PETITIONER:
HAROON HAJI ABDULLA
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT:
14/12/1967
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 832 1968 SCR (2) 641
CITATOR INFO :
R 1970 SC 45 (33)
D 1976 SC1797 (5)
R 1977 SC1579 (25)
RF 1988 SC 599 (5)
ACT:
Evidence Act (1 of 1872), ss. 30, 114(b) and 133-Confession
of co-accused-Extent to which it could be used as
corroboration of accomplice evidence.
HEADNOTE:
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 persons waiting
for it. There was a raid on the night of August 13, 1961
while a consignment was being brought in. Many of the
smugglers were arrested, the 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 appellant in the smuggling and
the satement of B contained a confession 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 unwilling to make a
statement till he had seen what the others had said.
The appellant and 17 others were tried for (the offence of
conspiracy to smuggle gold into India. At the trial, K was
a witness for the prosecution and B, who was jointly tried
with the appellant retracted the confession he made before
the 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
accomplice, no conviction could be based on his evidence
unless it was corroborated in material particulars; and the
statement -of K before the Customs authorities and the
confession of B to the Customs authorities. which was later
retracted, could not be used for purposes of such
corroboration.
HELD : An accomplice is a competent witness and his evidence
could be accepted and a conviction based on it if there is
nothing significant to reject it as false. But the rule of
prudence, ingrained in the consideration of accomplice
evidence, requires independent corroborative evidence first
of the offence and next connecting the accused, against whom
the accomplice evidence is used, with the crime. Such
corroborative evidence could be direct or circumstantial.
On such circumstance may be the making of confessions by
more than one accused, provided there was no chance for
prior 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 a 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 to be used
for has-
642
ing a conviction, the confession could be referred to as
lending some assurance to the verdict. The fact that the
confession was later retracted would make no difference
unless the admissions made in the confession are
satisfactorily withdrawn, or, the making of it explained as
having proceeded from fear, duress, promise or the like, 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
statement before the Customs authorities could not be used
for purposes of corroboration, his evidence, impressed the
lower Courts and was accepted by them. There was nothing to
make this Court form a different opinion about his veracity.
There was no gap of time between the statements of K and B,
and it was impossible that the Customs officers could have
tutored them to make the statements which agree in many
details. Further, both the statements received
corroboration at numerous other points in the story from
independent evidence. Therefore, the confession of B given
independently and in circumstances which exclude any
collusion or malpractice affords corroboration to the
evidence of K in respect of the appellant. B’s confession
could also be taken into consideration under s. 30 of the
Evidence Act, to lend assurance to the verdict, as B was
fully tried jointly with the appellant, and his allegations
of duress and torture for retracting his confession came
months later and it was impossible to heed them. [644 C-D;
645 D-E; 649 F-G]
Rameshwar 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 Madras, 119581 S.C.R. 428, Ram Prakash v. State of
Punjab, [1959] S.C.R. 1219, Chauraria’s case [1968] 2 S.C.R.
624, Babhoni Sahu v. Emperor, A.I.R. 1949 P.C. 257, Emperor
v. Lalit Mohan Chuckerburty, I.L.R. 38 Cal. 559 and Ram
Sarup Singh. & Ors. v. Emperor, A.I.R. 1937 Cal. 39,
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.42 of
1965.
Appeal by special leave from the judgment and order dated
December, 16, 17, 18, 19, 21, 22 of 1964 of the Bombay High
Court 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 Judgment of the Court was delivered by
Hidayatullah, J. The appellant Haroon is the sole appellant
from a batch of 18 persons who were tried jointly before the
Chief Presidency Magistrate, Esplanade Court, Bombay for
offences under S. 120-B of the Indian Penal Code read with
s. 167(81) of the Sea Customs Act and certain offences under
the Foreign Exchange Regulations Act, 1947. Of these, No.
17 accused (Saleh Mohamed Bhaya) was discharged by the
Magistrate, No. 1 accused (Govind Narain Bengali) died after
the conclusion of the case but before judgment in the Court
of triad and No. 4 accused (Noor Mohammad) jumped bail just
before the same judgment. The case against Bengali was held
to have
643
abated and that against Noor Mohammad was kept pending.
Nos. 11, 12, 13 and 16 accused were acquitted. Of the
remaining accused who were convicted, Haroon alone is before
us. His appeal to the High Court 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 a 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 a criminal 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 sea, 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 the value of nearly a crore of
rupees was smuggled, were made and 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 a 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 against Haroon stands mainly on the basis of the
statement of the accomplice Kashinath (P.W. 1). Kashinath
must be held to be a competent witness in view of our
decision in the Chauraria’s case(1). 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 (foes not
figure in the rest of the oral or documentary 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 statements is objected to generally and in particular
on the.
