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Delhi District Court

Central Bureau Of Investigation vs Virender Singh Chauhan on 15 May, 2019

          IN THE COURT OF SHRI SANDEEP YADAV
       ADDL. SESSIONS JUDGE­02 : SOUTH EAST DISTRICT
                 SAKET COURT : NEW DELHI

Criminal Appeal No. 39/16

Central Bureau of Investigation
Through Inspector Kuldeep Singh
CBI, ACB, New Delhi.

                                                        .... Appellant
Versus

Virender Singh Chauhan
S/o. Sh. Borang Lal
R/o. Flat No., 4, Police Colony
Amar Colony
Lajpat Nagar
Delhi.

Permanent Address :
Village Madanpur Khadar
New Delhi
                                                        .... Respondent

         Date of Institution            :       10.03.2016
         Date of Arguments              :       12.03.2019
         Date of Judgment               :       15.05.2019


                                      JUDGMENT

1. Challenge is laid in this appeal filed by Central Bureau of Investigation to the acquittal of respondent Virender Singh Chauhan by learned Chief Metropolitan Magistrate (South­East), Saket Courts, New CA No. 39/16 1/9 Central Bureau of Investigation Vs. Virender Singh Chauhan Delhi vide judgment dated 12.08.2015.

2. This case was registered on the written complaint dated 18.06.2004 received from A.K. Pandey, Inspector CBI/ACB/New Delhi (PW9) wherein it was alleged that A.K. Pandey was investigating the case bearing no. RC 27(A)/2004­DLI against respondent Virender Singh Chauhan, the then SHO PS Kalyan Puri (hereinafter referred to as "the bribery case"). It was alleged that respondent was caught red handed while he was demanding and accepting bribe of Rs. 5,000/­ from complainant of bribery case. During the course search of office of respondent in the presence of independent witnesses, country made pistol was recovered from the almirah of respondent kept in his rest room. Respondent could not produced licence/documents for possessing the same. The country made pistol, stated to have been recovered from the rest room of respondent, was sent to FSL for examination and FSL in its letter categorized the weapon as firearm as defined under Arms Act. Accordingly, on the complaint of A.K. Pandey, FIR was registered on 19.06.2004. Investigation was carried out and respondent was charge sheeted. On 17.04.2013, charge was framed against the respondent under Section 25 of Arms Act. Respondent pleaded not guilty which necessitated the trial. Prosecution examined 11 witnesses to substance the charge against respondent. Respondent was examined under Section 313 Cr.PC wherein he denied all incriminatory evidence appearing against him. One defence witness namely DW 1 ASI Surender Pal, who was posted at PS Kalyan Puri on 03.06.2004, was also examined.

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Central Bureau of Investigation Vs. Virender Singh Chauhan

3. PW 2 G.P. Sharma and PW 3 Atlash Kumar Sharma accompanied CBI team as independent witness in the bribery case. These witnesses identified their signatures on various document viz. seizure memo of country made pistol, etc., PW 4 R.C.Sharma was one of the team members which laid the trap on 03.06.2004 for respondent. PW 4 R.C. Sharma deposed that office of respondent was checked and one country made revolver was recovered from the rest room of respondent. PW 5 HC Ravinder was posted as Constable at PS Kalyan Puri when the alleged incident took place. PW 6 Sh. Ajay Choudhary, who was then posted as Addl. DCP (South­East) accorded sanction under Section 39 of Arms Act for prosecution of respnodent. PW 7 Mohd. Sharif is the complainant in bribery case against respondent. PW 8 C.K. Sharma/Inspector CBI, who is the Investigating Officer in the present case, deposed about various steps taken and proceedings conducted during investigation of this case. PW 9 A.K. Pandey is the complainant in the present case. PW 10 A. Dey, Principle Scientific Officer & Head (CFSL)/CBI, New Delhi, identified his signatures on the document dated 30.06.2004 wherein it was mentioned that country made pistol was in working order.

4. It transpired from bare perusal of impugned judgment that entire evidence led by CBI has been discussed threadbare by learned Chief Metropolitan Magistrate in the impugned judgment. All the contentions raised by appellant have also been properly dealt with in the impugned judgment.

