Armed Forces Tribunal Act, 2007 – s.15 – Power of the Tribunal – 71 Armoured Regiment was deputed for T-90 Tanks conversion training at Pokhran Firing Range– Convoy moved from Patiala to Pokhran – Weapons were carried in locked boxes– Physical check of weapons carried out and the Officer Squadron Commander (PW-1) confirmed that there were 50 pistols– At the end of conversion exercise, loss of 2 pistols was reported– Respondents-accused charged for committing theft of two pistols – As per the prosecution, the pistols were stolen when accused were posted at Pokharan Field Firing Ranges – District Court Martial (DCM) convicted the accused with rigorous imprisonment for 1 year and six months and dismissal from service – Set aside by the Armed Forces Tribunal, directing reinstatement of both the accused– Held: Primary evidence of the prosecution is the confessional statements made by the accused – Tribunal completely misread Army Order No. 256 of 1972 to hold that the confessional statements are inadmissible having been made to the Army – In the present case, PW-1 is the Squadron Commander before whom the accused made oral confession, who took the accused to PW-6 (Second-inCommand of the Regiment) –Under the orders of PW-1 and PW-6, the accused confessed before the entire Squadron – Accused then made written confession, recording of which is video-recorded as well – In terms of s.133 of the 1950 Act r/w s.25, Evidence Act, the statement made before Police Officer such as Military Police Officer alone is inadmissible in evidence and not the statement made before other persons – Therefore, such confession is not hit by s.25, Evidence Act r/w. s.133, 1950 Act and the Army Order – Further, no reason not to take into consideration the scanned copies of the original handwritten slips in evidence, as PW-1 & PW-6 are the persons who saw the originals and deposed that the scanned copies are the same as originals – Power of the Tribunal u/s.15 is wide but such wide powers do not confer jurisdiction to reverse the findings merely because the Tribunal finds that different view is possible– Tribunal exceeded jurisdiction while setting aside the order of conviction passed by the DCM – Criminal appeals filed by the Union of India are allowed, while that of the accused are dismissed – However, the sentence imposed upon the accused is reduced to the extent already undergone – Army Act, 1950 – s.133 – Evidence Act, 1872– ss.1, 25 – Army Rules, 1954 – r.58.
Army Rules, 1954 – r.58 – 71 Armoured Regiment was deputed for T-90 Tanks conversion training at Pokhran Firing Range – At the end of conversion exercise, loss of 2 pistols was reported – Respondents-accused charged for committing theft of two pistols – Prosecution case based upon written confessional statements made by accused – Retraction of the confessional statements – Effect of – Held: In addition to the confessional statements, oral confessions were made before Squadron Commander (PW-1) and PW-6 (Second in Command of the Regiment)– PW-6 was not cross-examined in respect of any involuntary nature of the confession or that he gave beatings to the accused as averred by them in their statements u/r.58 –None of the prosecution witnesses were cross-examined in respect of threats/beatings inflicted on any of the two accused – Such statement of the accused u/r.58 is to explain the circumstances appearing in evidence against him– Accused could not set up defence with which none of the prosecution witness was confronted with – Therefore, the retraction of the confessional statements made in their statement u/r.58 is of no consequence.
Army Act, 1950 – s.133 r/w s.25, 1872 Act – Held: In terms of s.133 r/w s.25, Evidence Act, the statement made before Police Officer such as Military Police Officer alone is inadmissible in evidence and not the statement made before other persons – Evidence Act, 1872 – s.25.
Army Rules, 1954 – r.58 – 71 Armoured Regiment was deputed for T-90 Tanks conversion training at Pokhran Firing Range – At the end of conversion exercise, loss of 2 pistols was reported– Respondents-accused charged for committing theft of pistols– District Court Martial (DCM) convicted the accused – Set aside by the Armed Forces Tribunal – Plea of the accused that since the prosecution did not put the incriminating circumstances appearing in the evidence to the accused u/r.58, therefore, the conviction was rightly set aside by the Tribunal– Held: Though, the incriminating circumstance should have been put to the accused in terms of r.58 which is akin to s.313 of CrPC but, the detailed explanation given by the accused rules out any prejudice caused to them on account of absence of specific incriminating circumstances put to them – Code of Criminal Procedure, 1973 – s.313.
