TMI Blog1967 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 120B of the Indian Penal Code read with Section 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 trial and No. 4 accused (Noor Mohammad) jumped bail just before the same judgment. The case against Bengali was held to have 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 Article 136 of the Constitution and brought this appeal. 2.As this appeal is to be considered on a question of law, it is not necessary to give the facts in details. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5.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 Section 171A of the Sea Customs Act. In Rameshwar v. State of Rajasthan [(1952) SCR 377] the previous statement was held under Section 157, Evidence Act, corroborative evidence provided it was made "at or about the time when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions 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. 7.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 [AIR 1937 Cal. 39] J. was put on his trial along with L; the trail proceeded for some time and about six months before the delivery of judgment, when the trail 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 Section 30 which insists ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial Committee in Bhuboni Sahu v. Emperor [AIR 1949 PC 257], 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 Section 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 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 out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eak and only to be used with great caution. Although Govinda Menon, J. in Subramania Goundan's case [(1958) SCR 428] 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 meaning 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 [AIR 1956 SC 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. 11.In this connection the question of retraction must also be considered. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiny 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 ILR 38 Cal. 559 and accepted by this Court, and a retracted confession cannot obviously go further or have higher value. 13.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 Karnik (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 evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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