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Law on Confession by a Co-Accused

Under the Indian Evidence Act, confession comes under the heading of admission, and that implies that confessions are a subset of admissions. However, surprisingly, the term 'confession' has not been defined in the Act. Justice Stephen in defined confession as 'an admission which is being made by a person who has been charged with any crime and such admission suggests the inference that he had committed the crime'.
Written by:
Simran Bhullar
Published on
24-Jul-18

Under the Indian Evidence Act, confession comes under the heading of admission, and that implies that confessions are a subset of admissions. However, surprisingly, the term “confession” has not been defined in the Act. Justice Stephen in defined confession as “an admission which is being made by a person who has been charged with any crime and such admission suggests the inference that he had committed the crime”. In the case of Palvinder Kaur v. the State of Punjab the Supreme Court stated that, for any admission to be a confession, the person in such statement must either admit the guilt in terms or admit substantially all the facts which constitute the offence. The court further stated that a mixed up statement which contains some confessional statement will still lead to the acquittal of accused and hence isn’t a confession.

However, in the case of Nishi Kant Jha v. the State of Bihar, the Supreme Court held that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest. The court further stated that when there is enough evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on the inculpatory part.

 

The text of Section 30 of the Indian Evidence Act reads as follows:

“Consideration of proved confession affecting person making it and others jointly under trial for same offence- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person makes such confession.” 

When more than one person is jointly tried for the same offence, then in such cases the confession of one of the accused is found to be admissible as evidence, must be taken as a confession against all other accused persons who are being jointly tried.

Where the confession of one accused is accepted as evidence by the court, the other accused persons in the case don’t have opportunity to cross-examine such accused, and hence, this is entirely contradictory to the principle of jurisprudence according to which it is opposed to using a statement against a person without giving him the opportunity to cross-examine the person making the statement. Section 30 of the Indian Evidence Act is in the nature of empowering the Court to take into consideration a confession made by one of the accused against the others when they are jointly tried. On one hand, the confession, it is voluntary and is considered true and admissible by the court, of an accused is a very strong piece of evidence against himself, however, on the other hand, it is a weak piece of evidence against other co-accused. In its strict legal sense, the confession of a co-accused does not come within the definition of evidence. The reason behind this is that the person who is making such confession hasn’t stepped into the witness box and that his testimony has not been subjected to cross-examination, thus such confession is, in reality, a type of ex-parte evidence against other accused persons.

While deciding the reliability which can be placed on by the court in the confessions by the co-accused, the Supreme Court has held in the case of Hari Charan Kurmi v. State of Bihar that the confession of a co-accused cannot be treated as substantive evidence, and can be pressed upon only when the Court is inclined to accept other evidence, and feels the necessity of seeking an assurance in support of its conclusions deductible from other evidence.

In criminal cases, where evidence which is adduced are insufficient to prove a person guilty, such person cannot be held guilty relying on the confession of a co-accused. The presumption of innocence comes to his rescue and compels the court to render the verdict that the charge is not proved and accused is not guilty.

The word “may” in this section is very important to interpret. The presence of this term indicates that such a confession cannot be said to be “evidence” in its technical sense and thus can only support a conviction. Rather, the section gives discretion to the Court either to use it against a co-accused or not to do so. The same was reiterated by Jackson, J. in the case of R. v. Chandra.

Evidentiary value of a confession U/S 30 of IEA

The Supreme Court in the case of Pancho v. State of Haryana held that confessions of a co-accused aren’t the substantive piece of evidence and that it can only be used to confirm the conclusion drawn from other evidence in a criminal trial.

The court further stated that the trial court cannot begin on the basis of the confession of the co-accused to form its opinion in a case. Rather, the courts must analyse all the evidence which are being adduced, and on being satisfied with the guilt of accused, might turn to the confession in order to receive assurance to the conclusion of guilt which the court has reached on the said evidence. Referring to previous apex court verdicts, the court said it is not obligatory to take the confession into account and that it is the discretion of the court. Conclusion

On the whole, Section 30 has introduced an innovation of a serious nature and is capable of causing a miscarriage of justice, unless it is properly understood and applied. The Apex Court has in various cases held that this provision must be very strictly construed so as to avoid doing injustice. Justice Reilly once said, that the discretion which the courts have been empowered with by this provision must be exercised very cautiously and with the greatest caution and with care, so as to make sure that its real intent is observed, and the probability of doing injustice can be removed.

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