Delhi District Court
State vs Kapil on 24 July, 2025
IN THE COURT OF HARSHAL NEGI
JUDICIAL MAGISTRATE FIRST CLASS-02, DWARKA COURT, NEW
DELHI
FIR No. 83/2019
PS: Dabri
U/s: 25 Arms Act
Case no. 11746/21
State
Vs.
Kapil Kumar
S/o Suresh Pal
R/o B-1/143, Block-L, Gali No. 27, Madhu Vihar, Uttam Nagar
..... Accused
S. No. of the case : 11746/21
The date of offence : 02.02.2022
The name of the complainant : Ct. Sumit
The name of the accused : Kapil Kumar
The offence complained : 25 Arms Act
The plea of the accused : Pleaded not guilty
Argument heard on : 24.07.2025
The date of order : 24.07.2025
The final order : Acquittal
Ld. APP for State : Sh. Vinay Tehlan
Brief Facts
1. It is the case of the prosecution that on 06.02.2019, HC Sumit Kumar
along with Ct. Sandeep were on patrolling duty in beat no. 8. While
patrolling, when they reached near Madhu Vihar Nala, they saw accused
coming towards them and upon seeing them in uniform, he tried to hide
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himself. On seeing him hiding, they ran towards him and stopped him,
asked him why he was hiding. Upon asking, he did not give any
satisfactory answer and thereafter, HC Sumit with the help of Ct. Sandeep
personally searched the person whose name he came to know as Kapil
(accused). Upon search, one desi katta and two live cartridges were
recovered from him. He informed about this to the DO. Thereafter, PSI
Tanish Kumar along with Ct. Om Prakash came to the spot.
2. An FIR bearing no. 83/2019 u/s 25 Arms Act came to be registered at
PS Dabri.
3. Investigation was set into motion and was conducted, firstly, by IO SI
Tanish Kumar and then by ASI Raj Kumar who filed the Chargesheet under
Section 25 Arms Act.
4. After taking cognizance of the offence, the accused was summoned to
face trial. On his appearance, a copy of chargesheet along with documents
were supplied to the accused in terms of Section 207 of the Code of
Criminal Procedure (hereinafter referred to as ‘CrPC‘). On finding a prima
facie case against him, charge under Section 25 Arms Act was framed
against the accused to which the accused pleaded not guilty and claimed
trial.
5. In order to establish the case, the prosecution examined the following
witnesses.
6. HC Sumit Kumar was examined as PW1. He stated thus: “On
06.02.2019, I was posted at PS Dabri as Ct. On that day, I along with Ct.
Sandeep was on patrolling duty in beat no. 8. While patrolling, when we
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reached near Madhu Vihar Nala, I saw accused coming towards us and
upon seeing us in uniform, he tried to hide himself. On seeing him hiding,
we ran towards him and stopped him, asked him why he was hiding. Upon
asking, he did not give any satisfactory answer and thereafter, I with the
help of Ct. Sandeep pesonally searched the person whose name I came to
know as Kapil (accused). Upon search, one desi katta and two live
cartridges were recovered from him. I informed about this to the DO.
Thereafter, PSI Tanish Kumar along with Ct. Om Prakash came to the spot.
IO asked 4-5 public person to join the investigation but they refused to join
the same by stating their personal reasons and without stating their names. I
handed over abovesaid case property and accused persons to IO/PSI Tanish.
IO prepared sketch for case property Ex. PW-1/A bearing my signature at
point A, seized the same vide seizure memo Ex. PW-1/B bearing my
signature at point A, recorded my statement which is Ex. PW1/C (bearing
my signature at point A) and prepared the rukka in my presence Ex.
PW1/D. After that IO handed over seal to Ct. Sandeep and gave rukka to
Ct. Om Parkash for registration of FIR. Thereafter, Ct. Om Parkash went to
PS and got the FIR registered, after sometime, he came back at the spot and
handed over copy of FIR and original rukka to IO. IO prepared the site plan
at my instance Ex. PW1/E bearing my signature at point A, arrested the
accused vide arrest memo Ex. PW-1/F bearing my signature at point A,
personal search vide personal search memo Ex. PW-1/G bearing my
signature at point A, recorded disclosure statement of accused vide memo
Ex. PW1/H (bearing my signature at point A). IO recorded my statement
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u/s 161 Cr.P.C. I can identify the accused. Accused is present in the court
and correct identified by the witness. I can identify the case property, if
shown to me. At this stage, MHCM has produced the case property i.e. one
yellow colour large envelope sealed with the seal of FSL VRA Delhi. Same
is opened with the permission of court. Same is found containing one
transparent container. Same is opened with the permission of court and
found containing one live cartridge and one empty cartridge. Same is
shown to the witness and witness correctly identified the same as recovered
from the accused.
