1967 (12) TMI 29 - SC - Customs

Whether there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice? Held that - The High Court has very searchingly examined the evidence of Kahinath 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. Appeal dismissed.

Issues Involved:
1. Admissibility and corroboration of accomplice testimony.
2. Use of statements made by co-accused under Section 171A of the Sea Customs Act.
3. Legal validity of retracted confessions.
4. Conviction based on the uncorroborated testimony of an accomplice.

Detailed Analysis:

1. Admissibility and Corroboration of Accomplice Testimony:

The primary issue in this case was whether the testimony of Kashinath (P.W. 1), an accomplice, could be used to convict Haroon. The court noted that Kashinath's testimony was simple and credible, and both the Magistrate and the High Court accepted it. The court emphasized that corroboration of accomplice evidence is necessary as a rule of prudence, not law. This corroboration was found in the statements made by Bengali and Noor Mohammad to the Customs authorities. However, the court did not use Kashinath's previous statement to corroborate his testimony, as it would amount to self-corroboration, which is not permissible. The court also highlighted that the discrepancies in Kashinath's statements were minor and did not affect the overall credibility of his testimony.

2. Use of Statements Made by Co-Accused Under Section 171A of the Sea Customs Act:

The court examined the statements made by Bengali and Noor Mohammad under Section 171A of the Sea Customs Act. These statements were not confessions recorded by a Magistrate under Section 164 of the Code of Criminal Procedure but were still considered admissible. The court scrutinized these statements to ensure they were made voluntarily and not under duress. Bengali's statement was considered relevant and used to corroborate Kashinath's testimony, while Noor Mohammad's statement was not relied upon as his trial was separated. The court held that Bengali's statement, which implicated Haroon, could be used as corroborative evidence.

3. Legal Validity of Retracted Confessions:

The court addressed the issue of retracted confessions, noting that both Bengali and Noor Mohammad had retracted their statements alleging duress and torture. However, these retractions came months later, and the court found them unconvincing. The court referred to previous judgments, including Ram Prakash v. State of Punjab, which stated that retracted confessions could still be considered if corroborated. The court emphasized that while retracted confessions are weak evidence, they can still be used with caution and corroboration.

4. Conviction Based on the Uncorroborated Testimony of an Accomplice:

The court reiterated that under Section 133 of the Evidence Act, a conviction based solely on the uncorroborated testimony of an accomplice is not illegal. However, the court followed the rule of prudence, requiring corroboration in material particulars. The court found that Kashinath's testimony was corroborated by Bengali's statement, which was made independently and without prior concert. The court also noted that Haroon's conduct, such as his reluctance to make a statement until he saw what others had said, was peculiar and indicative of his involvement in the smuggling operation.

Conclusion:

The court concluded that there was sufficient corroboration of Kashinath's testimony from Bengali's statement, and there was no reason to interfere with the conviction. The appeal was dismissed, and Haroon was ordered to surrender to his bail.

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