Delhi District Court
State vs Amit @ Tenkar on 12 March, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE : SOUTH EAST DISTRICT : SAKET
COURTS : NEW DELHI
DLSE020593012024
JUDGMENT
STATE VS. AMIT @ TENKAR FIR No. : 496/2024 U/s 25/54/59 Arms Act PS : BADARPUR A. CNR NO. : DLSE02-059301-2024 B. CIS No. of the Case : 43115/2024 C. Date of Institution : 22.10.2024 D. Date of Commission of : 11.10.2024 Offence E. Name of the complainant : HC Joginder F. Name of the Accused : Amit @ Tenkar S/o Sh. persons, his Parentage & Gopi Chand R/o H.No. Addresses Gali No. 1, Indra Complex, Naharpar, Khedipur, Faridabad, Haryana.
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 : 12.03.2025.
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 Amit @ Tenkar alleging that on 11.10.2024 at about 9.00 PM near Tata State Vs. Amit @ Tenkar Digitally signed by VIVEK FIR No. 496/24, PS: Badarpur VIVEK BENIWAL 1 of 11 BENIWAL Date: 2025.03.17 16:11:18 +0530 Charging Point, Sunday Market, Badarpur, within the jurisdiction of PS Badarpur, accused was found in possession of a button actuated knife without any permit or licence. Matter was reported to the police.
2. FIR was registered and matter has been investigated by IO/HC Hargovind, who filed charge-sheet against the accused person, upon which cognizance was taken on 22.10.2024.
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 28.10.2024 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 18.01.2025 under Section 294 Cr.P.C whereby he admitted the genuineness of FIR No. 496/2024 recorded by HC Ram Naresh Ex.A1.
6. The prosecution, in support of its case, has examined two witnesses.
7. PW-1 HC Joginder deposed that on 11.10.2024, he was on patrolling duty at Tata Charging Point, Sunday Market, Badarpur, Delhi and at about 9:00 PM, one person saw him and started running away. On suspicious he caught hold of him and he searched him and found one button actuated knife from his right Digitally signed by VIVEK VIVEK BENIWAL State Vs. Amit @ Tenkar BENIWAL Date:
2025.03.17 16:11:31 FIR No. 496/24, PS: Badarpur +0530
2 of 11 pocket of his jeans. PW1 informed about the recovery to the DO, PS Badarpur. Thereafter, IO / HC Hargovind came to the spot. PW1 handed over the custody of the accused Amit @ Tenkar to HC Hargovind. IO/HC Hargovind asked some public persons to join the investigation, however, none joined citing their personal reasons. Thereafter, IO recorded his statement Ex. PW-1/A. Thereafter, IO prepared the rukka and handed over the same to PW1 for registration of the FIR. Thereafter he went to the PS and got the FIR registered and handed over the same to the IO for further proceedings. Thereafter, IO prepared the sketch of the recovered button actuated knife from the accused Ex. PW1/B. IO seized the knife vide seizure memo Ex. PW-1/C with the seal HG Thereafter, IO prepared the site plan of the place of incident vide Ex. PW1/D. IO also arrested the accused Amit @ Tenkar and conducted his personal search in the presence of PW1, and prepared the arrest memo and personal search memo Ex. PW-1/E & Ex. PW-1/F respectively. IO recorded disclosure statement of accused vide memo Ex. PW-1/G. This witness correctly identified the accused in Court and also identified the button actuated knife Ex.P1. He was cross examined and discharged.
8. PW-2 HC Hargovind deposed on the lines of PW1 HC Joginder. He also proved the rukka Ex.PW2/A. He was cross examined and discharged. He was cross examined and discharged. Digitally signed by VIVEK BENIWAL VIVEK Date:
BENIWAL 2025.03.17 16:11:41 +0530
9. No other witness was examined by the prosecution and hence, PE was closed.
State Vs. Amit @ Tenkar FIR No. 496/24, PS: Badarpur 3 of 11
10. 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.
11. Final arguments advanced by Ld. APP for State and Ld. counsel for accused heard. Case record perused meticulously.
12. 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.
13. 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) **** Digitally signed by VIVEK BENIWAL VIVEK Date:
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(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.
14. As per the prosecution case, the sketch memo of the case property vide Ex PW 1/B and the seizure memo of the case property vide Ex. PW1/C 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.
15. 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 Digitally signed by VIVEK State Vs. Amit @ Tenkar VIVEK BENIWAL Date: BENIWAL 2025.03.17 FIR No. 496/24, PS: Badarpur 16:11:59 +0530 5 of 11 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.
16. 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 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".
17. 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 Digitally State Vs. Amit @ Tenkar signed by VIVEK VIVEK FIR No. 496/24, PS: Badarpur BENIWAL BENIWAL Date: 6 of 11 2025.03.17 16:12:09 +0530 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- 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".
18. 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:
Digitally signed by VIVEK VIVEK BENIWAL State Vs. Amit @ Tenkar BENIWAL Date:
2025.03.17 16:12:29 FIR No. 496/24, PS: Badarpur +0530 7 of 11 " ... 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 from the person of the accused."
19. 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.
Digitally signed by VIVEK BENIWALVIVEK Date:
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20. 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.
21. In the instant case, it is the case of the prosecution that the case property was sealed with the seal of 'HG'. 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.
22. The Section 100(4) Cr.P.C provide that "before making a 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 issued 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.
Digitally
signed by
VIVEK
VIVEK BENIWAL
BENIWAL Date:
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16:12:48
FIR No. 496/24, PS: Badarpur +0530
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23. 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.
24. Further, PW-2 in his cross examination stated that he did not make any departure entry. Police officials are under a statutory duty to mark their departure from and arrival in the PS in a register kept in the police station for the purpose as per the Punjab Police Rules. It is relevant here to reproduce Chapter 22 Rule 49 of the Punjab Police Rules, 1934, which reads as under:
"22.49 Matters to be entered in Register No. II "The following matters shall, amongst others, be entered "(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrive or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal. "Note: The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained."
Digitally signed by VIVEK VIVEK BENIWAL BENIWAL Date:
2025.03.17 16:12:59 State Vs. Amit @ Tenkar +0530 FIR No. 496/24, PS: Badarpur 10 of 11
25. 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.
26. 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 Amit @ Tenkar S/o Sh. Gopi Chand is hereby acquitted of the offence punishable under Section 25 of Arms Act.
27. Accused be set at liberty.
Dictated and announced in the open Court on 12.03.2025 Digitally signed by VIVEK VIVEK BENIWAL BENIWAL Date:
2025.03.17 16:13:07 +0530 (VIVEK BENIWAL) ACJM (SOUTH EAST):
SAKET COURTS:NEW DELHI State Vs. Amit @ Tenkar FIR No. 496/24, PS: Badarpur 11 of 11