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PETITIONER: JETHAMAL  PITHAJI

       Vs.

RESPONDENT: THE ASSISTANT COLLECTOR 0F CUSTOMS BOMBAY AND ANR.

DATE OF JUDGMENT10/09/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1974 AIR  699            1974 SCR  (1) 645  1974 SCC  (3) 393

ACT: Sea Customs Act (8 of 1878), s. 167(81)-Statement to customs officer containing inculpatory and exculpatory statements-If inculpatory portion can be relied on for conviction.

HEADNOTE: The  appellant, a goldsmith, was convicted under s.  167(81) of  the Sea Customs Act, 1878, in that he was in  possession of  gold bars with foreign markings.  The  evidence  against him  consisted  of  his statement recorded  by  the  customs officer and the evidence of the sub-inspector of police  who seized  the  gold bars from him.  In his  statement  to  the customs  officer the appellant stated that he was  duped  by another who left the bag with him and that it was only  when he  took  the  bag to his room that he  discovered  that  it contained  bars of gold, and that the bag was found  in  his room. The  Magistrate framed the charge against the accused  after examining  the customs officer and the  sub-inspector.   The sub-inspector  was also crossexamined after the  charge  was framed;  but when he was called for further customs  officer and the sub-inspector.  The sub-inspector was also crossgold bars  were  found in the room but that the accused  was  not present when they were seized. The  trial  court  found that the statement  of  the  police officer made in further cross examination after framing  the charge  was untrue and relying on the evidence given by  him earlier  convicted  the  appellant.   The  High  Court,   in maintaining  the conviction, also relied upon the  statement of the appellant to the customs officer. Dismissing the appeal to this Court. HELD : ( 1 ) If the Court finds the exculpatory part of the statement of the accused to be inherently improbable,  there is  no  reason  why the other part of  the  statement  which implicates the accused and which the court sees no reason to disbelieve should not be accepted.  In the present case  the inculpatory part of statement of the accused to the  customs officer is distinct and severable from the exculpatory part. It  is very difficult to believe the version of the  accused that  he was duped and the remaining part of  the  statement clearly implicates him. [1647H; 648G-H; 649A-B] Nishi  Kant  Jha v. State of Bihar, [1969]  2  S.C.R.  1033,

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followed. (2)As  regards the evidence of the sub-inspector there  is no  cogent reason for disbelieving his earlier version.   He changed his version to spite the prosecution because,  after his  earlier  version and before he was called  for  further cross-examination, he was compulsorily retired as a  measure of punishment. [647 D-E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 48  of 1970. Appeal  by special leave from the judgment and  order  dated 16th  January,  1970 of the Bombay High  Court  in  Criminal Appeal No. 694 of 1968. S. V. Gupte and R. B. Dattar, for the appellant. Gobind Das and S. P. Nayar, for respondent No.1. 646 B. N. Lokur and S. P. Nayar, for respondent No. 2. The Judgment of the Court was delivered by KHANNA,  J.-This  appeal  by special leave  is  against  the judgment  of the Bombay High Court affirming on  appeal  the conviction of the appellant under section 167(81) of the Sea Customs  Act and the sentence of rigorous  imprisonment  for two years. The  prosecution  case  is  that  on  August  17,  1961  Sub Inspector  Sahani  of  the Railway  Preventive  Section,  on receipt  of  some  information, went to room No.  2  on  the second  floor of Bori Chawl in the 13th  lane,  Kamathipura, Bombay.  The accused was found present there, holding a bag. The said bag was taken into possession by the Sub  Inspector add was found to contain 25 bars of gold, weighing ten tolas each,  of  the value of Rs. 78,400/.  The bars  had  foreign markings.   The  Sub Inspector arrested the accused  for  an offence under section 124 of the Bombay Police Act.  As  the articles recovered from. the accused consisted of gold  bars with  foreign  markings,  the matter was  entrusted  to  the Customs Officer H. C. Advani (PW 2).  The gold bars too were handed over to Advani.  Advani recorded statement Ex.  A  of the  accused.  A complaint was thereafter filed against  the accused  by  the  Assistant  Collector  of  Customs  on  the allegation  that the accused had committed an offence  under section 167(81) of the Sea Customs Act. The  accused in his statement under section 342 of the  Code of Criminal Procedure stated that the gold bars in  question had not been recovered from him.  According to him, the  bag containing  gold  bars was recovered by the  police  officer from  the second floor of the building whereas  the  accused resided  on  the ground floor.  The  accused  denied  having anything  to  do with the gold bars which  were  taken  into possession  by  Sub  Inspector  Sahani.   No  evidence   was produced in defence. The Chief Presidency Magistrate before whom the accused  was sent  up for trial accepted the prosecution allegations  and rejected  the version of the accused.  The judgment  of  the trial court, as mentioned earlier, was confirmed on  appeal- by the High Court. In  appeal  before us, Mr. Gupte on behalf  of  the  accused appellant  has argued that the conviction of the accused  is based upon the sole testimony of Sub Inspector Sahani.   ’It is  pointed  out that Sahani made  contradictory  statements during  the  course of the trial and as such,  his  evidence cannot provide a solid foundation for basing the  conviction of the accused.  In this respect we find that the statements

