HAROON HAJI ABDULLA versus STATE OF MAHARASHTRA

HAROON HAJJ ABDULLA

STATE OF MAHARASHTRA

December 14, 1967

[M. lIIDAYATULLAH AND C. A. VAIDIAUNGAM, JJ.]

Evidence Act (1 of 1872), ss. 30, ll4(b) and 133-Confessiott of r:o-accused-Extent to which it could be used as corrobqration of accom[4 ]plice evidence.

Gold was smuggled into India by bringing it in steam launches from places on the Persian Gulf, transhipping it into Indian boats standing out at sea, then bringing it to the Indian shores and by being taken away by pexsons waiting for it. There was raid on the night of August 13, 1961 while consignment was being brought in. Many of tlje smugglers were arrested, th~ case was investigated into, and on the 14th. the Customs Authorities served notices upon the suspects under s. 171A of the Sea Customs Act. On the 15th, two Customs Officers recorded the statements, in answer to the notices. from two of the suspects K and B, independently, and almost simultaneously. The statement of K implicated himself and the appell"ant in the smuggling and the 9latement of cqntained con-fession of his own guilt as well as the implication of the appellant in the smuggling. The appellant himself was served . with a: notice by the. Customs authorities. but he was unwiJling to make statement till be had seen what the others had said.

by the.

The appdlant and 17 others were tried for ilhe offence of conspiracy to smuggle gold into India. At the trial, K ·was witness for the prose[4 ]cution and B, who was jointly tried with the appellant retracted the con-E fession he made before th~ Customs authorities alleging duress and torture. He however died before judgment was delivered but after the conclusion of the trial of the case. Some of the accused were. acquitted and others, including the appellant, were convicted. In appeal, the High Court, confirmed the conviction of the appellant relying on the evidence of K corroborated by his statement before the Custom authorities and the retracted confession of B.

In appeal to this Court. it was contended that, as K was an accom-plice, no conviction could be based on his evidence unless· it was corro· borated in material particulars; and the statement of K before the Cus-. toms authorities and the confession of to the Customs authorities. which was later retracted, could not be u~ed for purposes of such cor. roboration.

HELD : An accomplice is competent witness and his evidence could be accepted and conviction based on it if there is nothing significant i!o reject it as false. But the rule of prudooce, ingrained in the considera· tion of accompJice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, again.<! whom the accomplice evidence is used, with the crime. Such corroborative evi· dence could be direct or circumstantial. On such circumstan.ce may be the making of confessions by more than one accused, provided there was no chance for priot consultation between the confessing co-accused for implicating another, and they inspire confidence both in their content and in the manner and circumstances of their making. If confessing co-accused is tried jointly, within the. meaning of s. 30 of the Evidence Act, with· the accused against whom the accomplice evidence is sought Ito be used for bas·

ing· conviction, the OOnfession could be re{erred~.- to .as lending some assurance to the verdict. The fact that thC· confession was later retracted would make no differeoee unless the admissions made in lhe confession are satisfactorily withdrawn, or, the making of it explained as havin11 proceeded from fear, dufess, promise or the )ike, of some one in authority. [644 D: 646 A, C.E; 648. D-H; 650 E-F]

In the present case, though K was an accomplice and his own· state> ment before the Custom~ au.!horities could not be used for purposes Qf corroboration, his evidence, impressed the lower Courts and was accepted by them.' There was nO:hing to make this· Court form different opinion about his veracity. There was no. gap of time between 4he statements of K and Q, and it was impossible that the Customs officers could' have tutored them to make the statements which ·agree Hi many details. Further, both ' the stat.ements received corroboration at numerous other points in the story from independent evidence. Therefore, the confession of given independent,ly and in circumstances which exclude any collusion or malpractice affords corroboration to the evidence of K in respect of the appGJ.lant. B's confession oould also be takeri into considei;ation ui:J.der s: 30 of the Evidence Act. to lend assurance to 4he verdict, as was fully tried jointly with the appellant, and his allegations of duress and tort!lrl' for retracting his confession came mon!hs later and it was impossible to heed. them. [644 C-D; 645 D-E; 649 f-G] Ramesliwar v. State of Rajasthan; [1952] S.C.R. 377, Nathu v. State of U.P., A.I.R. 1956 S. C. 56, ·Subramania Goundan v. State of Madr0$, [1958] S.C.R. 428, Ram Prakash v. Sta"e of Punjab, [1959] S.C.R. 1219, Chauraria's ca~e [1968] 2 S.C.R. 624, Babhoni Sahu v. Emperor, A.LR. 1949 P.C. 257, Emperor v. La/it Mohan Chuckerburty, I.L.R. 38 Cal. 559 and ·Ram Sarup Singh. & Ors. v. Emperor, A.I.R. 1937 Cal. 39, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 42 of 1965.

