UNION OF INDIA AND ORS. versus J.S. BRAR

Citation: [1992] SUPP. 1 S.C.R. 916 · Decided: 09-10-1992 · Supreme Court of India · Bench: T.K. THOMMEN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
UNION OF INDIA AND ORS. 
v. 
J.S. BRAR 
OCTOBER 9, 1992 
[Dr. T.K. THOMMEN, V. RAMASWAMI AND 
S.P. BHARUCHA, JJ.) 
Anny Ac~ 1950/Anny Rules 1954: Sections 69, 160, 164/Ru/es 68, 
7o-<:ourt Martiaf-Findings recorded and sentence awarde~onfinning 
C Authority ordering Revision-Retracted confession of co-accused-Additional 
evidence taken-Reasonable opportunity for Cross-examination of witnesses--
Finding of guilt and award of sentence-<:onfinnation by Competent Autho-
rity-Whether suffers from jurisdictional error-Revision proceedings--
Whether vitiated. 
D 
E 
F 
The Respondent-accused who was a Major in the Indian Army was 
charged with the offence punishable under Section 69 of the Army Act, 1950 
read with S.379 IPC. Of the two charges of allegedly stealing articles from 
the Department of Salvage he was found guilty of one charge and was 
cashiered and sentenced to one year rigorous Imprisonment. In respect of 
the other charge he was acquitted. However, the Confirming Authority 
ordered revision of the findings of the General Court Martial (GCM) for 
recording fresh evidence and reconsideration; Consequently the GCM was 
again constituted and proceedings commenced against the accused. Addi-
tional evidence was taken and the accused was found guilty of both the 
charges. He was cashiered and sentenced to one year rigorous imprison-
ment which was confirmed by the Competent Authority. 
The accused filed a petition before the Government which was 
rejected. Thereafter, be challenged the order by way of a Writ Petition 
before the High Court and the High Court set aside the revised findings 
G of the GCM and the sentence imposed. Against the High Court's order, 
the Union of ludia preferred the present appeal. 
On behalf or the appellant it was contended that sufficient oppor-
tunity was given to the accused to cross-examine the witnesses and to let 
in fresh evidence; and that there was ample independent evidence to fully 
H support the findings reached by the GCM. 
916 
U.0.1. v. J.S. BRAR 
917 
On behalf of the Respondent, it was contended that apart from the A 
evidence of accomplices and co-accused or the retracted confession of a 
co-accused which was obtained by inducement and threat, there was no 
evidence which rationally led to the conclusion that the Respondent was 
gnilty of the charges brought against him; and-that the finding of gnilt 
against the accused was not confirmed by the Competent Anthority lead-
ing to jurisdictional error which vitiated the entire proceedings. 
B 
Allowing the appeal, this Court, 
HELD: 1. The High Conrt was not justified in interfering with the 
findings and sentences rendered by the GCM and confirmed by the Chief 
of the Army Staff. [923-G] 
C 
2. Even assuming that the evidence of PWs.1, 2, 3 and 19 was tainted 
by reason of their being accomplices or co-accused, as they are sought to 
be characterised by the respondent, and it was not taken into account, all 
the other witnesses unmistakably support the prosecution case. They D 
speak to the presence of the accused at the time and place of the offence 
and his active participation In the commission of the crime as well as the 
attempt made by him to suppress evidence by threatening the concerned 
witnesses or tampering with the relevant documents. These witnesses 
having deposed on behalf of the prosecution, and the defence having been 
afforded reasonable opportnnity to cross- examine them, their evidence as E 
snch is not inadmissible, for It Is at worst the evidence of accomplices, 
which can be safely taken Into account, if corroborated in material par-
ticulars by other Independent evidence. [921 A-DI 
3. As regards the retracted confession attribnted to the 4th accused, 
the confession as such is of no value, particularly because It Is retracted, F 
except as a reassurance when reliable evidence has already been adduced 
on behalf of the prosecution. [921-GJ 
Capt. Harish Uppal v. Union of India & .Ors., [1973) 3 SCC 319; Ram 
Narain v. State of Rajasthan, [19731 3 SCC 805; Chonampara Chellappan v. G 
State of Kera/a, [1979) 4 SCC 312; Bhuboni Sahu v. The King, AIR 36 (1949) 
Privy Council 257; Shrishail Nageshi Pare v. State of Maharashtra, [1985) 2 
SCC 341; Brij Bhushan Singh v. Emperor, AIR 33 (1946) Privy Council 38; 
Abdul Sattar v. Union Territory, Chandigarh, [1985) supp. SCC 599 and 
Mohd. Hussain Umar Kochra Etc. v. KS. Dalipsinghji & Anr. etc,, [1979) 1 
SCR 130, relied on. 
H 
918 
SUPREME COURT RE

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