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Central Bureau of Investigation Vs. Virender Singh Chauhan

5. Respondent was acquitted by the trial court on following grounds :

(i) PW 2 G.P. Sharma, who is one of the witnesses to recovery of countrymade pistol admitted that he has signed documents relating to recovery of country made pistol in the office of CBI on the next day and these documents were not prepared in his presence nor he had gone through these documents.

(ii) PW 2 G.P. Sharma admitted that he has given a statement in the Court of learned Special Judge, CBI, Karkardooma Court to the effect that no country made pistol was recovered in his presence from anybody.

(iii) PW 3 Atlash Kumar Sharma, who is another witness to the recovery, admitted that documents signed by him in connection with this case were not read over to him nor given to him and he has put his signatures wherever he was asked to sign. PW 3 was also confronted with his statement given before learned Special Judge, CBI, Karkardooma Court and he admitted that he has stated that no country made pistol was recovered in his presence and he was told by one of the CBI officials that one katta has been recovered but no such katta was shown to him.

(iv) There is a court observation made at the time when weapon of offence was identified by PW 4 R.C. Sharma to the effect that one torn yellow colour envelop tied with rubber and it was torn to such an extent that weapon was clearly visible and it could be taken out easily without disturbing the seal.

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Central Bureau of Investigation Vs. Virender Singh Chauhan

(v) PW 5 HC Ravinder has admitted that he has not seen any almirah in the rest room of respondent as he never visited there.

(vi) PW 7 Mohd. Sharif denied the suggestion that country made pistol was recovered in his presence from the rest room of SHO PS Kalyan Puri.

6. Since the depositions of material witnesses viz, PW 2 to PW 9 suffer from material inconsistencies, the factum of recovery of weapon has not been proved.

7. There is unexplained delay in registration of FIR and benefit of same goes to accused. The country made pistol as per prosecution case was recovered from accused on 03.06.2004 while complaint was lodged by PW 9 A.K. Pandey on 18.06.2004 and FIR was registered on 19.06.2004. There is thus, delay of 16 days in registration of FIR which has not been explained. The explanation offered by PW 9 A.K. Pandey is that only when he confirmed that said pistol could be used for firing through letter dated 30.06.2004 of PW 10 A. Dey, Principle Scientific Officer & Head (CFSL), CBI, New Delhi), PW 9 was able to make up his mind to register the FIR in this case. If that was the case, the information in this case was received by PW 9 on 03.06.2004 and the FIR should have been registered on 03.06.2004 or immediately thereafter. However, the FIR was registered on 19.06.2004.

8. Sanction granted under Section 39 of Arms Act to prosecute CA No. 39/16 5/9 Central Bureau of Investigation Vs. Virender Singh Chauhan the respondent was not proper as it was not demonstrated that firearm or weapon pertaining to which sanction was prayed for, was actually taken to the concerned authority and that the said authority after looking all relevant papers and applying his mind, granted the sanction. Reference in this regard was made to the deposition of PW 6 Sh. Ajay Chaudhary, Addl. DCP, sanctioning authority who deposed that he only sees copy of FIR and has not seen the weapon in question.

9. Section 37 of Arms Act and Section 100 of Cr.PC were not complied with in the present case as the seized weapon alongwith its seizure memo was never produced before concerned Metropolitan Magistrate inspection.

10. The Investigating Officer of the present case was a member of raiding team which had visited the premises and had been an eye witness to the recovery itself and therefore, he was an interested witness.

11. The impugned judgment is assailed in the appeal on the ground that findings of trial court regarding non­application of mind by sanctioning authority which granted sanction under Section 39 of Arms Act is against facts and evidence of the case. It is pertinent to mention here that sanction was held to be invalid by learned Chief Metropolitan Magistrate not on the basis of evidence but on legal principle that weapon of offence was not produced before sanctioning authority when sanction was granted. In State (Govt. of NCT of Delhi) Vs. Rajesh - 2002 LawSuit (Delhi) 445, CA No. 39/16 6/9 Central Bureau of Investigation Vs. Virender Singh Chauhan it was held that it should be demonstrated that firearm or weapon pertaining to which sanction was prayed for, was actually taken to the concerned authority and that said authority after looking at all relevant papers and applying his mind granted necessary sanction.

