Appellant Haroon is the sole appellant from a batch of 18 persons who were tried jointly before the Chief Presidency Magistrate Bombay for offences under Section 120-B of the Indian Penal Code read with Section 167(A) of the Sea Customs Act. Of these, No. 1 accused (Govind Narain Bengali) died after the conclusion of the case but before judgment 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.
Facts of the case
The several accused 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) 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.
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, 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.
Evidence against Haroon
The case against Haroon stands mainly on the basis of the statement of the accomplice Kashinath. Kashinath must be held to be a competent witness. Corroboration for Kashinath’s evidence in respect of Haroon 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. Use of these statements is objected.
Observations of Supreme Court
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. 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.
As pointed out by the Judicial Committee in Bhuboni Sahu v. Emperor [1949 PC], 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.
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 guilt of the makers. They also mention the name of Haroon 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?
Admissibility under section 30 of statements made under the Customs Act
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 someone 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.
Of course, 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.
Corroboration of accomplice evidence
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.
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.
Admissibility and value of a retracted confession
Ram Prakash v. State of Punjab [1959 SC]:
“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. Although it may be taken into consideration against a co-accused by virtue 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.
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.”
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. Confessions of a 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.
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.
Application of law to the facts of this case
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. Statements of Kashinath and Bengali were recorded on the 15th. These statements were recorded simultaneously or almost simultaneously. 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 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 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.
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, nothing was shown to us to destroy the conclusion about the truth of accomplice evidence. 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.
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, therefore, fails and is dismissed.