UNION OF INDIA & ORS. versus SANDEEP KUMAR ETC. on 13 September 2019

[2019] 12 S.C.R. 415

UNION OF INDIA & ORS.

v.

SANDEEP KUMAR ETC.

(Criminal Appeal Nos. 1388-1389 of 2019)

SEPTEMBER 13, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Armed Forces Tribunal Act, 2007 – s.15 – Power of theTribunal – 71 Armoured Regiment was deputed for T-90 Tanksconversion training at Pokhran Firing Range– Convoy moved fromPatiala to Pokhran – Weapons were carried in locked boxes–Physical check of weapons carried out and the Officer SquadronCommander (PW-1) confirmed that there were 50 pistols– At theend of conversion exercise, loss of 2 pistols was reported–Respondents-accused charged for committing theft of two pistols –As per the prosecution, the pistols were stolen when accused wereposted at Pokharan Field Firing Ranges – District Court Martial(DCM) convicted the accused with rigorous imprisonment for 1 yearand six months and dismissal from service – Set aside by the ArmedForces Tribunal, directing reinstatement of both the accused– Held:Primary evidence of the prosecution is the confessional statementsmade by the accused – Tribunal completely misread Army OrderNo. 256 of 1972 to hold that the confessional statements areinadmissible having been made to the Army – In the present case,PW-1 is the Squadron Commander before whom the accused madeoral confession, who took the accused to PW-6 (Second-in-Command of the Regiment) –Under the orders of PW-1 and PW-6,the accused confessed before the entire Squadron – Accused thenmade written confession, recording of which is video-recorded aswell – In terms of s.133 of the 1950 Act r/w s.25, Evidence Act, thestatement made before Police Officer such as Military Police Officeralone is inadmissible in evidence and not the statement made beforeother persons – Therefore, such confession is not hit by s.25,Evidence Act r/w. s.133, 1950 Act and the Army Order – Further, noreason not to take into consideration the scanned copies of theoriginal handwritten slips in evidence, as PW-1 & PW-6 are thepersons who saw the originals and deposed that the scanned copies

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Aare the same as originals – Power of the Tribunal u/s.15 is wide butsuch wide powers do not confer jurisdiction to reverse the findingsmerely because the Tribunal finds that different view is possible–Tribunal exceeded jurisdiction while setting aside the order ofconviction passed by the DCM – Criminal appeals filed by the Unionof India are allowed, while that of the accused are dismissed –BHowever, the sentence imposed upon the accused is reduced to theextent already undergone – Army Act, 1950 – s.133 – Evidence Act,1872– ss.1, 25 – Army Rules, 1954 – r.58.

Army Rules, 1954 – r.58 – 71 Armoured Regiment was deputedfor T-90 Tanks conversion training at Pokhran Firing Range – AtCthe end of conversion exercise, loss of 2 pistols was reported –Respondents-accused charged for committing theft of two pistols –Prosecution case based upon written confessional statements madeby accused – Retraction of the confessional statements – Effect of– Held: In addition to the confessional statements, oral confessionsDwere made before Squadron Commander (PW-1) and PW-6 (Secondin Command of the Regiment)– PW-6 was not cross-examined inrespect of any involuntary nature of the confession or that he gavebeatings to the accused as averred by them in their statements u/r.58 –None of the prosecution witnesses were cross-examined inrespect of threats/beatings inflicted on any of the two accused –ESuch statement of the accused u/r.58 is to explain the circumstancesappearing in evidence against him– Accused could not set updefence with which none of the prosecution witness was confrontedwith – Therefore, the retraction of the confessional statements madein their statement u/r.58 is of no consequence.F

Conclusion

Army Act, 1950 – s.133 r/w s.25, 1872 Act – Held: In terms ofs.133 r/w s.25, Evidence Act, the statement made before PoliceOfficer such as Military Police Officer alone is inadmissible inevidence and not the statement made before other persons – EvidenceAct, 1872 – s.25.G

Army Rules, 1954 – r.58 – 71 Armoured Regiment was deputedfor T-90 Tanks conversion training at Pokhran Firing Range – Atthe end of conversion exercise, loss of 2 pistols was reported–Respondents-accused charged for committing theft of pistols–District Court Martial (DCM) convicted the accused – Set aside by H

the Armed Forces Tribunal – Plea of the accused that since theprosecution did not put the incriminating circumstances appearingin the evidence to the accused u/r.58, therefore, the conviction wasrightly set aside by the Tribunal– Held: Though, the incriminatingcircumstance should have been put to the accused in terms of r.58which is akin to s.313 of CrPC but, the detailed explanation givenby the accused rules out any prejudice caused to them on accountof absence of specific incriminating circumstances put to them –Code of Criminal Procedure, 1973 – s.313.

Disposing of the appeals, the Court

HELD : 1.1 The Rule 58, Army Rules, 1954 is toprovide an opportunity to an accused to explain the incriminatingcircumstances appearing against an accused. Such statementsare not an evidence, when it’s led by the accused who has notconfronted the prosecution witnesses with such defence in thecross examination of a witness examined by the prosecution.None of the prosecution witnesses were cross-examined inrespect of threats or beatings inflicted on any of the two accused.Such statements made under Army Rule 58 are not evidencewhich can be believed to doubt the findings recorded by DCM inthe absence of any such defence put to the witness. The witness,when in witness box, could respond to such plea of the accused.Such statement of the accused under Rule 58 is to explain thecircumstances appearing in evidence against him. The accusedcould not set up a defence with which none of the prosecutionwitness was confronted with. The statement of the accused is noton oath though he has an option to appear as a witness on oath.Therefore, self-serving statements made when opportunity wasgiven to accused under Army Rule 58 will not create any suspicionon the prosecution witnesses when there is not even a remotesuggestion to any of the prosecution witnesses who alone coulddepose the facts so stated by the accused. The Tribunal has setaside the secondary evidence in respect of the written slips (Ex.12and Ex.15). The Tribunal was of the opinion that the prosecutionis categorical that the theft of the pistols took place on April 6,2006 but thereafter physical verification was conducted on April27, 2006 where no loss was reported. It is categorical stand ofPW-1 that the report dated April 27, 2006 was prepared without AB

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Aany physical verification and for such report, he has been punishedas well. He has also deposed that there was procedural lapseinasmuch as the report was given on April 27, 2006 withoutphysical verification of the weapons and that there was no daily,weekly or monthly checking. PW-7 deposed that report was giventhat the weapons would be in place as no weapon has been issuedBto anyone. The suggestions put to the witnesses that physicalverification was done on April 27, 2006 or the pistols wererecovered in general area have been denied by all the witnesses.The stand of the prosecution that the pistols were stolen on April6, 2006 is based upon written and oral confession made by theCaccused. The primary evidence of the prosecution is theconfessional statements made by the accused along with thesupporting confessional statement made by brother of one of theaccused. [Paras 27, 30, 33, 34] [432-H; 433-A-B; 435-A-C;436-C-G]

