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TMI Blog1986 (12) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... r the car flew from A7-Abdul Hamid, the R.T.O. forms were filled in so showing A1 the owner thereof - that is as a benamidar. 2. Next day in pursuance of the conspiracy the accused loaded imported goods in truck near the sea shore of Dhumas near Surat and camouflaged the same with gunny bags containing Dal. A2 along with a sikh driver came to Dhumas in a truck and A1, A3, A4, A5 and A6 along with others loaded goods in the truck which was sent to Bombay for sale. According to the prosecution even though the contraband was worth about Rs. 5,00,000/- the truck escaped detection. This was a first incident. 3. Emboldened by their first successful attempt the conspirators again loaded similar contraband goods on 24-9-1969 in a truck MHB-2816 on the sea shore of Dhumas. A2 accompanied by all (since deceased) and A12 the cleaner were first to go to Dhumas for loading goods. A1, A3, A4, A5 and A6 and some unknown persons also came to Dhumas and operations were directed by A7 who was acting on behalf of his father Haji Mohamed Moosa and brother Abdul Razak. A7 fixed the haulage charges of the truck at Rs. 1200/- and after the truck was loaded it was piloted by the recently purchased Amb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay fine of Rs. 200/- i.d. two weeks' R.I. The Court convicted A13-Haji Mohamed Moosa and his two sons; A7-Abdul Hamid and A14-Abdul Razak. Against this judgment criminal appeal No. 683 of 1976 was filed by the State. According to the appellant the acquittal of all the 8 accused and A12 of charges nos. 2, 3 and 4 which pertains to the first consignment of goods which escaped seizure was erroneous. As regards the second seizure the State was aggrieved that the learned Magistrate has acquitted A7, A13 and A14 of all the charges 1 to 7. 5. In the trial Court, when the evidence of two witnesses was recorded an application dated 1-3-1973 was filed by the Customs requesting the Court to grant permission under Section 494 of the Criminal Procedure Code to the learned Public Prosecutor to withdraw from the prosecution against A1 as he was willing to enter in the box on behalf of the prosecution as the bedrock of the prosecution case rested on the statement of A1 who was examined as P.W. 3. His evidence was completed on 3-9-1974 and evidence of other witness was recorded on 2-12-1974. Abdul Razak Abdul Gani was cross-examined by the defence Counsel when he reciled from his previous deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence satisfies the first test or reliability. According to Counsel as all the three main witnesses have turned hostile they can by no stretch of imagination be called reliable witnesses and hence the Court need not proceed to examine the corroboration pieces of evidence at all. 8. I am afraid the Orissa Judgment does not in so many words put the two tests in water tight compartments and the leading authority of Major Barsay's case would have to be applied in weighing evidence of an accomplice. The Supreme Court in State of Andhra Pradesh v. Ganeswara Rao, AIR 1963 SC 1850 has repeated that: "While it must be shown that approver is a witness of truth, the evidence adduced in a case can't be considered in compartments and even for judging the credibility of the approver the evidence led to corroborate him in material particulars would be relevant for consideration. The Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not." 9. Mr. Ram Kumar thereafter pressed his argument of separate test by relying on Piara Singh v. State of Punjab, 1969 (1) SSC 379 in which on the authority of Sarwan Singh, the Court observed :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or that requires that the Jury be warned of danger of convicting on the basis of uncorroborated evidence should be abrogated. The Canada Evidence Bill was introduced into a Senate on November 18, 1982 but retained the provisions of corroboration so far as the accomplice evidence is concerned as would be clear from clause 125 : "(1) xxxx xxxx xxxx xxxx xxxx xxxx (2) The Court shall instruct the trier of the fact on the special need for caution in any case in which it considers that an instruction is necessary, and shall in every case give the instruction with respect to (a)............, (b) the evidence of a witness who, in the opinion of the court, would be an accomplice of the accused if the accused were guilty of the offence charged." Thus, even in the other Commonwealth countries where the traditions of common law are followed an attempt to do away with the second test of corroboration of an accomplice has not found favour either with the legal community or the legislatures. 