Delhi District Court
State vs Vivek@Vipin on 5 April, 2025
_______________________________________________________
IN THE COURT OF SH. MAYANK GOEL,
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, EAST,
KKD COURT, DELHI
_______________________________________________________
STATE Vs VIVEK @ VIPIN
FIR No. 113/2020
PS. NEW ASHOK NAGAR
CR. CASES 1241/2020
U/s 25 ARMS ACT
JUDGMENT
1) The date of commission : 12th March, 2020
of offence
2) The name of the complainant : Ct. Neeraj
3) The name & parentage of accused : Vivek @ Vipin
S/o Sh. Satender
R/o Vill. Ranholi,
Lalifpur, Distt.
Gautambudh Nagar, UP
4) Offences involved : U/s. 25 Arms Act
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 05.04.2025
8) Date of Institution : 09.05.2020
9) Judgment reserved on : 04.04.2025
10) Judgment announced on : 05.04.2025
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.1/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed by
MAYANK MAYANK GOEL
CR. CASES 1241/2020
GOEL Date: 2025.04.05
U/s 25 ARMS ACT 16:59:15 +0530
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 12.03.2020
at about 08.10 p.m, near Kalibadi Mandir, New Ashok Nagar,
Delhi, within the jurisdiction of PS New Ashok Nagar, the
accused was found in possession of one loaded country made
pistol having two live cartridges in it’s magazine with it’s total
length 15.6 cm, length of barrel 9.5 cm, length of butt 9.4 cm
and width of butt 5.3 cm without a valid license in
contravention of section 3 of Arms Act, 1959 and thereby
committed offence punishable U/s. 25 Arms Act.
2. After completion of investigation, charge sheet was prepared
and filed in the court against the accused whereupon
cognizance was taken for the said offence. After complying
with the provisions of Sec.207 Cr.P.C, arguments on charge
were heard and vide order dated 13.01.2025, charge was
framed against the accused for offence punishable u/s. 25 Arms
Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution examined 06 (six)
witnesses:
(a) PW-1/ ASI Youdhvir Singh deposed that on 12.03.2020, he
was posted as HC at PS New Ashok Nagar. On that day, he was
working as Duty Officer from 04:00 p.m. to 12 midnight. On that day,_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.2/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR
CR. CASES 1241/2020 MAYANK by
Digitally signed
MAYANK
U/s 25 ARMS ACT GOEL
GOEL
Date: 2025.04.05
16:59:22 +0530
at about 11:45 p.m, he had received a rukka from Ct. Ankush sent by
PSI Chandan Lakra. On the basis of the rukka, he had got the FIR
No. 113/2020 registered in the PS and handed it back to Ct. Ankush.
Copy of the FIR is Ex. PW-1/A (OSR), bearing his signature at Point
‘A’. He had also made the endorsement on the rukka, which is Ex.
PW-1/B, bearing his signature at Point ‘A’. He had also issued a
certificate u/s 65B of Evidence Act and the same is Ex. PW-1/C,
bearing his signature at Point ‘A’. PW1 was duly cross-examined by
the Ld. LAC for accused and was discharged.
(b) PW-2/HC Neeraj deposed that on 12.03.2020, he was posted as
constable at PS New Ashok Nagar. On that day, he along with Ct. Sunil
were on Beat Patrolling Duty and during patrolling duty they were present
in the area of New Ashok Nagar and at about 08:10-08:15 p.m. they
reached at Kalibari Mandir, near Nala, New Ashok Nagar and after seeing
them in police uniform, one person who was coming from the side of New
Ashok Nagar Metro Station started to proceed towards the Metro Station
after taking U-Turn. On suspicion, they rushed towards him and he
apprehended the accused after chasing. He made cursory search of the
above said person and one pistol was recovered from the left dub of his
wearing pants and two live cartridges were recovered inside the magazine
of said pistol. He intimated the said fact to Duty Officer and IO SI
Chandan Lakra and Ct. Ankush came at the spot. They handed over the
custody of accused and case property to IO SI Chandan Lakra. After
interrogation, name of the above said person was disclosed as Vivek @
Vipin. IO had requested 3-4 public persons to join the investigation of the
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STATE Vs VIVEK @ VIPIN Page no.3/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR MAYANK by
Digitally signed
MAYANK
GOEL
CR. CASES 1241/2020 GOEL Date: 2025.04.05
16:59:28 +0530
U/s 25 ARMS ACT
present case but none of them agreed. No written notice could be served
upon those public persons who refused to join the investigation. After
unloading, IO had prepared the sketch memo of the said pistol after putting
the same on a white colour paper vide sketch memo Ex. PW-2/A, bearing
his signature at Point ‘A’, after measurement a total length of the katta from
barrel to handle was found to be 15.6 cm, length of the barrel was found to
be 9.5 cm and length of the handle was found to be 9.4 cm, width of the
barrel was found 3.2 cm. ‘Auto Pistol No. 150’ was written on the slide bar
of the barrel. The pistol was made up of iron like material and the butt of
the pistol was covered with some plastic like piece from both side and
fastened with one screw. There was fish like engraving on the butt of the
pistol. IO has also prepared the sketch memo of the both live cartridges.
