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TMI Blog1967 (12) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ut he obtained special leave under Article 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 details. 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner 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 171A of the Sea Customs Act. In Rameshwar v. State of Rajasthan [(1952) SCR 377] 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 Bauboni Sahu v. Emperor [AIR 1949 PC 257] the use of the previous statement of an accomplice is to make the accomplice corroborate himself. We have, therefore, not used Ex. A to corroborate Kashinath but we cannot help saying that only two discrepancies were noticed on comparison. The first was that Haroon's name was mentioned in Ex. 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 reconnaisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail proceeded for some time and about six months before the delivery of judgment, when the trail 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 32(3) 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. 8.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 Section 133 provides that an accomplice 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equires 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 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 v. State of Punjab [(1959) SCR 1219] : "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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 v. State of Uttar Pradesh [AIR 1956 SC 56] 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. 11.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 case) 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 someone in authority. A retracted confession is a weak link against the maker and more so against a co-accused. 12.In Rameshwar v. State of Rajasthan [(1952) SCR 377] this Court laid down certain general rules about the nature of corroboration needed before accomplice evidence may be accepted. It is there poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded simultaneously or almost simultaneously. The statement of Noor Mohammad (Ex. Z-17) was recorded by Randive (P.W. 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 name 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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