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Harbansingh Sardar Lenasingh and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 573 of 1967
Judge
Reported inAIR1970Bom79; (1969)71BOMLR599; 1970CriLJ325
ActsCustoms Act, 1962 - Sections 104(1), 104(2), 108 and 135; Code of Criminal Procedure (CrPC) , 1898 - Sections 46, 60, 61 and 342; Evidence Act, 1885 - Sections 24, 25 and 114; Foreign Exchange Regulation Act, 1947 - Sections 23; Defence of India (Amendment) Rules, 1963 - Rule 126-P; Constitution of India - Article 22(2)
AppellantHarbansingh Sardar Lenasingh and anr.
RespondentThe State
Appellant AdvocateR. Jethmalani and ;S.B. Keshwani, Advs.
Respondent AdvocateM.B. Kadam, Asst. Govt. Pleader
Excerpt:
indian evidence act (i of 1872), sections 24, 114 - confession made by accused when under surveillance by person in authority whether admissible--whether concept of custody can be equated with concept of arrest--excise officer whether person in authority within section 24--whether obligatory on court to dram presumption of adverse inference under section 114.;confession made by an accused during the time when there was some restriction on his movement or he was under some sort of surveillance by a person in authority will not ipso facto vitiate the confession as being involuntary and such confession is not hit by the provisions of section 24 of the indian evidence act, 1872.;the words 'in custody' only denote surveillance or restriction on the movements of the person concerned, which may.....vimadalal, j.1. this is an appealfiled by two accused persons who have been convicted by the additional sessions judge, thana, of offences relating to the illegal importation and possession of 6920 tolas of gold, under section 135 of the customs act 1962 as well as under section 23 of the foreign exchange regulation act, 1947. it may be mentioned that the accused were also charged under r. 126-p of the defence of india (amend-ment) rules, 1963, but were acquitted ofthat offence.2. the facts of the prosecution caseare that one jokhi who was, at the material time, an assistant collector of customs, at bombay, received some information on the night of 21st march 1965 that gold was going to be smuggled into india from a place near the bridge on the bassein vajreshwari road, that he,.....
Judgment:

Vimadalal, J.

1. This is an appealfiled by two accused persons who have been convicted by the Additional Sessions Judge, Thana, of offences relating to the illegal importation and possession of 6920 Tolas of gold, under Section 135 of the Customs Act 1962 as well as under Section 23 of the Foreign Exchange Regulation Act, 1947. It may be mentioned that the accused were also charged under R. 126-P of the Defence of India (Amend-ment) Rules, 1963, but were acquitted ofthat offence.