After measurement total length of the live cartridge was found to be 2.6
cm. ‘KF’ and ‘7.65 MM’ was engraved on the base of both the cartridges.
Both cartridges were made up of brass like material. IO had prepared the
pulanda of the said pistol and cartridges and sealed the same with the seal
of ‘NAN08 PS New Ashok Nagar Distt East’ and seized the pulanda vide
seizure memo Ex. PW-2/B, bearing his signature at Point ‘A’. IO had also
filled the FSL form with impression of seal ‘NAN08 PS New Ashok
Nagar Distt East’. After use seal was handed over to Ct. Ankush. IO had
recorded his statement which is Ex. PW-2/C bearing his signature at point
A. IO prepared the rukka and handed over the same to Ct. Ankush for
registeration of FIR. After some time, Ct Ankush came back at the spot
and he handed over the original rukka and copy of FIR to IO. IO had
prepared the site plan of the spot at his instance vide site plan memo Ex.
PW-2/D bearing his signature at point A. IO interrogated the accused. IO
arrested the accused and conducted his personal search vide memo Ex.
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STATE Vs VIVEK @ VIPIN Page no.4/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed by
MAYANK MAYANK GOEL
CR. CASES 1241/2020 GOEL Date: 2025.04.05
16:59:34 +0530
U/s 25 ARMS ACT
PW-2/E, bearing his signature at Point ‘A’. IO had recorded the disclosure
statement of the accused vide disclosure memo Ex. PW-2/F, bearing his
signature at Point ‘A’. Thereafter, they along with accused and case property
came to LBS Hospital and medical examination of accused was got
conducted there. They came back at PS and case property was deposited in
the malkhana of the PS. Accused was lodged in police up after his medical
examination. IO had recorded his supplementary statement at PS. He
correctly identified the accused and case property in the court. The pistol is
Ex. P1, live cartridge is Ex. P2 and used cartridge is Ex. P3. PW2 was
duly cross-examined by the Ld. LAC for accused and was discharged.
(c) PW-3/HC Ankush deposed that on 12.03.2020, he was posted
as constable at PS New Ashok Nagar. On that day, he was on night
emergency duty along with SI Chandan Lakra from 08:00 PM to
08:00 AM. During emergency duty, SI Chandan Lakra had received a
call and they reached at Kalibari Mandir, near Nala, New Ashok
Nagar where Ct. Sunil and Ct. Neeraj wet them alongwith one
apprehended person. They handed over the custody of accused and
case property i.e. pistol and two live cartridges to IO SI Chandan
Lakra. After interrogation, name of the above said person was
disclosed as Vivek @ Vipin. IO had requested 2-3 public persons to
join the investigation of the present case but none of them agreed. No
written notice could be served upon those public persons who refused
to join the investigation. After unloading, IO had prepared the sketch
memo of the said pistol after putting the same on a white colour
paper vide sketch memo already Ex. PW-2/A, bearing his signature at
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.5/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed by
CR. CASES 1241/2020 MAYANK MAYANK GOEL
GOEL Date: 2025.04.05
U/s 25 ARMS ACT 16:59:40 +0530
Point ‘B’, after measurement a total length of the katta from barrel to
handle was found to be 15.6 cm, length of the barrel was found to be
9.5 cm and length of the handle was found to be 9.4 cm, width of the
barrel was found 3.2 cm. ‘Auto Pistol No. 150’ was written on the
slide bar of the barrel. The pistol was made up of iron like material
and the butt of the pistol was covered with some plastic like piece
from both side and fastened with one screw. There was fish like
engraving on the butt of the pistol. IO has also prepared the sketch
memo of the both live cartridges. After measurement total length of
the live cartridge was found to be 2.6 cm. ‘KF’ and ‘7.65 MM’ was
engraved on the base of both the cartridges. Both cartridges were
made up of brass like material. IO had prepared the pulanda of the
said pistol and cartridges and sealed the same with the seal of
‘NAN08 PS New Ashok Nagar Distt East’ and seized the pulanda
vide seizure memo already Ex. PW-2/B, bearing his signature at Point
‘B’. IO had also filled the FSL form with impression of seal ‘NAN08
PS New Ashok Nagar Distt East’. After use seal was handed over to
him. IO had recorded statement of Ct. Neeraj which is already Ex.
