1. The petitioner stands convicted by Summary Court Martial vide Order dated 28.12.2001 awarding him punishment of one years rigorous imprisonment and dismissal from service. In order to appreciate the controversy involved in this case certain facts need to be stated.
2. The petitioner was enrolled in the regular army as a combatant soldier on 20.02.1998. After completion of his military training he was attested on 14.04.1999 at Bangalore. He was posted to 10 Para on 16.06.1999 for commando course. Having failed to complete the commando course, he was sent back to Bangalore Para Centre in the month of October 1999. He reported to Admn Coy Office of Para Bn on 21.04.2000 and was sent for Para jumping course for one month.
3. The petitioner was detailed for guard duty on 25.08.2000 alongwith six Jawan,s Guard Commander Hav Gian Singh and Asstt. Guard Commander L/Nk Ramesh Chander. He was on duty from 2400 hrs to 0200 hrs on 26.08.2000. Rifle Butt Nos.173 and 170 were issued to Hav Gian Singh and Ptr Resham Singh. According to guard Commander Gian Singh, he handed over his Rifle Butt No.144 and five live rounds to Ptr Rupesh Kumar at 0430 hrs on 26.08.2000 for depositing in the kote. The petitioner performed his duty with Rifle Butt No.144 till 0500 hrs on 26.08.2000 and then according to the rule of the Battalion, the weapons and ammunition were to have been deposited in the kote. It is contended by the petitioner that he handed over physical charge of Rifle Butt No.173 to Ptr Jat Ajay Mahinder Singh at 0500 hrs and left for his rest. It is alleged that out of the seven weapons, three weapons were missing and the petitioner was charged for the theft. On the same day Ptr Rajiv Kumar confessed that he stole the three weapons and had hidden them in a polythene bag. The said weapons were recovered from him after recording his statement.
4. The petitioner was convicted and sentenced by a Court Martial vide Order dated 28.12.2001 on the basis of the confessional statement of Ptr Rajiv Kumar. Wife of the petitioner filed a petition on which no decision was taken by the respondents, which impelled him to file this Writ Petition bearing No.4532/2002 in which a direction was issued to the respondents to decide the petition. As the respondents did not decide that petition, petitioners wife again filed Writ Petition No.6734/2002 which was allowed by the Honble High Court. The respondents rejected the petition vide Order dated 25.02.2000. This order is the subject matter of challenge before the court.
5. The learned counsel for the petitioner states that there is no evidence that the petitioner had stolen the rifles. He has been convicted solely on the basis of the confessional statement recorded by Ptr Rajeev Kumar. The statement of Ptr Rajeev Kumar is not corroborated by any other witness. Case of the petitioner is that he had handed over his rifle to Ptr Jat Ajay Mahinder Singh who has admitted the same that the rifles were deposited by the petitioner in his presence. The conviction of the petitioner cannot be sustained merely on the basis of any confessional statement recorded by Ptr Rajeev Kumar, who is a co-accused in the trial. On the other hand, the stand of the respondents in para 9 of their reply have submitted that guard duties in the night are performed in pairs. The persons were paired accordingly with duty timings as under:-
œ(a) Ptr Jat Ajay Mahendra Singh 2000 Hrs to 2200 Hrs Ptr Rakesh Kumar 0200 Hrs to 0300 Hrs
(b) Ptr Jaspal Singh 2200 Hrs to 0001 Hrs Ptr Sukhdarshan Singh 0300 Hrs to 0400 Hrs
(c) Ptr Om Prakash Budania 0001 Hrs to 0200 Hrs Ptr Rajeev Kumar 0400 Hrs to 0500 Hrs?
6. It is contended that on the basis of the confessional statements recorded by Ptr Rajeev Kumar, the complicity of the accused is visible and clear. It is further contended that the statement made by some of the guards that the rifles were deposited in the kote is not correct, as the person in-charge of the kote was away at the workshop. It is further stated that the rifles were recovered at 0500 hrs. These weapons were buried in a polythene bag. It is further contended that both the accused and PTR Rajeev Kumar were paired and performed their duties from 1 am to 2 am and from 4 am to 5 am. Both these persons colluded together and stole the rifles.
