Case Summary
| Citation | Haroon Haji Abdulla v. State of Maharashtra (1968) 2 SCR 641 : AIR 1968 SC 832 |
| Keywords | sec 133 r/w 114(b) IEA, accomplice, corroboration, sec 120b IPC |
| Facts | Gold was smuggled into India by bringing it in steam launches from places on the Persian Gulf, transshipping 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. On the 14th, the Customs Authorities served notices upon the suspects under Section 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 Kashinath and Bengali, independently, and almost simultaneously. The statement of Kashinath implicated himself and Haroon Haji Abdulla in the smuggling. The statement of Bengali contained a confession of his own guilt as well as the implication of Haroon in the smuggling, but retracted later alleging duress and torture. Trial court convicted the appellant, High Court confirmed the conviction relying on the statement of Kashinath and the retracted confession of Bengali |
| Issues | Whether there can be one accomplice or more? Whether the statement is admissible of accomplice under section 133 IEA? |
| Contentions | |
| Law Points | Appellant contended that, as Kashinath was an accomplice, no conviction could be based on his evidence unless it was corroborated in material particulars; and the statement of Kashinath before the Customs authorities and the confession of Bengali to the Customs authorities which was later retracted, could not be used for purposes of such corroboration The Evidence Act in Section 133 provides that an accomplice 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. 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 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. 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. A retracted confession is a weak link against the maker and more so against a co-accused. Retracted confession can be used against maker and co-accused. It is not substantive piece of evidence. It can be used as corroborative piece of evidence. It is very weak evidence. |
| Judgement | 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. The appeal was dismissed. Conviction of Haroon was upheld. |
| Ratio Decidendi & Case Authority |
Full Case Details
M. 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 Section 120-B 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 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 (PW
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.
3. 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.
4. The case against Haroon stands mainly on the basis of the statement of the accomplice
Kashinath (PW 1). Kashinath must be held to be a competent witness in view of our decision
in the Chauraria case [(1968) 2 SCR 624]. 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 does 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 Section 171-A of the Sea Customs Act. The use of
these statements is objected to generally and in particular on the following grounds: it is
submitted firstly that these statements are not confessions proper to which Section 30 of the
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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.
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 171-A 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 the fact took place”. This is perhaps true of other testimony but as pointed out by the
Judicial Committee in Bhuboni Sahu v. Emperor [AIR 1949 PC 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 two
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.
6. 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 Section 164 of the Code
of Criminal Procedure but are statements made in answer to a notice under Section 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
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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.
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 v. Emperor [AIR 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 Section 30 which insists upon a joint trial. The statement becomes relevant
under Section 30 read with Section 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.
8. 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 well settled. The Evidence Act in Section 133 provides that an accomplice 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 Section 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.
9. 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 a case in which a
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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 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) SCR 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 coaccused. 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 Section 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
Section 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 [(1958) SCR 428], where the value of a confession was
compared with the value of accomplice evidence.
10. The case of the Judicial Committee dealt with accomplice evidence which was sought
to be corroborated by retracted confessions. The case of this Court dealt with a retracted
confession which was sought to be used without corroboration. Both cases treat the retracted
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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 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
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 coaccused 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 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.
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 and Bengali were recorded on the 15th, the former by Karnik and the
latter by Rane. These statements were recorded simultaneously or almost simultaneously. The
statement of Noor Mohammad was recorded by Randive 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 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.
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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.
14. 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 Section 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.
15. The appeal, therefore, fails and is dismissed. Appellant to surrender to his bail.