7. In his cross examination PW 1 stated thus: “I reached at the alleged
spot at about 10:20 PM. IO came at the spot at about 10:45 PM. Ct. Om
Parkash left for registration of FIR at about 11:58 PM and came back at the
spot at about 01:20 AM. The distance between alleged spot and PS is 3.5
km. I saw the accused first and apprehended him when he was hiding. IO
prepared age memo, arrest memo, personal search memo and site plan by
the time Ct. Om Parkash came back at the spot with FIR. Same was
prepared at the spot while sitting at bike. After Ct. Om Parkash came at the
spot, IO added FIR Number on the documents i.e. age memo, arrest memo,
personal search memo and site plan. We all left the spot at about 01:40 AM.
IO prepared disclosure statement of accused in my presence. There were no
houses and shops at the alleged spot. It is correct that seal handing over
memo was not prepared by the IO nor seal was handed over to Ct. Sandeep
in the presence of any witness. It is correct that rukka, my statement,
seizure memo, sketch was prepared before registration of FIR. It is wrong
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to suggest that I am deposing falsely at the instance of IO. It is further
wrong to suggest that no recovery was made from the accused and same is
being implanted on him while sitting at PS. It is further wrong to suggest
that all the documents and statements were prepared while sitting at PS by
the IO and nothing was prepared in my presence.”
8. SI Tanish was examined as PW 2. In his examination in chief he stated
thus: “On 06.02.2019, I was posted at PS Dabri as PSI. On that day, I
received information regarding apprehension of accused along with illicit
weapon vide DD No.83B Ex. X1. Thereafter, I along with Ct. Om Prakash
reached at the spot i.e. Ganda Nala, Madhu Vihar, where I met Ct. Sumit
and Ct. Sandeep along with accused whose name I came to know later on
as Kapil. They also produced unlicensed desi katta and two live cartridges
recovered from accused Kapil. I asked 4-5 public persons to join the
investigation, however, all refused while stating personal reasons and
without stating their names and addresses. Thereafter, I prepared sketch for
desi katta and live cartridges already Ex. PW-1/A bearing my signature at
point X, seizure memo already Ex. PW-1/B bearing my signature at point
X, recorded statement of Ct. Sumit already Ex. PW-1/C bearing my
signature at point X, prepared rukka already Ex. PW-1/D bearing my
signature at point X, prepared site plan at the instance of Ct. Sumit already
Ex. PW-1/E bearing my signature at point X, arrested accused vide memo
already Ex. PW-1/F bearing my signature at point X, personal searched the
accused vide memo already Ex. PW-1/G bearing my signature at point X.
Thereafter, I along with accused and other staff members went to PS where
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I submitted all the relevant documents and case property at malkhana.
During investigation, I recorded statement of witnesses u/s 161 Cr.P.C.
Accused is present in the court and correctly identified by the witness. At
this stage, MHCM has produced one yellow coloured large envelop sealed
with the seal of HN. Same is opened with the permission of court and
found containing one transparent plastic box containing one desi katta and
two live cartridges. Same is shown to the witness and witness correctly
identified the same as recovered from the accused. Same is now Ex. A1
(colly).”
9. In his cross examination PW 2 stated thus: “I reached at the spot along
with Ct. Om Prakash at about 10:35 PM. No notice was served to any
public person. I was carrying scale, marker, pen and paper along with me. I
usually carry all these items when information is received regarding illegal
weapon. The nearest point where I met accused and Ct. Sumit, Ct. Sandeep
is Adarsh Apartment. I prepared seizure memo and other documents while
putting them on bike seat. I prepared seizure, sketch, statement of Ct.
