Holding

The Tribunal exceeded its jurisdiction; confessional statements before Army officers are admissible, secondary evidence of the slips is permissible, and the failure to put incriminating circumstances under Rule 58 did not prejudice the accused, so the Tribunal’s order setting aside the conviction is set aside.

Summary

The case arose from the loss of two pistols during a T‑90 tank conversion exercise of the 71 Armoured Regiment at Pokhran. The accused soldiers, Neeraj Kumar Dhaka and Sandeep Kumar, were convicted by a District Court Martial for theft and sentenced to rigorous imprisonment and dismissal. The Armed Forces Tribunal (AFT) set aside the conviction, reinstated the accused and denied back wages, relying on the alleged inadmissibility of confessional statements and on the exclusion of secondary evidence. The Supreme Court held that the Tribunal misread Army Order No. 256 of 1972 and erred in deeming the confessions inadmissible, as statements made before Army officers are not barred by Section 25 of the Evidence Act. The Court also found that the scanned copies of handwritten slips could be admitted as secondary evidence and that the failure to put incriminating circumstances under Army Rule 58 did not prejudice the accused. Consequently, the Tribunal exceeded its jurisdiction under Section 15 of the AFT Act, and its order setting aside the conviction was reversed; the Union’s appeals were allowed, the accused’s appeals dismissed, and their sentences reduced to the time already served.

Issues considered

The jurisdiction of the Armed Forces Tribunal under Section 15 of the Armed Forces Tribunal Act to set aside a Court‑Martial conviction.
The admissibility of confessional statements made before Army officers in light of Section 25 of the Evidence Act and Army Order No. 256 of 1972.
The permissibility of secondary evidence (scanned copies) of handwritten slips.
Whether the failure to put incriminating circumstances before the accused under Army Rule 58 (akin to CrPC Section 313) caused prejudice.
The correctness of the Tribunal’s interpretation of Army Orders and its power to reverse findings of the Court‑Martial.

Legislation cited

Armed Forces Tribunal Act, 2007s. 15, s. 30
Army Act, 1950s. 133
Army Rules, 1954s. 58
Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 1, s. 25, s. 26, s. 27

Subjects

Armed Forces TribunalCourt MartialConfessional statementsEvidence admissibilityArmy Rule 58Section 15 jurisdictionSecondary evidenceTheft of weaponsReinstatementDismissal from service

Judgment

[2019] 12 S.C.R. 415 415

UNION OF INDIA & ORS. A
v.
SANDEEP KUMAR ETC.
(Criminal Appeal Nos. 1388-1389 of 2019)
SEPTEMBER 13, 2019 B
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Armed Forces Tribunal Act, 2007 – s.15 – Power of the
Tribunal – 71 Armoured Regiment was deputed for T-90 Tanks
conversion training at Pokhran Firing Range– Convoy moved from
C
Patiala to Pokhran – Weapons were carried in locked boxes–
Physical check of weapons carried out and the Officer Squadron
Commander (PW-1) confirmed that there were 50 pistols– At the
end 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 were D
posted at Pokharan Field Firing Ranges – District Court Martial
(DCM) convicted the accused with rigorous imprisonment for 1 year
and six months and dismissal from service – Set aside by the Armed
Forces Tribunal, directing reinstatement of both the accused– Held:
Primary evidence of the prosecution is the confessional statements
E
made by the accused – Tribunal completely misread Army Order
No. 256 of 1972 to hold that the confessional statements are
inadmissible having been made to the Army – In the present case,
PW-1 is the Squadron Commander before whom the accused made
oral confession, who took the accused to PW-6 (Second-in-
Command of the Regiment) –Under the orders of PW-1 and PW-6, F
the accused confessed before the entire Squadron – Accused then
made written confession, recording of which is video-recorded as
well – In terms of s.133 of the 1950 Act r/w s.25, Evidence Act, the
statement made before Police Officer such as Military Police Officer
alone is inadmissible in evidence and not the statement made before
G
other persons – Therefore, such confession is not hit by s.25,
Evidence Act r/w. s.133, 1950 Act and the Army Order – Further, no
reason not to take into consideration the scanned copies of the
original handwritten slips in evidence, as PW-1 & PW-6 are the
persons who saw the originals and deposed that the scanned copies
H
415
416 SUPREME COURT REPORTS [2019] 12 S.C.R.

A are the same as originals – Power of the Tribunal u/s.15 is wide but
such wide powers do not confer jurisdiction to reverse the findings
merely because the Tribunal finds that different view is possible–
Tribunal exceeded jurisdiction while setting aside the order of
conviction passed by the DCM – Criminal appeals filed by the Union
of India are allowed, while that of the accused are dismissed –
B
However, the sentence imposed upon the accused is reduced to the
extent 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 deputed
for T-90 Tanks conversion training at Pokhran Firing Range – At
C the 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 made
by accused – Retraction of the confessional statements – Effect of
– Held: In addition to the confessional statements, oral confessions
D were made before Squadron Commander (PW-1) and PW-6 (Second
in Command of the Regiment)– PW-6 was not cross-examined in
respect of any involuntary nature of the confession or that he gave
beatings to the accused as averred by them in their statements u/
r.58 –None of the prosecution witnesses were cross-examined in
respect of threats/beatings inflicted on any of the two accused –
E Such statement of the accused u/r.58 is to explain the circumstances
appearing in evidence against him– Accused could not set up
defence with which none of the prosecution witness was confronted
with – Therefore, the retraction of the confessional statements made
in their statement u/r.58 is of no consequence.
F Army Act, 1950 – s.133 r/w s.25, 1872 Act – Held: In terms of
s.133 r/w s.25, Evidence Act, the statement made before Police
Officer such as Military Police Officer alone is inadmissible in
evidence and not the statement made before other persons – Evidence
Act, 1872 – s.25.
G Army Rules, 1954 – r.58 – 71 Armoured Regiment was deputed
for T-90 Tanks conversion training at Pokhran Firing Range – At
the 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
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 417

the Armed Forces Tribunal – Plea of the accused that since the A
prosecution did not put the incriminating circumstances appearing
in the evidence to the accused u/r.58, therefore, the conviction was
rightly set aside by the Tribunal– Held: Though, the incriminating
circumstance should have been put to the accused in terms of r.58
which is akin to s.313 of CrPC but, the detailed explanation given
B
by the accused rules out any prejudice caused to them on account
of 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 to C
provide an opportunity to an accused to explain the incriminating
circumstances appearing against an accused. Such statements
are not an evidence, when it’s led by the accused who has not
confronted the prosecution witnesses with such defence in the
cross examination of a witness examined by the prosecution.
None of the prosecution witnesses were cross-examined in D
respect of threats or beatings inflicted on any of the two accused.
Such statements made under Army Rule 58 are not evidence
which can be believed to doubt the findings recorded by DCM in
the absence of any such defence put to the witness. The witness,
when in witness box, could respond to such plea of the accused. E
Such statement of the accused under Rule 58 is to explain the
circumstances appearing in evidence against him. The accused
could not set up a defence with which none of the prosecution
witness was confronted with. The statement of the accused is not
on oath though he has an option to appear as a witness on oath.
Therefore, self-serving statements made when opportunity was F
given to accused under Army Rule 58 will not create any suspicion
on the prosecution witnesses when there is not even a remote
suggestion to any of the prosecution witnesses who alone could
depose the facts so stated by the accused. The Tribunal has set
aside the secondary evidence in respect of the written slips (Ex.12 G
and Ex.15). The Tribunal was of the opinion that the prosecution
is categorical that the theft of the pistols took place on April 6,
2006 but thereafter physical verification was conducted on April
27, 2006 where no loss was reported. It is categorical stand of
PW-1 that the report dated April 27, 2006 was prepared without
H
418 SUPREME COURT REPORTS [2019] 12 S.C.R.

