LAXMIPAT CHORARIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants who are three brothers appeal by certificate against their conviction under S. 120-B of the Indian Penal Code and S. 167 (81) of the Sea Customs Act and the sentences of imprisonment and fine respectively imposed on them. A fourth brother had filed Criminal Appeal No 55 of 1964 but did not press it at the hearing. One other person (S. L. Daga) was also convicted with them but has not appealed. These persons were found to have entered into a criminal conspiracy among themselves and with others including one Yau Mockchi, a Chinese citizen in Hong Kong, to smuggle gold into India. The method adopted was to insert strips of gold (about 250 tolas) under the lining of the lid of a suitcase, which could be retrieved by unscrewing the metal corner supports and pulling on strings attached to the strips. The suitcases were brought into India by air stewardesses, and Ethyl Wong (P. W. 1), an anglo-chinese girl employed by Air India, was one of them. Discovery came, after gold was successfully smuggled on many occasions, when Yau Mockchi approached one Sophia Wong of the B. O. A. C., line. She was engaged to a police officer and informed her superior officers. A trap was laid. Yau Mockchi was caught with a suitcase with gold in it after he had explained to Sophia how the gold was inserted and how it could be taken out. On the search of his person and also of his place of business, visiting cards of several persons including those of Ethyl Wong and Laxmipat Choraria Crl. Appeal 50/64), photographs of Laxmipat and Balchand Choraria (Crl. Appeal No. 52/64), their addresses and telephone numbers, and other incriminating letters, accounts cables, etc., were found. Immediately thereafter raids took place in India and at Hong Kong where the other two accused who are not before us (Kundanmal Choraria and S. L. Daga) were running a firm called Global Agencies. Numerous documents (some in simple code) and account books were seized. Many of these documents were photostated. The originals were unfortunately returned under the orders of the Supreme Court of Hong Kong and have since been suppressed. On the strength of these materials the prosecution was started.

(2.) At the commencement of the trial Ethyl Wong was examined as the first witness and gave a graphic account of the conspiracy and the parts played by the accused and her own share in the transactions. Her testimony was clearly that of an accomplice. Although she could have been prosecuted, she was not arraigned and it is her testimony which has been the subject of a major part of the arguments before us. No effort has been spared to have it excluded. In two other appeals which we are deciding today with these appeals, the evidence of the accomplices was also questioned on the same grounds. For convenience the whole question has been considered here. In these appeals it is, however, admitted that if her evidence is received, it is sufficiently corroborated both generally and in respect of the three appellants before us. But the evidence of Ethyl Wong questioned in respect of the identification of Laxmipat and Balchand because she was shown their photographs before her statement was taken. The use of the photostats without the originals is also questioned and it is submitted that these documents should be excluded. The main argument is that Ethyl Wong could not be examined as a witness because (a) no oath could be administered to her as she was an accused person since S. 5 of the Indian Oaths Act bars such a course and (b) it was the duty of the prosecution and/or the Magistrate to have tried Ethyl Wong jointly with the appellants. The breach of the last obligation, it is submitted vitiated the trial and the action was discriminatory. In the alternative, it is submitted that even if the trial was not vitiated as a whole, Ethyl Wong's testimony must be excluded from consideration and the appeal reheard on facts here, or in the High Court. It is further submitted that in any event, Ethyl Wong's evidence was so discrepant as to be worthless. In the appeal of Balchand an additional point is urged and it is that the incriminating documents against him were compared with a letter Z 217 purported to be written by him but not proved to be so written.

(3.) Since the appeals were argued mainly on law, we need not trouble ourselves with the facts. Ethyl Wong admittedly carried gold for Yau Mockchi on several occasions. She admitted this in court and her evidence receives ample corroboration as to the mode employed from the statement of Sophia Wong and the seizure of the suitcase when Yau Mockchi had explained how the gold was secreted. We may say at once that if Ethyl Wong's evidence is not to be excluded from consideration for any reason, then we see no reason not to believe her. Apart from the fact that the High Court and the court below have concurrently believed it already, we find ample corroboration for it from her own previous statements made without warning, her pointing out the flats where she delivered gold, her cable written in code to inform the parties in Hong Kong after successful smuggling, her visiting card in the possession of Yau Mockchi, the passenger manifests showing her trips, the entries in the hotel registers and the telephone calls made by her to the flat of the accused and so on and so forth. No doubt there are some discrepancies in her account and she corrected her first version on points on which she had made mistakes. But this is explained by the fact that when she was first accosted, she was unprepared and shocked by the discovery. The corrections were made by her after reviewing in her mind her past trips and without any prompting by the customs authorities. Both statements were voluntary and without any collusion on the part of the customs officials. On the whole her testimony impressed us and as it has been accepted by the High Court and the Magistrate we shall not go into it for the third time. We shall accordingly address ourselves to the objections to its admissibility and the propriety of examining a self-confessed criminal as a witness against her former associates.