Sumit, rukka before registration of FIR. Ct. Om Prakash left for registration
of FIR at about 11:45 PM and came back at about 01:00 AM. No addition /
alteration were done in seizure, sketch, statement of Ct. Sumit or rukka
after registration of FIR. Accused informed me that he has purchased this
weapon from one unknown person, however, during investigation, no clue
was found about that unknown person. I recorded statement of other police
officers under section 161 Cr.P.C at PS. It is wrong to suggest that nothing
was recovered from the possession of the accused nor any recovery was
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made from him. It is further wrong to suggest that same was implanted
upon accused by me or that all the documents were prepared while sitting
at PS. It is wrong to suggest that I am deposing falsely or accused is falsely
implicated in the present case.”
10. ASI Raj Kumar was examined as PW 3. He stated thus: “On
13.03.2020, present case was marked to me. During investigation I
collected FSL result and received sanction u/s39 Arms Act. Thereafter, on
completion of investigation, I filed the present chargesheet before the
concerned Court.” Opportunity to cross examine was given to the accused,
however, no cross examination was carried out.
11. The accused in his statement under Section 294 CRPC admitted the
following:
a. FIR No 83/2019 PS Dabri Ex P1.
b. Sanction u/s 39 Arms Act by Add. DCP Ex P2.
c. Ballistic Report from Forensic Dept vide No
SFSLDLH/1680/BAL/256/19/16715 Ex P3.
d. Entry in register No 19 vide RC No 31/21/19 Mark X.
e. Statement of Ct Khem Chand and HC Bahadur Ex P4 and Ex P5.
12. In vide of the above admission, witnesses at serial no 2, 3, 4, 5, 6, 8
and 9 were dropped from the list of witnesses.
13. The prosecution evidence was thereafter closed and the statement of
accused u/s 313 CrPC was recorded on 27.06.2025 wherein all the
incriminating evidence appearing on record against the accused was put to
him but he denied the same and stated that nothing was recovered from his
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possession and he was falsely implicated in the present case. The accused
chose not to lead any defence evidence.
14. I have heard the Ld. APP for the State and Ld. Defence counsel at
length, perused the record, gone through the relevant provisions of law and
given my thoughtful consideration to the matter.
Discussion/Findings
15. Before embarking on the analysis and appreciation of the statements
and evidences on record it is apposite to state that to bring home the guilt of
the accused in any criminal matter beyond the shadow of reasonable doubt
the burden rests always upon the prosecution. The burden of proof on the
prosecution is heavy, constant and does not shift. The case of the
prosecution needs to stand on its own footing failing which benefit of doubt
ought to be given in favor of the accused. Needless to say, in this case also,
with or without defense evidence, the prosecution has to establish its case
beyond reasonable doubt. On the touchstone of the above settled legal
proposition the facts of the present case are to be analysed.
I. Non-joining of Public Witnesses
16. One of the arguments of Ld. Counsel for the accused is that since no
independent witness has been joined at the time of investigation, it is,
therefore, difficult to believe the prosecution version as it creates a doubt
on the veracity of the statement of police witnesses.
17. This court has given its thoughts to the above contention of Ld.
Counsel for the accused. Perusal of the testimony of PW-1 and PW 2
reveals that they have stated that there categorically stated that there were
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public persons were passing by. They had also asked public persons to join
the investigation, but none of them had agreed. Thus, it is not the case of
the prosecution that no public person was present at or near the spot of
recovery. However, it is equally true that no steps are shown to have been
taken to note down the names and addresses of those persons. It is a well
settled proposition of law that non-joining of public witness throws doubt
over the fairness of the investigation by police. Section 100 (4) of the CrPC
also casts a statutory duty on an official conducting search to join two
respectable persons of the society. However, no public person has been
joined by the IO in the present case.
18. In a case titled as Nanak Chand Vs. State of Delhi, 1990 SCC
OnLine Del 469, Hon’ble High Court of Delhi has observed as under:
“The recovery was from a street with houses on both sides and shops
nearby. And, yet no witness from the public has been produced. Not that in
every case the police officials are to be treated as unworthy of reliance but
their failure to join witnesses from the public especially when they are
available at their elbow, may, as in the present case, cast doubt. They have
again churned out a stereotyped version. Its rejection needs no Napoleon on
the Bridge at Arcola (Emphasis supplied).