A any physical verification and for such report, he has been punished
as well. He has also deposed that there was procedural lapse
inasmuch as the report was given on April 27, 2006 without
physical verification of the weapons and that there was no daily,
weekly or monthly checking. PW-7 deposed that report was given
that the weapons would be in place as no weapon has been issued
B
to anyone. The suggestions put to the witnesses that physical
verification was done on April 27, 2006 or the pistols were
recovered in general area have been denied by all the witnesses.
The stand of the prosecution that the pistols were stolen on April
6, 2006 is based upon written and oral confession made by the
C accused. The primary evidence of the prosecution is the
confessional statements made by the accused along with the
supporting confessional statement made by brother of one of the
accused. [Paras 27, 30, 33, 34] [432-H; 433-A-B; 435-A-C;
436-C-G]
D 1.2 The statement of brother of one of the accused that he
stayed in the Unit for 3-4 days is not made out as none of the
prosecution witnesses were given such suggestion. The Guest
Register (Ex.22) shows his entry on June 18, 2006 in the Unit
area at Hisar. In the absence of any evidence that he stayed in
the Unit for 3-4 days or that he has seen that his brother being
E given beating is wholly unbelievable. In fact, the witness deposed
that he has not met his brother when he went to the Unit at Hisar.
Therefore, the story that he saw his brother being given beating
is made up story when none of the prosecution witnesses were
suggested anything even remotely in this respect. The
F prosecution case is based upon written confessional statements
made by the accused (Ex.8) and (Ex.9). In addition to the
confessional statements, oral confessions were made before PW-
1 and PW-6. PW-6 was not cross-examined in respect of any
involuntary nature of the confession or that he is the person who
has given beatings to the accused as averred by them in their
G statements under Rule 58. The accused without asking any
question to any of the prosecution witness that they have given
beatings as alleged by them in their statements, cannot doubt
the consistent evidence of the prosecution witnesses. Therefore,
the retraction of the confessional statements made in their
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 419

statement under Rule 58 is of no consequence when the A
prosecution witnesses have not been cross-examined in respect
of involuntary nature of the confessions. The statement of
witnesses of different ranks, could not be doubted by the Tribunal.
The findings of the Tribunal are in fact based on ipse dixit of the
Tribunal. The Tribunal reproduced Army Order No. 256 of 1972
B
in its judgment. However, the Tribunal has completely misread
such Army Order to hold that the confessional statements are
inadmissible having been made to the Army. [Paras 35-37]
[437-A-F]
1.3 In terms of Section 1 of the Evidence Act, the provisions
of the Evidence Act are not applicable to the Court Martial C
convened under the 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 subject to the provisions of the said Act.
In terms of Section 133 of the Act read with Section 25 of the D
Evidence Act, the statement made before a Police Officer such
as Military Police Officer alone is inadmissible in evidence and
not the statement made before the other persons. In the present
case, PW-1 is the Squadron Commander before whom the accused
made oral confession. He took the accused to PW-6. Under the
orders of PW-1 and PW-6, the accused confessed before the entire E
Squadron on June 18, 2006. It was on June 19, 2006, the accused
gave a written confession in their handwriting. Recording of such
written confession is video-recorded as well. Therefore, such
confession is not hit by Section 25 of the Evidence Act read with
Section 133 of the Act and Army Order No. 265 of 1972. Thus, F
the office order distinguishing a Military Police Officer is separate
and distinct from an Officer of the Army. Such distinction has
been conveniently overruled by the Tribunal. The confessional
statement made by the accused before Military Police Officer
alone is not admissible but the statement made before an Army
Officer is not hit by the provisions of Section 25 of the Indian G
Evidence Act, 1872. In fact, such statement is made before the
entire Squadron apart before different officers coupled with written
confession which was video recorded as well. The accused have
tried to create doubt on the prosecution story on the basis of the
H
420 SUPREME COURT REPORTS [2019] 12 S.C.R.

A fact that the originals of handwritten slip have not been produced.
PW-1 has deposed that original of such slip has been lost during
transit whereas the scanned copy is the true copy of the original
which the witness has seen. Such statement is supported by
statements of PW-5 who found the slip and PW-4 who recovered
the cardboard shoebox. Still further, before the DCM, the accused
B
have not disputed the production of the slips by way of secondary
evidence. Therefore, no reason not to take into consideration
such slips in evidence as PW-1 and PW-6 are the persons who
saw the originals and also deposed that the scanned copies are
the same as of originals. Therefore, the Tribunal erred in law in
C reversing the findings recorded by the DCM while exercising
appellate jurisdiction under Section 15 of the Act. [Paras 38-41]
[438-E-H; 439-A-F]
1.4 Though, the incriminating circumstance should have
been put to the accused in terms of Rule 58 of the Army Rules
D which is akin to Section 313 of the Code but, the detailed
explanation given by the accused rules out any prejudice caused
to them on account of absence of specific incriminating
circumstances put to the accused. [Para 42] [439-H; 440-A]
1.5 Section 15 of the Act confers wide power on the Tribunal
E so as to allow an appeal against conviction by a Court Martial
where the finding 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 a material irregularity in the course
of the trial resulting in miscarriage of justice. Even though the
power of the Tribunal is wide but it is not merely a different opinion
F on the appreciation of the evidence to interfere with the findings
recorded by the Court Martial. The first ground of interference
is whether the finding of the Court Martial is “legally not
sustainable”. Therefore, to exercise such power, there has to be
error of law by the Court Martial which would confer jurisdiction
G on the Tribunal to interfere against the conviction recorded by
the Court Martial. The second ground is “wrong application on a
question of law”. However, the Tribunal, in the present case, has
committed grave error in interfering with the finding of the Court
Martial by misreading an Army Order. There is no material

H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 421

irregularity pointed out by the Tribunal inasmuch as the A
irregularity pointed out is with regard to confessional statements
by Military Officer which is not a bar either under the Evidence
Act or under the Army Order issued under the Act. The Tribunal
could re-appreciate evidence to find out if any findings of the
Court Martial is legally not sustainable due to any reason; or that
B
the finding involves wrong decision on a question of law or there
was a material irregularity in the course of the trial resulting in
miscarriage of justice. But such wide powers do not confer
jurisdiction to the Tribunal to reverse the findings merely because
it finds that different view is possible. In view thereof, the Tribunal
exceeded its jurisdiction while setting aside the order of C
conviction passed by the DCM. 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 the accused are
dismissed. However, the sentence imposed upon the accused is
D
reduced 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 SCR
218 – relied on. E

Ajay Kumar Singh & Ors. v. The Flag Officer
Commanding-in-Chief & Ors. AIR 2016 SC 3528 :
[2016] 5 SCR 957 ; Jai Dev & Anr. v. State of Punjab
AIR 1963 SC 612 : [1963] SCR 489 ; Wasim Khan v.
State of U.P. AIR 1956 SC 400 : [1956] SCR 191 ; F
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.
Case Law Reference
G
[2016] 5 SCR 957 referred to Para 31
[2008] 6 SCR 1 relied on Para 43
[1963] SCR 489 referred to Para 43

H
422 SUPREME COURT REPORTS [2019] 12 S.C.R.