12. In the present case, PW 6 Sh. Ajay Choudhary, the then Addl. DCP (South­East) admitted that weapon in question was not produced before him while obtaining sanction. Thus, it could be concluded that sanction in the present case granted by competent authority without weapon of offence being actually produced before him, was not proper sanction and hence, accused could not have been prosecuted under Section 25 of Arms Act.

13. The next challenge was laid to the observations of trial court was that proper site plan was not prepared in this case and the site plan which has come on record was prepared in different case. This contention of appellant Central Bureau of Investigation is found to be correct. Non­ preparation of site plan or defective site plan cannot be a ground for acquittal of accused.

14. The impugned judgment is also assailed on the ground that conclusion of trial court that recovery of country made pistol is doubtful, is contrary to the facts brought on record. Reference in this regard is made to the depositions of independent witnesses i.e. PW 2 G.P. Sharma and PW 3 CA No. 39/16 7/9 Central Bureau of Investigation Vs. Virender Singh Chauhan Atlash Kumar Sharma.

15. PW 2 G.P. Sharma and PW 3 Atlash Kumar Sharma have categorically deposed that they have signed relevant documents in the office of Central Bureau of Investigation and these documents were not prepared in their presence. In­fact, PW 2 G.P. Sharma and PW 3 Atlash Kumar Sharma have deposed that they have not gone through documents viz. seizure memo, etc. before signing the same. Truthfulness of depositions of PW 2 G.P. Sharma and PW 3 Atlash Kumar Sharma about recovery of weapon of offence from accused becomes seriously doubtful when they have admitted that they have deposed before learned Special Judge, CBI that no such weapon of offence was recovered from respondent. Hence, it was rightly concluded by learned Chief Metropolitan Magistrate that possession of country made pistol by accused was not proved by Central Bureau of Investigation beyond reasonable doubt.

16. The conclusion of learned Chief Metropolitan Magistrate that there was unexplained delay in registration of FIR and which was one of the ground of acquittal of accused is also challenged in the appeal. Reliance is placed on Ramesh Kumar Vs. State of Punjab (2001) & Sunil Kumar Vs. State of Rajasthan (2005). It is also stated that A.K. Pandey, Inspector, CBI has explained reasons for delay in registration of FIR.

17. It is, no­doubt, true that delay in registration of FIR per se cannot be a ground for acquittal of accused. However, when delay of registration of FIR is considered in conjunction with other factors viz.

CA No. 39/16 8/9

Central Bureau of Investigation Vs. Virender Singh Chauhan inconsistency in the depositions of PW 2 G.P. Sharma and PW 3 Atlash Kumar Sharma, invalid sanction under Section 39 Arms Act and other factors, same become relevant factor to determine as to whether a person is guilty of the offence or not.

18. The explanation given by A.K. Pandey, Inspector, CBI for delay in registration of FIR is not plausible as PW 9 deposed that only when he confirmed that said pistol could be used for firing through letter dated 30.06.2004 of PW 10 A. Dey, Principle Scientific Officer & Head (CFSL), CBI, New Delhi), PW 9 was able to make up his mind to register the FIR in this case. If that was the case, the information in this case was received by PW 9 on 03.06.2004 and the FIR should have been registered on 03.06.2004 or immediately thereafter. However, the FIR was registered on 19.06.2004.

19. After having considered grounds of appeal, oral arguments and having gone through the impugned judgment, it is concluded that learned Chief Metropolitan Magistrate while acquitting the accused has analyzed entire evidence meticulously and reached the right conclusion that charge could not be proved against respondent/accused beyond reasonable doubt. Thus, the appeal is devoid of merits and same is accordingly dismissed.

Trial court record be sent back alongwith copy of this order. Appeal file be consigned to Record Room.

Announced in open Court.

On 15.05.2019. (Sandeep Yadav) Addl. Sessions Judge­02 (South East) Saket Courts/New Delhi.

CA No. 39/16 9/9

Central Bureau of Investigation Vs. Virender Singh Chauhan