Merely because diffirent opinion can be formed - it can not distrub the findings of trial court = 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 30 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. In view thereof, we find that the Tribunal exceeded its jurisdiction while setting aside the order of conviction passed by the DCM.

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
1
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’
2
Ex.15) relied upon by the prosecution were allowed to be proved by
the secondary evidence but no evidence was led in regard to
existence of any such slip or loss of the said slip. Therefore, no
secondary evidence can be allowed. The Tribunal also held that
the prosecution case was not put to accused - Sandeep Kumar as
required by Army Rule 58 which is akin to statement under Section
313 of the Code of Criminal Procedure, 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
3
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
4
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
5
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 outpass, 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
6
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
7
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
8
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
9
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
10
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
11
located. It was on May 18, 2006 Lt. Col. Arvinder Singh, Second-inCommand 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 crossexamination, 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 giftwrapping 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
12
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
13
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
14
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 crossexamination, 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
15
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 (PW11).
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 (PW6). 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-inCommand. 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 Punjab
12
, 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 nonquestioning 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 Haryana
13
, this Court
referred earlier judgments of this Court in Wasim Khan v. State
of U.P.
14
, Bhoor Singh v. State of Punjab
15 and Santosh
Kumar Singh v. State
16
 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
30
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.
31