A [2014] 12 SCR 218 relied on Para 44
[1956] SCR 191 referred to Para 44
AIR 1974 SC 1256 referred to Para 44
[2010] 13 SCR 901 referred to Para 44
B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1388-1389 of 2019.
From the Judgment and Order dated 12.12.2013 of the Armed
Forces Tribunal, Chandigarh Regional Bench at Chandimandir in T.A.
No. 1247 of 2010/order dated 16.04.2014 in M.A. Nos. 3707 & 3708 of
C 2014 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 in
M.A. No. 3487, 2355 & 2356 of 2015 in T.A. No. 1251 of 2010 (arising
out of Crl. W.P. No. 1107 of 2008).
With
D
Criminal Appeal Nos. 1390, 1391 of 2019.
R. Balasubramanian, Sr. Adv., Ravinder Malik, Himanshu Sharma,
Ms. Aditi Sharma, Seeta ram Sharma, Sandeep Singh, Ram Niwas
Sharma, Ms. Archana Pathak Dave, Mukesh Kumar Maroria, Jitendra
Kumar Tripathi, Ms. Priyanka Das, Anmol Chandan, A. K. Sharma,
E Advs. for the appearing parties.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Delay condoned. Appeals admitted.
F
2. Criminal appeals arising out of Diary No. 9218 of 2016 are
filed by the Union of India whereas; criminal appeals arising out of Diary
Nos. 7204 of 2016 and 7205 of 2016 are filed by accused - Neeraj
Kumar Dhaka and Sandeep Kumar respectively.
3. The challenge in the appeals filed by the Union of India under
G
Section 30 of the Armed Forces Tribunal Act, 20071 is to an order passed
on December 12, 2013 by the Armed Forces Tribunal2 setting aside the
order of conviction & sentence and of dismissal consequent to District
1
Act
2
Tribunal
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 423
[HEMANT GUPTA, J.]

Court Martial3 proceedings conducted against the respondents4. The A
Tribunal passed an order for reinstatement of both the accused but it
was also ordered that the accused shall not be entitled to any back wages
for the period they were out of service. The other two appeals are against
the order passed by the Tribunal declining back wages to the accused in
those appeals.
B
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 C
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 D
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 Ex.15) relied upon by
the prosecution were allowed to be proved by the secondary evidence E
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, 19735. The Tribunal F
concluded as under:
“43. From above detailed discussion it is very much clear that the
case solely rests upon the alleged confessional statements made
by both the petitioners which have not been proved to have been
made voluntarily and these did not lead to any recovery and, G
therefore, cannot be linked with the accused and thus do not satisfy
the requirement of Army Order 256 of 1972 referred to above

3
DCM
4
hereinafter referred to as the ‘accused’
5
Code H
424 SUPREME COURT REPORTS [2019] 12 S.C.R.

A also. There is no other evidence led by the prosecution as against
the petitioners and the statements of other witnesses are not very
material.”
5. The facts leading to the said order need to be stated:
A report was submitted by 71 Armoured Regiment6 to the General
B Staff Branch of the Army Headquarters regarding loss of two pistols
which later led to DCM. The said Regiment was deputed for T-90 Tanks
conversion training at Pokhran Firing Range from March 15, 2006 to
April 4, 2006. The convoy moved from Patiala to Pokhran whereas
weapons were carried in locked boxes. The training and conversion
C exercise were conducted in general area Lunkaransar from April 1, 2006
to May 11, 2006. The physical check of weapons was carried out on
April 27, 2006 and Officer Commandant of the Squadron Lt. Col. J.G.
Gopalan confirmed that there were 50 pistols in ‘A’ Squadron at the
Camp in Biniwarli. The Regiment underwent another exercise from April
30, 2006 to May 2, 2006 in general area Binjarwali. All tanks had to be
D topped up and prepared for T-90 conversion exercise which commenced
on May 3, 2006.
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,
E 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
F 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.
G It was also reported that T-90 tank has a three-member crew but the
loss of two pistols have minimum impact on the operational efficiency.
The prima facie opinion in the report is as under:

6
Regiment
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 425
[HEMANT GUPTA, J.]

“6. Tentative Views of Oc Unit. The loss of wpns, at first look, A
appears to be due to the negligence of the Kote NKCO, Sr JCO
and Sqn Cdr of A Sqn. Theft or some other malafide intention
cannot be ruled out at this point of time and all leads are being
investigated.”
6. On May 22, 2006 (Ex.26), the Directorate General of Military B
Intelligence was informed by Commandant of Regiment that the two
lost pistols have been found in the exercise area at approximately 1600
hours on May 22, 2006 on the track from Mittasar to Bikamsar. Thus,
two different versions have come on record as to how and where the
recovery was made. One version is that the pistols were found in general
area during ground search whereas, another version is that Dafedar C
Vijaypal Singh found a cardboard shoebox containing the pistols around
the Dhobi (Washerman) area. The stand of the prosecution is that Pankaj
Dhaka, brother of accused Neeraj Kumar came to visit his brother at
Hisar Military Station on June 18, 2006 who reported the theft of pistols
by Neeraj Kumar in association with Sandeep Kumar. D
7. The accused were charged on September 26, 2007 under
Section 52(a) of the Army Act, 19507 read with Section 34 of the Indian
Penal Code, 18608 having committed theft of the two pistols on April 6,
2006. The stand of the prosecution was that the two pistols were stolen
on April 6, 2006 when accused were posted at Pokharan Field Firing E
Ranges and were recovered on May 22, 2006 in the area known as
Lunkaransar. The Court of Inquiry submitted its report dated May 18,
2006 (Ex.25). Thereafter, both the accused were tried by DCM who
held the accused guilty and were convicted and sentenced to undergo
rigorous imprisonment for one year and six months and also punishment
of dismissal from service. F

8. Initially, Sandeep Kumar was represented by Mr. C.S. Dalal,
Advocate and Neeraj Kumar Dhaka was represented by Mr. Om
Prakash, Advocate in proceedings before the DCM. However,
subsequently, Shri C.S. Dalal, Advocate represented both the accused
before the DCM. G
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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426 SUPREME COURT REPORTS [2019] 12 S.C.R.