(1) [1968] 2 S.C.R. 624.
1.2 Sup CI/68-10
644
following grounds: It is submitted 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 Mohammad absconded before the trial
was finally concluded against them.. their statements are
not of persons jointly tried with Haroon; thirdly a
confession of a co-accused is no better than accomplice
evidence and just as one accomplice cannot be held to
corroborate another accomplice, the confession of a co-
accused cannot -also be held to be sufficient corroboration;
fourthly as these confessions, were later retracted their
probative value is nil; and fifthly Kashinath’s previous
statement cannot be used to corroborate him -as an
accomplice cannot corroborate himself. On these submissions
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 deposition of
Kashinath as the first prosecution witness. We have been
impressed by the simplicity of the narrative and there is on
record a note by the Magistrate that he was impressed by the
manner in which Kashinath deposed. The High Court and the
Magistrate have, concurred in accepting it and we have not
seen anything significant to reject it as false. To
corroborate Kashinath, the Magistrate and the High Court
have looked into his statement under ,S. 171-A of the Sea
Customs Act. In Rameshwar v. State of Rajasthan(1) the
previous statement was held under S. 157, Evidence 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 the. Judicial
Committee in Babhoni Sahu v. Emperor(1), the use of the
previous statement of an accomplice is to make the
accomplice corroborate himself. We have, therefore, not
used Ex. A to corroborate Kashinath but we cannot help
saying that only Iwo discrepancies were noticed on
comparison. The first was that Haroon’s name was mentioned
in Ex. A in the second trip while in the deposition in
Court he was shown to have taken part in the third trip.
The details of the trips where his name is mentioned are
identical and it seems that in counting the trips, Kashinath
has made a confusion, counting the reconnaisance trip as the
first trip in his deposition but not in his statement. The
second was the omission of a 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 a long list of names, often makes such an omission. On
the whole the two statements contained the same story with
sufficient details for -verification from outside sources.
The reception of Ex. A as -corroborative of accomplice
testimony, although open to some ,objection, has, however,
not affected the case.
(1) [1952] S.C.R 377.
(2) A.I.R. 1949 P.C. 257.
645
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 constituting the guilt of the makers under
the charged sections. They also mention the name of Haroon,
among others, as being concerned 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 a Magistrate under S. 164 of the
Code of Criminal Procedure but are statements made in answer
to a notice under S. 171-A of the Sea Customs 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 a co-accused jointly
tried with him. Section 30 of the Evidence Act does not
limit itself to confessions made to Magistrates, 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 with Haroon
right to the end and all that remained 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-(1), 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 a year, J died.
Before his death J’s confession had been put on the record.
R. C. Mitter, J. (Henderson, J. dubitante) allowed the
confession to go in for corroborating other evidence but not
as substantive evidence by itself. Of course, the
confession of a person who is dead and has never been
brought for trial is not admissible under S. 30 which
insists upon a 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, difficulty 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 settled. The Evidence Act in s. 133 provides
that an accomplice
(1) A.I.R. 1937 Cal. 39.
646
is a competent witness against an accused person and that a
conviction is not illegal merely because it proceeds upon
the uncorroborated testimony of an accomplice. The effect
of this provision is that the court trying an accused may
legally convict him on the single evidence, of an
accomplice. To this there is a rider in illustration (b) to
s. 114 of the Act which provides that the Court may presume
that an accomplice is unworthy of credit unless he is
corroborated in material particulars. This cautionary
provision incorporates a rule of prudence because an
accomplice, who betrays his associates, is not a 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 corroboration 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 commission of the offence is confirmed by
some competent evidence other than the single or unconfirmed
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 ingrained in the
consideration of accomplice evidence as to have almost the
standing of a 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.
‘Therefore, unless there is some evidence besides these
implicating the accused in some material respect, conviction
cannot stand. Reliance is placed in this connection upon
the observations of the Judicial Committee in Bhuboni Sahu
v. Emperor(1), a case in which a conviction was founded upon
the evidence of an accomplice supported only by the
confession of a co-accused. The Judicial Committee
acquitting the accused observed:
Their Lordships whilst not doubting that such
a conviction is justified in law under s. 133,
Evidence Act, and whilst appreciating that the
coincidence of a number of confessions of co-
accused all implicating the particular accused
given independently, and without 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 independent
evidence implicating the particular accused.
The danger of acting upon accomplice evidence
is not merely that the accomplice is on his
own admission a
(1) A. I.R. 1949 P.C. 257.
