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Question: Can confession of a co-accused be considered to be

proved against others tried jointly for same offence. What is its
Evidentiary value ? Bihar Civil judge examination 2014)

Answer:
Indian Evidence Act is in the nature of empowering court to
take into consideration a confession made by one of the
accused against the others when they are jointly tried for
an offence.

According to section 30 of Indian evidence Act, when more


persons than one are being tried jointly for same offence,
and a confession made by one of such persons affecting
himself and some other such persons is proved it can be
considered against person making it and others jointly
under trial for same offence.

The principle underlying section 30 of evidence act is based


on the premise that the confession of one accused is
allowed to be used against other co-accused because self-
implications are supported to provide some guarantee of
the truth of accusation made against the other. It is evident
from a perusal of Section 30, that a confessional statement
can be used even against a co-accused. For such
admissibility it is imperative, that the person making the
confession besides implicating himself, also implicates
others who are being jointly tried with him. In that situation
alone, such a confessional statement is relevant even
against the others implicated.
The word “may” in this section is very important as
presence of this term indicates that the section gives
discretion to the court either to use it against a co-accused
or not to do so. The same was reiterated in the case of R vs.
Chandra.

Evidentiary value of a confession under section 30:


Where on one hand the confession of accused if made
voluntary and considered admissible by the court is a very
strong piece of evidence against himself, however, on the
other hand it is considered a weak piece of evidence against
other co-accused. The confession of an accused person is
not treated as evidence in the ordinary sense of the term as
defined in Section 3.

Also, as it is not given on oath nor subject to cross


examination, It cannot be made the foundation of a
conviction and can only be used in support of other
evidence. Thus, such a confession cannot be said to be
“evidence” in its technical sense and thus can only support
a conviction.
The admissibility of statement of confessions made under
section 30 was crystallized by Supreme Court in matter of
Hari Charan Kurmi and Jogia Hajam v. State of Bihar. It
was observed that in dealing with a case against an accused
person, the court cannot start with the confession of a co-
accused person; it must begin with other evidence adduced
by the prosecution and after it has formed its opinion with
regard to the quality and effect of the said evidence, then it
is permissible to turn to the confession in order to receive
assurance to the conclusion of guilt which the judicial mind
is about to reach on the said other evidence.

On the touchstone of law such a confessional statement of


a co-accused cannot by itself be taken as a substantive piece
of evidence against another co-accused and can at best be
used or utilized in order to lend assurance to the Court. In
the absence of any substantive evidence it would be
inappropriate to base the conviction of the appellant purely
on the statements of co- accused.
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 evidences in a
criminal trial.
The court further stated that upon analysis of 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.
In the case of Kashmira Singh vs. State of MP, the accused
Kashmira and co-accused Gurubachan, were being jointly
tried for offence of conspiracy and killing a child. The
Supreme Court in this case issued some conditions which
needed to be fulfilled before taking into consideration the
confession of one of the accused against all others:
- Joint trial: The person who is making a confession and the
other accused persons are being tried jointly for same
offence.

- Same offence: All the accused are being tried for the same
offence.

- Confessions: The confession must affect the person making


the confession as well as the other accused persons.

Further discussing fate of confessions made and admitted under


section 30 of evidence act , the Supreme Court in case of State
of Tamil Nadu vs. Nalini, held that if a confession of an accused
is recorded in the manner provided under Cr.P.C. and admissible
under the provisions of the Evidence Act, then even if it is later
retracted, it is still a substantive evidence as against the maker
thereof.
Thus, we can conclude that though not an evidence by itself , a
confession of co- accused can be used to corroborate other
evidence on record. It can assist court in coming to a conclusion
that the accused is guilty.