D1.2 The statement of brother of one of the accused that hestayed in the Unit for 3-4 days is not made out as none of theprosecution witnesses were given such suggestion. The GuestRegister (Ex.22) shows his entry on June 18, 2006 in the Unitarea at Hisar. In the absence of any evidence that he stayed inthe Unit for 3-4 days or that he has seen that his brother beingEgiven beating is wholly unbelievable. In fact, the witness deposedthat he has not met his brother when he went to the Unit at Hisar.Therefore, the story that he saw his brother being given beatingis made up story when none of the prosecution witnesses weresuggested anything even remotely in this respect. TheFprosecution case is based upon written confessional statementsmade by the accused (Ex.8) and (Ex.9). In addition to theconfessional statements, oral confessions were made before PW-1 and PW-6. PW-6 was not cross-examined in respect of anyinvoluntary nature of the confession or that he is the person who has given beatings to the accused as averred by them in theirGstatements under Rule 58. The accused without asking anyquestion to any of the prosecution witness that they have givenbeatings as alleged by them in their statements, cannot doubtthe consistent evidence of the prosecution witnesses. Therefore,the retraction of the confessional statements made in their H

statement under Rule 58 is of no consequence when theprosecution witnesses have not been cross-examined in respectof involuntary nature of the confessions. The statement ofwitnesses of different ranks, could not be doubted by the Tribunal.The findings of the Tribunal are in fact based on ipse dixit of theTribunal. The Tribunal reproduced Army Order No. 256 of 1972in its judgment. However, the Tribunal has completely misreadsuch Army Order to hold that the confessional statements areinadmissible having been made to the Army. [Paras 35-37][437-A-F]

1.3 In terms of Section 1 of the Evidence Act, the provisionsof the Evidence Act are not applicable to the Court Martialconvened under the Army Act, the Naval Discipline Act, the IndianNavy (Discipline) Act, 1934 or the Air Force Act. But in terms ofSection 133 of the Act, the Evidence Act apply to all proceedingsbefore a Court Martial subject to the provisions of the said Act.In terms of Section 133 of the Act read with Section 25 of theEvidence Act, the statement made before a Police Officer suchas Military Police Officer alone is inadmissible in evidence andnot the statement made before the other persons. In the presentcase, PW-1 is the Squadron Commander before whom the accusedmade oral confession. He took the accused to PW-6. Under theorders of PW-1 and PW-6, the accused confessed before the entireSquadron on June 18, 2006. It was on June 19, 2006, the accusedgave a written confession in their handwriting. Recording of suchwritten confession is video-recorded as well. Therefore, suchconfession is not hit by Section 25 of the Evidence Act read withSection 133 of the Act and Army Order No. 265 of 1972. Thus,the office order distinguishing a Military Police Officer is separateand distinct from an Officer of the Army. Such distinction hasbeen conveniently overruled by the Tribunal. The confessionalstatement made by the accused before Military Police Officeralone is not admissible but the statement made before an ArmyOfficer is not hit by the provisions of Section 25 of the IndianEvidence Act, 1872. In fact, such statement is made before theentire Squadron apart before different officers coupled with writtenconfession which was video recorded as well. The accused havetried to create doubt on the prosecution story on the basis of the AB

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Afact that the originals of handwritten slip have not been produced.PW-1 has deposed that original of such slip has been lost duringtransit whereas the scanned copy is the true copy of the originalwhich the witness has seen. Such statement is supported bystatements of PW-5 who found the slip and PW-4 who recoveredthe cardboard shoebox. Still further, before the DCM, the accusedBhave not disputed the production of the slips by way of secondaryevidence. Therefore, no reason not to take into considerationsuch slips in evidence as PW-1 and PW-6 are the persons whosaw the originals and also deposed that the scanned copies arethe same as of originals. Therefore, the Tribunal erred in law inCreversing the findings recorded by the DCM while exercisingappellate jurisdiction under Section 15 of the Act. [Paras 38-41][438-E-H; 439-A-F]

1.4 Though, the incriminating circumstance should havebeen put to the accused in terms of Rule 58 of the Army RulesDwhich is akin to Section 313 of the Code but, the detailedexplanation given by the accused rules out any prejudice causedto them on account of absence of specific incriminatingcircumstances put to the accused. [Para 42] [439-H; 440-A]

1.5 Section 15 of the Act confers wide power on the TribunalEso as to allow an appeal against conviction by a Court Martialwhere the finding of the Court Martial is legally not sustainabledue to any reason; the finding involves wrong decision on aquestion of law or there was a material irregularity in the courseof the trial resulting in miscarriage of justice. Even though thepower of the Tribunal is wide but it is not merely a different opinionFon the appreciation of the evidence to interfere with the findingsrecorded by the Court Martial. The first ground of interferenceis whether the finding of the Court Martial is “legally notsustainable”. Therefore, to exercise such power, there has to beerror of law by the Court Martial which would confer jurisdictionGon the Tribunal to interfere against the conviction recorded bythe Court Martial. The second ground is “wrong application on aquestion of law”. However, the Tribunal, in the present case, hascommitted grave error in interfering with the finding of the CourtMartial by misreading an Army Order. There is no material H

irregularity pointed out by the Tribunal inasmuch as theirregularity pointed out is with regard to confessional statementsby Military Officer which is not a bar either under the EvidenceAct or under the Army Order issued under the Act. The Tribunalcould re-appreciate evidence to find out if any findings of theCourt Martial is legally not sustainable due to any reason; or thatthe finding involves wrong decision on a question of law or therewas a material irregularity in the course of the trial resulting inmiscarriage of justice. But such wide powers do not conferjurisdiction to the Tribunal to reverse the findings merely becauseit finds that different view is possible. In view thereof, the Tribunalexceeded its jurisdiction while setting aside the order ofconviction passed by the DCM. Consequently, criminal appealsarising out of Diary No.9218 of 2016 filed by the Union of Indiaare allowed, whereas, the criminal appeals arising out of DiaryNos.7204 of 2016 and 7205 of 2016 filed by the accused aredismissed. However, the sentence imposed upon the accused isreduced to the extent they had already undergone. [Paras 46-48][442-C-G; 443-A-B]

Keya Mukherjee v. Magma Leasing Limited & Anr.(2008) 8 SCC 447 : [2008] 6 SCR 1 ;Nar Singh v.State of Haryana (2015) 1 SCC 496 : [2014] 12 SCR218 – relied on.

Ajay Kumar Singh & Ors. v. The Flag OfficerCommanding-in-Chief & Ors.AIR 2016 SC 3528 :[2016] 5 SCR 957 ;Jai Dev & Anr. v. State of PunjabAIR 1963 SC 612 : [1963] SCR 489 ;Wasim Khan v.State of U.P. AIR 1956 SC 400 : [1956] SCR 191 ;Bhoor Singh v. State of Punjab AIR 1974 SC 1256 ;Santosh Kumar Singh v. State (2010) 9 SCC 747 : [2010]13 SCR 901 – referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 1388-1389 of 2019.

From the Judgment and Order dated 12.12.2013 of the ArmedForces Tribunal, Chandigarh Regional Bench at Chandimandir in T.A.No. 1247 of 2010/order dated 16.04.2014 in M.A. Nos. 3707 & 3708 ofC2014 in T.A. No. 1247 of 2010 (Arising out of Crl. Writ Petition No.1067 of 2008) and T.A. No. 1251 of 2010/ order dated 10.12.2015 inM.A. No. 3487, 2355 & 2356 of 2015 in T.A. No. 1251 of 2010 (arisingout of Crl. W.P. No. 1107 of 2008).