19. In the present case also, non-joining of any public person as a
witness creates doubt on the case of the prosecution. Although, this Court is
conscious of the fact that it is a well settled law that the prosecution case
cannot be thrown out or doubted on the sole ground of non-joining of
public witnesses as they keep themselves away from the Court unless it is
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inevitable, however, in the present case, it is not only the absence of public
witnesses which raises a doubt on the prosecution version but there are
other circumstances too, as discussed in the later part of the judgment,
which raise suspicion over the prosecution case.
II. No departure or the arrival entry of PW 1
20. The present case rests entirely on the alleged recovery of case
property, from the possession of the accused at the relevant time by a police
official namely PW 1, who was on patrolling duty at the relevant time and
place, as per the prosecution story. Police officials are under a statutory
duty to mark their departure and arrival in the register kept in the police
station for the purpose as per the Punjab Police Rules. Chapter 22 Rule 49
of Punjab Police Rules, 1934, provides that 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 shall be entered vide a separate entry
and this entry shall be made immediately on arrival or prior to the departure
of the officer concerned and shall be attested by the latter personality by
signature or seal. In the present case, no departure or the arrival entry has
been proved on the record by the prosecution. In absence of the departure
and arrival entry of the police officials their presence at the spot cannot be
believed. Reference can be placed upon Rattan Lal Vs. State 1987 (2)
Crimes 29 Delhi High Court wherein it has been observed:
“if the investigating agency deliberately ignores to comply with the
provisions of the Act, the courts will have to approach their action with
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reservations. The matter has to be viewed with suspicion if the provisions
of law are not strictly complied with and the least that can be said is that it
is so done with an oblique motive. This failure to bring on record, the DD
entries creates a reasonable doubt in the prosecution version and attributes
oblique motive on the part of the prosecution.”
III. Doubts in preparation of Seizure Memo and Sketch of Knife.
21. There exists yet another discrepancy in the case of the prosecution.
PW 1 in his testimony stated that IO prepared the sketch of the knife,
seizure memo, recorded his statement and prepared the rukka. Then the IO
gave rukka to him for registration of FIR and he went to the PS for getting
the FIR registered. IO has also stated same as above. Thus, it is clear from
the testimony of PW 1 and PW 2 IO that the seizure memo of the case
property, and sketch of the knife were prepared before the rukka was
handed over by PW2 to Ct Om Prakash for registration of the FIR. The FIR
was thus, admittedly registered after the preparation of the seizure memo,
and sketch of the knife, however, surprisingly they bear the FIR number
and it is thus worth wondering that if the FIR was never registered at the
time when the seizure memo and sketch of the knife were prepared, how
the FIR number came to be noted in the seizure memo as well as in the
sketch of the knife since the number of the FIR could have come to
knowledge of PW 2 only after a copy of the FIR was brought to the spot by
Ct Om Prakash. Thus, the number of FIR in no circumstances could have
been mentioned by the IO on the seizure memo, and sketch of the knife
which came into existence before registration of the FIR.
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22. In this context, Hon’ble High Court of Delhi in Pawan Kumar v. The
Delhi Administration, 1987 SCC OnLine Del 290, has observed as under in
paragraph 6:
“Learned counsel for the State concedes that immediately after the arrest of
the accused, his personal search was effected and the memo Ex. PW11/D
was prepared. Thereafter, the sketch plan of the knife was prepared in the
presence of the witnesses. After that, the ruqa EX. PW11/F was sent to the
Police Station for the registration of the case on the basis of which the FIR,
PW11/G was recorded. The F.I.R. is numbered as 36, a copy of which was
sent to the I.O. after its registration. It comes to that the number of F.I.R.
came to the knowledge of the I.O. after a copy of it was delivered to him at
the spot by a constable. In the normal circumstances, the F.I.R. No. should
not find mention in the recovery memo or the sketch plan which had come
into existence before the registration of the case. However, from the perusal
of the recovery memo, I find that the FIR is mentioned whereas the sketch
plan does not show the number of the FIR. It is not explained as to how and
under what circumstances the recovery memo came to bear the F.I.R. No.
which had already come into existence before the registration of the case.
These are few of the circumstances which create a doubt, in my mind,
about the genuineness of the weapon of offence alleged to have been
recovered from the accused.”
