistol from the accused is not sufficient Digitally signed by ABHINAV ABHINAV AHLAWAT FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 19 of 20 AHLAWAT Date:
2025.09.02 15:21:12 +0530 to prove the guilt of accused regarding the commission of offence. The fact that there is a gap of many days from the date of incident and the date of alleged recovery of pistol from accused person thereby it cannot be ruled out that the subject pistol was always within the possession of accused or that it had changed hand between different persons. The prosecution is firstly mandated to discharge its onus and establish its case by leading cogent evidence on record. In the facts of the present case, prosecution has not been able to establish its case beyond reasonable doubt and accordingly, accused is entitled to benefit of doubt and thereby offences u/s 27 Arms Act against accused is not made out.
CONCLUSION
34. Upshot of the above discussion is that, since the prosecution has failed in proving its case beyond reasonable doubts against the accused, the accused Tinku @ Sivansh is held not guilty and hereby acquitted of the offence punishable under Section 337/387/440 IPC and offence under section 27 of The Arms Act, 1959.
Announced in the open court Digitally signed by ABHINAV on 02.09.2025 in the presence ABHINAV AHLAWAT AHLAWAT Date:
of the accused. 2025.09.02
15:21:19 +0530
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/02.09.2025
Note:- This judgment contains 20 pages and each page has been Digitally signed
signed by me. ABHINAV
by ABHINAV
AHLAWAT
AHLAWAT Date:
2025.09.02
15:21:26 +0530
(Abhinav Ahlawat)
Judicial Magistrate First Class-09,
Dwarka, Delhi/02.09.2025
FIR No.154/2019, PS Jafarpur Kalan State vs. Tinku @ Sivansh Page 20 of 20