Appeal by s~cial leave ~om the judgment and order dat~ . December, 16, 17; 18, 19, 21, 22 of 1964 _of the Bombay High · <Murt in Criminal Appeal No. 53 of 1964.

Nuruddin Ahmed, E. C. Agrawala, Champat Rai, S. V: .Pikale and P. C. Agrawala, for the appellant. Adi P, Gandhi, H. R. Khanna and S. P. Nayar, for the res-··pondent. The Judgmen~ of the Court. was delivered by of the Court. was delivered by the Court. was delivered by by Hidayatnllah, J. The appellant l!aroon is the sole appellant ·from batch of 18 persons who were tried jointly before the Chief Presidency Magistrate, Esplanade Court, Bombay for of.Ience& under s. 120-1;\ 'Qf the Indian Penal Code read with s. 167 ( ~ 1). .of the Sea Cus~oms Act and certain offences under the Foreign Exchange Regulations Act, 1947. Of these, No. 17 accused· (Sa\eh Mohamed Bhaya) was discharged by the Magis-trate, No. 1 accus~d .(Govind, Narain Bengali) died after the co11clusion of 'the case ·but before judgment in the Court of trial and No. 4 accused, (Noor Mol\a111IJ1ad) jumped bail ju~t before the same· judgment. The 'Case .against Bengali was held to have

Adi P, Gandhi, H. R. Khanna and S. P. Nayar, for the res-··pondent.

' The Judgmen~ of the Court. was delivered by of the Court. was delivered by the Court. was delivered by by

abated and that against Noor Mohammad was kept pending. Nos. 11, 12, 13 and 16 accused were acquitted. Of the remain-ing accused who were convicted, Haroon alone is before us. His appeal to the High Coun of Bombay was dismissed but he obtained special leave under Art. 136 of the Constitution and brought this appeal.

As this appeal is to be considered on question of law, it is not necessary to give the facts in detail. The several accused (and many others unknown) were said to be concerned in crimi-nal conspiracy the object of which was to smuggle gold into India from the Middle East. Gold was brought in steam launches from places on the Persian Gulf and transhipped into Indian boats standing out at s.ea, which would then shore it to be taken away by persons waiting for it. The operations were organised by No. 15 accused (Haji Sattar) and his nephew No. 9 accused (Ayub) with the assistance of Bengali, Noor Mohammad and Kashinath (P.W. 1). Four trips, in which gold of ihe value of nearly crore of rupees was smuggled, were made a11d Haroon is said to have taken part in the third and fourth trips. His share in the affair was only this; that he was present when gold was landed and he helped in taking it away and accompanied Haji Sattar and Ayub in their car.

As the smuggling of gold and the details of the operations are admitted it is not necessary to consider the prosecution evidence with view to finding out whether there existed sufficient proof on that part of the case. It may, however be stated that as the raid took place while the last consignment of gold was still with the smugglers and many of them were arrested there and then, no successful attempt to refute it could at all be made. The only question was who were in the conspiracy besides those caught at the spot. The argument in this appeal is that there is no legal evidence to connect Haroon with the others.

The case agianst Haroon stands mainly on the basis of the statement of the accomplice Kashinath (P.W. 1 ). Kashinath must be held to be competent witness in view of our decision in the Chauraria's case('). Corroboration for Kashinath's evidence on the general aspects of the conspiracy was amply available from diverse sources . and this is not denied but in respect of Haroon (whose name does not figure in the rest of the oral or documen-tary evidence) it was found to exist in the statement of Kashinath before. the Customs authorities, and statements made by Bengali and Noor Mohammad also to the Customs Officers, all in answer to notices under s. 171-A of the Sea Customs Act. The use of these s'tatements is objected to generally and in particular on the

l2 Sup CJ/68-IO

following grounds: It is sumitted firstly that these statements are not confessions proper to which s. 30 of the Evidence Act can be made applicable; secondly, that as Bengali died and Noor Moham-mad absconded before the trial was finally concluded against them. their statements are not of persops jointly tried with Haroon; thirdly confession of co-accused is no better than accomplice evidence and just as one accomplice cannot be held to corrobo-rate another accomplice, the confession of co-accused cannot also be held to be sufficient corroboration; fourthly as these confes-siom were later retracted their probative value is nil; and fifthly Kashinath's previous s!atement cannot be used to corroborate him as an accomplice cannot corroborate himself. On these submis-sions it is urged that Haroon's conviction is based really on the uncorroborated testimony of an accomplice.