A informed by Risaldar Katar Singh (PW-7) about the loss of two pistols
on May 12, 2006. He stated that during search conducted on May 18,
2006 and May 19, 2006, the handwritten slip (Ex.15) was recovered
which is to the effect that the pistols will be located if the Squadron be
given pass out for 24 hours and that one officer is also involved.
Thereafter, the entire Squadron was sent to out-pass, other than 16
B
selected personnel who were sent to search pistols. However, it was on
May 22, 2006, Dafedar Vijaypal Singh (PW-4) found a shoe box with
two pistols. He further deposed that Pankaj Dhaka disclosed before
him that his brother Neeraj Kumar has brought two pistols to him and
that Neeraj begged before him to forgive him. The other accused
C Sandeep who was playing hockey was also called. He stated that the
last physical weapon check was done on March 31, 2006 but the report
on April 27, 2006 was prepared without physical check. He also deposed
that the original handwritten slips (Ex.15) and the photograph of the
label pasted on the gift-wrapping paper on the shoebox (Ex.12) were
lost in transit and were untraceable but the scanned copies were produced
D
by way of secondary evidence, which was allowed by the DCM. It is in
the confessional statements of the accused that the two pistols were
stolen on April 6, 2006, that is basis of the charge sheet against the
accused.
10. The witness further stated that on June 18, 2006, both the
E accused 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 confessed
before them that they have committed theft of two pistols. The witness
has produced handwritten confessional statement of Neeraj Kumar
F Dhaka (Ex.8) in two pages and also handwritten confessional statement
of Sandeep Kumar in four pages (Ex.9) along with statement of Pankaj
Dhaka (Ex. 10) in one page. Such confessions were video recorded as
well. The transcript of video recording is marked as Ex.39.
11. We have to examine firstly, the finding in respect of secondary
G evidence. The prosecutor has filed an application to lead secondary
evidence. The defence counsel has submitted that he has no objection to
lead secondary evidence in the proceedings recorded. Such proceedings
are recorded when the statement of PW 1 was being recorded. The
relevant part from the statement of the witness is as under:

H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 427
[HEMANT GUPTA, J.]

“At this stage of the proceedings, the prosecutor submits that the A
handwritten slip and the label slip affixed to the gift wrapper in
which the cardboard shoe box containing two stolen pistols was
found, to be produced as evidence in the Court is untraceable.
The Prosecutor submits an application under Section 65 of Indian
Evidence Act 1872 for allowing the prosecutor to lead secondary B
evidence for proving the documents handwritten slip and the label
slip affixed to the gift wrapper in which the cardboard shoe box
containing two stolen pistols was found. The same is received,
read, marked Exhibit ‘13’.”
“The defence counsel, in reply, submits that the handwritten slip C
and the label slip affixed to the gift wrapper in which the cardboard
shoe box containing two stolen pistols was found, in original, should
have been available with the prosecution in the copy No. 1 of the
Court of Inquiry along with exhibits as produced by the witnesses.
Further, the Defence counsel also submits that he has no objection
to lead the secondary evidence. D

The prosecution, in answer, submits that the Copy No. 1 of the
Court of Inquiry does not contain the original documents as exhibits.
The same have been handed over to the prosecution. The
documents have been lost in transit and are untraceable.”
E
12. The DCM passed the following order after considering the
respective arguments of the parties before it:
“Gentlemen, now you may consider the submission of the
prosecution to lead secondary evidence for proving the documents,
hand written slip and the label slip affixed to the gift wrapper in F
which the cardboard shoe box containing two stolen pistols were
found, in the light of the above provisions read before you.
xxx xxx xxx
The Court decides to allow the submission of prosecution to lead
secondary evidence and to proceed with the trial.” G
13. In the cross-examination thereafter, the witness denied the
suggestion that Sowar Rakesh Phogat had found two pistols on May 22,
2006 at about 1500 hours. He denied that the pistols were found in
general area as the pistols were found at Dhobi table of ‘A’ Squadron.
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428 SUPREME COURT REPORTS [2019] 12 S.C.R.

A The witness deposed that the handwritten slip was with him but it was
submitted in the Court of Inquiry as an Exhibit to Col. S. Bhardwaj,
Commandant, 88 Armoured Regiment. He deposed that original
handwritten slip was seen by him and the scanned copy (Ex.15) is the
same. The witness deposed that two pistols were wrapped in newspaper
sheets. The newspaper cuttings included cutting from newspaper
B
corresponding to Muzzafarnagar area from where accused Sowar Neeraj
Kumar Dhaka hails. The witness deposed that the confessional
statements Ex. 8, 9 and 10 are exactly the same as produced before the
Court of Inquiry. The confessional statements were handwritten by the
accused persons voluntarily after having confessed in front of the entire
C Squadron. There was no force applied on them.
14. The witness denied that the accused persons were kept in the
Quarter Guard or they were detained. He admitted that the procedural
lapse has taken place and that the daily, weekly and monthly checks of
the weapons have not been done in the prescribed manner. He deposed
D that they were undergoing conversion training. Hence, the commitment
was very heavy. Dafedar Vijay Pal Singh (No 1079855X) was performing
various duties at one time, such as that of Kote Non-Commissioned
Officer and Tank Commander. The training commitments took a high
priority. It was stated that basic faith was that nothing like this can
happen. Procedural lapses did take place. To that effect, he and Dafedar
E Vijay Pal Singh have already been awarded punishments.
15. PW-2 is Risaldar Rai Singh. He is a witness of confession of
the accused before the entire Squadron on June 18, 2006. He deposed
that cursory weapons check was done on April 27, 2006 as it was believed
that all weapons were kept at their respective places.
F
16. PW-3 is Acting Lance Dafedar Rajender Singh. He stated
that he was informed by Risaldar Katar Singh on May 11, 2006 at about
1830 hours that two pistols were deficient. He also deposed that he and
Dafedar Baljit Singh found a black polythene bag containing the shoe
box on May 22, 2006 containing two stolen pistols. He deposed that
G accused Neeraj Kumar was granted leave from Pokharan Field Firing
Ranges and sent to Hisar whereas Sandeep Kumar made an excuse of
stomach ache on April 7, 2006 and later he was shifted to Military
Hospital, Jodhpur. He deposed that he has been awarded punishment
because of two stolen pistols by both the accused persons. In cross-
H examination, he admitted that weapon cleaning was done on April 1,
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 429
[HEMANT GUPTA, J.]