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of  Sahani and Advani were recorded by Mr. Nasrullah,  Chief Presidency  Magistrate  on February 6, 1964.   Charge  under section 167(81) of the Sea Customs Act was thereafter framed against the accused.  There was further cross-examination of these  two witnesses on February 12, 1964 after the  framing of the charge.  On February 25, 1964 the trial court  stayed further  proceedings in the case to await the decision of  a case pending in this Court, wherein it was stated a question of  law having bearing upon the present case  was  involved. The  proceedings  in the case were revived on  November  10, 1967  647 after  this Court gave its decision in the other  case.   In the  meanwhile, Mr. Nasrullah, Chief Magistrate had  retired and  had been succeeded by Mr. Gehani.  It was then  noticed that the charge framed against the accused by Mr.  Nasrullah had not been signed by him. Fresh charge in identical terms was thereafter framed by Mr. Gehani against the accused  and was  signed  by  him.  Saham  was  thereafter  recalled  for further cross-examination by the accused.  Sahani PW had  in the  meantime been compulsorily made to retire  from  police department  as a punishment.  Sahani in his  further  cross- examination  made  a  volte-face and  stated  that  the  bag containing  the gold bars was found lying in room No.  2  on that  building,  while the accused was  not  present  there. Sahani further stated that he had made the accused hold  the ba  in his hand at the time the panchas were called by  him. The  trial court found that the statement of Sahani made  in further cross-examination after the framing of the charge by Mr. Gehani was untrue and that the evidence given by him be- fore  Mr. Nasrullah was worthy of credence.  The High  Court agreed  with  the  trial court in this  respect,  and  after hearing  Mr. Gupte, we are not inclined to take a  different view.   Sahani  was confronted with  his  earlier  statement recorded by himself and the aforesaid statement showed  that the  version  given by him after the framing of  charge,  by Mr.,  Gehani  was absolutely inconsistent with  the  earlier statement  recorded  by  Sahani himself.   It  appears  that Sahani  wanted  to  spite the  prosecution  because  of  his compulsory  retirement  as  a measure  of  punishment.   The statement made by Sahani before Mr. Nasrullah was in  accord with  the  panchnama prepared by him and we  see  no  cogent ground to disbelieve the statement of Sahani before W.  Nas- rullah. The High Court in maintaining the conviction of the  accused has  also  relied  upon  his statement  Ex.   A.  which  was recorded  by  Customs Officer Advani (PW 2).   According  to statement Ex.  A, the amused is a goldsmith and has his  own shop.   On the day of occurrence at about 2.30 p.m.,  it  is stated, one Hafizji came to the shop of the accused and told him to keep the bag in question for about an hour whereafter Hafizji,  undertook  to take the bag back.   After  the  de- parture of Hafizji the accused felt that the bag was  heavy. This fact aroused the suspicion of the accused and he,  took the  bag  upstairs to the room which had been taken  by  the accused on rent.  The bag was then found to contain 56  gold bars  of ten tolas each with foreign markings.  The  accused added that earlier than that Hafizji had never kept any  bag or gold at his shop. The trial court and the High Court did not accept that  part of  statement  Ex.  A wherein the accused had  stated  about Hafizji  having left, the bag containing gold bars with  the accused.  We see no cogent ground to take a different  view. If  any one had left a bag containing gold bars at the  shop of  the  accused, it is, in our opinion, very  difficult  to