We may begin by stating that we have read the depJsition of Kashinath as the first prosecution witness. We have been impress-ed by the simplicity of the narrative and there is on record note by the Magistrate that he was impressed by the manner in which Kashinath deposed. The High Court and the Magistrate have l> concurred in accepting it and we have not seen anything signifi-cant to reject it as false. To corroborate Kashinath, the Magis-trate and the High Court have looked into his statement under s. 171-A of the Sea Customs Act. Jn Rameshwar v. State of Rajasthan(') the previous statement was held under s. 157, Evi-dence Act, corroborative evidence provided it was made "at or about the time when the fact took place." This is perhaps true of other testimony but as pointed out by 1he Judicial Committee in Babhoni Sahu v. Emperor('), 1he use of the previous statement of an accomplice is to make the accomplice corroborate himself. We have, therefore, not used Ex. to corroborate Kashinath but we cannot help saying that only two discrepancies were noticed on comparison. The first was that Haroon's name was mentioned in Ex. in the second trip while in the deposition in Court he was shown to have taken part in 1he third trip. The details of the trips where his name is mcn-1ioned are identical and it seems that in counting the trips, Kashi-nath has made confusion, counting the reconnaisance trip as the first trip in his deposition but not in his statement. The second was the omission of couple of names from the long list of those who were on the beach to receive the gold. This is not of much consequence because any one who tries to give long list of names, often makes such al) omission. On the whole the two statements contained the same story with sufficient details for verification from outside sources. The reception of Ex. as corroborative of accomplice testimony, although open to some objection, ha~. however, not affected the case.

This leads us to the consideration of the statements of Bengali and Noor Mohammad which were received in corroboration of Kashinath's testimony. These statements contain admission con-stituting the guilt of the makers under the charged sections. They also mention the name of Haroon, among others, as being con-cerned in the smuggling and in much the same way as does the accomplice. The question is, can they be used to corroborate him? These statements are not confessions recorded by Magistrate under s. 164 of the Code of Criminal Procedure but are state-ments made in answer to a· notice under s. 171-A of the Sea Cus-toms Act. As they are not made subject to the safeguards under which confessions are recorded by Magistrates they must be specially scrutinised to finding out if they were made under threat or promise from some one in authority. If after such scrutiny. they are considered to be voluntary, they may be received against the maker and in the same way as confessions are received, also against co-accused jointly tried with him. Section 30 of the Evidence Act does QOt limit itself to confessions made to Magis-trates, nor do the earlier sections do so, and hence there is no bar to its proper application to the statements such as we have here.

No doubt both Bengali and Noor Mohammad retracted their statements alleging duress and torture. But these allegations came. months later and it is impossible to heed them. The statements were, therefore, relevant. Both Bengali and Noor Mohammad were jointly tried wi!h Haroon right to the.end and all that remain-ed to be done was to pronounce judgment. Although Bengali was convicted by the judgment, the case was held abated against him after his death. In Ram Sarup Singh and Others v. Emperor('), J was put on his trial along with L; the trial proceeded for some time and about six months before the delivery of judgment, when the trial had proceeded for about year, J died. Before his death J's confession had been put on the record. R. C. Mitter, J. (Hen-derson, J. dubitante) aliowed the confession to go in for corrobo-rating other evidence but not as substantive evidence by itself. Of course, the confession of person who is dead and has never been brought for trial is not admissible under s. 30 which insists upon joint trial. The statement becomes relevant under s. 30 read with s. 32 ( 3) of the Evidence Act because Bengali was fully tried jointly with Haroon. There is, however, dififotilty about Noor Mohammad's statement because his trial was separated and the High Court has not relied upon it.