2006 and not thereafter and that only paper work was done. He further A
deposed that Risaldar Katar Singh was on leave from April 4, 2006 to
April 24, 2006 and he was performing the duties of officiating Senior
JCO and Kote JCO. Risaldar Katar Singh was sent on leave in spite of
shortage of manpower as he had to vacate family accommodation at Sri
Ganganagar to shift his family to new accommodation at Hisar. He
B
deposed that on June 18, 2006, his brother Ranbir Singh came to meet
him at Hisar Military Station. The CMP sentry told him that Pankaj
Dhaka, brother of accused Neeraj Kumar had come to meet him. He
has produced the Guest Register of Regiment where Neeraj Kumar had
made 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 in C
the Guest Register but perusal of the record shows that there is no
cutting in the Guest Register in respect of time and name of the visitor
though there seems to be some cuttings in the column of signatures of
Risaldar Major as noticed by the Court. He deposed that Neeraj Kumar
went to the residence of PW-1 and confessed that he had stolen two
D
pistols along with accused No. 2 and that he confessed the wrongful act
to the Squadron Commander. He deposed that both the accused had
interacted with each other while on leave. Accused No. 1 Neeraj Kumar
was back from leave on May 12, 2006 while the accused No. 2 reported
back on May 14, 2006 at Hisar Military Station and later both went to
Lunkaransar on May 15, 2006 where ‘A’ Squadron was located. It was E
on May 18, 2006 Lt. Col. Arvinder Singh, Second-in-Command ordered
a 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 come
and 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 accused
F
were keeping a watch if someone picked up the slip but later Neeraj
Kumar picked up the slip and gave it to Senior Dafedar Major Sarwan
Kumar. He deposed that Pankaj Dhaka has voluntarily given his
statement in his presence and in presence of Risaldar Rai Singh. In the
cross-examination, he denied having said to mother of Sandeep Kumar
that she should forget his son as he has been beaten up. G
17. PW-4 is Dafedar Vijaypal Singh has recovered the pistols in a
cardboard shoe box. He deposed that he along with Dafedar Baljit
Singh found a black polythene bag containing two pistols. He has identified
the photograph of the label (Ex.12) pasted on the gift-wrapping paper.
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430 SUPREME COURT REPORTS [2019] 12 S.C.R.

A He 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 opening
the shoe box, he found the newspaper cuttings as well as two pistols
wrapped separately in newspapers. He informed Lt. Col. J.G. Gopalan,
Squadron Commander (PW-1).
B 18. Risaldar Sarwan Kumar is examined as PW-5. He deposed
that deficiency of weapons was told to him by Risaldar Katar Singh. He
recognised the handwritten slip marked as Ex.15 and the signatures and
stamp of Capt. Vineet Kumar. He was given this handwriting by accused
No.1- Neeraj Kumar on May 19, 2006 as having found the slip on Dhobi
table.
C
19. PW-6 is Lt. Col. Arvinder Singh, Second in Command of the
Regiment. He deposed about the handwritten slip (Ex.15) as the one
having the same content as the original. He has seen the original as
well. 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 confessional
D statements were given by the accused in front of him and the entire
Squadron. He deposed that both the accused and Pankaj Dhaka made
written 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 confessional
E statements of accused No 1, accused No 2 and Master Pankaj
Dhaka, brother of accused No 1 respectively, in original. I identify
with the Exhibit ‘8’, ‘9’ and ‘10’, and have seen these confessional
statements in original, earlier.
The accused persons have made statements at various stages
F starting from the first verbal confessional statements on 18 Jun
2006 and written confessional statements on 19 Jun 2006. Then,
at the Court of Inquiry conducted by the then Commandant, 88
Armoured Regiment and statements made in detail to
Commanding Officer, 10 Merchandised Infantry and also at the
G Summaries of Evidence. Both the accused persons had requested
me to save them from civil jail whenever they had interacted with
me.”
20. In cross-examination, he deposed that the video-recording of
accused persons making their written confessions was made on the
orders of the Commandant of Regiment. The transcription of video was
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 431
[HEMANT GUPTA, J.]

given to the defence counsel duly attested by Lt. Amit Sudan. He deposed A
that confessional statements (Ex.8 and Ex.9) were not written in his
presence whereas verbal confessions of the accused were given in his
presence and in presence of the entire ‘A’ Squadron and the Commandant
of the Regiment.
21. He deposed that the accused have made statements at various B
stages from first verbal confessional statements on June 18, 2006; written
confessional statement on June 19, 2006 and then at the Court of Inquiry
conducted by the then Commandant, 88 Armoured Regiment and the
statements made in detail to the Commanding Officer, 10 Mechanised
Infantry and also at the stage of Summary of Evidence.
C
22. PW-7 is Risaldar Katar Singh. He deposed that weapons
were 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 as
they were to be issued to crew of the tank. He is a witness to the
confessional statement written by both the accused and that the accused
confessed about stealing the two pistols in the presence of entire D
Squadron. The verbal and written confessions were voluntary in nature.
He deposed that he believed the two pistols were lost while in transit in
the exercise as no pistols were issued to anyone. He recognized the
contents of slip, the scanned copy and handwritten slip found at the
Dhobi table. He deposed that he lodged a Daily Diary Report on May E
13, 2006 at P.S. Lunkaransar for loss of two pistols as also the cancellation
of the report (Ex.37). The Daily Diary Report lodged at P.S. Sardarshahar
was cancelled vide Ex.21. He deposed that on June 18, 2006, he was at
his residence when the entire ‘A’ Squadron was made to assemble at
the Regiment and he reached the Regiment at 1800 hours. Both the
accused were standing in front of entire Squadron. Colonel H.S. Chehal, F
Commandant; Lt. Col. Arvinder Singh, Second-in-Command and Lt. Col.
J.G. Gopalan, Squadron Commander were also present there. Both the
accused confessed about stealing of two pistols. They also wrote
confessional statement. He is a witness to the confessional statement
written by accused Neeraj Kumar. Sowar Krishan Kumar was also G
present. He and Sowar Atender Dahiya are witnesses of confessional
statement of accused Sandeep Kumar.
23. PW-8 is Dafedar Parkash Chand who has video recorded the
written confessions of the accused and Pankaj Dhaka on June 19, 2006.
He has produced the transcription of the video recording. In cross- H
432 SUPREME COURT REPORTS [2019] 12 S.C.R.

A examination, he stated that there are no cuts in the video recording and
is exactly the same tape that he had recorded on June 19, 2006 and that
there is no tampering of the video tape.
24. PW-9 is Colonel S. Bhardwaj, Deputy Project Manager, who
was earlier appointed as the Presiding Officer of the Court of Inquiry
B for the loss of two pistols. He stated that the accused persons deposed
before the Court of Inquiry as witnesses and later gave additional
statements in which they confessed their wrongful deed voluntarily. He
also stated that the original handwritten slip was shown at the Court of
Inquiry and only one scanned copy was taken which was duly attested
by Captain Vineet Kumar. He identified that the contents on such slip
C are the same as in the original document.
25. Pankaj Dhaka, brother of accused Neeraj Kumar has been
examined as PW-10. He admitted that he came to meet his brother
Neeraj Kumar on June 18, 2006. Acting Lance Dafedar Rajender Singh
took him to his brother at Hisar Military Station for 3-4 days. He stated
D that he did not meet his brother in 3-4 days and did not do anything. The
prosecution declared the witness hostile. He stated that he did not make
statement at the Court of Inquiry but was physically assaulted and made
to sign on every page. He denied having made statement (Ex.42) in
English stating that he cannot read English though he had studied English
E up to Class XII. He deposed that he has given statement as was told to
him and such statements were tutored. He admitted his handwriting
and signatures (Ex.10) written in Hindi which he admits that he
understands. He admits that he had been stated in the statement that
there are no cuttings or amendments in the statement. He admits that
he was sitting on a chair when video was being recorded. He deposed
F that he stayed in Regiment for two more days after his statement was
video-recorded. He further states that his brother was beaten up in
front of him and he was threatened to give false statement so as to save
life of his brother.
26. Last prosecution witness is PW-11 Sowar Atender Dahiya.
G He is the witness to the confessional statement of Sandeep Kumar
(Ex.9). The only question asked in the cross-examination was in respect
of presence of Lt. Col. J.G. Gopalan (PW-1) when accused No. 2 had
written confessional statement.
27. The Army Rule 58 is to provide an opportunity to an accused
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 433
[HEMANT GUPTA, J.]