7. We have heard the learned counsel for the parties.
8. We have examined the record of the Court Marshal. It will be necessary for this court to examine the statements that have come up on record before this court. As many as seven witnesses were examined by the prosecution. PW Jat Ajay Mahender Singh stated that he was detailed as the first sentry from 2000 hrs to 2200 hrs. He was entrusted with the rifle bearing butt No.119. He was woken up by PTR Rajiv Kumar who took over sentry duty from him at 2 am on 26.08.2000. He has stated that he took the weapon of Rajiv Kumar as he had kept his rifle in the guard room where he was sleeping. The accused came to the witness and asked him to count the number of weapons on the magazine weapon rack. Counting was done by him in the presence of the witness. Seven weapons were counted on the rack by the accused in his presence. After satisfying himself, he relieved the accused from duty as a Guard. He, however, states that he did not physically check the weapons on the weapons rack. He was replaced by PTR Jaspal Singh. It is for the first time that he came to know that three weapons were short, when it was revealed to him by PTR Jaspal Singh. When asked by him where were the other three weapons found short, he said that they had been deposited in the kote. PW-2 PTR Sukhdarshan Singh has stated that he was detailed in the unit magazine and his duty was from 2200 hrs to 2350 hrs and 0300 hrs to 0400 hrs. PTR Jaspal Singh was the other guard doing duty with him. Both of them were relieved by PTR Rajeev Kumar and the accused. At around 4 am he handed over charge of sentry duty to the accused to whom the weapon was handed over. He states that while he was giving count of weapons to Ptr Jat Ajay Mahender Singh at around 1930 hrs, he came to know that three weapons were missing. PW Hav Gyan Singh of B Company states that while leaving the guard room at around 1900 hrs on 25 Aug 2000, he asked PTR Jat Ajay Mahender Singh whether the weapons were all right. The witness PTR Jat Ajay Mahender Singh confirmed that they were all correct. He came to know from L/Nk Ramesh Chandra that three weapons were missing. On coming to know of this fact, he asked Ptr Jat Ajay Mahender Singh as to where three weapons had gone. He was also called by Kote NCO. The Kote NCO Dharm Singh denied having called him. PW-4 PTR Jaspal Singh stated that he was on duty from 2200 hrs to 0100 hr along with PTR Sukhdarshan Singh and then from 0300 to 0400 hrs in the morning. He relieved PTR Awadesh Singh and PTR Jat Ajay Mehender Singh from duty. On coming to know that three weapons were missing, he enquired from Ptr Jat Ajay Mahender Singh, to which he replied that these weapons had been deposited in the Kote. He, however, states that he asked the guard commander about it. The Guard Commander L/Nk Ramesh Chand again enquired from PTR Ajay Mahender Singh who stated that the weapons were deposited in the Kote. However, on search, these three weapons were not found in the kote. PW Nk Dharam Singh of B Company, 7 Para, states that he was on duty in the kote and issued rifles to the persons who were on guard duty. He states that he had asked PTR GC Mandal Mgzine guard to get seven mags and seven rif slings from the guard. He returned with four mags and four slings from the mag guard at around 1500 hrs. He also informed that there were only four weapons in the mag rack and the fifth weapon was with the sentry on duty and that there were only five weapons in all in the magazine rack.. He called L/Nk Ramesh Chand to enquire about the three missing weapons.. He told them that these weapons were deposited in the kote in the morning. On being asked to identify the person who had deposited the weapons, he could not identify the person who had deposited the weapons to him in the morning. After having failed to locate the three missing weapons, the matter was referred to the higher authorities. PW Ramesh Chandra states that he was the second guard on 25.08.2000. He states that he had handed over five rounds each to the sentries entrusted with the duty on that date. He states that he had left the weapon on the bed in the guard room. On return he did not find his weapon. He enquired from PTR Jaspal Singh as to where his weapon was, who told him that it had been deposited in the kote. He checked up from sentry Ptr Jat Ajay Mahendra Singh about the missing rifles, who told him that they were all correct, complete in the weapon rack. He was informed at 7 am by Ptr Jaspal Singh that there were only five weapons in the mag rack. He asked PTR Jat Ajay Mahendra Singh about the three weapons who told him that these weapons had been deposited in the kote. He later came to know that three weapons had not been deposited in the kote. PW PTR Rajiv Kumar states that he was on duty on 25.08.2000 and was entrusted with the guard duty at Gate No.3. His initial duty was from 0001 hr to 0200 hrs. His second duty was from 4 am to 5 am along with PTR Om Prakash Budania. In his statement he states that the accused mentioned to him that they had a chance to steal a couple of weapons. The accused had told him that there was a good chance to steal weapons today so as to make a lot of money. The witness had refused to do the same by telling him that it was impossible. The accused told him that it was possible if he helped him a little bit. At around 0450 hrs accused crossed through the barbed wire fencing between the main office and reached to him in the mag and told him to quickly come and fetch a polythene bag and told him to come to the other side of the fencing of the main office and magazine main office from the main entrance side of the company and Adjutants office. The accused passed three rifles M-58 to him through the fence. He took them towards the range area near the fencing which was an isolated place. He states that because firing range area was an isolated place it was the right place to hide these rifles. Then he packed these rifles in a polythene in the range area and hid them quickly in a dry nallah. The accused gave a count of seven weapons on the rack whereas there were only four weapons on the magazine rack. PTR Jat Ajay Mahender Singh accepted the counting done by the accused without physically checking the same. PW-7 states that he confessed to the intelligence people who were also investigating the matter.