647
man of bad character who took part in the
offence and afterwards to save himself
betrayed his former associates, and who has
placed himself in a position in which he can
hardly fail to have a strong bias in favour of
the prosecution; the real danger is that he is
telling a story which in its general outline
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(1):
“The Evidence Act nowhere provides that if the
confession is retracted, it cannot be taken
into consideration against the co-accused or
the confessing accused. Accordingly, the
provisions of the Evidence Act do not prevent
the Court from taking into consideration a
retracted confession against the confessing
accused and his co-accused. Not a, single
decision of any of the courts in India was
placed before us to show that a retracted
confession was not admissible in evidence or
that it was irrelevant as against a 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 a co-accused
by virtue 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 corroboration 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 credibility to be attached to a
retracted confession, however, would depend
upon the circumstances of each particular
case. Although a retracted confession is
admissible against a co-accused by virtue of
s. 30 of the Indian Evidence Act, as a matter
of prudence and practice a court would not
ordinarily act upon it to convict a co-accused
without corroboration.”
The State further relies upon the observations of Govinda
Menon J. in Subramania Goundan v. State of Madras(2) where
the value of a confession was compared with the value of
accomplice evidence.
The case of the Judicial Committee dealt with accomplice
evidence which was sought to be corroborated by retracted
con-
(1) [1959] S.C.R. 1219., 1223.
(2) [1958] S.C.R. 428.
648
fessions. The case of this Court dealt with a 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 a confession on a slightly higher level than accom-
plice evidence, the observation is intended to convey the
difference between the extent of corroboration needed for
the one or the other before they can be acted upon. To read
more meaning into the observations is not permissible for no
such meanig was intended. The confession there considered
was also intended to be used against the maker and not
against a co-accused. A confession intended to be used
against a co-accused stands on a 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. must not be applied to those cases where
the confession is to be used against a co-accused. As
pointed out by this Court in Nathu v. State of Uttar Pradesh
(2) , confessions of co-accused are not evidence but if
there is other evidence on which a conviction can be based,
they can be referred to as lending some assurance to the
verdict.
In this connection the question of retraction must also be
considered. A 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 satisfactorily withdrawn or the making of it
explained as having proceeded from fear, duress, promise or
the like from some one in authority.A retracted confession
is a weak link against the maker and more so against a
co-accused.
In Rameshwar v. State of Rajasthan(3) this Court laid down
certain general rules about the nature of corroboration
needed before accomplice evidence may be accepted. It is
there pointed Out that every detail of the story of the
accomplice need not be confirmed by independent evidence
although some additional 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 circumstance may be the making of a
number of confessions without a chance for prior
consultation between the confessing co-accused. But before
even a number of such confessions can
(1) [1958] S.C.R. 428.
(3) [1952] S.C.R. 377.
(2) A.I. R. 1956 S.C. 56.
649
be used each 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 a variety of circumstances of which a
few alone may be mentioned, such as why the, accused
confessed whether he expected a 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 a false story or a story false in
certain. details. Where there is a single retracted
confession corroborating 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 a prior concert,. the probative
value may increase but the need for caution remains because
a number of suspects may be prompted by the. same or
different motives to embroil a particular individual. It is
only when false implication is excluded after close scrutiny
that confession of a 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(1)
and accepted by this Court, and a 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 suspects 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 Kamik (P.W. 24) and the latter by Rane (P.W. 26).
These statements were recorded simultaneously 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 the incident was only a few hours old, it is
impossible that the officers could have tutored them to,
make statements which agree in so many details. Both the
statements 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. A bare reading of the statement of Kashinath
made
(1) I.L.R.38 Cal.559,588.
650
before the Court and corroborated by his earlier statement
to the Customs authorities (except in two particulars
already considered) leaves one convinced that he is speaking
the truth. We are not seeking corroboration of the
accomplice from his own statements because that does not
advance accomplice evidence any further. 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. A remarkable degree of agreement is
found there also. In fact they are so consistent that Mr.
Nuruddin Ahmad sought to make a point and said that they
must be the result of collusion. Apart from the fact that
there was no time to collude, there are 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 we have reluctantly left
it out of consideration also, nothing was shown to us to
destroy the conclusion about the truth of accomplice
evidence. If it was, we would have considered seriously
Whether we should not take it into consideration. Further
Haroon himself was also served with a notice like others.
He was unwilling to make a statement till he had seen what
the others had said. This may well be regarded as peculiar
conduct in a 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 respect of
Haroon from the confession of Bengali given independently
and in circumstances which exclude any collusion or
malpractice. Regard being had to the provisions of s. 133
of the Evidence Act, we do not think 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.
V.P.S. Appeal
dismissed.
651