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PETITIONER: HAROON HAJI ABDULLA

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 14/12/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  832            1968 SCR  (2) 641  CITATOR INFO :  R          1970 SC  45  (33)  D          1976 SC1797  (5)  R          1977 SC1579  (25)  RF         1988 SC 599  (5)

ACT: Evidence Act (1 of 1872), ss. 30, 114(b) and  133-Confession of   co-accused-Extent  to  which  it  could  be   used   as corroboration of accomplice evidence.

HEADNOTE: 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 persons waiting for  it.  There was a raid on the night of August  13,  1961 while  a  consignment  was being brought in.   Many  of  the smugglers were arrested, the 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 appellant in the smuggling  and the satement of B contained 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  unwilling  to  make   a statement till he had seen what the others had said. The  appellant and 17 others were tried for (the offence  of conspiracy to smuggle gold into India.  At the trial, K  was a  witness for the prosecution and B, who was jointly  tried with  the appellant retracted the confession he made  before the  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

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accomplice,  no  conviction could be based on  his  evidence unless it was corroborated in material particulars; and  the statement  -of  K  before the Customs  authorities  and  the confession of B to the Customs authorities. which was  later retracted,   could  not  be  used  for  purposes   of   such corroboration. HELD : An accomplice is a competent witness and his evidence could  be accepted and a conviction based on it if there  is nothing significant to reject it as false.  But the rule  of prudence,  ingrained  in  the  consideration  of  accomplice evidence, requires independent corroborative evidence  first of the offence and next connecting the accused, against whom the  accomplice  evidence  is used, with  the  crime.   Such corroborative  evidence could be direct  or  circumstantial. On  such  circumstance may be the making of  confessions  by more  than  one accused, provided there was  no  chance  for prior  consultation  between the confessing  co-accused  for implicating  another,  and they inspire confidence  both  in their  content and in the manner and circumstances of  their making.  If a confessing co-accused is tried jointly, within the. meaning of s. 30 of the Evidence Act, with the  accused against  whom the accomplice evidence is sought to  be  used for has- 642 ing  a  conviction, the confession could be referred  to  as lending  some assurance to the verdict.  The fact  that  the confession  was  later retracted would  make  no  difference unless   the   admissions  made  in   the   confession   are satisfactorily withdrawn, or, the making of it explained  as having proceeded from fear, duress, promise or the like,  of some one in authority. [644 D. 646 A. C-E; 648 D-H; 650 E-F] In the present case, though K was an accomplice and his  own statement  before the Customs authorities could not be  used for  purposes of corroboration, his evidence, impressed  the lower Courts and was accepted by them.  There was nothing to make this Court form a different opinion about his veracity. There was no gap of time between the statements of K and  B, and  it was impossible that the Customs officers could  have tutored  them  to make the statements which  agree  in  many details.     Further,   both   the    statements    received corroboration  at  numerous other points in the  story  from independent evidence.  Therefore, the confession of B  given independently   and  in  circumstances  which  exclude   any collusion  or  malpractice  affords  corroboration  to   the evidence  of K in respect of the appellant.  B’s  confession could  also be taken into consideration under s. 30  of  the Evidence  Act,  to lend assurance to the verdict, as  B  was fully tried jointly with the appellant, and his  allegations of  duress  and torture for retracting his  confession  came months  later and it was impossible to heed them. [644  C-D; 645 D-E; 649 F-G] Rameshwar 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 Madras, 119581 S.C.R. 428, Ram Prakash v. State  of Punjab, [1959] S.C.R. 1219, Chauraria’s case [1968] 2 S.C.R. 624, Babhoni Sahu v. Emperor, A.I.R. 1949 P.C. 257,  Emperor v.  Lalit  Mohan Chuckerburty, I.L.R. 38 Cal.  559  and  Ram Sarup  Singh.  &  Ors.  v. Emperor,  A.I.R.  1937  Cal.  39, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal  No.42  of 1965.

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Appeal  by special leave from the judgment and  order  dated December, 16, 17, 18, 19, 21, 22 of 1964 of the Bombay  High Court in Criminal Appeal No. 53 of 1964. Nuruddin  Ahmed, E. C. Agrawala, Champat Rai, S.  V.  Pikale and P. C. Agrawala, for the appellant. Adi  P. Gandhi, H. R. Khanna and S. P. Nayar, for  the  res- pondent. The Judgment of the Court was delivered by Hidayatullah, J. The appellant Haroon is the sole  appellant from a batch of 18 persons who were tried jointly before the Chief  Presidency  Magistrate, Esplanade Court,  Bombay  for offences  under S. 120-B of the Indian Penal Code read  with s. 167(81) of the Sea Customs Act and certain offences under the  Foreign Exchange Regulations Act, 1947.  Of these,  No. 17  accused  (Saleh  Mohamed Bhaya) was  discharged  by  the Magistrate, No. 1 accused (Govind Narain Bengali) died after the conclusion of the case but before judgment in the  Court of triad and No. 4 accused (Noor Mohammad) jumped bail  just before the same judgment.  The case against Bengali was held to have                             643 abated  and  that against Noor Mohammad  was  kept  pending. Nos.  11,  12,  13 and 16 accused were  acquitted.   Of  the remaining accused who were convicted, Haroon alone is before us.   His appeal to the High Court of Bombay  was  dismissed but  he  obtained  special  leave  under  Art.  136  of  the Constitution and brought this appeal. As this appeal is to be considered on a question of law,  it is  not necessary to give the facts in detail.  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. 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 to finding out whether  there  existed sufficient proof on that part of the case.  It may,  however be  stated  that  as  the raid took  place  while  the  last consignment of gold was still with the smugglers and many of them were arrested there and then, no successful attempt  to refute  it could at all be made.  The only question was  who were  in  the conspiracy besides those caught at  the  spot. The  argument  in  this appeal is that  there  is  no  legal evidence to connect Haroon with the others. The  case against Haroon stands mainly on the basis  of  the statement  of the accomplice Kashinath (P.W. 1).   Kashinath must  be  held  to be a competent witness  in  view  of  our decision  in  the Chauraria’s  case(1).   Corroboration  for Kashinath’s   evidence  on  the  general  aspects   of   the conspiracy was amply available from diverse sources and this is not denied but in respect of Haroon (whose name (foes not figure  in the rest of the oral or documentary evidence)  it was found to exist in the statement of Kashinath. before the Customs authorities, and statements made by Bengali and Noor