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believe that the accused, who is a goldsmith, would not even touch  the bag at the time it was left with him.  Ile  heavy weight  of  the  bag in that event would  have  aroused  his suspicion.  The trial court and the High Court, in our view, rightly rejected the version of the accused that he had been duped by one Hafizii and 648 that  he (the accused) did not know of the contents  of  the bag at the time it was left with him.  The remaining part of the  statement Ex. A that the bag containing gold  bars  was taken  by  the accused to the room which had been  taken  on rent by him and that the bag was found in his aforesaid room clearly implicates the accused. It  has  been.  argued by Mr. Gupte that  statement  Ex.   A should  be taken as a whole and in case the court  comes  to the  conclusion that part of the statement is not worthy  of credence,  the  court  should  reject  the,  whole  of   the statement.   It is not permissible according to the  learned counsel,  to reject the exculpatory statement and  act  upon the part of the statement which implicates the accused.   In this respect we find that the question whether it is open to the  court to accept the inculpatory part of  the  statement even  though  the  court rejects the  exculpatory  part  was considered  by the Constitution Bench of this Court  in  the case  of Nishi Kant Jha v. State of Bihar(1) This  Court  in that  case quoted with approval the  following  observations from page 502 of Taylor’s Law of Evidence 11th Edition :               "In the proof of confessions-as in the case of               admissions  in civil causes-the whole of  what               the  prisoner said on the subject at the  time               of  making  the  confession  should  be  taken               together ...               But  if,  after the entire  statement  of  the               prisoner  has  been  given  in  evidence,  the               prosecutor  can contradict any part of it,  he               is  at  liberty to do so; and then  the  whole               testimony  is  left  to  the  jury  for  their               consideration,  precisely  as in  other  cases               where  one part of the evidence is  contradic-               tory   to   another.    Even   without    such               contradictions it is not to be, supposed  that               all  the. parts of a confession are,  entitled               to  equal credit.  The jury may  believe  that               part  which charges the prisoner,  and  reject               that  which  is  in his favour,  if  they  see               sufficient  grounds for so doing.  If what  he               said in his own favour is not contradicted  by               evidence  offered  by the prosecutor,  nor  is               improbable  in  itself, it will  be  naturally               believed  by the jury; but they are not  bound               to give weight to it on that account, being at               liberty  to judge of it, like other  evidence-               by all the circumstances of the case." It was held in that case by this Court that inculpatory part of   the  statement  could  be  accepted  even  though   the exculpatory  part  of  the  statement  of  the  accused  was rejected.  In the present case, we find that the inculpatory part  of  statement Ex.  A of the accused  is  distinct  and severable from the exculpatory- part.  The present is not  a case wherein the two parts of the statement are inextricably linked  together and it is not possible to accept  one  part without accepting the other part.  In case, the court  finds the  exculpatory part of the statement of the accused to  be inherently improbable, there is no reason why the other part of the statement which implicates the accused and which  the

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court sees no reason to disbelieve, should not be  accepted. In the circumstances, we find no infirmity in the (1)[1969] 2. S. C. R. 1033.  649 judgment of the High Court in so far as it has accepted  the inculpatory part of statement Ex.  A of the accused.   There is  in  our  opinion, no cogent  ground  to  disbelieve  the statement  of the accused that the room from which  the  bag containing  gold bars had been recovered had been  taken  by him  on  rent.  This part of the statement clearly  goes  to show  that  the accused was in possession of the  gold  bars with foreign markings. A  faint hearted submission was also made at the end to  the effect  that  statement  Ex.  A of the accused  was  hit  by article  20 of the Constitution.  There is, in our  opinion, no force in this submission because there is nothing to show that  the  accused made that statement as a  result  of  any compulsion. We  would, therefore, uphold the conviction of the  accused. We see no cogent ground to interfere with his sentence.  The appeal fails and is dismissed. V.P.S.                           Appeal dismissed 650