2. The facts of the prosecution caseare that one Jokhi who was, at the material time, an Assistant Collector of Customs, at Bombay, received some information on the night of 21st March 1965 that gold was going to be smuggled into India from a place near the bridge on the Bassein Vajreshwari Road, that he, therefore,contacted witness Wagh who was then working as Deputy Superintendent under him, and the said Jokhi, accompanied by Wagh and two inspectors named Jadhav and Surti and a constable of that department, left Vadala at about 10 p.m. and reached Bassein at about 1-30 a.m., that they stopped their car near railway crossing along the Bassein-Vajreshwari Road, and stopped facing Vajreshwari side, after putting off the head-lights, somewhere near the wicket-gate of the level-crossing about 4 or 4 and half furlongs away from Bassein Station, that at about 2 a.m. they saw a car coming from the Vajreshwari side which came near the bridge and turned a little and put off its lights and went on to the kachcha road leading to the salt pans, that the Said car turned again and came towards the bridge, but halted after going off the road, that the said car waited there for about 10 or 15 minutes whereupon the raiding party started their vehicle to go to see what the matter was, that in the meantime that car had come on to the main road and the raiding party, therefore, intercepted the car by placing their own car across the road, and that all the persons from the raiding party then, got down and went up to that car. The prosecution story is that, apart from the driver who was at the wheel of that car, accused Nos. 1 and 2 were sitting on the rear side, that Wagh and Jokhi questioned them as to why they had come there,' and in the beginning theydid not give any reply, but later on accused No. 2 stated that there was gold in the dicky of the car and that the raiding party then opened the dicky and found that there were four gunny bags which were wet and soiled and were heavy. The prosecution story further is that Jokhi then sent Wagh to get two panchas from Bassein Town which he did and the dicky was opened and the gunny bags shown to the panchas, as also the marks of the tyres on the kachcha road along which that car had proceeded, as already stated above, but Jokhi and Wagh ultimately decided that it would not be safe to open the bundles and make a panchnama in a lonely place like the one in which they were, and they, therefore, decided that they should go to their office in Bombay with the panchas where the property in question should be opened and taken charge of under a panchnama. Inspector Surti, Jadhav and Assistant Collector Jokhi sat in the car in which the accused were travelling, and the rest of the raiding party proceeded in their own car and the two cars reached Churchgate at about 9 a. m. The said bundles were then opened in the presence of the panchas and were found to contain 6920 Tolas of gold with foreign markings and the panchnama which was made was concluded at about 2 p.m. on the 22nd of March 1965. The said bundles of gold, together with the car, were then sent to Superintendent Robb who took investigation of the case, he being the officer authorized to record statements under Section 108 of the Customs Act, 1962. He first recorded the statement of the driver of the said car Bapu. and thereafter at about 4 p.m. he started recording the statement of accused No. 2 which he concluded at about 5 p.m. He then proceeded to record the statement of accused No. 1 and finished recording the same at about 6 p.m. Superintendent Robb then placed accused Nos. 1 and 2 under arrest and sent them to the Azad Maidan Police lock-up, and they were put up before the Chief Presidency Magistrate the following morning viz. on the 23rd of March 1965. The Chief Presidency Magistrate having directed that the accused should be put up before the Judicial Magistrate, First Class, at Bassein, as the offence had been committed there, they were produced before that Magistrate and remanded into magisterial custody. The formalities of sanction and other formalities having been gone through, accused Nos. 1 and 2 were thereafter prosecuted and were convicted by the trial Judge, as already stated above, and were sentenced to three years' rigorous imprisonment for the offence under Section 135 of the Customs Act, 1962, and to one year's rigorous imprisonment for the offence under Section 23 of the Foreign Exchange Regulation Act, 1947. It is from the said convictions and sentences that both the accused have filed the present appeal.

3. The conviction of the accused persons is challenged by Mr. Jethmalani on three grounds: (1) that the accused persons not having been taken to a Magistrate till the 23rd of March 1965 in violation of the provisions of Section 104(2) of the Customs Act, 1962, which enjoin that they should be put up before a Magistrate 'without unnecessary delay', the confessions which were obtained from them whilst they were in illegal custody must be regarded as having been obtained under compulsion and not to have been made voluntarily, with the result that they would be hit by the provisions of Section 24 of the Evidence Act; (2) that the confessions of the accused persons are, in any event, not true, there being evidence intrinsic in the confessions themselves to show the same, as well as extrinsic evidence to prove their falsity; and (3) that the extra-judicial confessions which were recorded required corroboration, and on the only point in dispute in the present case, viz., the question as to whether the possession of gold by accused Nos. 1 and 2 was conscious, there was no corroboration in the other evidence led in the case.

I will now proceed to deal with each of these contentions of Mr. Jethmalani.

4. As far as the first contention of Mr. Jethmalani, which was his main contention, is concerned, it may at the very outset be pointed out that Section 104(2) of the Customs Act comes into operation only after a person is 'arrested' and not till then. It is analogous to the provisions of Section 60 of the Code of Criminal Procedure. It is true that there is no provision similar to Section 61 of the Code of Criminal Procedure which lays down a maximum period of 24 hours within which an accused person should be put up before a Magistrate, but that may have been unnecessary in view of the fact that such a maximum period is now laid down by the Constitution itself in Article 22(2) thereof. It may be mentioned that the accused persons had hi fact been put up before the Chief Presidency Magistrate within 24 hours of their arrest.