WithD

Criminal Appeal Nos. 1390, 1391 of 2019.

R. Balasubramanian, Sr. Adv., Ravinder Malik, Himanshu Sharma,Ms. Aditi Sharma, Seeta ram Sharma, Sandeep Singh, Ram NiwasSharma, Ms. Archana Pathak Dave, Mukesh Kumar Maroria, JitendraKumar Tripathi, Ms. Priyanka Das, Anmol Chandan, A. K. Sharma,EAdvs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Delay condoned. Appeals admitted.

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2. Criminal appeals arising out of Diary No. 9218 of 2016 arefiled by the Union of India whereas; criminal appeals arising out of DiaryNos. 7204 of 2016 and 7205 of 2016 are filed by accused - NeerajKumar Dhaka and Sandeep Kumar respectively.

3. The challenge in the appeals filed by the Union of India underGSection 30 of the Armed Forces Tribunal Act, 2007[1] is to an order passedon December 12, 2013 by the Armed Forces Tribunal[2] setting aside theorder of conviction & sentence and of dismissal consequent to District H

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Court Martial[3] proceedings conducted against the respondents[4]. TheTribunal passed an order for reinstatement of both the accused but itwas also ordered that the accused shall not be entitled to any back wagesfor the period they were out of service. The other two appeals are againstthe order passed by the Tribunal declining back wages to the accused inthose appeals.

4. The Tribunal found that the findings recorded by the DCM thatthe charge against the accused was the theft of two pistols [(i) PistolBrowning 9mm, Butt No.1 – Reg. No. T-5251; and (ii) Pistol Browning9mm, Butt No. 22 – Reg. No. B-3927] on April 6, 2006 but no physicalinspection appears to have been done till the loss was found on May 12,2006. The Tribunal also found that the written confession (Ex.8 andEx.9) given by the accused is in the presence of entire Squadron, thus,such oral confessions are made to persons in Army cannot be reliedupon referring to Army Order No.256 of 1972. It was also held that it isnot clear as to whether the accused were in custody as no date ismentioned on the written confessional statements and that there is nothingon record as to how and on whose instance the accused volunteered toreduce in writing the said confessions. The Tribunal found that norecoveries were affected in pursuance of the confessional statementsof either of the accused as the pistols had already been recovered. TheTribunal also found that the two slips (Ex.12 and Ex.15) relied upon by the prosecution were allowed to be proved by the secondary evidencebut no evidence was led in regard to existence of any such slip or loss ofthe said slip. Therefore, no secondary evidence can be allowed. TheTribunal also held that the prosecution case was not put to accused -Sandeep Kumar as required by Army Rule 58 which is akin to statementunder Section 313 of the Code of Criminal Procedure, 1973[5]. The Tribunalconcluded as under:

“43. From above detailed discussion it is very much clear that thecase solely rests upon the alleged confessional statements madeby both the petitioners which have not been proved to have beenmade voluntarily and these did not lead to any recovery and,therefore, cannot be linked with the accused and thus do not satisfythe requirement of Army Order 256 of 1972 referred to above 3 DCM

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424SUPREME COURT REPORTS

[2019] 12 S.C.R.

Aalso. There is no other evidence led by the prosecution as againstthe petitioners and the statements of other witnesses are not verymaterial.”

5. The facts leading to the said order need to be stated:

A report was submitted by 71 Armoured Regiment[6] to the GeneralBStaff Branch of the Army Headquarters regarding loss of two pistolswhich later led to DCM. The said Regiment was deputed for T-90 Tanksconversion training at Pokhran Firing Range from March 15, 2006 toApril 4, 2006. The convoy moved from Patiala to Pokhran whereasweapons were carried in locked boxes. The training and conversionCexercise were conducted in general area Lunkaransar from April 1, 2006to May 11, 2006. The physical check of weapons was carried out onApril 27, 2006 and Officer Commandant of the Squadron Lt. Col. J.G.Gopalan confirmed that there were 50 pistols in ‘A’ Squadron at theCamp in Biniwarli. The Regiment underwent another exercise from April30, 2006 to May 2, 2006 in general area Binjarwali. All tanks had to beDtopped up and prepared for T-90 conversion exercise which commencedon May 3, 2006.

From May 3, 2006 onwards, the Regiment commenced itsmovement from Binjarwali to general area Bikamsar. The marching outreflected 50 pistols signed by Squadron Commander. Dafedar Vijaypal,Emember of tank crew handed over his keys to the Senior JCO RisaldarKatar Singh. It is also mentioned in the report that an order was receivedon May 9, 2006 at 1500 hrs. that all participating crews were to carryweapons. Dafedar Raibir Singh counted 48 pistols. Senior JCO RisaldarKatar Singh did not register the difference nor informed anyone. At theFend of conversion exercise, the loss of weapons was reported at 1030hours on May 13, 2006. It was also reported that Court of Inquiry hasbeen called for on May 18, 2006 to assemble on May 26, 2006. Thereport is that the loss has occurred between April 27, 2006 at Binjarwaliand May 9, 2006 at Mittasar. The report is also to the effect that an FIRNo. 644 was lodged with PS Sardarshahar about the loss of weapons.GIt was also reported that T-90 tank has a three-member crew but theloss of two pistols have minimum impact on the operational efficiency.The prima facie opinion in the report is as under:

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“6. Tentative Views of Oc Unit. The loss of wpns, at first look,appears to be due to the negligence of the Kote NKCO, Sr JCOand Sqn Cdr of A Sqn. Theft or some other malafide intentioncannot be ruled out at this point of time and all leads are beinginvestigated.”

6. On May 22, 2006 (Ex.26), the Directorate General of MilitaryIntelligence was informed by Commandant of Regiment that the twolost pistols have been found in the exercise area at approximately 1600hours on May 22, 2006 on the track from Mittasar to Bikamsar. Thus,two different versions have come on record as to how and where therecovery was made. One version is that the pistols were found in generalarea during ground search whereas, another version is that DafedarVijaypal Singh found a cardboard shoebox containing the pistols aroundthe Dhobi (Washerman) area. The stand of the prosecution is that PankajDhaka, brother of accused Neeraj Kumar came to visit his brother atHisar Military Station on June 18, 2006 who reported the theft of pistolsby Neeraj Kumar in association with Sandeep Kumar.

7. The accused were charged on September 26, 2007 underSection 52(a) of the Army Act, 1950[7] read with Section 34 of the IndianPenal Code, 1860[8] having committed theft of the two pistols on April 6,2006. The stand of the prosecution was that the two pistols were stolenon April 6, 2006 when accused were posted at Pokharan Field FiringRanges and were recovered on May 22, 2006 in the area known asLunkaransar. The Court of Inquiry submitted its report dated May 18,2006 (Ex.25). Thereafter, both the accused were tried by DCM whoheld the accused guilty and were convicted and sentenced to undergorigorous imprisonment for one year and six months and also punishmentof dismissal from service.

8. Initially, Sandeep Kumar was represented by Mr. C.S. Dalal,Advocate and Neeraj Kumar Dhaka was represented by Mr. OmPrakash, Advocate in proceedings before the DCM. However,subsequently, Shri C.S. Dalal, Advocate represented both the accusedbefore the DCM.

