# HAROON HAJJ ABDULLA v. STATE OF MAHARASHTRA - **Citation:** [1968] 2 S.C.R. 641 - **Court:** Supreme Court of India - **Decided:** 1967-12-14 - **Case number:** Criminal Appeal No. 42 of 1965 - **Bench:** M. lIIDAYATULLAH, C. A. Vaidiaungam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/haroon-hajj-abdulla-v-state-of-maharashtra-4259 - **Pages:** 10 ## Headnote 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 confession 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 confession 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 accomplice, 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 ## 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 confession 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 confession 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 accomplice, 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 constituting the guilt of the makers under the charged sections. They also mention the name of Haroon, among others, as being concerned 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 statements made in answer to a· notice under s. 171-A of the Sea Customs 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 Magistrates, 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 remained 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. (Henderson, J. dubitante) aliowed 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 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 wellsettled. 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 uncorroborated 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<:d in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboraticn in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfim1ed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law. The argument here is that the cautionary rule applies. whether there be one accomplice or more and that the confessing co-accused cannot be placed higher than an accomplice. Therefore. unless there is some evidence besides these implicating the accused in some material respect, conviction cannot stand. Reliance is placed in this connection upon the ob~.~rvations of the Jud.cial Committee in Bl111bo11i ·Sa/Ill v. l:'mpemr('). a case in which a conviction was founded upon the evidence of an accomplice supported only by the confession of a co-accused. The Judicial Committee acquitting the accused observed: " .... Their Lordships whilst not doubting that such a conviction is justified in law under s. 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co-accused all implicat- !ng the particular accused given independently, and without an opportunity of previous concert, might be entitled to great weight, would nevertheless observe that Courts should be slow to depart from the rule of prudence. based on long experience, which requires 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 (t) A.LR. 1949 P.C. 257. A 8 c D E F G H A B c D E F H HAROON RAJ! v. MAHARASHTRA (Hidayatu/lah, !. ) 647 man of bad character who took part in the offence and afterwards to save hims.~lf betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bia~ in favour of the prosecution; the real danger is that he is telling a story which in its general oudine 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('): "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 against a co-accused. An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of s. 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of cr.~dibility to be attached to a retracted confession, however, would depend upon the circumstances of e.ach particular case. Although a retracted confession is admissible against a co-accused by virtue of s. 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co-accused without corroboration." The State further relies upon the observations of Govinda Menon. J. in Subramania Goundan v. State of Madras(") where the value of a confession was compared with the value of accomplice evidence. The case of the Judicial Committee dealt with accomplice evidence which was sought to be corroborated by retracted con- (I) [19591S.C.R.12'.9, 1223. (2) [1958] S.C.R. 428. 648 SUPREME COURT REPORTS [ 1968] 2 S.C.R. fessions. The case of this Court dealt with a retracted confession which was sought to be used without corroboration. Both cases treat the retracted confession as evidence which may be used although not within the definition .of evidence. But both cases regard this evidence as very weak and only to be used with great caution. Although Govinda Menon, J. in Subramania Goundan's case( 1 ) placed a confession on a slightly higher level than accomplice evidence, the observation is intended to convey the difference between the extent of corroboration needed for the one or the other before they can be acted upon. to read more meaning into the o~ervations is not permissible for no such meaning was intended. The confession there considered was also intended to be used against the maker and not against a co-accused. A confession intended to be used against a co-accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination whilst the former is not. The observations of Govinda Menon, J. mas~ 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('), confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can oo referred to a' lending some assurance to the verdict. 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 cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactor ;1y withdrawn or the making of it explained as having proceeded !tom fear, duress. promise or the like from some one in authority. A retracted confession is a weak link against the maker and more so against a co-accused. In Rameshwar v. State of Rajasthan(') this Court laid down certain general rules about the nature of corroboration ueed.ed before accomplice evidence may be accepted. It is there pointed out that every detail of the s!ory of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice. One such circumstance may be the making of a number of confessions without a chance for prior consultation between the confessing coaccused. But before even a number of such confessions can (2) A.LR. 1956 S.C. 56. c1J 1t9ss1s.c.R.428. (3) (t952) S.C.R. 377. B c D F G H A B c D E F G H HAROON HAJJ v. MAHARASHTRA (Hidayatu/lah, !.) 649 be used ea'ch such confession .must 'inspire confidence both in its content and in the manner and circumstances of its making. If there be any suspicion of .false implication the confession must be discarded as of no probative value. This may result from a variety of circumstances of which a few alone may be mentioned, such as why the accused confessed whether he expected a gain for himself by implicating his co-accused, the part he assigns to himself and that to his co-accused, the opportunity for being coached up to narrate a false story or a story false in certain details. Where there is a single retracted confession corroborating other accomplice evidence, the caution must necessarily be still greater and the probative value smaller. Even if there are more than one such confession and they are proved to be given independently and without an opportunity for a prior concert, the probative value may increase but the need for caution remains because a number of suspects may be prompted by the same or different motives to embroil a particular individual. It is only when false implication is excluded after close scrutiny that confession of a co-accused can be used to lend assurance to other evidence. This was so stated by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty(') and accepted by this Court, and a retracted confession cannot obviously go further or have higher value. The offence in this case was detected on the night of August 13, 1961 and investigation went on till the morning of the 14th. Thereafter the customs authorities served notices upon various suspects and recorded their statements in answer to these notices. The statements of Kashinath (Ex. A) and Bengali (Ex. Z.27) were recorded on the 15th, the former by Karnik ( P. W. 24) and the latter by Rane (P.W. 26). These statements were recorded simultaneou~ly 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 ihe 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 names 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 (I) I.LR. 38 Cal. 559, 588. 650 SUPREME COURT REPORTS [1968] 2 S.C.R. before the Court and corroborated by his earlier statement to the Customs authorities (except in two particulars already considered) lcavt;s one convinced that he is speaking the truth. We arc not seeking corroboration of the accomplice from his own statements because that does not advance accomplice evidence any furthc:-. We are only looking into the previous statement to see if it discloses any variation which would put us on further inquiry. The real check comes when one compares these two statements with that made by- Bengali. A remarkable deg1ce of agreement is found there also. In fact they are so consistent that Mr. Nuruddin Ahmad sought to make a point and said that they must be th~ result of collusion. Apart. from the fact that there was no time tll collude, there arc extra details in the different statements which also receive independent corroboration. Further, although Noor Mohammad's statement was not used by the High Court and w~ hav.:: reluctantly left it out of consideration also. nothing wa1 shown to us to destroy the conclusion about the truth of accomplie<: evidence. If it was, we would have considered seriously whether we should not take it into consideration. Further Haroon himself was also served with a notice like others. He was unwilling to make a statement till he had seen what the others had said. This may well be regarded as peculiar conduct in a man who now claims that he was not concerned with the smuggling. The High Court has very searchingly examined the evidence of Kashinath 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 re>pect of Ho· :,on from the confession of Bengali given independently and in circumstances 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