Delhi District Court
State vs Roshan on 27 March, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE: SOUTH EAST DISTRICT : SAKET
COURTS : NEW DELHI
DLSE020090042020
JUDGMENT
STATE VS. ROSHAN FIR No. : 373/2019 U/s 25/54/59 Arms Act PS : BADARPUR A. CNR NO. : DLSE02-009004-2020 B. CIS No. of the Case : 2583/2019 C. Date of Institution : 27.08.2020 D. Date of Commission of : 09.10.2019 Offence E. Name of the complainant : Ct. Amit Kumar F. Name of the Accused : Roshan S/o Sh. Naresh persons, his Parentage & Kumar R/o H.No.J-162B, Addresses Jaitpur Extension, New Delhi.
G. Offence complained of : U/s 25/54/59 of Arms Act H. Plea of the Accused : Pleaded not guilty and claimed trial I. Order reserved on : Not reserved J. Final order : Acquittal K. Date of such order : 27.03.2205.
Brief Statement of Reasons for Decision of the Case:
1. The present FIR under Section 25/54/59 of Arms Act was registered on complaint of complainant against accused Roshan alleging that on 09.10.2019 at about 8.00 PM at M.B Road Picket near Metro Pillar, Badarpur, New Delhi, within the jurisdiction of PS Badarpur, accused was found in possession of a button Digitally signed by VIVEK State Vs. Roshan VIVEK BENIWAL BENIWAL Date:
FIR No. 373/2019, PS: Badarpur 2025.04.02 15:30:02 +0530 1 of 14 actuated knife and a surgical blade from right side of his pocket of pant without any permit or licence. Matter was reported to the police.
2. FIR was registered and matter has been investigated by IO/ASI Bhagwan Sahay, who filed charge-sheet against the accused person, upon which cognizance was taken on 25.01.2021
3. Accused produced before the Court. Copy of charge sheet under section 207 Cr.P.C. was supplied to the accused.
4. Charge was framed vide order dated 01.04.2023 for the offence punishable U/s 25/54/59 of Arms Act against the accused to which he pleaded not guilty and claimed trial.
5. The statement of Accused was recorded on 09.06.2022 under Section 294 Cr.P.C whereby he admitted the genuineness of FIR No. 373/19 P.S. Badarpur Ex.A1, Certificate under Section 65B Indian Evidence Act Ex.A2 and DAD notification Ex.A3.
6. The prosecution, in support of its case, has examined three witnesses.
7. PW-1 HC Amit Kumar deposed that on 01.10.2019, he was present in the PS and ASI Rajesh Kumar came and informed that he has an information that 3-4 person who commit theft in the buses were going to Pul Prahladpur from M.B. Road. After that a raiding team was prepared by ASI Rajesh Kumar including Digitally signed State Vs. Roshan VIVEK by VIVEK BENIWAL FIR No. 373/2019, PS: Badarpur BENIWAL Date:
2025.04.02 15:30:09 +0530 2 of 14 PW1, ASI Bhoop Singh, Ct. Vipin, Ct. Govinda and Ct.