9. The prime witness of the prosecution is Lt. Col. J.G. Gopalan,Squadron Commander, who appeared as PW-1. He deposed that he 7 Army Act 8 IPC

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Ainformed by Risaldar Katar Singh (PW-7) about the loss of two pistolson May 12, 2006. He stated that during search conducted on May 18,2006 and May 19, 2006, the handwritten slip (Ex.15) was recoveredwhich is to the effect that the pistols will be located if the Squadron begiven pass out for 24 hours and that one officer is also involved.Thereafter, the entire Squadron was sent to out-pass, other than 16Bselected personnel who were sent to search pistols. However, it was onMay 22, 2006, Dafedar Vijaypal Singh (PW-4) found a shoe box withtwo pistols. He further deposed that Pankaj Dhaka disclosed beforehim that his brother Neeraj Kumar has brought two pistols to him andthat Neeraj begged before him to forgive him. The other accusedCSandeep who was playing hockey was also called. He stated that thelast physical weapon check was done on March 31, 2006 but the reporton April 27, 2006 was prepared without physical check. He also deposedthat the original handwritten slips (Ex.15) and the photograph of thelabel pasted on the gift-wrapping paper on the shoebox (Ex.12) werelost in transit and were untraceable but the scanned copies were producedDby way of secondary evidence, which was allowed by the DCM. It is inthe confessional statements of the accused that the two pistols werestolen on April 6, 2006, that is basis of the charge sheet against theaccused.

10. The witness further stated that on June 18, 2006, both theEaccused were called by Lt. Col. Arvinder Singh, Second-in-Command.Both the accused confessed that they have committed theft of two pistols.The entire ‘A’ Squadron was called and both the accused confessedbefore them that they have committed theft of two pistols. The witnesshas produced handwritten confessional statement of Neeraj KumarFDhaka (Ex.8) in two pages and also handwritten confessional statementof Sandeep Kumar in four pages (Ex.9) along with statement of PankajDhaka (Ex. 10) in one page. Such confessions were video recorded aswell. The transcript of video recording is marked as Ex.39.

11. We have to examine firstly, the finding in respect of secondaryGevidence. The prosecutor has filed an application to lead secondaryevidence. The defence counsel has submitted that he has no objection tolead secondary evidence in the proceedings recorded. Such proceedingsare recorded when the statement of PW 1 was being recorded. Therelevant part from the statement of the witness is as under:

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“At this stage of the proceedings, the prosecutor submits that thehandwritten slip and the label slip affixed to the gift wrapper inwhich the cardboard shoe box containing two stolen pistols wasfound, to be produced as evidence in the Court is untraceable.

The Prosecutor submits an application under Section 65 of IndianEvidence Act 1872 for allowing the prosecutor to lead secondaryevidence for proving the documents handwritten slip and the labelslip affixed to the gift wrapper in which the cardboard shoe boxcontaining two stolen pistols was found. The same is received,read, marked Exhibit ‘13’.”

“The defence counsel, in reply, submits that the handwritten slipand the label slip affixed to the gift wrapper in which the cardboardshoe box containing two stolen pistols was found, in original, shouldhave been available with the prosecution in the copy No. 1 of theCourt of Inquiry along with exhibits as produced by the witnesses.Further, the Defence counsel also submits that he has no objectionto lead the secondary evidence.

The prosecution, in answer, submits that the Copy No. 1 of theCourt of Inquiry does not contain the original documents as exhibits.The same have been handed over to the prosecution. Thedocuments have been lost in transit and are untraceable.”

12. The DCM passed the following order after considering therespective arguments of the parties before it:

“Gentlemen, now you may consider the submission of theprosecution to lead secondary evidence for proving the documents,hand written slip and the label slip affixed to the gift wrapper inwhich the cardboard shoe box containing two stolen pistols werefound, in the light of the above provisions read before you.

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The Court decides to allow the submission of prosecution to leadsecondary evidence and to proceed with the trial.”

13. In the cross-examination thereafter, the witness denied thesuggestion that Sowar Rakesh Phogat had found two pistols on May 22,2006 at about 1500 hours. He denied that the pistols were found ingeneral area as the pistols were found at Dhobi table of ‘A’ Squadron.

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AThe witness deposed that the handwritten slip was with him but it wassubmitted in the Court of Inquiry as an Exhibit to Col. S. Bhardwaj,Commandant, 88 Armoured Regiment. He deposed that originalhandwritten slip was seen by him and the scanned copy (Ex.15) is thesame. The witness deposed that two pistols were wrapped in newspapersheets. The newspaper cuttings included cutting from newspaperBcorresponding to Muzzafarnagar area from where accused Sowar NeerajKumar Dhaka hails. The witness deposed that the confessionalstatements Ex. 8, 9 and 10 are exactly the same as produced before theCourt of Inquiry. The confessional statements were handwritten by theaccused persons voluntarily after having confessed in front of the entireCSquadron. There was no force applied on them.

14. The witness denied that the accused persons were kept in theQuarter Guard or they were detained. He admitted that the procedurallapse has taken place and that the daily, weekly and monthly checks ofthe weapons have not been done in the prescribed manner. He deposedDthat they were undergoing conversion training. Hence, the commitmentwas very heavy. Dafedar Vijay Pal Singh (No 1079855X) was performingvarious duties at one time, such as that of Kote Non-CommissionedOfficer and Tank Commander. The training commitments took a highpriority. It was stated that basic faith was that nothing like this canhappen. Procedural lapses did take place. To that effect, he and DafedarEVijay Pal Singh have already been awarded punishments.

15. PW-2 is Risaldar Rai Singh. He is a witness of confession ofthe accused before the entire Squadron on June 18, 2006. He deposedthat cursory weapons check was done on April 27, 2006 as it was believedthat all weapons were kept at their respective places.F