10. Mr. Kher, then places reliance on the newly added Section 138B of the Customs Act for the purpose of treating a statement made and signed by A1 before the officers of the Customs duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o previous statements in committal proceedings and hence could not be used as substantive evidence but in the instant case in view of Sec. 138B of the Evidence Act, even the previous statement recorded before the Customs Officer could be treated as substantive evidence and hence Bhagwan Singh's ratio applies with all the more force in this case. 13. Armed with the enabling provisions clause (b) of sub-section (1) of Section 138B of Customs Act, as respects the statement of A1, P.W. 28 and P.W. 29 recorded which corroborates the evidence of these witnesses as recorded in the examination-in-chief, Mr. Kher then lists a number of circumstances which lends corroboration to the evidence of these witnesses in the examination-in-chief and says that the interval between the conclusion of the examination-chief and commencement of the cross-examination was unfortunately so great that it can be inferred that A7 a resourceful king-pin who was the master-mind behind these operations must have won over these witnesses who at one time were very close to him. It would now be necessary to examine all these circumstances ad seriatim to see whether they lend a colour of veracity to the statements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution was a counterfoil of the Hundi dated 12-7-1969 for Rs. 20,000/- in the name of R.K. Mehta according to which P.W. 3-Abdul Razak (former A1) had signed it. P.W. 3 was shown 11 more counterfoils and he identified his signature and explained that it was then practice to hand over hundis to A7-Abdul Hamid and he along with others used to take the same to Bombay. At Bombay the hundis were given to A14-Abdul Razak. In cross-examination P.W.3-Abdul Razak explained that the amounts pertaining to 11 drafts related to proceeds of sale of silver and not those of smuggled goods. The value to be attached to the evidence subsequently resiled from, has been explained in Bhagwan Singh's case but as regards the hundis drawn on the firm of Laxmichand Bhagaji no corroboration piece of evidence is available to conclude that these hundis represent proceeds of sale of Foreign goods. No doubt the modus operandi of drawing the bills of exchange on Laxmichand Bhagaji has been deposed by P.Ws. 36 and 43 to which I shall advert later but they also do not speak about the source from which the funds came. A7-Abdul Hamid, in his statement before Monkar had justified the legality of the transactions b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve him a loan of Rs. 1,000/- or 1,500/- for the treatment of his wife. According to Mr. Kher the witness resiled in cross examination only to please the accused and invented the story of quarrel which is belied by the letters written by P.W. 3. Whenever persons are in trouble they may make a common cause allowing their internal feuds to smoulder and this single act giving the address of the store of A14 would not prompt me to conclude that the story of quarrel given by P.W. 3 is not correct. 19. The sixth circumstance catalogued by the appellant was the tact that Mohamed Chacha's telephone number was found in the diary of A7. Mohamed Chacha is father of A9 one of the dealers of the goods and A7 and P.W. 3 had stayed with Mohamed Chacha at Surat. This circumstance is pressed at the bar to show friendship ofA7 with A9 and it is surmised by the prosecution that Mohamed Chacha's house was the rendezvous of the conspirators where instructions were given by A7. In the first place this stay with Mohamed Chacha is denied by P.W. 3 and it could as well be that A7 had some business relationship with Mohamed Chacha. That explains why Surat telephone number of Mohamed Chacha was found in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roborates the story given by P.W. 3 that A5 was asked to note down the truck number. The number was noted by A5 and the roping in of A7 by P.W. 3 appears too tenuous. 23. At this stage it would be necessary to examine the explanation given by P.W. 3 as to why he was resiling from his earlier statement because that may throw light on some factual aspects of the matter. According to P.W. 3 when he and others were remanded to custody after his statement was recorded he realised that all of them have been involved in the case by his false statement. In the words of P.W. 3 "at that time I felt remorse because they were arrested when they were innocent, that remorse is going on even till today in my mind". After his first statement involving A7 in the examination-in-chief in the Court he had a word with his wife at home. He told her that he had falsely implicated others to save himself, his daughter had become ill and he himself also suffered from a liver ailment. He had involved A7 in the statement before Monkar and Srivastava and thought that he would be able to escape and also take revenge on A7 against whom he had a grudge. But the compunctions of conscience prompted him to resile ..... X X X X Extracts X X X X X X X X Extracts X X X X
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