CHAPTER-VI

CONFESSION OF CO-ACCUSED AND CRIMINAL LIABILITY

6.1 Introduction
Under our law a confession affecting the maker thereof and a co­

accused in a joint trial for the same offence, may be considered both against
the maker and a co-accused. This provision is contained in Section 30 of the

Evidence Act. It is as follows: Section 30, Evidence Act, “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 who makes such confession.

The confession of a co-accused is no doubt admissible in evidence. The

co-accused un-corroborative by any other evidence is not sufficient to sustain
to conviction. The court can not straightway start with the confession of co­
accused. If there is substantial evidence against the accused and there remains
some doubt lingering them the confession of the co-accused may be taken into
consideration to set that doubt at rest.1
The S.C. held2 that is the provisions of Section 30 of Evidence Act, the
confession of co-accused has to be regarded as amounting to evidence is
general way because whatever considered by the court is evidence. In that
sense the circumstances as well as probabilities considered by the court as
amount to evidence. But these are not defined as evidence U/S 3 of the
Evidence Act.
Prior to passing of Evidence Act 1872, the statement of an accused
person was not evidence against a tell as prisoner or one who was jointly tried
by with person making it.

1 C.B. Xavier Cochin v. Food Inspector Mattemcherey AIR 1968 Kerala 66.
2 Haricharan Knrni v. State ofBihar, AIR 1964 SC 1184.
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In English law a prisoner is not liable to be affected by confession of

his accomplices.
The general rule is that the confession of an accused person is not

evidence against any one but himself only. A confession implicated the names

of the other person. It was held that it should be proved in its integrity. But it

was the duty of judge not to consider the evidence against any one but the

confess nor itself. It two persons were charged with joint commission of an

offence, one of them on his examination before a magistrate, stated in the

hearing of the other that they both that they both committed the offence the
other did not deny it. It was held that this statement of one was not evidence
against the other.3 It is necessary that the person confessing and other person

against whom his confession is to be taken into consideration should be tried

jointly.

The High Courts in India have a view that the confession of the co­

accused can be used only in the support of other evidence. Clearly there must

be another evidence. It can not be made the foundation of conviction is

correct.4

A confession of a person jointly tried with the prisoner can be taken

into consideration against him, it must appeal that the confession implicates
the confessing person substantially to the same extent as it implicates the

confessing person against whom it is to be used. A person admits guilt to the

fullest extent and exposes himself to the pains penalties provided for his guilt.
Then there is guarantee for truth of his confession. The legislature provides
that the statement may be considered against his fellow prisoners charged with
same crime.

R. v, Applely 3 Start 33.

Bhubani Scihu v. The Kind 1949 PC 257.
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A statement made by an accused person before it can be taken into

consideration against a fellow prisoner. According to section 30 of the Act,

must amount to a confession, on the part of the maker with respect to the
offence which all one charged.5 His confession may be taken into

consideration against such other as well as against himself because the

admission of his guilt operates as a sort of sanction which is to some extent

affords some guarantee of the truth of the whole statement.

Section 30, is a very exceptional indeed, an ordinarily provision by

which something which is not evidence, may be used against the person at his

trial. So such provision must be used with greatest caution and care.

6.2 Scope
The section enacts that when more that one person being tried jointly
for the same offence, a confession made by one person from them affecting

himself and such other persons is proved the court may take into consideration

such confession as against such other persons as well as against the confessor.

The word may, in this section make it clear that it is the discretion of the court
to consider it or not, against such other person. It is not bound in law to use
such confessional against such other persons. It has also emphasized that such

confessional statements being not given on oath, not in the presence of co­

accused. It veracity can not bee tested by cross-examination. So it should be

used against the maker and not against the others. This section has introduced

first time in Indian Evidence Act, in 1872 and makes a departure from the

common law of English. It is an innovation of a very serious character, which

is liable to cause injustice if it is not properly understood and applied. It can be
used against the co-accused only to support the other evidence. It can not be
made foundation of conviction against him. This section applies to confessing
5
Bhadresurar Sardar v. Emperor, AIR 1928 Calcutta 416.
 221

not to statements which do not admit the guilt of the conferring party. It is

opposed to the principle of jurisprudence to use the statement against a person

without giving him the opportunity of cross-examination, the person making

the statement.
The privy council in Bhubani v. King,6 discussed the exact scope of

section 30:
Section 50 applies to confession not to the statements. This section

seems to be based on the view that an admission by an accused person of his

own guilt affords some sort of sanction in support of the truth of his own

confession against, other as well as co-accused. It is a weak type of confession,

section 307 does not define the co-accused evidence. It is not based on the

oath, not in the presence of the co-accused, not it can be cross-examined. It is a

supporting evidence not amounting to proof.