16. PW-3 is Acting Lance Dafedar Rajender Singh. He statedthat he was informed by Risaldar Katar Singh on May 11, 2006 at about1830 hours that two pistols were deficient. He also deposed that he andDafedar Baljit Singh found a black polythene bag containing the shoebox on May 22, 2006 containing two stolen pistols. He deposed thatGaccused Neeraj Kumar was granted leave from Pokharan Field FiringRanges and sent to Hisar whereas Sandeep Kumar made an excuse ofstomach ache on April 7, 2006 and later he was shifted to MilitaryHospital, Jodhpur. He deposed that he has been awarded punishmentbecause of two stolen pistols by both the accused persons. In cross-Hexamination, he admitted that weapon cleaning was done on April 1, 2006 and not thereafter and that only paper work was done. He furtherdeposed that Risaldar Katar Singh was on leave from April 4, 2006 toApril 24, 2006 and he was performing the duties of officiating SeniorJCO and Kote JCO. Risaldar Katar Singh was sent on leave in spite ofshortage of manpower as he had to vacate family accommodation at SriGanganagar to shift his family to new accommodation at Hisar. Hedeposed that on June 18, 2006, his brother Ranbir Singh came to meethim at Hisar Military Station. The CMP sentry told him that PankajDhaka, brother of accused Neeraj Kumar had come to meet him. Hehas produced the Guest Register of Regiment where Neeraj Kumar hadmade an entry writing the details of visit of his brother Pankaj Dhaka(Ex.22). Though, the DCM has given a note that there are cuttings inthe Guest Register but perusal of the record shows that there is nocutting in the Guest Register in respect of time and name of the visitorthough there seems to be some cuttings in the column of signatures ofRisaldar Major as noticed by the Court. He deposed that Neeraj Kumarwent to the residence of PW-1 and confessed that he had stolen twopistols along with accused No. 2 and that he confessed the wrongful actto the Squadron Commander. He deposed that both the accused hadinteracted with each other while on leave. Accused No. 1 Neeraj Kumarwas back from leave on May 12, 2006 while the accused No. 2 reportedback on May 14, 2006 at Hisar Military Station and later both went toLunkaransar on May 15, 2006 where ‘A’ Squadron was located. It wason May 18, 2006 Lt. Col. Arvinder Singh, Second-in-Command ordereda fall-in and announced that rest be given to all persons of ‘A’ Squadron.He also said that if any person who has committed mistake can comeand personally confess to him or write a slip. It is thereafter on May 19,2006, Neeraj Kumar kept a handwritten slip on Dhobi table. The accusedwere keeping a watch if someone picked up the slip but later NeerajKumar picked up the slip and gave it to Senior Dafedar Major SarwanKumar. He deposed that Pankaj Dhaka has voluntarily given hisstatement in his presence and in presence of Risaldar Rai Singh. In thecross-examination, he denied having said to mother of Sandeep Kumarthat she should forget his son as he has been beaten up.

17. PW-4 is Dafedar Vijaypal Singh has recovered the pistols in acardboard shoe box. He deposed that he along with Dafedar BaljitSingh found a black polythene bag containing two pistols. He has identifiedthe photograph of the label (Ex.12) pasted on the gift-wrapping paper.

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AHe and Dafedar Baljit Singh took the shoe box to Risaldar Katar Singh(PW-7) and Risaldar Rai Singh (PW-2) after waking him up. On openingthe shoe box, he found the newspaper cuttings as well as two pistolswrapped separately in newspapers. He informed Lt. Col. J.G. Gopalan,Squadron Commander (PW-1).B18.Risaldar Sarwan Kumar is examined as PW-5. He deposedthat deficiency of weapons was told to him by Risaldar Katar Singh. Herecognised the handwritten slip marked as Ex.15 and the signatures andstamp of Capt. Vineet Kumar. He was given this handwriting by accusedNo.1- Neeraj Kumar on May 19, 2006 as having found the slip on Dhobitable.C

19. PW-6 is Lt. Col. Arvinder Singh, Second in Command of theRegiment. He deposed about the handwritten slip (Ex.15) as the onehaving the same content as the original. He has seen the original aswell. He deposed that he sent all persons for two days on out pass.They were to report back on May 21, 2006. He deposed that confessionalDstatements were given by the accused in front of him and the entireSquadron. He deposed that both the accused and Pankaj Dhaka madewritten confessional statements which were read out to them and video-recorded. He deposed as under:

“I am now shown Exhibit ‘8’, ‘9’ and ‘10’, the written confessionalEstatements of accused No 1, accused No 2 and Master PankajDhaka, brother of accused No 1 respectively, in original. I identifywith the Exhibit ‘8’, ‘9’ and ‘10’, and have seen these confessionalstatements in original, earlier.

The accused persons have made statements at various stagesFstarting from the first verbal confessional statements on 18 Jun2006 and written confessional statements on 19 Jun 2006. Then,at the Court of Inquiry conducted by the then Commandant, 88Armoured Regiment and statements made in detail toCommanding Officer, 10 Merchandised Infantry and also at theGSummaries of Evidence. Both the accused persons had requestedme to save them from civil jail whenever they had interacted withme.”

20. In cross-examination, he deposed that the video-recording ofaccused persons making their written confessions was made on theorders of the Commandant of Regiment. The transcription of video wasH

given to the defence counsel duly attested by Lt. Amit Sudan. He deposedthat confessional statements (Ex.8 and Ex.9) were not written in hispresence whereas verbal confessions of the accused were given in hispresence and in presence of the entire ‘A’ Squadron and the Commandantof the Regiment.

21. He deposed that the accused have made statements at variousstages from first verbal confessional statements on June 18, 2006; writtenconfessional statement on June 19, 2006 and then at the Court of Inquiryconducted by the then Commandant, 88 Armoured Regiment and thestatements made in detail to the Commanding Officer, 10 MechanisedInfantry and also at the stage of Summary of Evidence.

22. PW-7 is Risaldar Katar Singh. He deposed that weaponswere never physically checked between March 31, 2006 and May 9,2006. He came to know about the loss of two pistols on May 9, 2006 asthey were to be issued to crew of the tank. He is a witness to theconfessional statement written by both the accused and that the accusedconfessed about stealing the two pistols in the presence of entireSquadron. The verbal and written confessions were voluntary in nature.He deposed that he believed the two pistols were lost while in transit inthe exercise as no pistols were issued to anyone. He recognized thecontents of slip, the scanned copy and handwritten slip found at theDhobi table. He deposed that he lodged a Daily Diary Report on May13, 2006 at P.S. Lunkaransar for loss of two pistols as also the cancellationof the report (Ex.37). The Daily Diary Report lodged at P.S. Sardarshaharwas cancelled vide Ex.21. He deposed that on June 18, 2006, he was athis residence when the entire ‘A’ Squadron was made to assemble atthe Regiment and he reached the Regiment at 1800 hours. Both theaccused were standing in front of entire Squadron. Colonel H.S. Chehal,Commandant; Lt. Col. Arvinder Singh, Second-in-Command and Lt. Col.J.G. Gopalan, Squadron Commander were also present there. Both theaccused confessed about stealing of two pistols. They also wroteconfessional statement. He is a witness to the confessional statementwritten by accused Neeraj Kumar. Sowar Krishan Kumar was alsopresent. He and Sowar Atender Dahiya are witnesses of confessionalstatement of accused Sandeep Kumar.

23. PW-8 is Dafedar Parkash Chand who has video recorded thewritten confessions of the accused and Pankaj Dhaka on June 19, 2006.He has produced the transcription of the video recording. In cross- A

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Aexamination, he stated that there are no cuts in the video recording andis exactly the same tape that he had recorded on June 19, 2006 and thatthere is no tampering of the video tape.

24. PW-9 is Colonel S. Bhardwaj, Deputy Project Manager, whowas earlier appointed as the Presiding Officer of the Court of InquiryBfor the loss of two pistols. He stated that the accused persons deposedbefore the Court of Inquiry as witnesses and later gave additionalstatements in which they confessed their wrongful deed voluntarily. Healso stated that the original handwritten slip was shown at the Court ofInquiry and only one scanned copy was taken which was duly attestedby Captain Vineet Kumar. He identified that the contents on such slipCare the same as in the original document.