to explain the incriminating circumstances appearing against an accused. A
It does not contemplate that such statement can be of an evidence,
which has not been led by the prosecution and that accused has not
confronted the prosecution witnesses with such aspect in the cross
examination of a witness examined by the prosecution. Rule 58 of the
Army Rule reads thus:
B
“58. Examination of the accused and defence witnesses. (1) (a)
In every trial, for the purpose of enabling the accused personally
to explain any circumstances appearing in evidence against him,
the court or the Judge Advocate –
(i) may at any state, without previously warning the accused, put C
such questions to him as considers necessary;
(ii) shall, after the close of the case for the prosecution and before
he is called on for his defence, question him generally on the case.”
28. In a statement recorded under Rule 58 of the Army Rules,
accused No.1 Sowar Neeraj Kumar Dhaka was put handwritten D
confessional statement (Ex.8) recorded on June 19, 2006 with Risaldar
Katar Singh and Sowar Krishan Kumar as independent witnesses. The
accused has stated that the statements made by the prosecution witnesses
are false. He denied the incident but admitted that he was doubted
because he handed over handwritten slip found on the Dhobi table to E
Squadron Major Sarwan Kumar. Thereafter, accused No. 1 in his
statement stated that he was performing sentry duty from April 4, 2006
to 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 reported
back on May 14, 2006. On May 15, 2006, he went back to exercise
area at Lunkaransar. He stated that he found a handwritten slip on May F
19, 2006 on the Dhobi table in the exercise area at about 0730 hours
which he handed over to Squadron Dafedar Major Sarwan Kumar. He
was called by Lt. Col. Arvinder Singh (PW-6) who asked him about
handwritten slip. Risaldar Katar Singh (PW-7) passed an order of fall-
in and all personnel of ‘A’ Squadron were asked to write the same G
contents as written on the handwritten slip. Such handwritten samples
were 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 ask
about handwritten slip once again. He accused him of writing of a
handwritten slip and stealing of two pistols. He stated that he was
H
434 SUPREME COURT REPORTS [2019] 12 S.C.R.

A confined 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. He
was taken to the office of Lt. Col. J.G. Gopalan (PW-1). There, he was
beaten up by Acting Lance Dafedar Rajender Singh (PW-3), Risaldar
Katar Singh (PW-7) and also Lt. Col. Arvinder Singh (PW-6). Lt. Col.
B
Arvinder Singh (PW-6) forced him to write a suicide note and also a
confessional statement stating that he had stolen two pistols 9mm
Browning which he improved later on to say that Lt. Col. Arvinder Singh
(PW-6) had given him a performa of the suicide note and confessional
statement. He was forced to note down the entire contents on a fresh
C page and sign it. They also threatened him and told that his brother
would be killed if he does not write or state what they told him. He was
shown his brother who was sitting in the Clerks Office along with Sowar
Atender Dahiya (PW-11).
29. In a statement recorded under Rule 58 of the Army Rule,
D accused No. 2 Sowar Sandeep Kumar resiled from his earlier statement.
He stated that on 18 June 2006, at about 1600 hours, he had come to
practice hockey in the Hockey Field. Lieutenant Colonel JG Gopalan,
Squadron Commander, came to him and informed him that Lieutenant
Colonel Arvinder Singh, Second-in-Command had called him to his office.
He was beaten by Lieutenant Colonel Arvinder Singh, Second-in-
E Command 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 persons
who continuously assaulted him. After half an hour, Lieutenant Colonel
Arvinder Singh, Second-in-Command came back and handed him a
F handwritten performa to be copied verbatim in his handwriting and to be
signed by him. He said, later, he was confined to the Quarter Guard. He
further stated that on 19 June 2006, he was called in the office of
Squadron Commander. He was beaten up, one after the other, by
Lieutenant Colonel Arvinder Singh, Second-in-Command, Major Zorawar
Singh Gill, Squadron Commander ‘B’ Squadron, Risaldar Katar Singh,
G Senior JCO ‘A’ Squadron, Acting Lance Dafedar Rajender Singh,
No.15468978N Lance Dafedar Om Prakash and No.15474706K Sowar
Ravinder. They had video recorded his statements which he was forced
to give. He was also forced to write two or three pages and sign on
them. Later he was confined to the Quarter Guard. Somewhat similar
H statement is of the Neeraj Kumar, accused No.1.
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 435
[HEMANT GUPTA, J.]

30. In these facts, the order of Tribunal and the finding of DCM A
are required to be examined. Firstly, none of the prosecution witnesses
were cross-examined in respect of threats or beatings inflicted on any
of the two accused. Such statements made under Army Rule 58 are not
evidence which can be believed to doubt the findings recorded by DCM
in the absence of any such defence put to the witness. The witness,
B
when in witness box, could respond to such plea of the accused. Such
statement of the accused under Rule 58 is to explain the circumstances
appearing in evidence against him. The accused could not set up a
defence with which none of the prosecution witness was confronted
with. These statements are not on oath though he has an option to appear
as a witness on oath. Therefore, self-serving statements made when C
opportunity was given to accused under Army Rule 58 will not create
any suspicion on the prosecution witnesses when there is not even a
remote suggestion to any of the prosecution witnesses who alone could
depose the facts so stated by the accused.
31. The three Judge Bench of this Court in Ajay Kumar Singh & D
Ors. v. The Flag Officer Commanding-in-Chief & Ors.9 while hearing
an appeal under Section 30 of the Act held that this Court normally does
not re-appreciate evidence and is slow to interfere with the findings of
the Tribunal unless there is substantial question of public importance, but
when the appreciation of evidence is vitiated by serious error, this Court
can re-appreciate the evidence and interfere with the findings recorded E
by the Tribunal. The Court held as under:
“20. …The evidence adduced by the prosecution must be
scrutinised independently of such lapses either in the investigation
or by the prosecution or otherwise, the result of the criminal trial
would depend upon the level of investigation or the conduct of the F
prosecution. Criminal trials should not be made casualty for such
lapses in the investigation or prosecution. Criminal trials should
not be made casualty for such lapses in the investigation or
prosecution.
21. The evidence of PW 14 (Manager) and PW 18 (Cashier) G
identifying the appellants and their evidence as to the identity of
the appellants in the test identification parade ought not to have
been disbelieved by the Tribunal. In exercise of power under Section