The Supreme Court approved these observations of Privy Council in a

case of Kashmira Singh v. State ofM.P.8

Where the other evidence against the accused is less satisfactory and
the prosecution seeks to rely on the confession of the co-accused. Then the

presumption of innocence, which is the basis of criminal jurisprudence assists

the accused person and compel the court to render the verdict that the charge is
not proved against him and so the accused is entitled to benefit of the doubt.9 It

is obvious that the confession of an accused can not be used as a substantive

piece of evidence against co-accused.10 The principle is that where there is

evidence against the co-accused is sufficient if the court believes to support his

1944 SC 257.
Evidence Act.
AIR 1952 SC 159.
State ofRajasthan v. Chetan Lai, 1970 Cr. L.J. 1206.
Public Prosecutor v. Shalik Ibrahim, AIR 1964 A.P. 548.
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conviction then this kind of confession described U/S 30 may thrown into
scale as an additional reason for believing that evidence.11

The court must insist on independent evidence which implicates the co­

accused. The fact and circumstances must raise not a mere suspicion is not, but
proved beyond doubt the co-accused person complicity in the crime. Mere

suspicion is not proof. The extra judicial confession of an co-accused

involving the other co-accused can not be utilized against them in the absence
of the other independent evidence.12
In case of Kashmira Singh v. State ofM.P.13 The accused committed the

crime. He confessed the crime and implicating himself and Kashmira Singh.
The court convicted the accused and Kashmira Singh appealed to the S.C. The

court acquitted the appellant and held that a man should not be deprived his
life and liberty only on the basis of uncorroborated confession of his co­
accused.

6.3 Evidence of Accomplice

An accomplice being a participant in the crime, his testimony suffers

form infirmity and casts doubt as to it truthfulness. The court should not accept
his testimony unless there are other circumstances in the case or other
independent evidence lending to assurance of the truthfulness of the evidence
of the accomplice. Each case would depend upon its facts. No hard fast rule
can be laid down. The general rule is that an accomplice is untrustworthy
unless corroborated unless corroborated by other evidence.14 The statement of
an accomplice is not strengthened by the concurrent statement of any number
of accomplices.15

Devanchand v. State, AIR 1965 Orissa 66.

Buder Ganda v. State, AIR 1965 Orissa 170.
AIR 1952 SC 159.
Badri Ram Didwania v. State ofBihar 1987 Patna 283.
Yaqub Khan Ahmed Khan v. State ofM.P. 1977 MP CJ 523.
 223

The statement of accomplice as witness in case is a substantive piece of

evidence and stand on different footing than the co-accused evidence co­
accused’s evidence is not evidence16 U/S of Act.

A self exculpatory statement of an accused cannot treated as

confession. It can be used as an admission against the person making it. It can
not be used as evidence at all against the other accused.17 Evidence other than

confession not sufficient in itself for finding of guilt.

Only self inculpating statements of accused person amount to

confessions. If only a part of statement is inculpatory and the rest exculpatory,

it can not relied upon either against accused persons or against co-accused.18

A retracted confession which does not inculpate the accused can not
treated as evidence against the other co-accused.19

A confession falling under this Section 30 is admissible against the

accused as well as co-accused even though it is retracted against all. The

amount of credibility depends upon the circumstances of the case. It must be

corroborated.20

Section 30 is to be read with section 24 to 27 of the act. If confession

are relevant according to the provisions of section 24 to 27 than section 30 of

can not make it inadmissible against the co-accused or vice versa.

Section -30 states that:

When more persons than one are tried jointly for the same offence, and
a confession made by one of such persons is proved, the court may I.UU.V into
1XJ.UV

consideration, such confessions as against the person who makes such

confession.

Hah Charan v. State ofBihar AIR 1964 SC 1184.

Man Alii v. State, 1970 Cr. L.J.
Baldeo Gwaia v. State ofAssam 1977, Cr. L.J. 1516
Ram Naik v. State, AIR 1965 Orissa 31.
State ofAssam v. U.N. Rajkowa 1975 Cr. L.J. 354.
 ’224

6.4 Offence
Offence as used in the section includes the abetment of or attempt to

commit the offence.