25. Pankaj Dhaka, brother of accused Neeraj Kumar has beenexamined as PW-10. He admitted that he came to meet his brotherNeeraj Kumar on June 18, 2006. Acting Lance Dafedar Rajender Singhtook him to his brother at Hisar Military Station for 3-4 days. He statedDthat he did not meet his brother in 3-4 days and did not do anything. Theprosecution declared the witness hostile. He stated that he did not makestatement at the Court of Inquiry but was physically assaulted and madeto sign on every page. He denied having made statement (Ex.42) inEnglish stating that he cannot read English though he had studied EnglishEup to Class XII. He deposed that he has given statement as was told tohim and such statements were tutored. He admitted his handwritingand signatures (Ex.10) written in Hindi which he admits that heunderstands. He admits that he had been stated in the statement thatthere are no cuttings or amendments in the statement. He admits thathe was sitting on a chair when video was being recorded. He deposedFthat he stayed in Regiment for two more days after his statement wasvideo-recorded. He further states that his brother was beaten up infront of him and he was threatened to give false statement so as to savelife of his brother.

26. Last prosecution witness is PW-11 Sowar Atender Dahiya.GHe is the witness to the confessional statement of Sandeep Kumar(Ex.9). The only question asked in the cross-examination was in respectof presence of Lt. Col. J.G. Gopalan (PW-1) when accused No. 2 hadwritten confessional statement.

27. The Army Rule 58 is to provide an opportunity to an accusedH

to explain the incriminating circumstances appearing against an accused.It does not contemplate that such statement can be of an evidence,which has not been led by the prosecution and that accused has notconfronted the prosecution witnesses with such aspect in the crossexamination of a witness examined by the prosecution. Rule 58 of theArmy Rule reads thus:

“58. Examination of the accused and defence witnesses. (1) (a)In every trial, for the purpose of enabling the accused personallyto explain any circumstances appearing in evidence against him,the court or the Judge Advocate –

(i) may at any state, without previously warning the accused, putsuch questions to him as considers necessary;

(ii) shall, after the close of the case for the prosecution and beforehe is called on for his defence, question him generally on the case.”

28. In a statement recorded under Rule 58of the Army Rules,accused No.1 Sowar Neeraj Kumar Dhaka was put handwrittenconfessional statement (Ex.8) recorded on June 19, 2006 with RisaldarKatar Singh and Sowar Krishan Kumar as independent witnesses. Theaccused has stated that the statements made by the prosecution witnessesare false. He denied the incident but admitted that he was doubtedbecause he handed over handwritten slip found on the Dhobi table toSquadron Major Sarwan Kumar. Thereafter, accused No. 1 in hisstatement stated that he was performing sentry duty from April 4, 2006to April 11, 2006. He came back to Hisar Military Station on April 11,2006 and proceeded on leave in the evening of April 14, 2006 and reportedback on May 14, 2006. On May 15, 2006, he went back to exercisearea at Lunkaransar. He stated that he found a handwritten slip on May19, 2006 on the Dhobi table in the exercise area at about 0730 hourswhich he handed over to Squadron Dafedar Major Sarwan Kumar. Hewas called by Lt. Col. Arvinder Singh (PW-6) who asked him abouthandwritten slip. Risaldar Katar Singh (PW-7) passed an order of fall-in and all personnel of ‘A’ Squadron were asked to write the samecontents as written on the handwritten slip. Such handwritten sampleswere handed over to Risaldar Katar Singh (PW-7). It was on June 11,2006, Lt. Col. Arvinder Singh (PW-6) called him to his office to askabout handwritten slip once again. He accused him of writing of ahandwritten slip and stealing of two pistols. He stated that he was A

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Aconfined in the Quarter Guard on June 11, 2006 and was called by Lt.Col. Arvinder Singh (PW-6) to his office at about 1700 hours on June 18,2006 when he saw Sowar Sandeep Kumar was being beaten up. Hewas taken to the office of Lt. Col. J.G. Gopalan (PW-1). There, he wasbeaten up by Acting Lance Dafedar Rajender Singh (PW-3), RisaldarKatar Singh (PW-7) and also Lt. Col. Arvinder Singh (PW-6). Lt. Col.BArvinder Singh (PW-6) forced him to write a suicide note and also aconfessional statement stating that he had stolen two pistols 9mmBrowning which he improved later on to say that Lt. Col. Arvinder Singh(PW-6) had given him a performa of the suicide note and confessionalstatement. He was forced to note down the entire contents on a freshCpage and sign it. They also threatened him and told that his brotherwould be killed if he does not write or state what they told him. He wasshown his brother who was sitting in the Clerks Office along with SowarAtender Dahiya (PW-11).

29. In a statement recorded under Rule 58of the Army Rule,Daccused No. 2 Sowar Sandeep Kumar resiled from his earlier statement.He stated that on 18 June 2006, at about 1600 hours, he had come topractice hockey in the Hockey Field. Lieutenant Colonel JG Gopalan,Squadron Commander, came to him and informed him that LieutenantColonel Arvinder Singh, Second-in-Command had called him to his office.He was beaten by Lieutenant Colonel Arvinder Singh, Second-in-ECommand along with about five more persons when he reached office.He was forced to write one suicide note in the office of the Second-in-Command, 71 Armoured Regiment. There were four to five personswho continuously assaulted him. After half an hour, Lieutenant ColonelArvinder Singh, Second-in-Command came back and handed him aFhandwritten performa to be copied verbatim in his handwriting and to besigned by him. He said, later, he was confined to the Quarter Guard. Hefurther stated that on 19 June 2006, he was called in the office ofSquadron Commander. He was beaten up, one after the other, byLieutenant Colonel Arvinder Singh, Second-in-Command, Major Zorawar Singh Gill, Squadron Commander ‘B’ Squadron, Risaldar Katar Singh,GSenior JCO ‘A’ Squadron, Acting Lance Dafedar Rajender Singh,No.15468978N Lance Dafedar Om Prakash and No.15474706K SowarRavinder. They had video recorded his statements which he was forcedto give. He was also forced to write two or three pages and sign onthem. Later he was confined to the Quarter Guard. Somewhat similarHstatement is of the Neeraj Kumar, accused No.1.

30. In these facts, the order of Tribunal and the finding of DCMare required to be examined. Firstly, none of the prosecution witnesseswere cross-examined in respect of threats or beatings inflicted on anyof the two accused. Such statements made under Army Rule 58 are notevidence which can be believed to doubt the findings recorded by DCMin the absence of any such defence put to the witness. The witness,when in witness box, could respond to such plea of the accused. Suchstatement of the accused under Rule 58 is to explain the circumstancesappearing in evidence against him. The accused could not set up adefence with which none of the prosecution witness was confrontedwith. These statements are not on oath though he has an option to appearas a witness on oath. Therefore, self-serving statements made whenopportunity was given to accused under Army Rule 58 will not createany suspicion on the prosecution witnesses when there is not even aremote suggestion to any of the prosecution witnesses who alone coulddepose the facts so stated by the accused.