Mr. Jethmalani has, however, contended that in so far as the accused persons were not free agents right from the time when the police contacted them at 2 a.m. on the night between the 21st and the 22nd of March 1965, though they may not have been formally arrested, it must be held that they were in custody and under arrest, and the confessions cannot, therefore, be said to have been obtained without the use of some sort of threat within the meaning of Section 24 of the Evidence Act. Reference must be made in that connection to Section 46 of the Codeof Criminal Procedure which lays down how an arrest is to be made. It states that In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested., unless there be a submission to custody by word or action. It is the contention of Mr. Jethmalani that the facts of the present case show, at any rate, a submission to the custody of the excise officer by the accused persons by action and they must, therefore, be deemed to have been under arrest ever since the time when they were first apprehended at 2 a.m. somewhere near Bassein. In support of that contention Mr. Jethmalani has relied upon an old decision of a Full Bench of the Allahabad High Court in the case of Empress v. Madar, 1885 All. W.N. 59, but a careful perusal of that case shows that in the judgment itself the learned Judges have made a distinction between formal arrest, and what they have called 'a condition of restraint which, in fact, amounted to the accused being in the custody of the police', since the accused was not 'a free agent capable of going whither he chose'. It is true that the learned Judges of the Allahabad High Court have excluded the retracted confession before them on the ground that a confession obtained from an accused person who, though not actually arrested, had, 'to all intents and purposes......been in their custody' for an 'unexplained period of twelve days' could not be said to be a voluntary one, but, they have not in terms held that the accused persons before them must be deemed to have been under arrest as such. Mr. Jethmalani has also relied upon a decision of the Supreme Court of the United States of America in case of Benjamin McNabb v. United States of America, in which also the majority of Court held that the admissions of the petitioners having been improperly received in evidence, the convictions could not stand. The Court based their decision on the fact that the petitioners before them had been detained in violation of the provisions of law which required that persons arrested must be immediately taken before a committing officer, and that the confessions obtained from them were therefore not voluntary. It may be convenient at this stage to set out the precise position in regard to what happened in the present case after the accused persons were apprehended at 2 a.m. somewhere near Bassein. When it was decided that the panchnama should be made in Bombay, and not at the lonely place at which the accused persons had been apprehended, the police party, the panchas and the accused persons came to Bombay and reached Churchgate at about 9 a.m. as is clear from the evidence of Superintendent Wagh as well as the panchnama (Ex. 12). The panchnama(Ex. 12) was then continued in Bombay and was concluded at as late an hour as 2 p.m. as is shown by what is recorded at the foot of the said panchnama itself, and it is not surprising that it should have taken so long, having regard to the fact that the quantity of gold in respect of which the panchnama was made was as large a quantity as 6920 Tolas contained in four gunny bags which, in their turn, contained seven jackets with innumerable small pockets therein, with different markings on the gold which had all to be noted. After the panchanama was concluded at 2 p.m., the investigation was handed over to Senior Superintendent Robb, and taking over charge of the investigation and the gold would itself take some time. Superintendent Robb then recorded the statement of the driver of the car Bapu. After the recording of the statement of Bapu was concluded, he started recording the statement of the 2nd accused at about 4 p.m. and followed this up by the statement of the 1st accused which he finished recording as late an hour as 6 p.m. It was after he had satisfied himself from the statements of the accused persons and come to the conclusion that there was reason to believe that they were guilty of an offence punishable under Section 135 of the Customs Act that he placed them under arrest in accordance with the provisions of Section 104(1) of that Act. It was then too late in the day to put them up before a Magistrate, and the accused persons were therefore put up before the Chief Presidency Magistrate the next day as stated in the evidence of Superintendent Robb. In view of this sequence of events, it could