Supreme Court observed in Criminal Appeal Nos. 238-239 of 2001.

D/d. 12.12.2001 by justice M.B. Shah and R.P. Sethi regarding confession by

accused which is admissible against co-accused when following circumstances

exists, namely:
(i) more persons than one are being tried jointly;

(ii) the joint trial of the persons is for the same offence;
(iii) a confession made by one;yof such persons (who are being tried
jointly for the same offence),

(iv) such a confession affects the maker as well as such persons (who

are being tried jointly for the same offence), (v) such a confession it
proved in court, the court may take into consideration such

confession against the maker thereof as well as against such

persons (who are being jointly tried for the same offence).
In this case, the High Court has not relied upon the confessional statement as a

substantive piece of evidence to convict accused No. 1. It has been used for

lending occurrence to the proved circumstances. The High Court held that the

proved circumstances would not involve accused No. 2 for the offence

punishable under Section 302 IPC and the circumstantial evidence does not
establish that there was any common intention or conspiracy between the
father and the son to commit the offence. However, the Court held that

Sandeep has seen his father committing multiple murder and when he

destroyed the evidence relating to those murders by throwing the articles from
Mhatre bridge on two separate occasion, it was absolutely clear that he did this
with primary object of saving his father and, therefore, he would be liable to
 225

be convicted for the offence under Section 201 IPC. Hence, it cannot be said

that confessional statement is wholly exculpatory R.C.R. (Criminal 2002 vol.

1, p. 212 Supreme Court.)

Supreme Court observed in another Criminal Appeal Nos. 1308 of

2002. D/d 20.4.2003 by N. Santosh Hedge and B.P. Singh, JJ regarding

confession by accused which is admissible against other co-accused that-

(a) Confession made under TADA is admissible in evidence against

accused and co-accused provided Court found that confession was

voluntarily made and truthful.

(b) Terrorist and Disruptive Activities (Prevention) Act, 1987, Section
15(1)- Evidence Act, Section 30, 23-Confession recorded under

Section 15 of TADA is admissible notwithstanding anything contained

in Evidence Act or Cr. P.C. - Confession under Section 15 of TADA is

admissible in the trial of a co-accused for offence committed and tried
in the same case together with the accused who makes the confession -

Section 15 excludes the application of Section 30 of the Evidence Act.

(c) Terrorist and Disruptive Activities (Prevention) Act, 1987, Section (1)

- Confession recorded under Section of accused is admissible against

co-accused, but only an acceptable confession of a co-accuse can be

used as corroborative piece of evidence in a trial under TADA Act,

even to corroborative a confession of another accused in the same trial.
(u) Terrorist and Disruptive Activities (Prevention) Aut, 1987, oouuuu

15(1) - Confession statement of an accused recorded under Section 15

of the TADA Act is substantive piece of evidence even against his co­
accused provided the concerned accused are tried together. However in

such a case as a mater of produce, Court should look or some general

corroboration, such corroboration need not necessarily be on material
 226

facts mentioned in the confession but should be of such nature as to

create confidence in the mind of the court to rely upon such confession.

Learned counsel for the appellants then contended that though Section

15 of the TADA Act makes confessional statement of an accused admissible

evidence against the other accused, still the same cannot be accepted by the

Courts without further corroboration on material facts to base a conviction

against the co-accused. Even this question in our opinion is not res integra.

This court in many cases in which confession recorded under Section 15 of the
TADA Act has considered the probative value of a confession made by one
accused involving other co-accused. those judgments, this Court has laid
down that in view of the fact that Section 15(1) clearly indicates that the

intention of Parliament was to make the confession of an accused substantive

evidence against himself and the co-accused and the same can be relied upon

to base a conviction against both. However, while doing so this court as a

measure of a abundant caution has held if prudent to see general corroboration
of the confession of a co-accused to base a conviction on another co-accused.

This court in Devender Pal Singh (supra) by a majority judgment held:

“The Confessional statement of the accused can be relied upon for the

purpose of conviction, and no further corroboration is necessary if it relates to

the accused himself. However, as a mater of prudence the court may look for

some corroboration if confession is to be used again a co-accused though that

will be again within the sphere of appraisal of evidence’.