9. From the statements given by the prosecution witnesses, the following things emerge:
(a) That rifles were issued in favour of the accused on duty alongwith the magazines.
(b) That of the eight rifles issued, only five had been deposited in the kote and three rifles were found to be missing.
(c) The three rifles which were missing were recovered on the basis of the confessional statement made by the accused Rajiv Kumar.
(d) That the complicity of the accused in the crime has been revealed by Rajiv Kumar on the basis of the confessional statements made by him.
10. All the witnesses, except PW Rajiv Kumar, who is a co-accused in this case, have not made any statement implicating the present petitioner. The statements made by various witnesses as discussed hereinabove have given the version that they were on duty on the said date. It has also come on record from the statement of NCO In-charge of the Kote that the three rifles which were missing were not deposited in the kote. It is important to note that the statement made by witness Ajay Mahender Singh clearly states that seven rifles were counted by the accused in his presence. However, he states that he did not physically check the rifles but counted them from a distance in the presence of the accused. He assumed that the counting was done by the accused correctly. It has no where come in the statement of the said witness that on subsequent verification he found that three rifles were missing out of the seven counted by the accused. Witness P Ramesh Chander in his deposition has said that he deposited his weapon in the kote room .On his return he did not find his weapon and enquired from PWO Jaspal Singh, who stated that the same had been deposited in the kote. He confirmed from PW Ajay Mahender Singh about the three missing rifles, who told him that they were deposited in the kote and that there has been nothing fishy about it. PW Jaspal Singh is the witness who for the first time found that three weapons were missing. He enquired from witness Ajay Mahender Singh, who told that three rifles had been deposited in the kote. It may be pertinent to mention that witness Ajay Mahender Singh had deposed the he had physically checked the rifles deposited by the accused. He further states that there was slight darkness in the room but this did not hamper the actual counting done by the accused. He admits that he could see the rifles from a distance being counted by the accused. In his statement the accused has stated that he counted the rifles in the presence of the witness Ajay Mahender Singh. He handed over charge to Ajay Mahender Singh. He counted seven rifles on the rack in the presence of Ajay Mahender Singh. He has categorically denied that he was involved in stealing the rifles. From the statements of the witnesses there is no direct or indirect evidence to suggest that the three rifles were stolen by the accused. The only evidence which links the accused with the crime is based upon the confessional statement made by Rajiv Kumar, who was a co-accused involved in the offence. Therefore, admittedly it is on the basis of the solitary confessional statement made by co-accused Rajiv Kumar that the accused has been implicated.
11. The question for consideration is whether conviction can be recorded on the basis of the confessional statement made by a co-accused. Under the Indian Evidence Act, 1872, there is only one provision which permits a confession made by a co-accused facing the same trial which can be read against the other accused. Section 30 of the Act is quoted hereinbelow:-
œ30, Consideration of proved confession affecting person making it and others jointly under trial for same offence. “ When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.?
12. The import of section 30 clearly contemplates that when more than one person is being tried by the court for the same offence and a confession made by one of such persons affecting himself and such other person is proved, such a confession can be taken into consideration aginst such person as well as the other person who made such confession. Therefore, any confession made by a co-accused can be considered against such person only when the same is proved. The confession of an accused person against the co-accused is not evidence in the ordinary sense of the term. Such a confession can only be used to give credence to the other evidence which has come against the co-accused. The Apex Court in Kashmira Singh Vs. State of Madhya Pradesh, reported in 1952 SCR 526 as:-
œThe confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. It does not come within the meaning of evidence contained in sec. 3 of the Indian Evidence Act inasmuch as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities.
