Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1967 Supreme(SC) 371

SUPREME COURT OF INDIA
M. HIDAYATULLAH AND C.A. VAIDIALINGAM, JJ.
Haroom Haji Abdulla, Appellant
Versus
State of Maharashtra, Respondent.
Criminal Appeal No. 42 of l965
D/- 14-12-1967
Advocates appeared
M/s. Nuruddin Ahmed. E. C. Agrawala, Champat Rai, S. V. Pikale and P. C Agrawala, Advocates, for Appellant; M/s. Adi P. Gandhi, H. R. Khanna and S. P. Nayar Advocates, for Respondents. 834

Advocates:
CHAMPAT RAI, E.C.AGARWAL, H.R.KHANNA, Nuruddin Ahmed, P.C.AGRAWAL, P.GANDHI, S.P.NAIR, S.V.PIKALE

The confession of a co-accused can be used to corroborate accomplice evidence, but it must be carefully scrutinized to ensure that it is not false or fabricated.

Headnote:
CRIMINAL LAW - Evidence - Accomplice evidence - Corroboration - Confession of co-accused - Retracted confession - Probative value - Confession of co-accused used to corroborate accomplice evidence - Circumstances to be considered - Confession of co-accused used against co-accused - Caution to be exercised.
Fact of the Case:

The appellant, Haroom, was convicted along with 17 others 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. The case against Haroom was based mainly on the statement of the accomplice Kashinath, which was corroborated by the statements of Bengali and Noor Mohammad, also accused in the case, made to the Customs authorities under Section 171-A of the Sea Customs Act. The statements of Bengali and Noor Mohammad were retracted later.
Finding of the Court:

The court held that the statements of Bengali and Noor Mohammad were relevant and admissible in evidence against Haroom, even though they were retracted, as they were made voluntarily and without any threat or promise from any one in authority. The court further held that the confession of a co-accused can be used to corroborate accomplice evidence, but it must be carefully scrutinized to ensure that it is not false or fabricated. The court also held that a retracted confession is a weak link against the maker and more so against a co-accused, and it must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.
Issues: 1. Whether the statements of Bengali and Noor Mohammad were relevant and admissible in evidence against Haroom? 2. Whether the confession of a co-accused can be used to corroborate accomplice evidence? 3. Whether a retracted confession can be used to corroborate accomplice evidence?
Ratio Decidendi: 1. The statements of Bengali and Noor Mohammad were relevant and admissible in evidence against Haroom because they were made voluntarily and without any threat or promise from any one in authority, and they were made jointly with Haroom, who was tried with them right to the end. 2. The confession of a co-accused can be used to corroborate accomplice evidence, but it must be carefully scrutinized to ensure that it is not false or fabricated. 3. A retracted confession is a weak link against the maker and more so against a co-accused, and it must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.
Final Decision: The appeal was dismissed.

Judgement

HIDAYATULLAH, J .:- The appellant Haroom 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 S. 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, Haroom 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.

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 (P .W 1). Four trips, in which gold of the value of nearly a crore of rupees was smuggled, were made and Haroom 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 it 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 Haroom with the others.

4. The case against Haroom stands mainly on the basis of the statement of the accomplice Kashinath (P. W. 1). Kashinath must be held to be a competent witness in view of our decision in the Chouraria s case Cri. Appeals Nos. 50-52 of 1964 D/- 14-12-1967 (SC). 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 Haroom 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 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 Haroom; 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 l

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