REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1388-1389  OF 2019 (DIARY NO. 9218 OF 2016)

UNION OF INDIA & ORS. .....APPELLANT(S)

VERSUS

SANDEEP KUMAR ETC. .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO(S).  1390     OF 2019 (DIARY NO. 7204 OF 2016)

A N D

CRIMINAL APPEAL NO(S).  1391   OF 2019 (DIARY NO. 7205 OF 2016)

J U D G M E N T

HEMANT GUPTA, J.

1) Delay condoned.  Appeals admitted.

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

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

1  Act  2  Tribunal

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consequent  to  District  Court  Martial3 proceedings  conducted

against  the  respondents4.   The  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.

4) The Tribunal found that the findings recorded by the DCM that the

charge against the accused was the theft of two pistols [(i) Pistol

Browning  9mm,  Butt  No.1  –  Reg.  No.  T-5251;  and  (ii)  Pistol

Browning 9mm, Butt No. 22 – Reg. No. B-3927] on April 6, 2006 but

no physical inspection appears to have been done till the loss was

found on May 12, 2006.  The Tribunal also found that the written

confession (Ex.8 and Ex.9) given by the accused is in the presence

of  entire  Squadron,  thus,  such  oral  confessions  are  made  to

persons in  Army cannot  be relied upon referring to Army Order

No.256 of 1972.  It was also held that it is not clear as to whether

the  accused  were  in  custody  as  no  date  is  mentioned  on  the

written confessional statements and that there is nothing on record

as  to  how  and  on  whose  instance  the  accused  volunteered  to

reduce in writing the said confessions.  The Tribunal found that no

recoveries  were  affected  in  pursuance  of  the  confessional

statements of either of the accused as the pistols had already been

recovered.  The Tribunal also found that the two slips (Ex.12 and

3  DCM 4  hereinafter referred to as the ‘accused’

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Ex.15) relied upon by the prosecution were allowed to be proved by

the  secondary  evidence  but  no  evidence  was  led  in  regard  to

existence of any such slip or loss of the said slip.  Therefore, no

secondary evidence can be allowed.  The Tribunal also held that

the prosecution case was not put to accused - Sandeep Kumar as

required by Army Rule 58 which is akin to statement under Section

313  of  the  Code  of  Criminal  Procedure,  19735.    The  Tribunal

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, therefore, cannot be linked with the accused and thus do not  satisfy  the requirement of  Army Order  256 of 1972 referred to above 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 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 exercise were conducted in general area

5  Code 6  Regiment

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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 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, member of tank crew handed over his keys to the Senior

JCO Risaldar Katar Singh.  It is also mentioned in the report that an

order  was  received  on  May  9,  2006  at  1500  hrs.  that  all

participating crews were to carry weapons.  Dafedar Raibir Singh

counted 48 pistols.  Senior JCO Risaldar Katar Singh did not register

the  difference  nor  informed  anyone.   At  the  end  of  conversion

exercise, the loss of weapons was reported at 1030 hours on May

13, 2006.  It was also reported that Court of Inquiry has been called

for on May 18, 2006 to assemble on May 26, 2006.  The report is

that the loss has occurred between April 27, 2006 at Binjarwali and

May 9, 2006 at Mittasar.  The report is also to the effect that an FIR

No.  644  was  lodged  with  PS  Sardarshahar  about  the  loss  of

weapons.  It was also reported that T-90 tank has a three-member

crew  but  the  loss  of  two  pistols  have  minimum impact  on  the

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operational efficiency.  The  prima facie  opinion in the report is as

under:

“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 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

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 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.  

 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

7  Army Act 8  IPC

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Pokharan Field Firing 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.

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.   

9) The  prime  witness  of  the  prosecution  is  Lt.  Col.  J.G.  Gopalan,

Squadron Commander, who appeared as PW-1.  He deposed that

he 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 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

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to  forgive  him.   The  other  accused  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 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 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 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

evidence. The prosecutor has filed an application to lead secondary

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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:

“At  this  stage  of  the  proceedings,  the  prosecutor submits  that  the  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 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  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.

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.”

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 which the cardboard shoe

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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.”

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.  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  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  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

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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  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 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.

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  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-examination, he admitted that

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weapon cleaning was done on April 1, 2006 and not thereafter and

that only paper work was done.  He further 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

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  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 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

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located.  It was 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  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.

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.  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).   

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

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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.   

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 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 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  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 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

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orders of the Commandant of Regiment.  The transcription of video

was given to the defence counsel duly attested by Lt. Amit Sudan.

He deposed 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

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.  

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  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

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lodged a Daily Diary Report on May 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, 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 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-

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 for

the  loss  of  two  pistols.   He  stated  that  the  accused  persons

deposed before the Court of Inquiry as witnesses and later gave

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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  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 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 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 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

16

threatened to give false statement so as to save life of his brother.

  26) Last prosecution witness is PW-11 Sowar Atender Dahiya.  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 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 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:

“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  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 confessional

statement (Ex.8)  recorded on June 19,  2006 with Risaldar  Katar

17

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  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 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  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 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

18

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.  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 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, 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-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

19

Singh,  Second-in-Command  came  back  and  handed  him  a

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,  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 statement is of the Neeraj Kumar,

accused No.1.

30) In these facts, the order of  Tribunal  and the finding of DCM 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, 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

20

on oath though he has an option to appear as a witness on oath.

Therefore,  self-serving  statements  made  when  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 & 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 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 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) 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 30 of the Armed Forces Tribunal Act, this Court

9  AIR 2016 SC 3528

21

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...”

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.   

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 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

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

22

was no daily,  weekly or monthly checking.  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  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.

35) The statement of Pankaj Dhaka that he stayed in the Unit for 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.  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

23

statements  made by accused Neeraj  Kumar (Ex.8) and Sandeep

Kumar  (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  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-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 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 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

24

accused of  any offence.   Section 26 of  the same Act provides that no 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 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

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,  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  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  Officer  such  as  Military  Police

Officer  alone is  inadmissible  in  evidence and not  the statement

made before the other persons.

25

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.  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 hit by Section 25 of the Evidence Act read with

Section 133 of the Act 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 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.   

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

10  Evidence Act

26

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-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 (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.  

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 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  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,

27

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.   

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:

“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 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 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)

‘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  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

28

19. Thus it is well settled that the provision is mainly intended to 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  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 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 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-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  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

13  (2015) 1 SCC 496 14  AIR 1956 SC 400 15  AIR 1974 SC 1256  16  (2010) 9 SCC 747

29

that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be 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.”

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.

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 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  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

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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 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  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.  

47) In view thereof, we find that the Tribunal exceeded its jurisdiction

while setting aside the order of conviction passed by the DCM.   

48) Consequently, criminal appeals arising out of Diary No.9218 of 2016

filed  by  the  Union  of  India  are  allowed,  whereas,  the  criminal

appeals arising out of Diary Nos.7204 of 2016 and 7205 of 2016

filed by Neeraj Kumar Dhaka and Sandeep Kumar respectively are

dismissed.  However, the sentence imposed upon the accused is

reduced to the extent they had already undergone.   

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; SEPTEMBER 13, 2019.

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