Manender and reached at the Metro Pillar M.B. Road where secret informer met with ASI Rajesh Kumar. Police officials, namely, HC Mansukh and HC Sumer from Badarpur were already present there. Thereafter, ASI Rajesh Kumar used the barricades and make a police picket and started checking the vehicles. At around 08:00 PM, one auto came from the side of Badarpur and the secret informer pointed towards the said auto and told ASI Rajesh Kumar that this is the auto in which those persons were travelling and after that the secret informer left the spot. Thereafter, they all signaled the auto to stop, however, the auto did not stop. Ct. Vipin managed to block the auto with the help of a barricade and the driver of the auto stucked against the barricade and Ct. Vipin sustained injuries during that process. They all managed to apprehend the auto driver along with 03 other persons sitting in the auto. The person who was apprehended by them was carrying Deshi Katta (countrymade pistol) and buttondar knife. The person who was apprehended by PW1 was carrying a buttondar knife which was recovered on his cursory search. Thereafter, PW1 thereafter informed the recovery of the illegal arms and the apprehension of the accused to the DO and after some time ASI Bhagwan Sahay reached at the spot and in the meantime patrolling staff, namely, HC Mahavir and Ct. Kailash also reached there. PW1 handed over the custody of the accused apprehended by PW1 to the IO/ASI Bhagwan Sahay and also the recovered buttondar knife. On interrogation, the name of the accused was revealed as Roshan. After that, IO prepared the sketch of the buttondar knife vide memo Ex.PW1/A. IO recorded statement of PW1 Ex.PW1/B and upon the said statement, IO State Vs. Roshan Digitally signed by VIVEK VIVEK FIR No. 373/2019, PS: Badarpur BENIWAL BENIWAL Date:
2025.04.02 3 of 14 15:30:16 +0530 prepared a tehrir and gave the same to Ct. Kailash which he took to the PS for registration of FIR. After some time, Ct. Kailash came back at the spot with the copy of FIR and gave the same to the IO. IO prepared the site plan Ex.PW1/C at the instance of PW1. IO prepared the seizure memo of the said knife vide memo Ex.PW1/D and sealed the same with the seal of 'BS'. IO recorded the disclosure statement of the accused vide Ex.PW1/E. IO arrested the accused and conducted his personal search vide memos Ex.PW1/F and Ex.PW1/G. Thereafter, they all along with the case property and the accused came back to the PS where IO deposited the case property in the Maalkhana. Accused was taken for the hospital for his medical examination and after that he was sent to Lockup. Thereafter, IO recorded statement of PW1 U/s 161 Cr.P.C. This witness correctly identified the case property i.e. buttandar knife Ex.P1 and the accused in the Court. He was cross examined and discharged.
8. PW-2 ASI Mahabir Singh deposed that on 09.10.2019, he along with Ct. Kailash was on Highway Patrolling duty and while performing the duty, he received an information from PS that two boys who have a buttandar knife have been apprehended on MB Road. After receiving the information, PW2 along with Ct. Kailash went to MB Road where Ct. Amit handed over the custody of accused Roshan along with the buttandar knife which was recovered from his custody to ASI Bhagwan Sahai and stated that the abovesaid knife has been recovered from the pocket of the pant of the accused. Thereafter, ASI Bhagwan Sahai after opening the knife placed the same on a white paper and prepared the sketch memo of the same. A word 'FENGLI' Digitally signed by VIVEK State Vs. Roshan VIVEK BENIWAL Date:
BENIWAL 2025.04.02 FIR No. 373/2019, PS: Badarpur 15:30:23 +0530 4 of 14 was written on the 'Fal' of the knife and a triangular shape was inscribed on the Fal of the knife and the word 'MF' was written on the knife. After that ASI Bhagwan Sahai put the knife into plastic box and sealed the same with the seal of BS and after using the seal, ASI Bhagwan Sahai handed over the same to PW2 for safe custody. Thereafter, PW2 left the place of incident and came back to the P.S along with the seal and during investigation of the present case, ASI Bhagwan Sahai recorded statement of PW2 under Section 161 Cr.P.C. This witness correctly identified the accused and the buttandar knife. This witness was cross examined and discharged.
9. PW3 ASI Bhagwan Sahai deposed that on 09.10.2019, he received an information from DO regarding the apprehension of the accused person from whose custody a buttandar knife was being recovered vide DD no. 67B. After receiving the information, he left for the place of incident at about 8.30 pm and at about 8.45 pm, he reached at the place of incident where he met Ct. Amit, ASI Rajesh Kumar, ASI Bhoop Singh, Ct. Vipin, Ct. Govinda, Ct. Maninder, HC Mansukh, HC Sumer and accused and in the meanwhile HC Mahabir and Ct. Kailash also reached there at the place of incident. Ct. Amit handed over the custody of the accused along with a buttandar knife to PW3 which was recovered from the custody of accused and stated that the abovesaid knife has been recovered from the pocket of the pant of the accused. Thereafter, PW3 conducted the interrogation of the accused and in the interrogation accused revealed his name Roshan. Thereafter, PW3 placed the knife on the white paper after opening the same and prepared the sketch memo of the Digitally signed by VIVEK VIVEK State Vs. Roshan BENIWAL BENIWAL Date:
2025.04.02 FIR No. 373/2019, PS: Badarpur 15:30:32 +0530 5 of 14 same Ex.PW1/A. A word 'FENGLI' was written on the 'Fal' of the knife and a triangular shape was inscribed on the Fal of the knife and the word 'MF' was written on the knife. After that PW3 put the knife into plastic box and sealed the same with the seal of BS and after using the seal was handed over the same to HC Mahabir for safe custody. Thereafter, PW3 seized the buttandar knife vide seizure memo Ex.PW1/D. Thereafter, PW3 recorded the statement of Ct. Amit Ex.PW1/B and prepared tehrir at the instance of statement of Ct. Amit Ex.PW3/A and the same was handed over to Ct. Kailash who got the FIR registered. After getting the copy of FIR, PW3 wrote down the copy of FIR on the documents which were already prepared by him like sketch memo and seizure memo. Thereafter, PW3 prepared the site plan Ex.PW1/3 at the instance of Ct. Amit. Thereafter, PW3 conducted the interrogation and after that he arrested the accused vide arrest memo Ex.PW1/F. PW3 made personal search of the accused vide personal search memo Ex.PW1/G and recorded the disclosure statement Ex.PW1/E of the accused namely Roshan.