PW-2/C. IO prepared the rukka and handed over the same to him for
registeration of FIR. After some time, he came back at the spot after
registration of FIR and handed over the original rukka and copy of
FIR to IO. IO had prepared the site plan of the spot at the instance of
Ct. Neeraj vide site plan memo already Ex. PW-2/D. IO interrogated
the accused. IO arrested the accused and conducted his personal
search vide memo already Ex. PW-2/E, bearing his signature at Point
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.6/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
CR. CASES 1241/2020 MAYANK by MAYANK
GOEL
GOEL Date: 2025.04.05
U/s 25 ARMS ACT 16:59:46 +0530
‘B’. IO had recorded the disclosure statement of the accused vide
disclosure memo already Ex. PW-2/F, bearing his signature at Point
‘B’. Thereafter, they along with accused and case property came to
LBS Hospital and medical examination of accused was got conducted
there. They came back at PS and case property was deposited in the
malkhana of the PS. Accused was lodged in police up after his
medical examination. IO had recorded his statement at PS. He
correctly identified the accused and case property in the court. The pistol is
Ex. P1, live cartridge is Ex. P2 and used cartridge is Ex. P3 . PW3 was
duly cross-examined by the Ld. LAC for accused and was discharged.
(d) PW-4/SI Chandan Lakra deposed that on 12.03.2020, he was
posted as PSI at PS New Ashok Nagar. On that day, he was on night
emergency duty along with Ct. Ankush from 08:00 PM to 08:00 AM.
During emergency duty, he had received a call vide DD No. 44B which is
now marked as Mark 4A. Thereafter, they reached at Kalibari Mandir,
near Nala, New Ashok Nagar where Ct. Sunil and Ct. Neeraj wet them
alongwith one apprehended person. They handed over the custody of
accused and case property i.e. pistol and two live cartridges to him. After
interrogation, name of the above said person was disclosed as Vivek @
Vipin. He had requested 2 public persons to join the investigation of the
present case but none of them agreed. No written notice could be served
upon those public persons who refused to join the investigation. After
unloading, he had prepared the sketch memo of the said pistol after putting
the same on a white colour paper vide sketch memo already Ex. PW-2/A,
bearing his signature at Point ‘C’. After measurement a total length of the
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STATE Vs VIVEK @ VIPIN Page no.7/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
MAYANK by MAYANK
CR. CASES 1241/2020 GOEL
GOEL
Date: 2025.04.05
U/s 25 ARMS ACT 16:59:53 +0530
katta from barrel to handle was found to be 15.6 cm, length of the barrel
was found to be 9.5 cm and length of the handle was found to be 9.4 cm,
width of the barrel was found 3.2 cm. ‘Auto Pistol No. 150’ was written on
the slide bar of the barrel. The pistol was made up of iron like material and
the butt of the pistol was covered with some plastic like piece from both
side and fastened with one screw. There was fish like engraving on the butt
of the pistol. He has also prepared the sketch memo of the both live
cartridges. After measurement total length of the live cartridge was found
to be 2.6 cm. ‘KF’ and ‘7.65 MM’ was engraved on the base of both the
cartridges. Both cartridges were made up of brass like material. He had
prepared the pulanda of the said pistol and cartridges and sealed the same
with the seal of ‘NAN08 PS New Ashok Nagar Distt East’ and seized the
pulanda vide seizure memo already Ex. PW-2/B, bearing his signature at
Point ‘C’. He had also filled the FSL form with impression of seal ‘NAN08
PS New Ashok Nagar Distt East’. After use seal was handed over to Ct.
Ankush. He had recorded statement of Ct. Neeraj which is already Ex.