9
AIR 2016 SC 3528
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436 SUPREME COURT REPORTS [2019] 12 S.C.R.

A 30 of the Armed Forces Tribunal Act, this Court normally does
not reappreciate the evidence and is slow to interfere with the
findings of the Tribunal unless there is substantial question of public
importance. But when it is found that appreciation of evidence in
a given case is vitiated by serious error, this Court can reappreciate
the evidence and interfere with the findings...”
B
32. The question required to be examined is as to whether the
Tribunal was within its jurisdiction under Section 15 of the Act to set
aside the order of the DCM and to order reinstatement of the accused
with further direction of no payment for the intervening period.
C 33. The Tribunal has set aside the secondary evidence in respect
of the written slips (Ex.12 and Ex.15). The learned Tribunal was of the
opinion that the prosecution is categorical that the theft of the pistols has
taken place on April 6, 2006 but thereafter physical verification was
conducted on April 27, 2006 where no loss was reported. Subsequently,
an FIR was lodged on May 13, 2006 but suddenly the story of recovery
D of the pistols wrapped in a card board shoe box has been introduced on
May 18, 2006. There is also a version that the pistols were recovered
while checking in the general area.
34. We find that the findings of the Tribunal are not correct in this
respect. It is categorical stand of Lt. Col. J.G. Gopalan, Squadron
E Commander (PW-1) that the report dated April 27, 2006 was prepared
without any physical verification and for such report, he has been punished
as well. He has also deposed that there was procedural lapse inasmuch
as the report was given on April 27, 2006 without physical verification of
the weapons and that there was no daily, weekly or monthly checking.
F Risaldar Katar Singh (PW-7) has deposed that report was given that the
weapons would be in place as no weapon has been issued to anyone.
The suggestions put to the witnesses that physical verification was done
on April 27, 2006 or the pistols were recovered in general area have
been denied by all the witnesses. The stand of the prosecution that the
pistols were stolen on April 6, 2006 is based upon written and oral
G confession made by the accused. The primary evidence of the
prosecution is the confessional statements made by the accused along
with the supporting confessional statement made by Pankaj Dhaka,
brother of accused Neeraj Kumar.

H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 437
[HEMANT GUPTA, J.]

35. The statement of Pankaj Dhaka that he stayed in the Unit for A
3-4 days is not made out as none of the prosecution witnesses have
been given such suggestion. The Guest Register (Ex.22) shows the
entry of Pankaj Dhaka on June 18, 2006 in the Unit area at Hisar. In the
absence of any evidence that he stayed in the Unit for 3-4 days or that
he has seen that his brother being given beating is wholly unbelievable.
B
In fact, the witness has deposed that he has not met his brother when he
went to the Unit at Hisar. Therefore, the story that he has seen his
brother being given beating is made up story when none of the prosecution
witnesses have been suggested anything even remotely in this respect.
36. The prosecution case is based upon written confessional
statements made by accused Neeraj Kumar (Ex.8) and Sandeep Kumar C
(Ex.9). In addition to the confessional statements, oral confessions were
made before Lt. Col. J.G. Gopalan, Squadron Commander (PW-1) and
Colonel Arvinder Singh, Commandant (PW-6). PW-6 has not been cross-
examined in respect of any involuntary nature of the confession or that
he is the person who has given beatings to the accused as averred by D
them in their statements under Rule 58. The accused without asking
any question to any of the prosecution witness that they have given
beatings as alleged by them in their statements, cannot doubt the consistent
evidence of the prosecution witnesses. Therefore, the retraction of the
confessional statements made in their statement under Rule 58 is of no
consequence when the prosecution witnesses have not been cross- E
examined in respect of involuntary nature of the confessions. The
statement of witnesses of different ranks, could not be doubted by the
Tribunal. The findings of the Tribunal are in fact based on ipse dixit of
the Tribunal.
37. The Tribunal has reproduced Army Order No. 256 of 1972 in F
its judgment. However, the Tribunal has completely misread such Army
Order to hold that the confessional statements are inadmissible having
been made to the Army. The relevant extract of the order is reproduced
for ready reference:
“1. The Indian Evidence Act, 1872 subject to the provisions of G
the Army Act, applies to all proceedings before a Court-Martial.
Section 25 of the Indian Evidence Act provides that no confession
made to a police officer shall be proved as against a person accused
of any offence. Section 26 of the same Act provides that no
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438 SUPREME COURT REPORTS [2019] 12 S.C.R.

A confession made by any person, whilst he is in the custody of a
police officer, unless it be made in the immediate presence of a
magistrate, shall be proved as against such person. However,
facts discovered in consequence of a confession which is itself
inadmissible having been made to a police officer, or whilst in the
custody of a police officer and not in the immediate presence of a
B
magistrate and so much of the confession as distinctly relates to
the facts thereby discovered, may be proved. (Indian Evidence
Act Section 27).
xx xx xx
C 4. When a person, subject to the Army Act, makes or it appears
he is about to make a confession whilst in the custody of a military
police officer, he should first be removed from military police
custody and placed in ordinary military custody. He may then be
taken before a military officer with a view to having his confession
recorded in the manner described in para 3 above. Alternatively,
D he may be taken by the military police officer before a magistrate,
for his confession to be recorded in accordance with Section 164
of the Code of Criminal Procedure.”
38. In terms of Section 1 of the Evidence Act, the provisions of
the Evidence Act are not applicable to the Court Martial convened under
E the 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 subject
to the provisions of the said Act. In terms of Section 133 of the Act read
with Section 25 of the Evidence Act, the statement made before a Police
F Officer such as Military Police Officer alone is inadmissible in evidence
and not the statement made before the other persons.
39. In the present case, Lt. Col. J.G. Gopalan (PW-1) is the Squadron
Commander before whom the accused has made oral confession. He
has taken the accused to PW-6 Col. Arvinder Singh, Second-in-Command.
G Under the orders of Lt. Col. J.G. Gopalan (PW-1) and Col. Arvinder
Singh (PW-6), the accused confessed before the entire Squadron on
June 18, 2006. It was on June 19, 2006, the accused have given a
written confession in their handwriting. Recording of such written
confession is video-recorded as well. Therefore, such confession is not

H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 439
[HEMANT GUPTA, J.]