Thereafter, they all along with the accused and case property came back to the police station where he deposited the case property into the malkhana and besides this PW3 deposited his seal into the Malkhana after taking it back from HC Mahabir who was already present in the PS. In the meanwhile, the accused was sent to hospital for medical examination and after his medical examination he was again brought to the P.S where PW3 put him into the lockup. Thereafter, PW3 recorded the statement of all the concerned police officials under Section 161 Cr.P.C. Thereafter, PW3 produced the accused before this Court and from there he was sent to the judicial custody. Thereafter, after completing the Digitally signed by VIVEK State Vs. Roshan VIVEK BENIWAL Date: BENIWAL 2025.04.02 FIR No. 373/2019, PS: Badarpur 15:30:40 +0530 6 of 14 investigation, he prepared the charge sheet and produced the same before this Court. This witness correctly identified the accused in the Court and the buttandar knife. This witness was cross examined and discharged.
10. PW-4 HC Kailash deposed that on 09.10.2019, he joined the investigation of the present matter with IO / ASI Bhagwan Sahay. He reached the place of incident i.e. M.B. road picket near metro pillar, Badar Pur, Delhi along with HC Mahavir. IO had handed over him the rukka for the registration of the FIR at the spot. Subsequently he had visited the PS and got the FIR registered. Thereafter he came back to the spot and handed over the copy of FIR, tehrir along with certificate u/s 65B Indian Evidence Act to the IO. After that IO had recorded his statement u/s 161 Cr.P.C. This witness correctly identified the accused and the case property Ex.P1.
11. No other witness was examined by the prosecution and hence, PE was closed.
12. The statement of the Accused was recorded under Section 313 Cr.P.C, whereby he was confronted with the incriminating evidence that had come on record against him. The Accused denied the same and asserted that he has been falsely implicated in his case. The Accused opted not to lead evidence in defence.
13. Final arguments advanced by Ld. APP for State and Ld. counsel for accused heard. Case record perused meticulously.
Digitally signedState Vs. Roshan VIVEK by VIVEK BENIWAL FIR No. 373/2019, PS: Badarpur BENIWAL Date: 2025.04.02 7 of 14 15:30:50 +0530
14. After hearing Ld. APP for the State and Ld. counsel for the accused and having gone through the case file carefully and meticulously, it is observed by the court that it is the case of prosecution that on the fateful day, accused was found in possession of one buttondar knife. The court is of the view that to prove the charge against the accused, the prosecution is required to prove the allegations 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) ****
(d) bring into, or takes out of, India, any arms or ammu-
nition of any class or description in contravention of sec- tion 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. As per the prosecution case, the sketch memo of the case property vide Ex PW 1/A and the seizure memo of the case property vide Ex. PW1/D were prepared before the preparation of rukka. However, the said documents contain 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.
State Vs. Roshan Digitally signed
by VIVEK
BENIWAL
VIVEK
FIR No. 373/2019, PS: Badarpur Date:
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15:30:57
+0530
17. In the rukka as well as in the testimony of all the witnesses, who are police officials it has been stated that public persons were present at the spot where accused was apprehended. However, it is clear from the testimony of all the police witnesses that no sincere efforts were made to join independent public witnesses in the recovery/investigation of the present case. From the overall testimony of the witnesses, it is clear that the IO has not joined any passersby/public witness at the time of arrest or while completing the formalities despite availability of public persons. In fact, not even an effort was made to join the public witnesses. There is a possibility that it was a chance recovery, however, at the time and place from where the accused was apprehended and when the formalities were being completed, admittedly public persons were present there. All the witnesses examined are police witnesses. This casts a doubt about the sincere efforts made by the IO to join independent witnesses. Thus, the prosecution has failed to prove that any serious effort was made by any of the police officials of the raiding party including the IO to join public witnesses in the proceedings. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police.