31. The three Judge Bench of this Court in Ajay Kumar Singh &Ors. v. The Flag Officer Commanding-in-Chief & Ors.[9] while hearingan appeal under Section 30 of the Act held that this Court normally doesnot re-appreciate evidence and is slow to interfere with the findings ofthe Tribunal unless there is substantial question of public importance, butwhen the appreciation of evidence is vitiated by serious error, this Courtcan re-appreciate the evidence and interfere with the findings recordedby the Tribunal. The Court held as under:

“20. …The evidence adduced by the prosecution must bescrutinised independently of such lapses either in the investigationor by the prosecution or otherwise, the result of the criminal trialwould depend upon the level of investigation or the conduct of theprosecution. Criminal trials should not be made casualty for suchlapses in the investigation or prosecution. Criminal trials shouldnot be made casualty for such lapses in the investigation orprosecution.

21. The evidence of PW 14 (Manager) and PW 18 (Cashier)identifying the appellants and their evidence as to the identity ofthe appellants in the test identification parade ought not to havebeen disbelieved by the Tribunal. In exercise of power under Section 9 AIR 2016 SC 3528

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A30 of the Armed Forces Tribunal Act, this Court normally doesnot reappreciate the evidence and is slow to interfere with thefindings of the Tribunal unless there is substantial question of publicimportance. But when it is found that appreciation of evidence ina given case is vitiated by serious error, this Court can reappreciatethe evidence and interfere with the findings...”B

32. The question required to be examined is as to whether theTribunal was within its jurisdiction under Section 15 of the Act to setaside the order of the DCM and to order reinstatement of the accusedwith further direction of no payment for the intervening period.

C33. The Tribunal has set aside the secondary evidence in respectof the written slips (Ex.12 and Ex.15). The learned Tribunal was of theopinion that the prosecution is categorical that the theft of the pistols hastaken place on April 6, 2006 but thereafter physical verification wasconducted on April 27, 2006 where no loss was reported. Subsequently,an FIR was lodged on May 13, 2006 but suddenly the story of recoveryDof the pistols wrapped in a card board shoe box has been introduced onMay 18, 2006. There is also a version that the pistols were recoveredwhile checking in the general area.

34. We find that the findings of the Tribunal are not correct in thisrespect. It is categorical stand of Lt. Col. J.G. Gopalan, SquadronECommander (PW-1) that the report dated April 27, 2006 was preparedwithout any physical verification and for such report, he has been punishedas well. He has also deposed that there was procedural lapse inasmuchas the report was given on April 27, 2006 without physical verification ofthe weapons and that there was no daily, weekly or monthly checking.FRisaldar Katar Singh (PW-7) has deposed that report was given that theweapons would be in place as no weapon has been issued to anyone.The suggestions put to the witnesses that physical verification was doneon April 27, 2006 or the pistols were recovered in general area havebeen denied by all the witnesses. The stand of the prosecution that thepistols were stolen on April 6, 2006 is based upon written and oralGconfession made by the accused. The primary evidence of theprosecution is the confessional statements made by the accused alongwith the supporting confessional statement made by Pankaj Dhaka,brother of accused Neeraj Kumar.

35. The statement of Pankaj Dhaka that he stayed in the Unit for3-4 days is not made out as none of the prosecution witnesses havebeen given such suggestion. The Guest Register (Ex.22) shows theentry of Pankaj Dhaka on June 18, 2006 in the Unit area at Hisar. In theabsence of any evidence that he stayed in the Unit for 3-4 days or thathe has seen that his brother being given beating is wholly unbelievable.In fact, the witness has deposed that he has not met his brother when hewent to the Unit at Hisar. Therefore, the story that he has seen hisbrother being given beating is made up story when none of the prosecutionwitnesses have been suggested anything even remotely in this respect.

36. The prosecution case is based upon written confessionalstatements made by accused Neeraj Kumar (Ex.8) and Sandeep Kumar(Ex.9). In addition to the confessional statements, oral confessions weremade before Lt. Col. J.G. Gopalan, Squadron Commander (PW-1) andColonel Arvinder Singh, Commandant (PW-6). PW-6 has not been cross-examined in respect of any involuntary nature of the confession or thathe is the person who has given beatings to the accused as averred bythem in their statements under Rule 58. The accused without askingany question to any of the prosecution witness that they have givenbeatings as alleged by them in their statements, cannot doubt the consistentevidence of the prosecution witnesses. Therefore, the retraction of theconfessional statements made in their statement under Rule 58 is of no consequence when the prosecution witnesses have not been cross-examined in respect of involuntary nature of the confessions. Thestatement of witnesses of different ranks, could not be doubted by theTribunal. The findings of the Tribunal are in fact based on ipse dixit ofthe Tribunal.

37. The Tribunal has reproduced Army Order No. 256 of 1972 inits judgment. However, the Tribunal has completely misread such ArmyOrder to hold that the confessional statements are inadmissible havingbeen made to the Army. The relevant extract of the order is reproducedfor ready reference:

“1. The Indian Evidence Act, 1872 subject to the provisions ofthe Army Act, applies to all proceedings before a Court-Martial.Section 25 of the Indian Evidence Act provides that no confessionmade to a police officer shall be proved as against a person accusedof any offence. Section 26 of the same Act provides that no AB

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Aconfession made by any person, whilst he is in the custody of apolice officer, unless it be made in the immediate presence of amagistrate, shall be proved as against such person. However,facts discovered in consequence of a confession which is itselfinadmissible having been made to a police officer, or whilst in thecustody of a police officer and not in the immediate presence of aBmagistrate and so much of the confession as distinctly relates tothe facts thereby discovered, may be proved. (Indian EvidenceAct Section 27).

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C4. When a person, subject to the Army Act, makes or it appearshe is about to make a confession whilst in the custody of a militarypolice officer, he should first be removed from military policecustody and placed in ordinary military custody. He may then betaken before a military officer with a view to having his confessionrecorded in the manner described in para 3 above. Alternatively,Dhe may be taken by the military police officer before a magistrate,for his confession to be recorded in accordance with Section 164of the Code of Criminal Procedure.”

38. In terms of Section 1 of the Evidence Act, the provisions ofthe Evidence Act are not applicable to the Court Martial convened underEthe Army Act, the Naval Discipline Act, the Indian Navy (Discipline)Act, 1934 or the Air Force Act. But in terms of Section 133 of the Act,the Evidence Act apply to all proceedings before a Court Martial subjectto the provisions of the said Act. In terms of Section 133 of the Act readwith Section 25 of the Evidence Act, the statement made before a PoliceFOfficer such as Military Police Officer alone is inadmissible in evidenceand not the statement made before the other persons.

39. In the present case, Lt. Col. J.G. Gopalan (PW-1) is the SquadronCommander before whom the accused has made oral confession. Hehas taken the accused to PW-6 Col. Arvinder Singh, Second-in-Command.GUnder the orders of Lt. Col. J.G. Gopalan (PW-1) and Col. ArvinderSingh (PW-6), the accused confessed before the entire Squadron onJune 18, 2006. It was on June 19, 2006, the accused have given awritten confession in their handwriting. Recording of such writtenconfession is video-recorded as well. Therefore, such confession is not H

hit by Section 25 of the Evidence Act read with Section 133 of the Actand Army Order No. 265 of 1972.

40. Thus, the office order distinguishing a Military Police Officeris separate and distinct from an Officer of the Army. Such distinctionhas been conveniently overruled by the Tribunal. The confessionalstatement made by the accused before Military Police Officer alone isnot admissible but the statement made before an Army Officer is not hitby the provisions of Section 25 of the Indian Evidence Act, 1872[10]. Infact, such statement is made before the entire Squadron apart beforedifferent officers coupled with written confession which was videorecorded as well.

