JETHAMAL PITHAJI versus THE ASSISTANT COLLECTOR OF CUSTOMS BOMBAY AND ANR.

JETIIAMAL PITHAJI

THE ASSISTANT COLLECTOR OF CUSTOMS BOMBAY AND ANR. September 10, 1973

[H. R. KHANNA AND .. ALAGIRISWAMI, JJ.]

Sea Customs 4ct (8 of 1878), s. 167(81)-l'tatement to customs officer contai11i11g inculpatory and exculpator:y statements-If inculpatory porrion can be relied on for con1'iction.

The appellant, goldsmith, was convicted under s. 167(81) of the Sea Customs Act, 1878, in that he was in possession of gold bars with foreign markings. The evidence aga~nst him consisted of his statement recorded by the customs officer and the evidence of the sub-inspector of police who seized the gold bars from him. Jn his sta!ement to the customs officer the appellant stated that he was duped by another who left the bag with him and that it was only when he took the bag to his room that he discovered that it contained bars of g'Jld, and that the bag was found in his room. The Magistrate framed the charge against the accused after cxamini.ng the cus~oms officer and the sub_·ir~spec'.or. The sub-inspector was also cross-examined after the charge was fran;i.ed; but when he was called for further custorr1S officer and the sub-inspector. The sub-inspector was also cross-golr! bars were found in the room but that the accused was not present when they were seized. The trial court found that the statement of the police officer made in further cross exa1nination after framing the charge was untrue and relying on the evidence given by him earlier convicted the appellant. The High Court, in maint'-.ining the conviction, also relied upon the statement of the <lppellant to the customs_ officer.

·oismissing the appeal to this Court.

HELD : (I ) If the Court. finds the exculpatory part of the statement ·Of the accused to be inherently improbable, there is no reason why the other part of the statement which implicates the accused and which the court sees no rCason to disbelieve should not be accepted. In the present case _the inculpatory part of statement of the accused to the Cl,lStoms officer is distinct and severable from the exculpatory part. It is very difficult to believe the version of the accused that he was duped and the remaining part of the statement clearly implicates him. [647H; 648G-H; 649A-B]

Nisl1i Kant Jha v. State of Bih<r, [1969] 2 S.C.R. 1033, followed.

(2) As regards the evidence of _the sub-inspector there is no cogent reason for disbelixing 'his earlier version. He changed his version to spite the prose-cution because, after his earlier version and before he was called for further cross-examination, he was compulsorily retired as measure of punishm~nt. [647 D-E] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 48 of 1970.

Appeal by special leave from the judgment and order dated 16th January, 1970 of the Bombay High Court in Criminal Appeal No. 694 of 1968.

S. V. Gupte and R. B. Dattar, for t~ appellant.

Gobind Das and S. P. Nayar, for respondent No. I.

B. N. Lokur and S. P. Nay(lf, for respondent No. 2.

The Judgment of the Court was delivered by

KJIANNA, J .-This appeal by special leave is against the judgment of the Bombay High Court affirming on appeal the conviction of the appellant under section 167(81) of the Sea Customs Act and the sentence of rigorous· imprisonment for two years.

The prosecution case is that on August 17, 1961 Sub Inspector Sahani of the Railway Preventive Section, on receipt of ~ome info_r-mation, went to room No. 2 on the second floor of Bon C)iawl m the 13th lane, Kamathipura, Bombay. The accused was found pre-sent there, holding bag. The said bag was taken into possession by the Sub Inspector and was found to COiltain 25 bars of gold, weighing ten tolas each, of the value of Rs. 78,400/. The bars had foreign markings. The Sub Inspector arrested the accused for an offence under section 124 of the Bombay Police Act. As the articles recovered from the accused consisted of gold bars with foreign mark-ings, the matter was entrusted to the Customs Officer H. C. Advani (PW 2). The gold bars too were handed over to Advani. Advani recorded statement Ex. of the accused. complaint was there-after filed against the accused by the Assistant Collector of Customs on the allegation that the accused had committed an offence under section 167(81) of the Sea Customs Act.

The accused in his statement under section 342 of the Code of Criminal Procedure stated that the gold bars in question had not been recovered from him. According to him, the bag containing· gold bars was recovered by the police officer from the second floor of the building whereas the accused resided on the graund floor. The ac-cused denied having anything to do with the gold bars which were taken into possession by Sub Inspector Sahani. No evidence was produced in defence.

The Chief Presidency Magistrate before whom the accused was sent up for trial accepted the prosecution allegations and rejected the version of the accused. The judgment of the trial court, as mentioned earlier, was confirmed on appeal by the High Court.

In appeal before us, Mr. Gupte on behalf of the accused appel-lant has argued that the conviction of the accused is based upon the sole testimouy of Sub Inspector Sahani. It is pointed out that Sahani made contradictory statements during the course of the trial Jmd as such, his evidence cannot provide solid foundation for basiilg the conviction of the accused. In this respect we find that the state-men!s of Sahani. and Advani were recorded by Mr. Nasrullah, Chief Presidency Magistrate on February 6, 1964. Charge under s~ction 167 ( 81) of the Sea Customs Act was there1fter framed against the accused. There was further cross-examination of these two witnesses on February 12, _1964 after the framing of the charge. On February 25, 1964 the tnal court stayed further poceedings in the case to await the decision of case pending in this Court, wherein it was stated question of law having bearing upon the present case was· involved. The proceedings in the case were revived on November 10 1967 '