PW-2/C bearing his signature at point B. He prepared the rukka which is
Ex. PW-4/A bearing his signature at point A. He handed over the rukka to
Ct. Ankush for registeration of FIR. After some time, Ct. Ankush came
back at the spot after registration of FIR and handed over the original
rukka and copy of FIR to him. He had prepared the site plan of the spot at
the instance of Ct. Neeraj vide site plan memo already Ex. PW-2/D bearing
his signature at point B. He interrogated the accused. He arrested the
accused and conducted his personal search vide memo already Ex.
PW-2/E, bearing his signature at Point ‘C’. He had recorded the disclosure
statement of the accused vide disclosure memo already Ex. PW-2/F,
bearing his signature at Point ‘C’. Thereafter, they along with accused and
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STATE Vs VIVEK @ VIPIN Page no.8/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR
CR. CASES 1241/2020
Digitally signed by
MAYANK MAYANK GOEL
U/s 25 ARMS ACT GOEL Date: 2025.04.05
17:00:09 +0530
case property came to LBS Hospital and medical examination of accused
was got conducted there. They came back at PS and case property was
deposited in the malkhana of the PS. Accused was lodged in police up after
his medical examination. He recorded the statement of Ct. Neeraj, Ct.
Ankush and Ct. Sunil at PS. He had sent the pistol and live cartridges to
FSL for their ballistic examination but the same were returned due to
Covid 19 pandemic. After completion of investigation, he prepared the
charge-sheet and filed before the court. He correctly identified the accused
and case property in the court. The pistol is Ex. P1, live cartridge is Ex. P2
and used cartridge is Ex. P3. PW4 was duly cross-examined by the Ld.
LAC for accused and was discharged.
(e) PW-5/HC Sunil Kumar deposed that on 12.03.2020, he was
posted as constable at PS New Ashok Nagar. On that day, he along with Ct.
Neeraj were on area Beat Patrolling Duty and during patrolling duty they
were present in the area of New Ashok Nagar and at about 08:10 p.m. they
reached at Kalibari Mandir, near Nala, New Ashok Nagar and after seeing
them in police uniform, one person who was coming from New Ashok
Nagar Metro Station side started towards the Metro Station and took U-
Turn. Upon suspicion, they tried to chase him and Ct. Neeraj overpowered
him. Ct. Neeraj made cursory search of the above said person in his
presence and one courtrymade pistol was recovered from the left dub of his
wearing pants and two live cartridges were found inside the magazine of
said pistol. Ct. Neeraj informed in this regard to Duty Officer. After some
time, IO SI Chandan Lakra and Ct. Ankush came at the spot. They handed
over the custody of accused and case property to IO SI Chandan Lakra.
After interrogation, name of the above said person was disclosed as Vivek
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STATE Vs VIVEK @ VIPIN Page no.9/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
MAYANK by MAYANK
CR. CASES 1241/2020 GOEL
GOEL
Date: 2025.04.05
U/s 25 ARMS ACT 17:00:14 +0530
@ Vipin. IO had requested 3-4 public persons to join the investigation of
the present case but none of them agreed, however no written notice could
be served upon those public persons who refused to join the investigation.
Thereafter, IO prepared the sketch memo of the said countrymade pistol
and two live cartridges vide sketch memo already Ex. PW-2/A, bearing his
signature at Point ‘C’. After measurement total length of the live cartridge
was found to be 2.6 cm. ‘KF’ and ‘7.65 MM’ was engraved on the base of
both the cartridges. Both cartridges were made up of brass like material. IO
had prepared the pulanda of the said pistol and cartridges and sealed the
same with the seal of ‘NAN08 PS New Ashok Nagar Distt East’ and
seized the pulanda vide seizure memo already Ex. PW-2/B, bearing his
signature at Point ‘C’. IO had also filled the FSL form with impression of
seal ‘NAN08 PS New Ashok Nagar Distt East’. After use seal was
handed over to Ct. Ankush. IO had recorded statement of Ct. Neeraj which
is already Ex. PW-2/C. Thereafter, IO prepared the rukka and handed over
the same to Ct. Ankush for registeration of FIR. After some time, Ct
Ankush came back at the spot and he handed over the original rukka and
copy of FIR to IO. IO had prepared the site plan of the spot at the instance
of Ct. Neeraj. IO interrogated the accused. IO arrested the accused and
conducted his personal search vide memo already Ex. PW-2/E, bearing his
signature at Point ‘C’. IO had recorded the disclosure statement of the
accused vide disclosure memo already Ex. PW-2/F, bearing his signature
at Point ‘C’. IO had recorded his statement in this regard. Thereafter, they
along with accused and case property came to LBS Hospital and medical
examination of accused was got conducted there. They came back at PS
and case property was deposited in the malkhana of the PS. Accused was
sent to police up after his medical examination. He correctly identified the
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STATE Vs VIVEK @ VIPIN Page no.10/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
MAYANK by MAYANK
CR. CASES 1241/2020 GOEL
GOEL
Date: 2025.04.05
U/s 25 ARMS ACT 17:00:20 +0530
accused and case property in the court. The pistol is Ex. P1, live cartridge
is Ex. P2 and used cartridge is Ex. P3. PW5 was duly cross-examined by
the Ld. LAC for accused and was discharged.
