2019 Supreme(SC) 1015

SUPREME COURT OF INDIA
L. NAGESWARA RAO,HEMANT GUPTA, JJ.
UNION OF INDIA & ORS. – APPELLANT(S)
Versus
SANDEEP KUMAR ETC. – RESPONDENT(S)
CRIMINAL APPEAL Nos. 1388-1389 of 2019 (Diary No. 9218 of 2016) with CRIMINAL APPEAL No(S). 1390 of 2019 (DIARY No. 7204 of 2016) and CRIMINAL APPEAL No(s). 1391 of 2019 (DIARY NO. 7205 of 2016)
Decided on : 13-09-2019

IMPORTANT POINTS
(1) Accused without asking any question to any of prosecution witness that they have given beatings as alleged by them in their statements, cannot doubt consistent evidence of prosecution witnesses.
(2) When appreciation of evidence is vitiated by serious error, Apex Court can re-appreciate evidence and interfere with findings recorded by Armed Forces Tribunal.

Headnote:

(A) Armed Forces Tribunal Act, 2007 – Section 30 – Appeal – Scope and ambit – Apex Court normally does not re-appreciate evidence and is slow to interfere with findings of Tribunal unless there is substantial question of public importance – But when appreciation of evidence is vitiated by serious error, Apex Court can re-appreciate evidence and interfere with findings recorded by Tribunal. (Para 31)

(B) Armed Forces Tribunal Act, 2007 – Section 15 – Scope and ambit – Section 15 of Act confers wide power on the Tribunal so as to allow appeal against conviction by a Court Martial where finding of Court Martial is legally not sustainable – Even though power of Tribunal is wide but it is not merely a different opinion on appreciation of evidence to interfere with findings recorded by Court Martial – First ground of interference is whether finding of Court Martial is legally not sustainable – To exercise such power, there has to be error of law by Court Martial which would confer jurisdiction on Tribunal to interfere against conviction recorded by Court Martial – Second ground is wrong application on a question of law. (Para 46)

(C) Armed Forces Tribunal Act, 2007 – Sections 15 and 30 read with Section 133 – Army Rules, 1954 – Rule 58 – Indian Evidence Act, 1872 – Section 25 – Conviction and sentence – Reversal by Armed Forces Tribunal – Direction for reinstatement in service without any back-wages – None of prosecution witnesses were cross-examined in respect of threats or beatings inflicted on any of two accused – Such statements made under Army Rule 58 are not evidence which can be believed to doubt findings recorded by DCM in absence of any such defence put to witness – Witness, when in witness box, could respond to such plea of accused – Such statement of accused under Rule 58 is to explain circumstances appearing in evidence against him – Accused could not set up a defence with which none of prosecution witness was confronted with – These statements are not on oath though he has an option to appear as a witness on oath – Self-serving statements made when opportunity was given to accused under Army Rule 58 will not create any suspicion on prosecution witnesses when there is not even a remote suggestion to any of prosecution witnesses who alone could depose facts so stated by accused – Accused without asking any question to any of prosecution witness that they have given beatings as alleged by them in their statements, cannot doubt consistent evidence of prosecution witnesses – As such, retraction of confessional statements made in their statement under Rule 58 is of no consequence when prosecution witnesses have not been cross-examined in respect of involuntary nature of confessions – Statement of witnesses of different ranks, could not be doubted by Tribunal – Findings of Tribunal are based on ipse dixit of Tribunal – Confessional statement made by accused before Military Police Officer alone is not admissible but statement made before an Army Officer is not hit by provisions of Section 25 of Evidence Act, 1872 – Tribunal erred in law in reversing findings recorded by DCM while exercising appellate jurisdiction under Section 15 of Act – Since accused have given detailed statements touching incriminating circumstances appearing in prosecution evidence and also retracted confessional statements made by them, it cannot be said that putting of incriminating circumstances to accused have caused any prejudice to accused – Tribunal exceeded its jurisdiction while setting aside order of conviction passed by DCM – Criminal appeals filed by Union of India allowed, whereas, criminal appeals filed by accused dismissed – However, sentence imposed upon accused reduced to the extent they had already undergone. (Paras 30, 36, 40, 41, 45, 46, 47 and 48)

Facts of Case:

Challenge in appeals filed by the Union of India under Section 30 of Armed Forces Tribunal Act, 2007 is to an order passed on December 12, 2013 by Armed Forces Tribunal setting aside the order of conviction & sentence and of dismissal consequent to District Court Martial proceedings conducted against the respondents4. The Tribunal passed an order for reinstatement of both the accused but it was also ordered that 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.

Findings of Court:

Since the accused have given detailed statements touching 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 accused.

Result : Appeals Partly allowed.