not possibly be said that there was 'unnecessary delay' in putting up the accused persons before a Magistrate within the terms of Section 104(2) of the Customs Act, 1962. The question, however, still survives as to whether the accused persons could be said to have been in the custody of the excise officers so as to lead the court to the conclusion that the confessions obtained from them were not voluntary and were therefore hit by the provisions of Section 24 of the Evidence Act and should be excluded from consideration as was done by the Allahabad High Court in the case of 1885 All. W.N. 59 which has already been cited above. Arrest is a mode of formally taking a person in police custody, but a person may be in the custody of the police in other ways. What amounts to arrest is laid down by the legislature in express terms in Section 46 of the Code of Criminal Procedure, whereas the words 'in custody' which are to be found in certain sections of the Evidence Act only denote surveillance or restriction on the movements of the person concerned, which may be complete as, for instance, In the case of an arrested person, or maybe partial. The consent of being in custody cannot, therefore, be equated with the concept of a formal arrest and, in my opinion, there is a difference between the two. Turning to the facts of the present case, the learned Assistant Government Pleader sought to rely on the statement of accused No. 2 in answer to questions put to him under Section 342 of the Criminal Procedure Code in the course of which he has said that when the police party, the panchas and the accused persons came to Bombay from somewhere near Bassein on the morning of the 22nd of March 1965, and when they were near Bhendi Bazar, accused No. 2 told the driver to allow him to get down, but the driver told him that he would go ahead and would come there again, and that later on he stopped the car near Church-gate in front of the excise office. In my opinion, that does not, however, show that the accused persons would have been allowed by the excise officer to get down from the car, if they had wanted to do so, whatever the driver may have told them. The very fact that three excise officers, Including the Assistant Collector, made It a point to accompany the accused persons in their car whilst the rest of the police party and the panchas proceeded in the other car on their way back to Bombay, shows that there was some sort of surveillance or restriction on the movements of the accused persons eyer since the time that they were apprehended near Bassein at 2 a.m. on the night of 21st March 1965. In view of the fact that it has been held that customs officers are persons in authority within the terms of Section 24 of the Evidence Act 66 Bom, L.R. 482 : AIR 1965 SC 481 , there can be little doubt that excise officers would also be persons in authority within the terms of that section. It has also been laid down by the Supreme Court that the expression 'accused persons' in Section 24 Includes a person who subsequently becomes an accused, and that he need not have been accused of an offence when he made the confession in question : 1960CriLJ1504 . It must be noted that the expression 'in custody' is not to be found in Section 24 of the Evidence Act, and the question as to whether an accused person was in custody at the time of making a confession arises only for the' purpose of finding out whether that confession 'appears to the court to have been caused by inducement, threat or promise' within the terms of that section. Confessions made during the time that an accused person was in illegal custody, or in the custody of the police, or has been under arrest and custody for a prolonged period of time have, no doubt, been excluded by courts on the ground that they did not appear to have been made voluntarily, but the custody in all those caseswas complete custody from which it appeared to the court that the confession could not be voluntary. If the Allahabad High Court intended to lay down anything more in Madar's case 1885 All. W.N. 59 , I do not agree with the same. In my opinion, however, the mere fact that there may be some restriction on the movements of the accused, or the accused person may be under some sort of surveillance at the time when he makes a confession, would not ipso facto vitiate the confession as being involuntary. To draw such a conclusion would, in my opinion, be to make no more than a conjecture. Reference may be made in this connection to an old decision of this Court in the case of Queen Empress v. Basvanta ILR (1900) Bom. 168 hi which it has been held that the use of the word 'appears' in section 25 of the Evidence Act indicates a lesser degree of probability than would be necessary if 'proof' had been required, but, even so, the court observed (at p. 1172) as follows:--

