Supreme Court Upholds Conviction in Army Pistol Theft Case: Union of India vs. Sandeep Kumar (2019)

Date of the Judgment: 13 September 2019

Citation: (2019) INSC 796

Judges: L. Nageswara Rao, J., Hemant Gupta, J.

Can a confession made to an Army officer be used as evidence in a court-martial? The Supreme Court of India recently addressed this question while examining the powers of the Armed Forces Tribunal. This case revolves around the theft of two pistols from an army unit and the subsequent conviction of two soldiers by a District Court Martial (DCM). The Armed Forces Tribunal had overturned the DCM’s decision, but the Supreme Court reversed the Tribunal’s order. The judgment was delivered by a two-judge bench comprising Justices L. Nageswara Rao and Hemant Gupta, with Justice Hemant Gupta authoring the opinion.

Case Background

The case began with a report submitted by the 71 Armoured Regiment to the Army Headquarters regarding the loss of two pistols. The Regiment was undergoing training at Pokhran Firing Range from March 15, 2006, to April 4, 2006. The weapons were transported in locked boxes. The training continued in Lunkaransar from April 1, 2006, to May 11, 2006. A physical check on April 27, 2006, confirmed 50 pistols in ‘A’ Squadron, but this check was later found to be done without physical verification.

On May 9, 2006, it was noted that two pistols were missing. The loss was officially reported on May 13, 2006. An FIR was lodged, and a Court of Inquiry was convened on May 18, 2006. The pistols were later found on May 22, 2006, in the exercise area. There were conflicting accounts of the recovery, with one version stating they were found during a ground search, and another claiming they were found in a shoebox near the Dhobi area.

The prosecution alleged that Pankaj Dhaka, brother of accused Neeraj Kumar, reported to authorities that Neeraj and Sandeep Kumar had stolen the pistols. Both accused were charged under Section 52(a) of the Army Act, 1950, read with Section 34 of the Indian Penal Code, 1860, for the theft on April 6, 2006. The DCM found them guilty, sentencing them to rigorous imprisonment and dismissal from service.

Timeline:

Course of Proceedings

The District Court Martial (DCM) found both accused guilty of theft and sentenced them to rigorous imprisonment for one year and six months, along with dismissal from service. The Armed Forces Tribunal, however, set aside the DCM’s order, citing issues with the confessional statements and the handling of secondary evidence. The Tribunal ordered the reinstatement of the accused but denied them back wages for the period they were out of service. The Union of India appealed the Tribunal’s decision to the Supreme Court, while the accused also appealed the denial of back wages.

Legal Framework

The case involves several key legal provisions:

• Section 52(a) of the Army Act, 1950: This section deals with offenses related to the theft of public property by army personnel.
• Section 34 of the Indian Penal Code, 1860: This section addresses acts done by several persons in furtherance of a common intention.
• Section 25 of the Indian Evidence Act, 1872: This section states that confessions made to a police officer cannot be used as evidence against an accused.
• Section 133 of the Army Act, 1950: This section makes the Indian Evidence Act, 1872 applicable to court-martial proceedings, subject to the provisions of the Army Act.
• Army Rule 58: This rule provides an opportunity for the accused to explain circumstances appearing in the evidence against them.

The Supreme Court clarified that while the Evidence Act applies to court-martial proceedings, Section 25 of the Indian Evidence Act, 1872, specifically bars confessions made to a police officer. However, this does not extend to confessions made to other army officers.

Arguments

Arguments by the Union of India:

• The Union of India argued that the Armed Forces Tribunal had erred in setting aside the DCM’s conviction.
• The prosecution argued that the confessional statements made by the accused were voluntary and admissible as evidence.
• They contended that the secondary evidence regarding the handwritten slips was correctly admitted by the DCM.
• The Union of India submitted that the Tribunal misread Army Order No. 256 of 1972, which does not bar confessions made to Army officers.
• They argued that the Tribunal exceeded its jurisdiction by re-appreciating evidence instead of focusing on errors of law or procedure.

Arguments by the Accused:

• The accused argued that the confessional statements were not voluntary, as they were allegedly obtained under duress.
• They claimed that the secondary evidence regarding the handwritten slips was not admissible.
• The accused contended that the prosecution failed to properly present the incriminating circumstances under Army Rule 58.
• They argued that the Tribunal’s decision to set aside the conviction was correct, as there were significant procedural lapses.
• The accused also appealed against the Tribunal’s decision to deny them back wages.

Sub-Submissions:

Innovativeness of the argument: The Union of India’s argument that the Tribunal misread Army Order No. 256 of 1972, by failing to distinguish between Military Police Officers and other Army Officers, was a key point that influenced the Supreme Court’s decision.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the Armed Forces Tribunal was within its jurisdiction under Section 15 of the Armed Forces Tribunal Act, 2007 to set aside the order of the DCM and to order reinstatement of the accused.
2. Whether the confessional statements made by the accused were admissible as evidence.
3. Whether the secondary evidence regarding the handwritten slips was correctly admitted by the DCM.
4. Whether there was a material irregularity in the course of the trial resulting in a miscarriage of justice.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Ajay Kumar Singh & Ors. v. The Flag Officer Commanding-in-Chief & Ors. [AIR 2016 SC 3528] to reiterate that it does not normally re-appreciate evidence but can do so if the appreciation of evidence is vitiated by serious error.
• The Court referred to Keya Mukherjee v. Magma Leasing Limited & Anr. [(2008) 8 SCC 447] and Jai Dev & Anr. v. State of Punjab [AIR 1963 SC 612] to discuss the purpose and compliance with Section 313 of the Code of Criminal Procedure, 1973, holding that the accused should be given an opportunity to explain the circumstances against them.
• The Court cited Nar Singh v. State of Haryana [(2015) 1 SCC 496], Wasim Khan v. State of U.P. [AIR 1956 SC 400], Bhoor Singh v. State of Punjab [AIR 1974 SC 1256] and Santosh Kumar Singh v. State [(2010) 9 SCC 747] to emphasize that prejudice must be shown by the accused for non-compliance with Section 313 of the Code.
• The Court interpreted Section 25 of the Indian Evidence Act, 1872, to clarify that it does not bar confessions made to Army officers, only to police officers.
• The Court interpreted Army Order No. 256 of 1972, to clarify that it distinguishes between Military Police Officers and other Army Officers and only bars confessions made to Military Police Officers.
• The Court interpreted Section 133 of the Army Act, 1950, to note that the Evidence Act applies to Court Martial proceedings subject to the provisions of the Army Act.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The voluntary nature of the confessions made by the accused to Army officers, which were not barred by Section 25 of the Indian Evidence Act, 1872.
• The fact that the prosecution witnesses were not cross-examined on the allegations of duress, making the accused’s claims of involuntary confessions unreliable.
• The proper admission of secondary evidence, as the originals were lost in transit and the scanned copies were verified by witnesses.
• The Tribunal’s misinterpretation of Army Order No. 256 of 1972, which does not bar confessions made to Army officers.
• The lack of material prejudice to the accused due to the detailed statements they provided, despite the lack of specific incriminating circumstances put to them under Army Rule 58.
• The Tribunal exceeding its jurisdiction by re-appreciating evidence instead of focusing on errors of law or procedure.

Sentiment Analysis of Reasons:

Fact:Law Ratio:

Logical Reasoning:

The Court considered alternative interpretations of the legal provisions and the facts of the case, but ultimately rejected them in favor of the consistent evidence and the correct application of the law. The Court emphasized that the Tribunal’s role is not to re-appreciate evidence but to ensure that the findings of the Court Martial are legally sustainable.

The Court’s decision was based on a thorough analysis of the facts, the legal provisions, and the precedents. The Court found that the Tribunal had erred in its interpretation of the law and in its appreciation of the evidence. The Court also emphasized the importance of maintaining the integrity of the judicial process and ensuring that justice is served.

The Court’s reasoning was based on the following points:

• The confessional statements were made voluntarily to Army officers and were not barred by Section 25 of the Indian Evidence Act, 1872.
• The accused did not cross-examine the prosecution witnesses on the allegations of duress, thus failing to establish that the confessions were involuntary.
• The secondary evidence was properly admitted as the originals were lost in transit and the scanned copies were verified by witnesses.
• The Tribunal misinterpreted Army Order No. 256 of 1972, which does not bar confessions made to Army officers.
• The accused were not prejudiced by the lack of specific incriminating circumstances put to them under Army Rule 58, as they gave detailed statements touching on all aspects of the case.

The Supreme Court quoted the following from the judgment:

“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.”

“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.”

“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.”

There were no dissenting opinions in this case.

Key Takeaways

• Confessions made to Army officers are admissible in court-martial proceedings, as long as they are voluntary and not made to Military Police Officers.
• The Armed Forces Tribunal’s appellate powers are limited to correcting errors of law or procedure, and it cannot re-appreciate evidence.
• Accused persons must cross-examine prosecution witnesses on allegations of duress or coercion to challenge the voluntariness of their confessions.
• Secondary evidence is admissible if the originals are lost and the secondary evidence is verified by witnesses.
• Detailed statements by accused persons can negate any prejudice from the lack of specific incriminating circumstances put to them under Army Rule 58.

This judgment clarifies the scope of Section 25 of the Indian Evidence Act, 1872, and its application to court-martial proceedings. It also emphasizes the importance of adhering to procedural rules while ensuring that justice is served.

Directions

The Supreme Court reduced the sentence imposed upon the accused to the extent they had already undergone.

Specific Amendments Analysis

There were no specific amendments discussed in the judgment.

Development of Law

The ratio decidendi of this case is that confessions made to Army officers are admissible in court-martial proceedings, provided they are voluntary and not made to Military Police Officers. This clarifies the interpretation of Section 25 of the Indian Evidence Act, 1872, in the context of military law. The judgment also reinforces the limited scope of the Armed Forces Tribunal’s appellate powers, emphasizing that it cannot re-appreciate evidence but must focus on errors of law or procedure.

Conclusion

The Supreme Court allowed the appeals filed by the Union of India and dismissed the appeals filed by the accused. The Court held that the Armed Forces Tribunal had exceeded its jurisdiction in setting aside the conviction by the District Court Martial. The Supreme Court upheld the conviction of the accused, but reduced their sentence to the extent they had already undergone. The judgment clarifies the admissibility of confessions made to Army officers and the limited scope of the Armed Forces Tribunal’s appellate powers.