The statement of Bengali being relevant we have next to see how far it can be held to be legal corroboration of Kashinath's accomplice evidence. The law as to' accomplice evidence is well-settled. The Evidence Act in s. 133 provides that an accomplice (I) A.LR. 1937 Cal. 39.

is c.ompctcnt witness against an accused person and that conv1c-:1on 1s not 11Jcgal merely because it proceeds upon the uncorrobo-rated testimony of an accomplice. 'the effect of this provision is that the court trying an accused may legally convict him on the smgle evidence of an accomplice. To this there is rider in illustration ( b) to s. l l 4 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborat<:d in material particulars. This cautionary provi-sion incorporates rule of prudence because an accomplice, who betrays his associates, is not fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboraticn in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the com-mission of the offence is confirmed by some competent evidence other than the single or unconfim1ed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so in-grained in the consideration of accomplice evidence as to have almost the standing of rule of law. The argument here is that the cautionary rule applies. whe-ther there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice. There-fore. unless there is some evidence besides these implicating the accused in some material respect, conviction cannot stand. Re-liance is placed in this connection upon the ob~.~rvations of the Jud.cial Committee in Bl111bo11i ·Sa/Ill v. l:'mpemr('). case in which conviction was founded upon the evidence of an accom-plice supported only by the confession of co-accused. The Judi-cial Committee acquitting the accused observed:" .... Their Lordships whilst not doubting that such conviction is justified in law under s. 133, Evi-dence Act, and whilst appreciating that the coincidence of number of confessions of co-accused all implicat-!ng the particular accused given independently, and with-out an opportunity of previous concert, might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence. based on long experience, which requires some indepen-dent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission

(t) A.LR. 1949 P.C. 257.

man of bad character who took part in the offence and afterwards to save hims.~lf betrayed his former associates, and who has placed himself in position in which he can hardly fail to have strong bia~ in favour of the prosecution; the real danger is that he is telling story which in its general oudine is true,, and it is easy for him to work into the story matter which is untrue .... "

As against this the State relies upon the observations of Imam, J. in Ram Prakash v. State of Punjab('):

"The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into con-c sideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consi-deration retracted confession against the confessing accused and his co-accused. Not single decision of any of the courts in India was placed before us to show that retracted confession was not admissible in evi-D dence or that it was irrelevant as against co-accused. An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against co-accused by vir-tue of the provisions of s. 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corro-boration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of cr.~dibility to be attached to retracted confession, however, would depend upon the circum-stances of e.ach particular case. Although retracted confession is admissible against co-accused by virtue of s. 30 of the Indian Evidence Act, as matter of prudence and practice court would not ordinarily act upon it to convict co-accused without corroboration."

The State further relies upon the observations of Govinda Menon. J. in Subramania Goundan v. State of Madras(") where the value of confession was compared with the value of accomplice evi-dence.

The case of the Judicial Committee dealt with accomplice evidence which was sought to be corroborated by retracted con-(I) [19591S.C.R.12'.9, 1223. (2) [1958] S.C.R. 428.

fessions. The case of this Court dealt with retracted confession which was sought to be used without corroboration. Both cases treat the retracted confession as evidence which may be used although not within the definition .of evidence. But both cases regard this evidence as very weak and only to be used with great caution. Although Govinda Menon, J. in Subramania Goundan's case( [1 ]) placed confession on slightly higher level than accom-plice evidence, the observation is intended to convey the differ-ence between the extent of corroboration needed for the one or the other before they can be acted upon. to read more mean-ing into the o~ervations is not permissible for no such meaning was intended. The confession there considered was also intended to be used against the maker and not against co-accused. con-fession intended to be used against co-accused stands on lower level than accomplice evidence because the latter is at least tested by cross-examination whilst the former is not. The observations of Govinda Menon, J. mas~ not be applied to those cases where the confession is to be used against co-accused. As pointed out by this Court in Nathu v. State of Uttar Pradesh('), confessions of co-accused are not evidence but if there is other evidence on which conviction can be based, they can oo referred to a' lending some assurance to the verdict.

In this connection the question of retraction must also be considered. retracted confession .must be looked upon with greater concern unless the reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactor ;1y withdrawn or the making of it explained as having proceeded !tom fear, duress. promise or the like from some one in autho-rity. retracted confession is weak link against the maker and more so against co-accused.