'Still although we think that very probably a confession may be rejected on well-grounded conjecture, there must be something before the Court on which such conjecture can rest'.

The same view now has been taken by the highest court in the case of Pyare Lal v. State of Rajasthan. : 1963CriLJ178 . in which, after referring to the use of the word 'appears' in Section 24 of the Evidence Act it has been stated as follows:--

'But under Section 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards of proof has been designedly accepted by the Legislature with a view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence. It is not possible or advisable to lay down an inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily'.

I must, therefore, proceed to consider whether there is anything in the evidenceor the circumstances in the case before us to show that the confessions of the two accused were obtained by any inducement, threat or promise within the terms of Section 24 of the Evidence Act. It may be mentioned that there is no suggestion, and indeed, that has not been argued by Mr. Jethmalani at all, that there was any inducement or promise given to the accused persons at the time of obtaining their confessions which would vitiate the same. Mr. Jethmalani has however contended that the fact that the accused persons were in custody at the time when their confessions were taken amounted to the use of some sort of threat in obtaining their confessions. In this connection, it may be mentioned that the first accused has in his statement under Section 342 of the Code of Criminal Procedure said that his signature to the statement was obtained by threat and by force saying that he would otherwise be beaten, but that is the first time that he has come out with the story of his statement having been obtained by threat. No such suggestion has been made to Superintendent Robb in the course of cross-examination. Indeed, the cross-examination of Superintendent Robb shows that the case that was sought to be made out on behalf of the 1st accused was an entirely different one viz., that two statements of his were recorded, and that what was being produced was not the original statement of the 1st accused.

That was also the case that was sought to be made out in the cross-examination of Superintendent Robb as far as the 2nd accused was concerned. It may be mentioned that the 2nd accused has, in his statement made under Section 342 of the Code of Criminal Procedure, taken a totally different line from that which was adopted on his behalf in the course of cross-examination of Superintendent Robb. He has first stated that he did not give a statement at all and that Superintendent Robb may have written anything he pleased, but has then proceeded to Bay that he wrote and signed as Superintendent Robb stated. There is, therefore, not even a suggestion of a threat contained in that statement which accused No. 2 has made under Section 342 of the Criminal Procedure Code. Even as far as accused No. 1 is concerned since no such case was put to Superintendent Robb in the course of cross-examination, in my opinion, there is nothing in the evidence to lead us to the conclusion that any threat 'appears' to have been used in procuring the confession of the 1st accused and I decline to come to such a conclusion merely on what he has said in his statement. A mere bald assertion of that nature by him cannot be accepted as true without more : 1954CriLJ1313 . Under the circumstances, the first and the main contention of Mr. Jethmalani thatthe confessions in question are involuntary and are, therefore, hit by the provisions of Section 24 of the Evidence Act and should be excluded from consideration, must be rejected.

5. The next contention of Mr. Jethmalani that the confessions of the accused persons in this case cannot be true must also be rejected. It is true that the confession of the 1st accused is recorded in a manner which is somewhat incoherent, in so far as it states that what they set out to bring from Bassein were spare parts, and then abruptly states, in the course of the narrative which follows, that the accused got down from the car, went down the road and contacted the fishermen and ascertained that they had brought gold, but the mere fact that the confession is somewhat inartistically recorded cannot lead to the conclusion that it is not true. Mr. Jethmalani has also commented on the fact that, according to him, there is a discrepancy between the respective versions given by the 1st accused and by the 2nd accused in regard to the circumstances in which they got acquainted with each other. The first accused has in his confession (Ex. 17) said that, about a month prior to the date of that confession, he had been to the New Roshan Talkies on Faulkland Road to see a picture, and that he got acquainted with accused No. 2 who was sitting by his side, and during the course of casual talk he came to know that accused No. 2 was a person who could arrange to provide motor cars on hire, and that he showed him his house which was in the vicinity of the said cinema theatre. He has stated that thereafter they used to meet each other. The 2nd accused has in his confession (Ex. 18) said that the 1st accused was staying in a hotel at Dadar but used to come daily to Opera House to purchase motor parts and at tunes used to dine in a hotel named Bilam Hotel near Grant Road which was located in the vicinity of the residence of the 2nd accused himself, that he (the 2nd accused) used to go for walks towards the Grant Road Hotel daily at night after meals and that he used to talk to the 1st accused who would come to dine in the said hotel, and it was in that way that their acquaintance developed. I do not think there is any inconsistency in the versions which each of the accused persons has given in regard to how he came to know the other. It may well be that they first happened to meet in the New Roshan Talkies and got acquainted with each other, but that their acquaintance developed thereafter in the manner stated by the 2nd accused in his statement.

