TMI Blog1967 (12) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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([1952] S.C.R 377.) 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(A.I.R. 1949 P.C. 257.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the judgment, the case was held abated against him after his death. In Ram Sarup Singh and Others v. Emperor( A.I.R. 1937 Cal. 39.), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncert, 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 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([1959] S.C.R. 1219., 1223.): 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (A.I. R. 1956 S.C. 56.) , 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-acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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