Case Note & Summary
The Supreme Court dismissed the criminal appeal by special leave filed by the appellant, a goldsmith, against his conviction under Section 167(81) of the Sea Customs Act, 1878. The case arose from an incident on August 17, 1961, when Sub-Inspector Sahani of the Railway Preventive Section, acting on information, went to room No. 2 on the second floor of Bori Chawl, Kamathipura, Bombay. He found the appellant present holding a bag, which upon seizure contained 25 gold bars weighing ten tolas each, valued at Rs. 78,400, with foreign markings. The appellant was arrested under Section 124 of the Bombay Police Act, and the matter was entrusted to Customs Officer H.C. Advani, who recorded the appellant's statement (Ex. A). A complaint was filed by the Assistant Collector of Customs alleging an offence under Section 167(81) of the Sea Customs Act. During trial before the Chief Presidency Magistrate, the prosecution examined Sub-Inspector Sahani and Customs Officer Advani. Their statements were recorded on February 6, 1964, and a charge was framed. After further cross-examination on February 12, 1964, proceedings were stayed on February 25, 1964 pending a decision of the Supreme Court in another case. The proceedings were revived on November 10, 1967. Meanwhile, the original magistrate had retired, and the unsigned charge was replaced by a fresh identical charge by the new magistrate. Sub-Inspector Sahani, who had been compulsorily retired from the police department as a punishment, was recalled for further cross-examination. He made a volte-face, stating that the bag was found lying in the room while the accused was not present, and that he had made the accused hold the bag when panchas were called. The trial court found this later statement untrue and relied on his earlier testimony. The High Court affirmed the conviction, additionally relying on the inculpatory part of the appellant's statement to the customs officer. The core legal issues were: (i) whether the inculpatory part of a statement made to a customs officer could be accepted after rejecting the exculpatory part; (ii) whether contradictory testimony of a witness could still support conviction when the later contradiction was motivated; and (iii) whether the statement was hit by Article 20(3) of the Constitution due to alleged compulsion. The appellant argued that the conviction was based solely on the contradictory testimony of Sub-Inspector Sahani, which could not be a solid foundation. He further contended that statement Ex. A must be taken as a whole, and if the exculpatory part was rejected, the entire statement should be rejected. He also submitted that the statement was hit by Article 20 of the Constitution. The Court rejected these contentions. Following Nishi Kant Jha v. State of Bihar, it held that if the exculpatory part of a statement is inherently improbable, the inculpatory part, if distinct and severable, can be accepted. The Court found the exculpatory part—that the appellant was duped by one Hafizji who left the bag—to be improbable because a goldsmith would have noticed the heavy weight. The inculpatory part—that the appellant took the bag to his rented room and that the bag was found there—was accepted. On the sub-inspector's evidence, the Court found no cogent reason to disbelieve the earlier version, noting that the later contradiction was made to spite the prosecution due to compulsory retirement. The Court also held that Article 20(3) had no application because there was no evidence of compulsion. Accordingly, the Supreme Court upheld the conviction and the sentence of two years rigorous imprisonment, dismissing the appeal. The decision favored the prosecution.
Headnote
A) Evidence - Confessions and Statements - Severability of Inculpatory and Exculpatory Parts - Sea Customs Act, 1878, Section 167(81) - The accused's statement to the customs officer contained an exculpatory part alleging he was duped by Hafizji and an inculpatory part admitting he took the bag to his rented room. The court found the exculpatory part inherently improbable because a goldsmith would have noticed the heavy weight, and held that the inculpatory part was distinct and severable, thus could be accepted. Held that conviction can be based on the inculpatory part of a statement even if the exculpatory part is rejected. B) Evidence - Witness Testimony - Appreciation of Contradictory Statements - Sea Customs Act, 1878, Section 167(81); Code of Criminal Procedure, Section 342 - The sub-inspector initially testified that the accused was present holding the bag, but after compulsory retirement as punishment, he changed his version and stated the accused was absent. The trial court and High Court relied on the earlier statement, finding the later one was to spite the prosecution and inconsistent with the panchnama and his own earlier recorded statement. Held that no cogent ground existed to disbelieve the earlier version. C) Constitutional Law - Self-Incrimination - Protection Against Compulsion - Constitution of India, Article 20(3) - The appellant argued that statement Ex. A recorded by the customs officer was hit by Article 20(3) of the Constitution. The court rejected the argument because there was nothing to show the statement was made as a result of any compulsion. Held that Article 20(3) did not apply absent evidence of compulsion.
Issue of Consideration
Whether the inculpatory part of the accused's statement to a customs officer could be relied upon after rejecting the exculpatory part; whether contradictory testimony of a witness could support conviction when the later contradiction was motivated; whether the statement was hit by Article 20(3) of the Constitution due to alleged compulsion
Final Decision
Appeal dismissed; conviction and sentence of rigorous imprisonment for two years under Section 167(81) Sea Customs Act upheld
Law Points
- Inculpatory part of statement can be accepted if exculpatory part is inherently improbable and the two parts are distinct and severable
- statement to customs officer not hit by Article 20(3) absent compulsion
- earlier credible testimony of witness can be preferred over later contradictory statement made due to mala fide motive
