iminal Appeal No42 of 1965
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 section V Pikale and P C Agrawala for the appellant
Adi P Gandhi H R Khanna and section 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 section 120 B of the Indian Penal Code read with section 16781 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 article 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 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
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 PW 1
Kashinath must be held to be a competent witness in view of our decision in the Chauraria s case1
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 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
1  12 Sup CI68 10 644 following grounds It is submitted firstly that these statements are not confessions proper to which section 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 section 171 A of the Sea Customs Act
In Rameshwar vs State of Rajasthan1 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 Babhoni Sahu vs Emperor1 the use of the previous statement of an accomplice is to make the accomplice corroborate himself
We have therefore not used exhibit 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 exhibit 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 exhibit A as corroborative of accomplice testimony although open to some objection has however not affected the case
1  2 AIR 1949 PC 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 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 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 vs 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 section 30 which insists upon a joint trial
The statement becomes relevant under section 30 read with section 323 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 section 133 provides that an accomplice 1 AIR 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 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 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 vs Emperor1 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 1 A IR 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 vs State of Punjab1 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 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 vs State of Madras2 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  1223
2  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 case1 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 vs 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 co accused
In Rameshwar vs State of Rajasthan3 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  3  2 AI R 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 vs Lalit Mohan Chuckerburty1 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 exhibit A and Bengali exhibit Z 27 were recorded on the 15th the former by Kamik PW 24 and the latter by Rane PW 26
These statements were recorded simultaneously or almost simultaneously
The statement of Noor Mohammad exhibit Z 17 was recorded by Randive PW 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 reading of the statement of Kashinath made 1 ILR38 Cal559588
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 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
The appeal therefore fails and is dismissed
Appellant to surrender to his bail
VPS Appeal dismissed


Summary:
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 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 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 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 section 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 section 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 vs State of Rajasthan   Nathu vs State of UP AIR 1956 section C 56 Subramania Goundan vs State of Madras 119581 SCR 428 Ram Prakash vs State of Punjab  Chauraria s case 1968 2 SCR 624 Babhoni Sahu vs Emperor AIR 1949 PC 257 Emperor vs Lalit Mohan Chuckerburty ILR and Ram Sarup Singh
 Ors
vs Emperor AIR 1937 Cal 39 referred to