Disposing of the appeals, the Court
HELD : 1.1 The Rule 58, Army Rules, 1954 is to provide an opportunity to an accused to explain the incriminating circumstances appearing against an accused. Such statements are not an evidence, when it’s led by the accused who has not confronted the prosecution witnesses with such defence in the cross examination of a witness examined by the prosecution. None of the prosecution witnesses were cross-examined in 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. The statement of the accused is not on oath though he has an option to appear as a witness on oath. Therefore, self-serving statements made when opportunity was given to accused under Army Rule 58 will not create any suspicion on the prosecution witnesses when there is not even a remote suggestion to any of the prosecution witnesses who alone could depose the facts so stated by the accused. The Tribunal has set aside the secondary evidence in respect of the written slips (Ex.12 and Ex.15). The Tribunal was of the opinion that the prosecution is categorical that the theft of the pistols took place on April 6, 2006 but thereafter physical verification was conducted on April 27, 2006 where no loss was reported. It is categorical stand of PW-1 that the report dated April 27, 2006 was prepared without any physical verification and for such report, he has been punished as well. He has also deposed that there was procedural lapse inasmuch as the report was given on April 27, 2006 without physical verification of the weapons and that there was no daily, weekly or monthly checking. PW-7 deposed that report was given that the weapons would be in place as no weapon has been issued 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 brother of one of the accused. [Paras 27, 30, 33, 34] [432-H; 433-A-B; 435-A-C; 436-C-G]
1.2 The statement of brother of one of the accused that he stayed in the Unit for 3-4 days is not made out as none of the prosecution witnesses were given such suggestion. The Guest Register (Ex.22) shows his entry on June 18, 2006 in the Unit area at Hisar. In the absence of any evidence that he stayed in the Unit for 3-4 days or that he has seen that his brother being given beating is wholly unbelievable. In fact, the witness deposed that he has not met his brother when he went to the Unit at Hisar. Therefore, the story that he saw his brother being given beating is made up story when none of the prosecution witnesses were suggested anything even remotely in this respect. The prosecution case is based upon written confessional statements made by the accused (Ex.8) and (Ex.9). In addition to the confessional statements, oral confessions were made before PW1 and PW-6. PW-6 was not cross-examined in respect of any involuntary nature of the confession or that he is the person who has given beatings to the accused as averred by them in their 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. The Tribunal 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. [Paras 35-37] [437-A-F]
1.3 In terms of Section 1 of the Evidence Act, the provisions of the Evidence Act are not applicable to the Court Martial 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. In the present case, PW-1 is the Squadron Commander before whom the accused made oral confession. He took the accused to PW-6. Under the orders of PW-1 and PW-6, the accused confessed before the entire Squadron on June 18, 2006. It was on June 19, 2006, the accused gave a written confession in their handwriting. Recording of such written confession is video-recorded as well. Therefore, such confession is not hit by Section 25 of the Evidence Act read with Section 133 of the Act and Army Order No. 265 of 1972. Thus, 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, 1872. In fact, such statement is made before the entire Squadron apart before different officers coupled with written confession which was video recorded as well. The accused have tried to create doubt on the prosecution story on the basis of the fact that the originals of handwritten slip have not been produced. PW-1 has deposed that original of such slip has been lost during transit whereas the scanned copy is the true copy of the original which the witness has seen. Such statement is supported by statements of PW-5 who found the slip and PW-4 who recovered the cardboard shoebox. Still further, before the DCM, the accused have not disputed the production of the slips by way of secondary evidence. Therefore, no reason not to take into consideration such slips in evidence as PW-1 and PW-6 are the persons who saw the originals and also deposed that the scanned copies are the same as of originals. Therefore, the Tribunal erred in law in reversing the findings recorded by the DCM while exercising appellate jurisdiction under Section 15 of the Act. [Paras 38-41] [438-E-H; 439-A-F]
1.4 Though, the incriminating circumstance should have been put to the accused in terms of Rule 58 of the Army Rules which is akin to Section 313 of the Code but, the detailed explanation given by the accused rules out any prejudice caused to them on account of absence of specific incriminating circumstances put to the accused. [Para 42] [439-H; 440-A]
1.5 Section 15 of the Act confers wide power on the Tribunal 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 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, the Tribunal exceeded its jurisdiction while setting aside the order of conviction passed by the DCM. Consequently, criminal appeals arising out of Diary No.9218 of 2016 filed by the Union of India are allowed, whereas, the criminal appeals arising out of Diary Nos.7204 of 2016 and 7205 of 2016 filed by the accused are dismissed. However, the sentence imposed upon the accused is reduced to the extent they had already undergone. [Paras 46-48] [442-C-G; 443-A-B]
Keya Mukherjee v. Magma Leasing Limited & Anr. (2008) 8 SCC 447 : [2008] 6 SCR 1 ; Nar Singh v. State of Haryana (2015) 1 SCC 496 : [2014] 12 SCR
218 – relied on.
Ajay Kumar Singh & Ors. v. The Flag Officer
Commanding-in-Chief & Ors. AIR 2016 SC 3528 :
[2016] 5 SCR 957 ; Jai Dev & Anr. v. State of Punjab AIR 1963 SC 612 : [1963] SCR 489 ; Wasim Khan v. State of U.P. AIR 1956 SC 400 : [1956] SCR 191 ; Bhoor Singh v. State of Punjab AIR 1974 SC 1256 ; Santosh Kumar Singh v. State (2010) 9 SCC 747 : [2010]
13 SCR 901 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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