41. The accused have tried to create doubt on the prosecutionstory on the basis of the fact that the originals of handwritten slip havenot been produced. Lt. Col. J.G. Gopalan (PW-1) has deposed thatoriginal of such slip has been lost during transit whereas the scannedcopy is the true copy of the original which the witness has seen. Suchstatement is supported by statements of Risaldar Sarwan Kumar (PW-5) who has found the slip and Dafedar Vijaypal Singh (PW-4) who hasrecovered the cardboard shoebox. Still further, before the DCM, thelearned counsel for the accused have not disputed the production of theslips by way of secondary evidence. Therefore, we find no reason notto take into consideration such slips in evidence as Lt. Col. J.G. Gopalan(PW-1) and Col. Arvinder Singh (PW-6) are the persons who have seenthe originals and have also deposed that the scanned copies are thesame as of originals. Therefore, we find that the Tribunal erred in law inreversing the findings recorded by the DCM while exercising appellatejurisdiction under Section 15 of the Act.

42. The argument of Mr. Malik that since the prosecution has notput the incriminating circumstances appearing in the evidence to theaccused under Rule 58 of the Army Rules, therefore, the conviction wasrightly set aside by the Tribunal. It may be stated that incriminatingcircumstance of written confessional statement was put to accusedNeeraj Kumar and thereafter, he has given a detailed unsworn statementrunning into more than five pages as reproduced above. Similarly,accused Sandeep Kumar has also given his unsworn statement in morethan six pages, the summary of which is reproduced above. Though, the AB

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Aincriminating circumstance should have been put to the accused in termsof Rule 58 of the Army Rules which is akin to Section 313 of the Codebut, the detailed explanation given by the accused rules out any prejudicecaused to them on account of absence of specific incriminatingcircumstances put to the accused.

B43. This Court in Keya Mukherjee v. Magma Leasing Limited& Anr.[11] while referring to earlier three Judge Bench judgment in JaiDev & Anr. v. State of Punjab[12], as to whether the accused has beengiven an opportunity to say what he wanted to say in respect ofprosecution against him, held as under:

C“17. The above approach shows that some dilution of the rigourof the provision can be made even in the light of a contentionraised by the accused that non-questioning him on a vitalcircumstance by the trial court has caused prejudice to him. Theexplanation offered by the counsel of the accused at the appellatestage was held to be a sufficient substitute for the answers givenDby the accused himself.

18. What is the object of examination of an accused under Section313 of the Code? The section itself declares the object in explicitlanguage that it is ‘for the purpose of enabling the accusedpersonally to explain any circumstances appearing in the evidenceEagainst him’. In Jai Dev v. State of Punjab [AIR 1963 SC 612]Gajendragadkar, J. (as he then was) speaking for a three-JudgeBench has focused on the ultimate test in determining whetherthe provision has been fairly complied with. He observed thus:(AIR p. 620, para 21)

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‘21. … The ultimate test in determining whether or not theaccused has been fairly examined under Section 342 would beto enquire whether, having regard to all the questions put tohim, he did get an opportunity to say what he wanted to say inrespect of prosecution case against him. If it appears that theGexamination of the accused person was defective and therebya prejudice has been caused to him, that would no doubt be aserious infirmity.’

11 (2008) 8 SCC 44712 AIR 1963 SC 612H

19. Thus it is well settled that the provision is mainly intended tobenefit the accused and as its corollary to benefit the court inreaching the final conclusion.

20. At the same time it should be borne in mind that the provisionis not intended to nail him to any position, but to comply with themost salutary principle of natural justice enshrined in themaxim audi alteram partem. The word ‘may’ in clause (a) ofsub-section (1) in Section 313 of the Code indicates, without anydoubt, that even if the court does not put any question under thatclause the accused cannot raise any grievance for it. But if thecourt fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he canlegitimately claim that no evidence, without affording him theopportunity to explain, can be used against him. It is now wellsettled that a circumstance about which the accused was not askedto explain cannot be used against him.”

44. In a later judgment in Nar Singh v. State of Haryana[13], thisCourt referred earlier judgments of this Court in Wasim Khan v. Stateof U.P.[14], Bhoor Singh v. State of Punjab[15]and Santosh Kumar Singhv. State[16] to hold as under:

“20. The question whether a trial is vitiated or not depends uponthe degree of the error and the accused must show that non-compliance with Section 313 CrPC has materially prejudiced himor is likely to cause prejudice to him. Merely because of defectivequestioning under Section 313 CrPC, it cannot be inferred thatany prejudice had been caused to the accused, even assumingthat some incriminating circumstances in the prosecution casehad been left out. When prejudice to the accused is alleged, it hasto be shown that the accused has suffered some disability ordetriment in relation to the safeguard given to him under Section313 CrPC. Such prejudice should also demonstrate that it hasoccasioned failure of justice to the accused. The burden is uponthe accused to prove that prejudice has been caused to him or inthe facts and circumstances of the case, such prejudice may be 13 (2015) 1 SCC 496

14 AIR 1956 SC 400

15 AIR 1974 SC 1256

16 (2010) 9 SCC 747

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Aimplicit and the Court may draw an inference of such prejudice.The facts of each case have to be examined to determine whetheractually any prejudice has been caused to the appellant due toomission of some incriminating circumstances being put to theaccused.”

B45. Since the accused have given detailed statements touchingthe incriminating circumstances appearing in prosecution evidence andalso retracted confessional statements made by them, it cannot be saidthat putting of incriminating circumstances to the accused have causedany prejudice to the accused.

C46. Section 15 of the Act confers wide power on the Tribunal soas to allow an appeal against conviction by a Court Martial where thefinding of the Court Martial is legally not sustainable due to any reason;the finding involves wrong decision on a question of law or there was amaterial irregularity in the course of the trial resulting in miscarriage ofjustice. Even though the power of the Tribunal is wide but it is notDmerely a different opinion on the appreciation of the evidence to interferewith the findings recorded by the Court Martial. The first ground ofinterference is whether the finding of the Court Martial is “legally notsustainable”. Therefore, to exercise such power, there has to be errorof law by the Court Martial which would confer jurisdiction on the TribunalEto interfere against the conviction recorded by the Court Martial. Thesecond ground is “wrong application on a question of law”. However,the Tribunal, in the present case, has committed grave error in interferingwith the finding of the Court Martial by misreading an Army Order.There is no material irregularity pointed out by the Tribunal inasmuch asthe irregularity pointed out is with regard to confessional statements byFMilitary Officer which is not a bar either under the Evidence Act orunder the Army Order issued under the Act. The Tribunal could re-appreciate evidence to find out if any findings of the Court Martial islegally not sustainable due to any reason; or that the finding involveswrong decision on a question of law or there was a materialGirregularity in the course of the trial resulting in miscarriage ofjustice. But such wide powers do not confer jurisdiction to the Tribunalto reverse the findings merely because it finds that different view ispossible.

47. In view thereof, we find that the Tribunal exceeded itsjurisdiction while setting aside the order of conviction passed by theDCM.

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

Divya Pandey

Appeals disposed of.

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