In Rameshwar v. State of Rajasthan(') this Court laid down certain general rules about the nature of corroboration ueed.ed before accomplice evidence may be accepted. It is there pointed out that every detail of the s!ory of the accomplice need not be confirmed by independent evidence although some addi-tional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice. One such cir-cumstance may be the making of number of confessions with-out chance for prior consultation between the confessing co-accused. But before even number of such confessions can c1J 1t9ss1s.c.R.428. (2) A.LR. 1956 S.C. 56. (3) (t952) S.C.R. 377.

be used ea'ch such confession .must 'inspire confidence both in its content and in the manner and circumstances of its making. If there be any suspicion of .false implication the confession must be discarded as of no probative value. This may result from variety of circumstances of which few alone may be mention-ed, such as why the accused confessed whether he expected gain for himself by implicating his co-accused, the part he assigns to himself and that to his co-accused, the opportunity for being coached up to narrate false story or story false in certain details. Where there is single retracted confession corroborat-ing other accomplice evidence, the caution must necessarily be still greater and the probative value smaller. Even if there are more than one such confession and they are proved to be given independently and without an opportunity for prior concert, the probative value may increase but the need for caution remains because number of suspects may be prompted by the same or different motives to embroil particular individual. It is only when false implication is excluded after close scrutiny that confession of co-accused can be used to lend assurance to other evidence. This was so stated by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty(') and accepted by this Court, and retracted confession cannot obviously go further or have higher value.

The offence in this case was detected on the night of August 13, 1961 and investigation went on till the morning of the 14th. Thereafter the customs authorities served notices upon various sus-pects and recorded their statements in answer to these notices. The statements of Kashinath (Ex. A) and Bengali (Ex. Z.27) were recorded on the 15th, the former by Karnik ( P. W. 24) and the latter by Rane (P.W. 26). These statements were recorded simultaneou~ly or almost simultaneously. The statement of Noor Mohammad (Ex. Z-17) was recorded by Randive (P.W. 22) on August 19. As there was no gap of time between the statements of Kashinath and Bengali and ihe incident was only few hours. old, it is impossible that the officers could have tutored them to make statements which agree in so many details. Both the state-ments receive corroboration at numerous points in the story from other than accomplice evidence. For example the statements of Kashinath regarding the boats employed, the names of the owners and pilots, the manner the trips were made, the names of persons who took part and what they did, the description of the residences of the muslim co-accused, the furniture and furnishings in the room where gold used to be secreted, the description of the cars employed, and the identity of the several participants other than Haroon, are amply borne out by evidence which is not accomplice in character. bare reading of the statement of Kashinath made

(I) I.LR. 38 Cal. 559, 588.

before the Court and corroborated by his earlier statement to the Customs authorities (except in two particulars already considered) lcavt;s one convinced that he is speaking the truth. We arc not seeking corroboration of the accomplice from his own statements because that does not advance accomplice evidence any furthc:-. We are only looking into the previous statement to see if it discloses any variation which would put us on further inquiry. The real check comes when one compares these two statements with that made by- Bengali. remarkable deg1ce of agreement is found there also. In fact they are so consistent that Mr. Nuruddin Ahmad sought to make point and said that they must be th~ result of collusion. Apart. from the fact that there was no time tll collude, there arc extra details in the different statements which also receive independent corroboration. Further, although Noor Mohammad's statement was not used by the High Court and w~ hav.:: reluctantly left it out of consideration also. nothing wa1 shown to us to destroy the conclusion about the truth of accomplie<: evidence. If it was, we would have considered seriously whether we should not take it into consideration. Further Haroon himself was also served with notice like others. He was unwilling to make statement till he had seen what the others had said. This may well be regarded as peculiar conduct in man who now claims that he was not concerned with the smuggling.

The High Court has very searchingly examined the evidence of Kashinath and applied to it the checks which must always be applied to accomplice evidence before it is accepted. There is corroboration to the evidence of Kashinath in re>pect of Ho· :,on from the confession of Bengali given independently and in circum-stances which exclude any collusion or malpractice. Regard being had to th.~ provisions of s. 133 of the Evidence Act, we do no: tl1ink that we should interfere in this appeal by special leave. particularly as we hold the same opinion about the veracity of Kashinath.

The appeal, therefore, fails and is dismissed. Appellant to surrender to his bail.

Appeal dismissed.