Haroon Haji Abdulla Vs. State of
Maharashtra [1967] INSC 300 (14 December 1967)
14/12/1967 HIDAYATULLAH, M.
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 statement 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 has642 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 someone 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.
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 respondent.
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 coaccused 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 anyone
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, whether 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 coaccused 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 accomplice
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 crossexamination
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 someone 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.
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