(f) PW-6/SI Shankar deposed that in the year 2020, he was posted
as SI at PS New Ashok Nagar. He joined investigation of this case by order
of SHO PS New Ashok Nagar. Upon perusal of police file, he found that
FSL result was not with the case file. He obtained FSL result from ballistic
division dt. 28.04.2022 which is now Ex. PW-6/A. He attached the FSL
result alongwith Sanction u/s 39 of Arms Act dt. 26.09.2022 which is now
Ex. PW-6/B. Thereafter, he filed supplementary charge-sheet before the
Hon’ble Court. PW6 was not cross-examined by the Ld. LAC for
accused and was discharged.
4. Thereafter, PE was closed and statement of accused U/s 313,
Cr.P.C. was recorded by this court on 03.04.2025 in which
accused took the plea that he is innocent and falsely implicated
in the present case.
5. No witness has been examined by accused in his defence.
Therefore, DE stands closed.
6. I have heard the Ld. APP for the State and Ld. LAC for the
accused.
7. At the outset, Ld. Counsel for accused has taken the plea that
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STATE Vs VIVEK @ VIPIN Page no.11/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
CR. CASES 1241/2020 MAYANK by MAYANK
GOEL
GOEL Date: 2025.04.05
U/s 25 ARMS ACT 17:00:27 +0530
he is innocent and falsely implicated in the present case and he
was only gambling at that time.
8. It is fundamental principal of criminal jurisprudence that an
accused is presumed to be innocent and, therefore, the burden
lies on the prosecution to prove the guilt of the accused beyond
reasonable doubts. The general burden of establishing the guilt
of accused is always on the prosecution and it never shifts. It
is settled preposition that the prosecution has to prove the guilt
of accused beyond all reasonable doubt and that too by leading
independent, reliable and unimpeachable evidence. There is no
controversy to the proposition that the accused is entitled to the
benefit of every doubt occurring in the prosecution case.
9. Evaluating the facts and evidence discussed above, at the
outset, it comes out that no independent witness was joined in
the investigation. The Hon’ble Supreme court in STATE OF
PUNJAB V. BALBIR SINGHAIR 1994 SC 1872, held that :
“It therefore emerges that non-compliance of these provi-
sions i.e. Sections 100 and 165 Cr.P.C. would amount to an
irregularity and the effect of the same on the main case de-
pends upon the facts and circumstances of each case. Of
course, in such a situation, the court has to consider whether
any prejudice has been caused to the accused and also exam-
ine the evidence in respect of search in the light of the fact
that these provisions have not been complied with and fur-
ther consider whether the weight of evidence is in any man-
ner affected because of the non-compliance. It is well-settled
that the testimony of a witness is not to be doubted or dis-
carded merely on the ground that he happens to be an official_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.12/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
MAYANK by MAYANK
CR. CASES 1241/2020 GOEL
GOEL
Date: 2025.04.05
U/s 25 ARMS ACT 17:00:39 +0530
but as a rule of caution and depending upon the circum-
stances of the case, the courts look for independent corrobor-
ation. This again depends on question whether the official
has deliberately failed to comply with these provisions or fail-
ure was due to lack of time and opportunity to associate some
independent witnesses with the search and strictly comply
with these provisions. [Emphasis supplied]”
10. At this stage, it is also crucial to observe that PW2, PW3, PW4
and PW5 deposed to the effect that notice was not issued to
any person to join the investigation by the IO. PW2, PW3,
PW4 and PW5 deposed that it is correct that passersby were
coming and going through the spot. PW2, PW3, PW4 and
PW5 have admitted that the area from where the accused was
apprehended was a public place and despite that no public wit-
ness has been joined. Further, no notice has been served to any
of the public persons who refused to join the investigation.