18. 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 FIR No. 940 of 2020 PS Najafgarh inde- pendent witnesses. In the present case, it is evidence that no State Vs. Roshan Digitally signed by VIVEK BENIWAL FIR No. 373/2019, PS: Badarpur VIVEK BENIWAL Date: 9 of 14 2025.04.02 15:31:08 +0530 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 wit- ness 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 es- caped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
19. 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 prosecu- tion 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 inde- pendent witnesses were asked to join the investigation but they refused to to so on the ground that their joining will re- sult into enmity between them and the petitioner".
"4. It is well settled principle of the law that the Investigat- ing 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 ad- mittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire con- fidence because the police officials who are the only wit- nesses examined in the case have not given the names and addresses of the persons contacted to join it is a very com- mon 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 per-
State Vs. Roshan Digitally signed
by VIVEK
FIR No. 373/2019, PS: Badarpur VIVEK BENIWAL
Date:
10 of 14
BENIWAL 2025.04.02
15:31:19
+0530
son under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the In- vestigating Officer must have proceeded against them un- der the relevant provision of law. The failure to do so by the police officer is FIR No. 940 of 2020 PS Najafgarh sugges- tive of the fact that the explanation for non-joining the wit- nesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prose- cution case highly doubtful".
20. 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 Po- lice 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 inde- pendent witnesses in a case of serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the Police raids or the recoveries but that apart, at least the I.O. should have made an earnest effort to join the inde- pendent 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 Digitally signed by VIVEK BENIWAL State Vs. Roshan VIVEK Date:
BENIWAL 2025.04.02 FIR No. 373/2019, PS: Badarpur 15:31:26 +0530 11 of 14 from the person of the accused."
21. In the present case, the IO has not joined the public persons in the investigation. The time and place from where the accused was apprehended itself suggest that public persons must have been present at the spot as it was a public place. However, despite that, the IO did not even make a sincere effort to join any public person as witness in the investigation. This creates a doubt regarding the fairness of the investigation. The chances of false implication cannot be ruled out.
22. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses keep themselves away from the Court unless it is inevitable, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
23. In the instant case, it is the case of the prosecution that the case property was sealed with the seal of 'BS'. However, no handing over memo was prepared. No explanation has come on record as to why handing over memo was not made or seal was not handed over to an independent witness or deposited in malkhana. In these circumstances, the possibility of tampering of case property can't be ruled out.
24. The Section 100(4) Cr.P.C provide that "before making a State Vs. Roshan Digitally signed by VIVEK VIVEK BENIWAL FIR No. 373/2019, PS: Badarpur BENIWAL Date:
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search of the officer or other person about to make it shall call upon the two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or any other locality if no such inhabitant of the said locality is available or is willing to be a witness of the search, to attend the witness the search and may issue an order in writing to them or any of them so to do". This provision of law has not been complied with by the IO.
25. None of the police officials offered their search before taking search of the accused. It has not been proved that the seal was handed over to any other independent witness / public person and therefore, the possibility of case property being tempered with or the planting of the knife upon the accused 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.
26. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
Digitally signedState Vs. Roshan by VIVEK VIVEK BENIWAL BENIWAL Date: 2025.04.02 FIR No. 373/2019, PS: Badarpur 15:31:41 +0530 13 of 14
27. 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 Roshan S/o Naresh Kumar is hereby acquitted of the offence punishable under Section 25 of Arms Act.
28. Accused be set at liberty.
Dictated and announced Digitally signed
in the open Court on 27.03.2025 VIVEK
by VIVEK
BENIWAL
BENIWAL Date:
2025.04.02
15:31:50 +0530
(VIVEK BENIWAL)
ACJM (SOUTH EAST):
SAKET COURTS:NEW DELHI
State Vs. Roshan
FIR No. 373/2019, PS: Badarpur 14 of 14