hit by Section 25 of the Evidence Act read with Section 133 of the Act A
and Army Order No. 265 of 1972.
40. Thus, the office order distinguishing a Military Police Officer
is separate and distinct from an Officer of the Army. Such distinction
has been conveniently overruled by the Tribunal. The confessional
statement made by the accused before Military Police Officer alone is B
not admissible but the statement made before an Army Officer is not hit
by the provisions of Section 25 of the Indian Evidence Act, 187210. In
fact, such statement is made before the entire Squadron apart before
different officers coupled with written confession which was video
recorded as well.
C
41. The accused have tried to create doubt on the prosecution
story on the basis of the fact that the originals of handwritten slip have
not been produced. Lt. Col. J.G. Gopalan (PW-1) has deposed that
original of such slip has been lost during transit whereas the scanned
copy is the true copy of the original which the witness has seen. Such
statement is supported by statements of Risaldar Sarwan Kumar (PW- D
5) who has found the slip and Dafedar Vijaypal Singh (PW-4) who has
recovered the cardboard shoebox. Still further, before the DCM, the
learned counsel for the accused have not disputed the production of the
slips by way of secondary evidence. Therefore, we find no reason not
to take into consideration such slips in evidence as Lt. Col. J.G. Gopalan E
(PW-1) and Col. Arvinder Singh (PW-6) are the persons who have seen
the originals and have also deposed that the scanned copies are the
same as of originals. Therefore, we find that the Tribunal erred in law in
reversing the findings recorded by the DCM while exercising appellate
jurisdiction under Section 15 of the Act.
F
42. The argument of Mr. Malik that since the prosecution has not
put the incriminating circumstances appearing in the evidence to the
accused under Rule 58 of the Army Rules, therefore, the conviction was
rightly set aside by the Tribunal. It may be stated that incriminating
circumstance of written confessional statement was put to accused
Neeraj Kumar and thereafter, he has given a detailed unsworn statement G
running into more than five pages as reproduced above. Similarly,
accused Sandeep Kumar has also given his unsworn statement in more
than six pages, the summary of which is reproduced above. Though, the
10
Evidence Act
H
440 SUPREME COURT REPORTS [2019] 12 S.C.R.

A incriminating circumstance should have been put to the accused in terms
of Rule 58 of the Army Rules which is akin to Section 313 of the Code
but, the detailed explanation given by the accused rules out any prejudice
caused to them on account of absence of specific incriminating
circumstances put to the accused.
B 43. This Court in Keya Mukherjee v. Magma Leasing Limited
& Anr.11 while referring to earlier three Judge Bench judgment in Jai
Dev & Anr. v. State of Punjab12, as to whether the accused has been
given an opportunity to say what he wanted to say in respect of
prosecution against him, held as under:
C “17. The above approach shows that some dilution of the rigour
of the provision can be made even in the light of a contention
raised by the accused that non-questioning him on a vital
circumstance by the trial court has caused prejudice to him. The
explanation offered by the counsel of the accused at the appellate
stage was held to be a sufficient substitute for the answers given
D by the accused himself.
18. What is the object of examination of an accused under Section
313 of the Code? The section itself declares the object in explicit
language that it is ‘for the purpose of enabling the accused
personally to explain any circumstances appearing in the evidence
E against him’. In Jai Dev v. State of Punjab [AIR 1963 SC 612]
Gajendragadkar, J. (as he then was) speaking for a three-Judge
Bench has focused on the ultimate test in determining whether
the provision has been fairly complied with. He observed thus:
(AIR p. 620, para 21)
F ‘21. … The ultimate test in determining whether or not the
accused has been fairly examined under Section 342 would be
to enquire whether, having regard to all the questions put to
him, he did get an opportunity to say what he wanted to say in
respect of prosecution case against him. If it appears that the
G examination of the accused person was defective and thereby
a prejudice has been caused to him, that would no doubt be a
serious infirmity.’

11
(2008) 8 SCC 447
12
AIR 1963 SC 612
H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 441
[HEMANT GUPTA, J.]

19. Thus it is well settled that the provision is mainly intended to A
benefit the accused and as its corollary to benefit the court in
reaching the final conclusion.
20. At the same time it should be borne in mind that the provision
is not intended to nail him to any position, but to comply with the
most salutary principle of natural justice enshrined in the B
maxim audi alteram partem. The word ‘may’ in clause (a) of
sub-section (1) in Section 313 of the Code indicates, without any
doubt, that even if the court does not put any question under that
clause the accused cannot raise any grievance for it. But if the
court fails to put the needed question under clause (b) of the sub-
section it would result in a handicap to the accused and he can C
legitimately claim that no evidence, without affording him the
opportunity to explain, can be used against him. It is now well
settled that a circumstance about which the accused was not asked
to explain cannot be used against him.”
44. In a later judgment in Nar Singh v. State of Haryana13, this D
Court referred earlier judgments of this Court in Wasim Khan v. State
of U.P.14, Bhoor Singh v. State of Punjab15 and Santosh Kumar Singh
v. State16 to hold as under:
“20. The question whether a trial is vitiated or not depends upon
the degree of the error and the accused must show that non- E
compliance with Section 313 CrPC has materially prejudiced him
or is likely to cause prejudice to him. Merely because of defective
questioning under Section 313 CrPC, it cannot be inferred that
any prejudice had been caused to the accused, even assuming
that some incriminating circumstances in the prosecution case F
had been left out. When prejudice to the accused is alleged, it has
to be shown that the accused has suffered some disability or
detriment in relation to the safeguard given to him under Section
313 CrPC. Such prejudice should also demonstrate that it has
occasioned failure of justice to the accused. The burden is upon
the accused to prove that prejudice has been caused to him or in G
the 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 H
442 SUPREME COURT REPORTS [2019] 12 S.C.R.

A implicit and the Court may draw an inference of such prejudice.
The facts of each case have to be examined to determine whether
actually any prejudice has been caused to the appellant due to
omission of some incriminating circumstances being put to the
accused.”
B 45. Since the accused have given detailed statements touching
the incriminating circumstances appearing in prosecution evidence and
also retracted confessional statements made by them, it cannot be said
that putting of incriminating circumstances to the accused have caused
any prejudice to the accused.
C 46. Section 15 of the Act confers wide power on the Tribunal so
as to allow an appeal against conviction by a Court Martial where the
finding 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 a
material irregularity in the course of the trial resulting in miscarriage of
justice. Even though the power of the Tribunal is wide but it is not
D merely a different opinion on the appreciation of the evidence to interfere
with the findings recorded by the Court Martial. The first ground of
interference is whether the finding of the Court Martial is “legally not
sustainable”. Therefore, to exercise such power, there has to be error
of law by the Court Martial which would confer jurisdiction on the Tribunal
E to interfere against the conviction recorded by the Court Martial. The
second ground is “wrong application on a question of law”. However,
the Tribunal, in the present case, has committed grave error in interfering
with the finding of the Court Martial by misreading an Army Order.
There is no material irregularity pointed out by the Tribunal inasmuch as
the irregularity pointed out is with regard to confessional statements by
F Military Officer which is not a bar either under the Evidence Act or
under the Army Order issued under the Act. The Tribunal could re-
appreciate evidence to find out if any findings of the Court Martial is
legally not sustainable due to any reason; or that the finding involves
wrong decision on a question of law or there was a material
G irregularity in the course of the trial resulting in miscarriage of
justice. But such wide powers do not confer jurisdiction to the Tribunal
to reverse the findings merely because it finds that different view is
possible.

H
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC. 443
[HEMANT GUPTA, J.]

47. In view thereof, we find that the Tribunal exceeded its A
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 B
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.

Divya Pandey Appeals disposed of.
C

D

E

F

G

H