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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

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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.

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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

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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

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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

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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

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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

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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

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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