after this Court gave its decision in the other case. In the meanwhile, Mr. Nasrullah, Chief Magistrate had retired and had been succeeded by Mr. Gehani. It was then noticed that the charge framed against the accused by Mr. ,Nasrullah had not been signed by him. Fres~ charge in identical terms was . thereafter framed by Mr. Ge ham against the accused and was signed by him. Sahani was thereafter m:alled for further cross-examination by the .accused. Sahani PW had in the meantime been compulsorily made to retire from police department as punishment. . Sahani in his further cross-examination made volte-face and stated that the bag containing the gold bars was found lying in room No. 2 on that building, while the accused was not present there. Sahani further stated that he had made the accused hold the bag in his hand at the time the panchas wer~ called by him. The trial court found that the statement of Saham made in further cross-examination after the framing of the char&e by Mr. Gehani was untrue and that the evidence given by him be-fore Mr. Nasrullah was worthy of credence. The High Court agreed with the trial court in this respect, and after hearing Mr. Gupte, we are not inclined to take different view. Sahani was confronted with his earlier statement recorded by himself and the aforesaid statement showed that the version given by him after the framing of charge by Mr. Gehani was ·absolutely inconsistent with the earlier statement recorded by Sahani himself. It appears that Sahani wanted to spite the prosecution because of his compulsory retirement as measure of punishment. The statement made by Sahani before Mr. Nasrullah was in accord with the panchnama prepared by him and we see no cogent ground to disbelieve the statement of Sahani before Mr. Nas-rullah.

The ffigh Court in maintaining the conviction of the accused has also relied upon his statement Ex. which was recorded by Customs Officer Advani (PW 2). According to statement Ex. A, the accused is goldsmith and has his own shop. On the day of occurrence at about 2.30 p.m., it is stated. one Hafizji came to the shop. oti the ai;cused and told him to keep the bag in question for about an hour whereafter Hafizji, undertook to take the bag back. After the de-- parterre of Hafizji th.e accused felt that the bag was heavy. This fac.t aroused the suspic.ion of the accused and he took the bag up-stall's to the room which had been taken by the accused on rent. The bag was then found to contain 56 gold bars of ten tolas each with foreign markings. The accused added that earlier than that Hafizji had never kept any bag or gold at his shop.

The ~rial court and the High Court did not accept that part of statement Ex. wherein the accused had stated about Hafizji hav-ing left the bag containing gold bars with the accused. We see no · cogen_t .ground to take different view. If any one had left bag contan~mg gold bars at the shop of the accused, it is, in our opinion, very difficult to believe that the accused, who is goldsmith, would no'. even touch the ?ag at the time it was left with him. The heavy weight. of the bag m tha'. event would have aroused his suspicion. The. tnal court and the High Court, in onr view, rightly rejected the version of the accused that he had been duped by one Hafizji and

that he (the accused) did not know of the contents of the bag at the time it was left with him. The remaining part of the statement Ex. that the bag containing gold bars was taken by the accused to the room which had been taken on rent by him and that the bag was found in his aforesaid room clearly implicates the accused.

It has been argued by Mr. Gupte that Statement Ex. .should be taken as whole and in case the court comes to the conclusion that p&rt of the statement is not worthy of credence, the court should reject the whole of the statement. It is not permissible according to the learned counsel, to reject the exculpatory statement and act upon the part of the statement which implicates the accused. In this rtepect we find that the question whether it is open to the court to accept the inculpatory part of the statement even though the court rejects the exculpatory part was conSiderect by the Constitution Bench of this G:mrt in the case of Nishi Kant !ha v~State of Bihar(I) 1bis Court rn that case quoted with approval the following observations from page 502 of Taylor's Law of Evidence 11th Edition :

"In the proof of confessions-as in the case of admis-sions in civil causes-the whole of what the prisoner said ' on the subject at the time of making the confession should he taken together ...

But if, after the entire statement of the prisoner has been given .in· evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradic· tory to arrother. Even without such contradictions it is not to be supposlJd that all the parts of confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sujlicieut grc>unds for so doing. If what he said in his own favour is not contradicted by evidence offered by the prose-cutor, nor is improbable in itself, it will be naturally believed by the jury; but tl:?ey are not bound to give weight to it on that account, being at liberty to judge of it, like other evidew~, by all the circumstances of the case."

It was held in that case by this Court that inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected. In the present case, we find th~t the inculpatory part of statement Ex. of the accµsed is distinct and severable from the exculpatory part. The preseni is not case wherein the two parts of the statement are inextricably linked together and it is not possible to accept one part without ac-cepting the other part. In case, the court finds the exculpatory part of the statement of tl:e accused to be inherently improbable, there is no reascn why the other part of the statement which implicates the accused and which the court sees no. reason to disbelieve, should not be accepted. In the circumstances, we find no infirmity in the

JETHAMAL PITHAJI v, ASST. COLL. CUSTOMS (Khanna, /.) 649

judgment of the High Court in so far as it has accepted th.e incul· patory part of statement Ex. A. of the accused. There is, in our opinion, no cogent ground to disbelieve the statement of the accused that the room from which the bag containing gold bars had been recovered had been taken by him on rent. This part of the state-B ment clearly goes to show that the accused was in possession of the gold bars with foreign markings.

faint hearted submission was also made at the end to the effect that statement Ex. of the accused was hit by article 20 of the Constitution. There is, in our opinion, no force in this submission because there is nothing to show that the accused made that statement as result of any .:ompulsion.

We would, therefore, uphold the conviction of the accused. We see no cogent ground to interfere with his sentence. The appeal fails and is dismissed.

Appeal dismtssed