Such a confession can only be used to lend assurance to other evidence against a co-accused. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.?
13. Similar view has been expressed by the Apex Court in Suresh Budharmal Kalani Vs. State of Maharashtra (AIR 1998 SC 3258). In this case it is clearly stated by the Apex Court that in Kashmira Singh Vs. State of Madhya Pradesh that the confession of a co-accused is a weak evidence and can be used only to corroborate the evidence which has come against the said accused. On the sole confessional statement of the co-accused conviction cannot be held.
14. In Hari Charan Kurmi and Ors. Vs. State of Bihar reported in AIR 1964 SC 1184 following has been stated by the Apex Court:-
œThe appellants along with four others were tried and convicted by the Sessions Judge for the offences of dacoity and murder and sentenced to undergo imprisonment for life. On appeal the High Court confirmed the conviction and sentence. Pending that appeal it issued a rule for enhancement of the sentence, and finally the rule was made absolute and they were ordered to be hanged. The appellants thereupon filed the present appeals by special leave granted by this Court.
The main point raised before this Court was that the High Court misconceived the ambit and scope of the decision of this Court in Ram Prakash v. State of Punjab  SCR 121 and that the High Court committed an error in treating the confession made by the co-accused as substantive evidence against the appellants. Held: (i) Though a confession mentioned in s.30 of the Indian Evidence Act is not evidence as defined by s.3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non-technical way. But in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the other evidence. Kashmira Singh v. State of Madhya Pradesh  S.C.R. 526, Emperor v. Lalit Mohan Chukerbutty,  I.L.R. 38 Cl. 559. In rfe: Perivsswami Moopn,  I.L.R. 54 Mad. 75 and Bhuboni Sahu v. The King,  76 I.A. 147, followed.
(ii) The distinction between evidence of an accomplice under s. 133 and confession under s. 33 Evidence Act is that the former is evidence under s. 3 and the court may treat it as substantive evidence and seek corroboration in other evidence but the latter is not evidence under S. 3, and the court should first start from other evidence and then find assurance in the confessional statement for conviction. 624
(iii) The High Court was in error in taking the view that the decision in Ram Prakashs case was intended to strike a dissenting note from the well-established principles in regard to the admissibility and the effect of confessional statement made by accused persons.?
15. Import of the aforementioned judgments clearly reveals that a conviction cannot be sustained merely on confessional statements made by a co-accused facing the same trial. Therefore such a statement has only a corroborative value and cannot be considered in isolation of evidence which has come against the accused. Applying these principles to the present case, following things clearly emerge:-
(a) That the evidence which has been recorded against the accused during the trial does not support the case of the prosecution that he has stolen the guns. As a matter of fact, none of the witnesses, except co-accused Rajiv Kumar, has supported the prosecution case that the weapons were stolen.
(b) Conviction has been recorded on the sole confessional statement recorded by the co-accused. Therefore, the Court Martial was wrong to convict the accused on the basis of the sole confessional statement of the co-accused.
(c) The co-accused though charged for the same offence was not jointly tried with the accused. He has been separately tried by the Court Martial.
16. The question that arises for consideration is as to whether confessional statement is a statement of a co-accused or an accomplice. Section 133 of the Indian Evidence Act, 1872 deals with the statement of an approver which is quoted hereinbelow:
œ133. Accomplice.”An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.?
17. Section 133 provide that a person who has assisted the accused in commission of an offence, can be examined as a witness, his evidence can be relied upon. Testimony of the accomplice is substantive evidence. Section 114(b) of the Evidence Act brings out the legal position that an accomplice is unworthy of credit unless it has been corroborated any material particulars. Evidence of the accomplice is treated as substantive evidence provided it is corroborated on material facts.
18, The statement of the witness Rajiv Kumar has not been corroborated by any other witness as already stated in supra. Therefore, even if it is considered to be a statement made by an approver, it is not corroborated on material facts. None of the witness has stated that the accused had stolen the rifles. In view of the aforementioned discussion, we find that the conviction recorded by Summary Court Martial is required to be quashed.
19, We, therefore, allow this petition and quash the Summary Court Martial and direct that the accused be reinstated back in service with all the consequential benefits. No order as to costs.