Considering the above facts, it comes out that there was no
lack of time and opportunity with the IO to associate some in-
dependent witnesses with the search and strictly comply with
the provisions of code of criminal procedure. Merely mention-
ing that public persons were requested to join the investigation
is of no avail. Name of those persons are not mentioned. It is
not mentioned as to what action was taken against those per-
sons who refused to join the investigation.
11. The above stated observation of this court is fortified by the
observations of the Hon’ble Supreme Court of India in HEM-
RAJ VS STATE OF HARYANA (AIR 2005 SC 2110) “the
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STATE Vs VIVEK @ VIPIN Page no.13/18
FIR No. 113/2020 Digitally signed
PS. NEW ASHOK NAGAR MAYANK by MAYANK
GOEL
CR. CASES 1241/2020 GOEL Date: 2025.04.05
17:00:47 +0530
U/s 25 ARMS ACT
fact that no independent witness though available, was ex-
amined and not even an explanation was sought to be given
for not examining such witness is a serious infirmity in the
prosecution case…”
12. Furthermore, in case titled ROOP CHAND V/S STATE OF
HARYANA, 1999 (1)C.L.R 69, the Hon’ble High Court of
Punjab & Haryana held as following:
“…It is well settled principle of the law that the Investigating
Agency should join independent witnesses at the time of re-
covery of contraband articles, if they are available and their
failure to do so in such a situation casts a shadow of doubt
on the prosecution case. In the present case also admittedly
the independent witnesses were available at the time of recov-
ery but they refused to associate themselves in the investiga-
tion. This explanation does not inspire confidence because
the police officials who are the only witnesses examined in
the case have not given the names and addresses of the per-
sons contacted to join. It is a very common excuse that the
witnesses from the public refused to join the investigation. A
police officer conducting investigation of a crime is entitled to
ask anybody to join the investigation and on refusal by a per-
son from the public the Investigating Officer can take action
against such a person under the law. Had it been a fact that
he witnesses from the public had refused to to join the invest-
igation, the Investigating Officer must have proceeded
against them under the relevant provisions of law. The fail-
ure to do so by the police officer is suggestive of the fact that
the explanation for non-joining the witnesses from the public
is an after thought and is not worthy of credence. All these
facts taken together make the prosecution case highly doubt-
ful…”
13. Moving further, this Court is conscious of precedent laid down
by Hon’ble High Court of Delhi in SAFIULLAH V. STATE,
1993 (1) RCR (CRIMINAL) 622, that :
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STATE Vs VIVEK @ VIPIN Page no.14/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed by
MAYANK MAYANK GOEL
CR. CASES 1241/2020 GOEL Date: 2025.04.05
17:00:53 +0530U/s 25 ARMS ACT
“The seals after use were kept by the police officials them-
selves. Therefore, the possibility of tampering with the con-
tents of the sealed parcel cannot be ruled out. It was very es-
sential for the prosecution to have established from stage to
stage the fact that the sample was not tampered with. …..
Once a doubt is created in the preservation of the sample the
benefit of the same should go to the accused.”
14. The case property in the present matter was lying in the
Malkhana of the same police station where the police officials
having the possession of seal were posted. There was ample
opportunity for tampering with the case property. Hence, con-
sidering the legal position, the benefit of doubt should be given
to the accused.
15. Besides all this, in the present case, the aforesaid lapse on the
part of police officials assumes significance on account of an-
other grave contradiction apparent in the document i.e. The
sketch memo of the knife and seizure memo of the knife bear
the number of FIR. As per the rukka and testimony of wit-
nesses, the sketch memo of the knife, seizure memo, site plan,
disclosure statement, personal search were prepared prior to re-
gistration of FIR. If that be so then it is questionable as to how
the sketch memo, seizure memo, site plan, disclosure state-
ment, personal search bears the FIR number. This gives rise to
two inferences that either the FIR was recorded prior to the al-
leged recovery of the case property or number of the said FIR
was inserted in the document after its registration. In both the
situations, it seriously questions the veracity of the prosecution
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.15/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
MAYANK by MAYANK
CR. CASES 1241/2020 GOEL
GOEL
Date: 2025.04.05
U/s 25 ARMS ACT 17:01:15 +0530
version and creates a good deal of doubt about the recovery of
the case property in the manner alleged by the prosecution.