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Mohammad  also  to the Customs Officers, all  in  answer  to notices  under S. 171-A of the Sea Customs Act.  The use  of these statements is objected to generally and in  particular on the. (1)  [1968] 2 S.C.R. 624. 1.2 Sup CI/68-10 644 following  grounds:  It  is  submitted  firstly  that  these statements are not confessions proper to which S. 30 of  the Evidence  Act  can  be made applicable;  secondly,  that  as Bengali  died and Noor Mohammad absconded before  the  trial was  finally concluded against them.. their  statements  are not  of  persons  jointly  tried  with  Haroon;  thirdly   a confession  of  a co-accused is no  better  than  accomplice evidence  and  just  as one accomplice  cannot  be  held  to corroborate  another  accomplice, the confession  of  a  co- accused cannot -also be held to be sufficient corroboration; fourthly  as these confessions, were later  retracted  their probative  value  is nil; and fifthly  Kashinath’s  previous statement   cannot  be  used  to  corroborate  him  -as   an accomplice cannot corroborate himself.  On these submissions it is urged that Haroon’s conviction is based really on  the uncorroborated testimony of an accomplice. We may begin by stating that we have read the deposition  of Kashinath  as the first prosecution witness.  We  have  been impressed by the simplicity of the narrative and there is on record a note by the Magistrate that he was impressed by the manner  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 ,S. 171-A of  the  Sea Customs  Act.   In Rameshwar v. State  of  Rajasthan(1)  the previous  statement  was held under S.  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  Babhoni Sahu v. Emperor(1), 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  Iwo  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 reconnaisance trip as the first trip in his deposition but not in his statement.   The second  was the omission of a couple of names from the  long list  of those -who were on the beach to receive  the  gold. This is not of much Consequence because any one who tries to give a long list of names, often makes such an omission.  On the  whole the two statements contained the same story  with sufficient  details for -verification from outside  sources. The  reception  of Ex.  A as  -corroborative  of  accomplice testimony,  although open to some ,objection, has,  however, not affected the case. (1) [1952] S.C.R 377. (2) A.I.R. 1949 P.C. 257. 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

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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  not 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  with  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-(1), 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)  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  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, difficulty 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 settled.  The Evidence Act in s.  133  provides that an accomplice (1)  A.I.R. 1937 Cal. 39. 646 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 accomplice.  The  effect of  this provision is that the court trying an  accused  may legally   convict  him  on  the  single  evidence,   of   an accomplice.  To this there is a rider in illustration (b) to s. 114 of the Act which provides that the Court may  presume that  an  accomplice  is unworthy of  credit  unless  he  is corroborated  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

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evidence, insist on corroboration 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 unconfirmed 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,  whe- ther 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  observations of the Judicial Committee in Bhuboni  Sahu v. Emperor(1), 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 implicating 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               (1)   A. I.R. 1949 P.C. 257.                                    647               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(1):               "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

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             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  credibility to be  attached  to  a               retracted  confession, however,  would  depend               upon  the  circumstances  of  each  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(2)  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- (1) [1959] S.C.R. 1219., 1223. (2) [1958] S.C.R. 428. 648 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  accom- plice  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 observations is not permissible for no such  meanig 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. 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 (2)  ,  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. 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 satisfactorily withdrawn or the making of it explained as having proceeded from 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

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co-accused. In  Rameshwar v. State of Rajasthan(3) this Court laid  down certain  general  rules about the  nature  of  corroboration needed  before accomplice evidence may be accepted.   It  is there  pointed  Out that every detail of the  story  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 co-accused.  But  before even a number of such confessions can (1) [1958] S.C.R. 428.                    (3) [1952] S.C.R. 377. (2) A.I. R. 1956 S.C. 56. 649 be used each 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(1) 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 Kamik (P.W. 24) and the latter by Rane (P.W.  26). These  statements  were recorded  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 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

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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 (1)  I.L.R.38 Cal.559,588. 650 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  truth.   We  are  not  seeking  corroboration  of   the accomplice  from  his own statements because that  does  not advance  accomplice  evidence  any  further.   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 degree 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 the result of collusion.  Apart from the fact  that there was no time to collude, there are 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 we have reluctantly  left it  out  of consideration also, nothing was shown to  us  to destroy  the  conclusion  about  the  truth  of   accomplice 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 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 s.  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. The appeal, therefore, fails and is dismissed.  Appellant to surrender to his bail. V.P.S.                                                Appeal dismissed. 651