HAROON HAJI ABDULLA v. STATE OF MAHARASHTRA
Citation: [1968] 2 S.C.R. 641; 1967 INSC 302
Court: Supreme Court of India
Bench: M. HIDAYATULLAH , C.A. VAIDYIALINGAM
Judgment date:
Case summary
1967 INSC 302. Supreme Court of India judgment dated 1967-12-14. HAROON HAJI ABDULLA v. STATE OF MAHARASHTRA. Read the judgment and case details on LawSphereX.
Judgment text
A B c D E F G H HAROON HAJJ ABDULLA v. STATE OF MAHARASHTRA December 14, 1967 641 • [M. lIIDAYATULLAH AND C. A. VAIDIAUNGAM, JJ. ] Evidence Act (1 of 1872), ss. 30, ll4(b) and 133-Confessiott of r:o-accused-Extent to which it could be used as corrobqration of accom 4 plice evidence. 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 pexsons waiting for it. There was a raid on the night of August 13, 1961 while a consignment was being brought in. Many of tlje smugglers were arrested, th~ case was investigated into, and on the 14th. the Customs Authorities served notices upon the suspects under s. 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 appell"ant in the smuggling and the 9latement of B cqntained a con- fession 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 unwiJling to make a statement till be had seen what the others had said. The appdlant and 17 others were tried for ilhe offence of conspiracy to smuggle gold into India. At the trial, K ·was a witness for the prose 4 cution and B, who was jointly tried with the appellant retracted the con- fession he made before th~ 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 accom- plice, no conviction could be based on his evidence unless· it was corro· borated in material particulars; and the statement of K before the Cus-. toms authorities and the confession of B to the Customs authorities. which was later retracted, could not be u~ed for purposes of such cor. roboration. HELD : An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant i! o reject it as false. But the rule of prudooce, ingrained in the considera· tion of accompJice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, again. ment before the Custom~ au.!
horities could not be used for purposes Qf corroboration, his evidence, impressed the lower Courts and was accepted by them. ' There was nO:hing to make this· Court form a different opinion about his veracity. There was no. gap of time between 4he statements of K and Q, and it was impossible that the Customs officers could' have tutored them to make the statements which ·agree Hi many details. Further, both ' the stat. ements received corroboration at numerous other points in the story from independent evidence. Therefore, the confession of B given independent,ly and in circumstances which exclude any collusion or malpractice affords corroboration to the evidence of K in respect of the appGJ. lant. B's confession oould also be takeri into considei;ation ui:J. der s: 30 of the Evidence Act. to lend assurance to 4he verdict, as B was fully tried jointly with the appellant, and his allegations of duress and tort! lrl' for retracting his confession came mon!
hs later and it was impossible to heed. them. [644 C-D; 645 D-E; 649 f-G] Ramesliwar v. State of Rajasthan; [1952] S. C. R. 377, Nathu v. State of U. P. , A. I. R. 1956 S. C. 56, ·Subramania Goundan v. State of Madr0$, [1958] S. C. R. 428, Ram Prakash v. Sta"e of Punjab, [1959] S. C. R. 1219, Chauraria's ca~e [1968] 2 S. C. R. 624, Babhoni Sahu v. Emperor, A. LR. 1949 P. C. 257, Emperor v. La/it Mohan Chuckerburty, I. L. R. 38 Cal. 559 and ·Ram Sarup Singh. & Ors. v. Emperor, A. I. R. 1937 Cal. 39, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 42 of 1965. Appeal by s~cial leave ~om the judgment and order dat~ . December, 16, 17; 18, 19, 21, 22 of 1964 _of the Bombay High · E F G H A B c D E F G H HAROON HAJI v. MAHARASHTRA (Hidayatu//ah, J. ) 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 con- stituting the guilt of the makers under the charged sections. They also mention the name of Haroon, among others, as being con- cerned 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 s. 164 of the Code of Criminal Procedure but are state- ments made in answer to a· notice under s. 171-A of the Sea Cus- toms 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 QOt limit itself to confessions made to Magis- trates, 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 wi! h Haroon right to the. end and all that remain- ed 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('), 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. (Hen- derson, J.
dubitante) aliowed the confession to go in for corrobo- rating 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 s. 30 which insists upon a joint trial. The statement becomes relevant under s. 30 read with s. 32 ( 3) of the Evidence Act because Bengali was fully tried jointly with Haroon. There is, however, dififotilty 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 well- settled. The Evidence Act in s. 133 provides that an accomplice (I) A. LR. 1937 Cal. 39. 646 SUPREME COURT REPORTS (1968] 2 S. C. R. is a c.
ompctcnt witness against an accused person and that a conv1c- :1on 1s not 11Jcgal merely because it proceeds upon the uncorrobo- rated testimony of an accomplice. 'the effect of this provision is that the court trying an accused may legally convict him on the smgle evidence of an accomplice. To this there is a rider in illustration ( b) to s. l l 4 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborat pect of Ho· :,on from the confession of Bengali given independently and in circum- stances which exclude any collusion or malpractice. Regard being had to th. ~ provisions of s. 133 of the Evidence Act, we do no: tl1ink 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. V. P. S. Appeal dismissed. A B c D E F
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