Mr. Jethmalani has next relied upon what he states to be the discrepancy in the versions given by the accused persons and the versions given by the excise wit-nesses in regard to what precisely transpired at the place where the accused were first contacted near Bassein on the night of 21st March 1965. The 1st accused has in his confessional statement (Ex. 17) stated that after they reached the bridge near the Bassein railway crossing at about 2 a.m. on the 22nd of March 1965, they asked the driver to dim the lights and hoot the horn, that he and the 2nd accused then got down from the car and told the driver to proceed a bit ahead and turn the car and come back where they had got down, that the car accordingly went ahead and turned back to the place where they were waiting, and that in the meantime he and the 2nd accused had gone down the road and contacted fishermen and ascertained that they had brought the gold. He proceeded to state that he told the driver to get down from the car and to keep the engine running and the four packages containing gold were then placed in the dicky of the car, and they got in and started, but were intercepted by the excise officers as soon as they started. The 2nd accused has in his statement given almost exactly the same version. Superintendent Wagh has in his evidence no doubt stated that the car in which the accused were travelling halted after going off the road, that they waited for a while to watch the movements of that car, and that for 10 or 15 minutes they did not 'mark or notice any movement' and they then started going towards the bridge near which that car was halted. The point which Mr. Jethmalani sought to make was that Superintendent Wagh does not speak in his evidence of having seen the accused persons getting down from the car, or of the gold being loaded into the dicky of the car, as the accused persons have said in their confessions,

In this connection, it must, however, be pointed out that the excise party was about 4 or 4i furlongs away from the place where the car of the accused had halted and the lights having been put off, It may well be that the excise officers could not see the precise movements of the occupants of the car or the loading of the gold into its dicky in darkness at that hour of the night. Mr. Jethmalani has also commented on the fact that Inspector Surti has not only not mentioned the getting down of the accused persons from their car or loading of the gold into the dicky of the car, but has not even mentioned that they were, for 10 or 15 minutes, watching the movements of the car of the accused. I do not think that the mere omission to state this little detail should affect the credibility of the evidence given by witness Wagh or witness Surti or the truth of the confessions made by the accused persons. In my opinion, there is no substance inthe contention of Mr. Jethmalani that there is material, either intrinsic in the confessions themselves or extrinsic in the evidence in this case, to show that the confessions in question are not true.