23. In another case titled Mohd. Hashim v. State, 1999 SCC OnLine Del
859, the Hon’ble High Court of Delhi while dealing with an appeal under
the Narcotic Drugs and Psychotropic Substances Act, 1985 has also
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observed about the discrepancy, i.e., appearance of FIR number on seizure
memo and other documents before registration of FIR and it runs as under:
“Surprisingly, the secret information (Ex. PW7/A) received by the Sub-
Inspector Narender Kumar Tyagi (PW-7), the notice under Section 50 of
the Act (Ex. PW5/A) alleged to have been served on the appellant, the
seizure memo (Ex. PW1/A) and the report submitted under Section 57 of
the Act (Ex. PW7/D) bear the number of the FIR (Ex. PW4/B). The number
of the FIR (Ex. PW4/B) given on the top of the aforesaid documents is in
the same ink and in the same handwriting, which clearly indicates that
these documents were prepared at the same time. The prosecution has not
offered any explanation as to under what circumstance number of the FIR
(Ex. PW4/B) had appeared on the top of the aforesaid documents, which
were allegedly prepared on the spot. This gives rise to two inferences that
either the FIR (Ex. PW4/B) was recorded prior to the alleged recovery of
the contraband or number of the said FIR was inserted in these documents
after its registration. In both the situations, it seriously reflects upon the
veracity of the prosecution version and creates a good deal of doubt about
recovery of the contraband in the manner alleged by the prosecution.”
24. In the light of the abovesaid judgments, the mentioning of the
number of FIR in the seizure memo and sketch of the knife creates serious
doubt on the prosecution version and alleged recovery of buttondar knife
and it leads to only one conclusion that either the said documents were
prepared later on or that the FIR was registered earlier in point of time. In
both the aforesaid eventualities, a reasonable doubt has been raised on the
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version of the prosecution the benefit of which has to be given to the
accused.
IV. No search of PW 1 before search of accused.
25. Further, in the case in hand, the police official PW 1 allegedly
searched the accused and one buttondar Knife was allegedly recovered
from his possession. PW 1 nowhere in his examination in chief or from the
records of the case have offered his search to the accused. No document has
also not been filed by the prosecution which could even remotely suggest
that PW 1 offered his search before carrying out search of the accused. In
fact, nowhere from the reading of the entire case record it can be
deciphered that PW1 offered his search before searching the accused. In the
present matter it is clear from the record that after the apprehension of the
accused but before taking the formal/casual search of the accused, police
official(s) had not offered their own search to the accused. At this juncture,
it would be appropriate to refer to the judgment of Hon’ble Orissa High
Court reported as Rabindernath Prusty V/s State of Orissa, 1984 CRLJ
1392 wherein it was held as under:
“The next part of the prosecution case is relating to the search and recovery
of Rs.500/ from the accused. One of the formalities that has to be observed
in searching a person in that the searching Officer and others assisting him
should give their personal search to the accused before searching the person
of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar
V/s Kapil Singh). This rule is meant to avoid the possibility of implanting
the object which was brought out by the search. There is no evidence on14 of 15
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record whatsoever that the raiding party gave their personal search to the
accused before the latter’s person was searched. Besides the above, it is in
the evidence of PWs 2 and 5 that the accused wanted to know the reason
for which his person was to be searched and the reason for such search was
not intimated to the accused. No independent witness had witnessed the
search. In the above premises, my conclusion is that the search was illegal
and consequently the conviction based thereon is also vitiated”.
26. Thus, being guided by above said case law, it can be said that search
of the accused by above said police official(s) was in complete violation of
the above said case law and the same can be said to be illegal.
27. Thus, in light of the above discussion which throws doubt on the
authenticity of the prosecution version, this court is of the opinion that
prosecution has failed to prove its case beyond reasonable doubt that one
desi katta and two live cartridges was recovered from the possession of the
accused. The accused Kapil is, therefore, acquitted of the offence u/s 25
Arms Act.
Announced in the open court on 24.07.2025.
(Harshal Negi)
JMFC-02/Dwarka Court,
New Delhi, 24.07.2025
It is certified that the present judgment runs into 15 pages and each page
bears my signature.
Digitally signed (Harshal Negi)
by HARSHAL JMFC-02/DwarkaCourt,
HARSHAL NEGI New Delhi, 24.07.2025
NEGI Date:
2025.07.24
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