That being so, the benefit arising out of such a situation must
necessarily go to the accused.
16. In this regard, reference can is also made to the judgment of
Hon’ble High Court of Delhi in case titled as “MOHD.
HASIM V/S STATE” 1999 VI AD (DELHI) 569 wherein it
was observed:
“…documents prepared before registering the FIR bears FIR
numbers, meaning thereby either FIR was recorded posterior
in time or that documents were prepared after the recording
of FIR, and in both cases, prosecution case would collapse.”
17. Further, in order to ensure fair investigation, the prosecution
witnesses must have offered their personal search to some in-
dependent witness. However, as no such precaution was taken
by prosecution witnesses, therefore, the doubt as to the false
plantation of the case property upon the accused cannot be
ruled out. Moreover, it is admitted fact that no photography or
videography of the recovery has been done. In “S. L. GOS-
WAMI VS. STATE OF M.P.“, 1972, CRI.L.J 511 (SC), the
Hon’ble Supreme Court of India held:
“… in our view, the onus to proving all the ingredient of an
offence is always upon the prosecution and at no stage does it
shift to the accused. It is no part of the prosecution duty to
somehow hook the crook. Even in case where the defence of
the accused does not appear to be credible or is palpably false
that burden does not become any the less. It is only when this_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.16/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR MAYANK by
Digitally signed
MAYANKCR. CASES 1241/2020
GOEL
GOEL Date: 2025.04.05
17:01:21 +0530
U/s 25 ARMS ACT
burden is discharged that it will be for the accused to explain
or controvert the essential elements in the prosecution case,
which would negative it. It is not however for the accused
even at the initial stage to prove something which has to be
eliminated by the prosecution to establish the ingredient of
the offence with which he is charged, and even if the onus
shifts upon the accused and the accused has to establish his
plea, the standard of proof is not the same as that which vests
upon the prosecution…”
18. The onus and duty to prove the case against the accused was
upon the prosecution and the prosecution must establish the
charge beyond reasonable doubt. It is also a cardinal principle
of criminal jurisprudence that if there is a reasonable doubt
with regard to the guilt of the accused is entitled to benefit of
doubt resulting in acquittal of the accused. Reference may also
be made to the judgment titled as Nallapati Sivaiah V. sub di-
visional Officer, Guntur Report as Viii (2007) Slt 454(SC).
19. It is well settled that prosecution has to stand on its own legs.
As discussed hereinbefore and considering all the facts, cir-
cumstances and evidences, all the witness supported the pro-
secution version from its roots and made the entire story of
prosecution highly reliable and unimpeachable.
20. It is settled preposition that the prosecution has to prove the
guilt of accused beyond all reasonable doubt and that too by
leading independent, reliable and unimpeachable evidence.
There is no controversy to the proposition that the accused is
entitled to the benefit of every doubt occurring in the prosecu-
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.17/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed
by MAYANK
CR. CASES 1241/2020 MAYANK GOEL
GOEL Date:
U/s 25 ARMS ACT 2025.04.05
17:01:27 +0530
tion case. The general principles of criminal jurisprudence,
namely, that the prosecution has to prove its case beyond reas-
onable doubt and that the accused is entitled to the benefit of a
reasonable doubt, are to be borne in mind.
21. In view of above said discussion, the prosecution has failed to
prove the guilt of the accused beyond reasonable doubt. Ac-
cordingly, Accused Vivek @ Vipin is acquitted of the charges
u/s.25 Arms Arms Act framed in the present case. Case prop-
erty be confiscated to the State. Same be destroyed after expiry
of period of appeal. Bail bond, if any, already on record are
hereby extended in terms of Section 437A of Cr.P.C.
22. File be consigned to record room after necessary compliance.
Announced in open court
on 05th April, 2025
(MAYANK GOEL)
ACJM:EAST: KKD COURTS
DELHI/05.04.2025
_______________________________________________________________________________________
STATE Vs VIVEK @ VIPIN Page no.18/18
FIR No. 113/2020
PS. NEW ASHOK NAGAR Digitally signed by
CR. CASES 1241/2020 MAYANK MAYANK GOEL
U/s 25 ARMS ACT GOEL Date: 2025.04.05
17:01:39 +0530
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