6. The last contention of Mr. Jethmalani is that there is no corroboration in regard to the only important point in this case viz., as to whether the possession of gold by the accused was conscious possession. As far as the extra-judicial confessions of the accused are concerned, it is true that it is prudent to require corroboration in the case of a retracted confession : 1957CriLJ1014 and : 1959CriLJ108 , the latter of which deals expressly with an extra-judicial confession. There is, in my opinion, however, abundant corroboration of the confessions (Exs. 17 and 18) made by the accused persons which have been recorded by Superintendent Robb under Section 108 of the Customs Act, 1962. First and foremost, there is the evidence that when the accused persons were confronted by the excise party and were questioned as soon as they were intercepted as to why they had come there, they remained silent for some time, but then accused No. 2 admitted that they had gold in the dicky of the car. That the excise party would question the accused persons as to why they had come there is quite natural and, in fact, the 1st accused has expressly admitted as correct the question put to him in regard to the evidence of Superintendent Wagh that he had asked them why they had come there that night and what was in the car, and that they did not initially give any reply. It may, however, be mentioned that the 2nd accused has in his statement denied that Wagh put any question to him, a statement which I decline to believe as it is inconceivable that a raiding party would not confront the persons with whom they had concern with that question at the earliest opportunity. The 1st accused has no doubt said that he did not know whether accused No. 2 had admitted that there was gold in the dicky of the car, when he was questioned under Section 342 of the Criminal Procedure Code, but in his confessional statement (Ex. 17) he has stated that when the excise party questioned them, they gave the correct answer and said that there was gold in their car as, realising that their game was up, they thought they should give a correct answer. Apart from the express admission made by the 2nd accused at the spot that they were carrying gold which cannot be used against the 1st accused, as far as the 1st accused is concerned, he has admitted that he kept quiet when he was questioned by Superintendent Wagh about his movements and in regard to what was in the car. That by Itself, andthe absence of a statement expressing his ignorance in regard to the contents of the car or explaining his movements, would show that he knew that there was gold in the car. There are other facts and circumstances proved by the evidence which also show that the accused persons knew that they were carrying gold in their car. In addition to the fact that gold was actually found in the car and the accused persons were also found in the same car, the movements of the car at dead of night lurking from one place to the other, as disclosed by the evidence, are themselves sufficient to show consciousness on the part of those occupants in regard to what it contained. Mr. Jethmalani has, however, strongly commented on the fact that the driver of the car Bapu who, it is admitted in the evidence of panch witness Kane as well as Inspector Surti and Superintendent Robb, was actually present in the course of the trial in the lower court, has not been called. He has asked the court to draw an inference in the manner stated in Illustration (g) to Section 114 of the Evidence Act by reason of the fact that the said driver has not been examined by the prosecution as a witness. It can certainly not be doubted that the driver Bapu would have been in a position to throw light on the circumstances in which he was engaged, and perhaps also the circumstances in which the gold came to be loaded into the car. It is, however, not obligatory on a court to draw a presumption of adverse inference under Section 114 of the Evidence Act, the illustrations to which themselves show that the court must have regard to the facts and circumstances of the case. No question seems to have been raised in the course of the trial, whilst the evidence was being led, as to why the driver was not being called as a witness by the prosecution. The record shows that a purshis was filed on behalf of the prosecution on 21st March 1966 stating that the prosecution did not propose to lead any further evidence, and not only is there nothing else on record to show by way of cross-examination why the driver was not examined, but no objection appears to have been raised on behalf of the accused persons when that purshis was filed suggesting that the driver should be called, or that he was required by them for cross-examination. In a similar situation the Privy Council in the case of Banwari Lal v. Mahesh 45 Ind. App. 284 : AIR 1918 P.C. 118 declined to draw an adverse inference when no question had been raised at the trial as to the absence of the mother of the plaintiff in a civil suit for the recovery of certain property. The Privy Council observed in that case that if any point had been made about her absence it was quite possible that an explanation might havebeen offered for not calling her as a witness. In the absence of the prosecution being given an opportunity to explain why the driver Bapu, whose statement had admittedly been recorded by Superintendent Robb even before the confessional statements of accused Nos. 1 and 2 were recorded by him, was not called, in the exercise of my discretion, I decline to draw an adverse inference against the prosecution on that account under S. 114 of the Evidence Act as Mr. Jethmalani has urged upon the court. In view of the facts and circumstances proved by the evidence to which I have just referred, I hold that there is abundant corroboration for the retracted extra-judicial confessions of the accused persons (Exs. 17 and 18) in the present case, and the trial court was right in relying upon those confessions which, taken with the other evidence in the case, establish the guilt of accused Nos. 1 and 2 beyond reasonable doubt in regard to the offences of which they have been found guilty.

7. In the result, this appeal must be dismissed, and the conviction of both the accused as well as the sentences passed upon them by the lower court confirmed. The accused to surrender to bail within two weeks.

Kamat, J.

8. I agree and have nothing to add.

9. Appeal dismissed.


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