# UNION OF INDIA & ORS v. SANDEEP KUMAR ETC

- **Citation:** [2019] 12 S.C.R. 415
- **Court:** Supreme Court of India
- **Decided:** 2019-09-13
- **Case number:** Criminal Appeal Nos. 1388-1389 of 2019
- **Bench:** L. Nageswara Rao, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-ors-v-sandeep-kumar-etc-33198
- **Pages:** 29

## Headnote

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 boxesPhysical 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 reportedRespondents-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
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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 possibleTribunal 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, 1

## Text

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UNION OF INDIA & ORS.
v.
SANDEEP KUMAR ETC.
(Criminal Appeal Nos. 1388-1389 of 2019)
SEPTEMBER 13, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Armed Forces Tribunal Act, 2007 - s.15 - Power of 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 boxesPhysical 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 reportedRespondents-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
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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 possibleTribunal 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 reportedRespondents-accused charged for committing theft of pistolsDistrict Court Martial (DCM) convicted the accused - Set aside by
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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
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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
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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
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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
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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.
Case Law Reference
[2016] 5 SCR 957
referred to
Para 31
[2008] 6 SCR 1
relied on
Para 43
[1963] SCR 489
referred to
Para 43
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[2014] 12 SCR 218
relied on
Para 44
[1956] SCR 191
referred to
Para 44
AIR 1974 SC 1256
referred to
Para 44
[2010] 13 SCR 901
referred to
Para 44
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 1388-1389 of 2019.
From the Judgment and Order dated 12.12.2013 of the Armed
Forces Tribunal, Chandigarh Regional Bench at Chandimandir in T.A.
No. 1247 of 2010/order dated 16.04.2014 in M.A. Nos. 3707 & 3708 of
2014 in T.A. No. 1247 of 2010 (Arising out of Crl. Writ Petition No.
1067 of 2008) and T.A. No. 1251 of 2010/ order dated 10.12.2015 in
M.A. No. 3487, 2355 & 2356 of 2015 in T.A. No. 1251 of 2010 (arising
out of Crl. W.P. No. 1107 of 2008).
With
Criminal Appeal Nos. 1390, 1391 of 2019.
R. Balasubramanian, Sr. Adv., Ravinder Malik, Himanshu Sharma,
Ms. Aditi Sharma, Seeta ram Sharma, Sandeep Singh, Ram Niwas
Sharma, Ms. Archana Pathak Dave, Mukesh Kumar Maroria, Jitendra
Kumar Tripathi, Ms. Priyanka Das, Anmol Chandan, A. K. Sharma,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
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 consequent to District
1 Act
2 Tribunal
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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 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
3 DCM
4 hereinafter referred to as the 'accused'
5 Code
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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 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 operational efficiency.
The prima facie opinion in the report is as under:
6 Regiment
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"6. Tentative Views of Oc Unit. The loss of wpns, at first look,
appears to be due to the negligence of the Kote NKCO, Sr 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 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
7 Army Act
8 IPC
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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 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
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:
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"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 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.
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC.
[HEMANT GUPTA, J.]
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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 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 crossexamination, he admitted that weapon cleaning was done on April 1,
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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 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.
UNION OF INDIA & ORS. v. SANDEEP KUMAR ETC.
[HEMANT GUPTA, J.]
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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 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 videorecorded. 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
orders of the Commandant of Regiment. The transcription of video was
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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 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 crossUNION OF INDIA & ORS. v. SANDEEP KUMAR ETC.
[HEMANT GUPTA, J.]
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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.