Union Of India vs Sandeep Kumar

4) The Tribunal found that the findings recorded by the DCM that the charge against the accused was the theft of two pistols [(i) Pistol Browning 9mm, Butt No.1 – Reg. No. T-5251; and (ii) Pistol Browning 9mm, Butt No. 22 – Reg. No. B-3927] on April 6, 2006 but no physical inspection appears to have been done till the loss was found on May 12, 2006. The Tribunal also found that the written confession (Ex.8 and Ex.9) given by the accused is in the presence of entire Squadron, thus, such oral confessions are made to persons in Army cannot be relied upon referring to Army Order No.256 of 1972. It was also held that it is not clear as to whether the accused were in custody as no date is mentioned on the written confessional statements and that there is nothing on record as to how and on whose instance the accused volunteered to reduce in writing the said confessions. The Tribunal found that no recoveries were affected in pursuance of the confessional statements of either of the accused as the pistols had already been recovered. The Tribunal also found that the two slips (Ex.12 and 3 DCM 4 hereinafter referred to as the ‘accused’ 2 Ex.15) relied upon by the prosecution were allowed to be proved by the secondary evidence but no evidence was led in regard to existence of any such slip or loss of the said slip. Therefore, no secondary evidence can be allowed. The Tribunal also held that the prosecution case was not put to accused - Sandeep Kumar as required by Army Rule 58 which is akin to statement under Section 313 of the Code of Criminal Procedure, 1973 5. The Tribunal concluded as under:

From May 3, 2006 onwards, the Regiment commenced its movement from Binjarwali to general area Bikamsar. The marching out reflected 50 pistols signed by Squadron Commander. Dafedar Vijaypal, member of tank crew handed over his keys to the Senior JCO Risaldar Katar Singh. It is also mentioned in the report that an order was received on May 9, 2006 at 1500 hrs. that all participating crews were to carry weapons. Dafedar Raibir Singh counted 48 pistols. Senior JCO Risaldar Katar Singh did not register the difference nor informed anyone. At the end of conversion exercise, the loss of weapons was reported at 1030 hours on May 13, 2006. It was also reported that Court of Inquiry has been called for on May 18, 2006 to assemble on May 26, 2006. The report is that the loss has occurred between April 27, 2006 at Binjarwali and May 9, 2006 at Mittasar. The report is also to the effect that an FIR No. 644 was lodged with PS Sardarshahar about the loss of weapons. It was also reported that T-90 tank has a three-member crew but the loss of two pistols have minimum impact on the 4 operational efficiency. The prima facie opinion in the report is as under:

47) In view thereof, we find that the Tribunal exceeded its jurisdiction while setting aside the order of conviction passed by the DCM.

48) Consequently, criminal appeals arising out of Diary No.9218 of 2016 filed by the Union of India are allowed, whereas, the criminal appeals arising out of Diary Nos.7204 of 2016 and 7205 of 2016 filed by Neeraj Kumar Dhaka and Sandeep Kumar respectively are dismissed. However, the sentence imposed upon the accused is reduced to the extent they had already undergone.

SEPTEMBER 13, 2019.