In State v. Nalini (supra) a 3-Judge Bench of this Court considered this

question. Wadhwa, J., in that case held that, whet weight should be attached to
such evidence is a matter in discretion of the court, and as matter of prudence,

the Court may look for some more corroboration confession is to be used
against a co-accused. While Quadri, J. agree in with Wadhwa, J., held that the
 227

rule of prudence would require that the Court should examine the same with

great care and should not be relied upon unless it is corroborated by other

evidence or record. While Thomas J. took a contrary view by holding that

while confession is substantive evidence against its maker it cannot be used as

substantive evidence against the other persons, even if the latter is a co­

accused but can be used as a piece of corroborative material to support other

substantive evidence. Here we notice that the majority opinion is that such
confession of one accused can be used as substantive evidence against another
accused but court in its discretion should seek general corroboration to support
such confession. In Jimi Premchandbhai v. State of Gujarat similar view was
take by this Court holding that a confession statement of a co-accused is also

substantive evidence against his co-accused, (see para 19). This court in S.N.
Dube’s case (supra) also held that confession recorded under Section 15 of the

TADA Act is a substantive piece of evidence and can be used against a cp-
accused also. A contrary view taken by this Court in Kaipnath Rai v. State was

held to be no more a good law following the decision of this Court in Nalini’s

case (supra) by a subsequent judgment of this Court in S.H. Dube’s case

(supra). Therefore we notice that the accepted principle in law is that a

confessional statement of an accused recorded under Section 15 of the TADA
Act is a substantive piece of evidence even against his co-accused provided the

concerned accused are tried together. ,

The requirement of seeking corroboration while using the confessional
statement of an accused, against his co-accused has given rise to another
argument on behalf of the appellants that the said corroboration should be on
all material facts mentioned in the confession and not a me general
corroboration. The respondent of course has argued that this not the
requirement of law and if at all corroboration is required the sand need only be
 228

in the nature of a general corroboration. Like the other leg issues involved in
this case, we have no difficulty in answering this issue also because of the

earlier judgments of this Court with which we are not only bound but are in
respectful agreement in Lai Singh etc. v. State of Gujarat & Anr. This Court

held that “when there is confessional statement it is not necessary for the

prosecution to establish each and every lint a confessional statement it is not

necessary for the prosecution to established each and every link as

confessional statement gets corroboration from the link which is proved by the

prosecution. In any case, the law requires establishment of such a degree of

probability that a prudent man may ifs basis, believe in the existence of the

facts in issue.”
The above observations of the majority in the case of Nalini (supra) has

been accepted in Davender Pal Singh (supra) wherein the Court agreeing with

the majority judgment in Nalini’s case (supra) held that what is required as

corroboration of a evidence of the co-accused is only a general corroboration.

Therefore it has to be held that when a confessional statement recorded under

Section 15 of the TADA Act is to be used against a co-accused prudence

requires that the court should look for some general corroboration, such
corroboration need not necessarily be on material facts mentioned in the

confession but should be of such nature as to create confidence in the mind of

the court to rely upon such confession.
Try onm im on** ■fl-ryrlo ir*
X\J OU111 CXp* \J U-1 XXXXVXO xxx regard trv
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appeals we find:
(i) if the confessional statement is properly recorded, satisfying the
mandatory provision of Section 15 of the TADA Act and the Rules
made there under, and if the same is found by the Court as having
 229

been made voluntarily and truthful then the said confession is

sufficient to base a conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not is a matter

for the court considering such confession on facts of each case.

(iii) In regard to the use of such confession as against a co-accuse, it has

to be held that as a matter of caution, a general corroboration should

be sought for but in cases where the court is satisfied that the

probative value of such confession is such that it does not require

corroboration then it may base a conviction on the basis of such
confession of the co-accused without corroboration. But this is an
exception the general rule of requiring corroboration when such

confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of the
confession against the maker as also in regard to the use of the same

against a co-accused is of general nature, unless the court comes to

the conclusion that such corroboration should be on material facts

also because of the facts of a particular case. The degree of

corroboration so required is that which is necessary for a prudent

man to believe in the existence of facts mentioned in the

confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA rules

which contemplates a confessional statement being sent to the chief
Metropolitan Magistrate or the Chief Judicial Magistrate who, in

turn, will have to send the same to the Designated Court is not
mandatory and is only directory. However, the court considering the
case of direct transmission of the confessional statement to the
Designated Court should satisfy itself on facts of each case whether
 230

such direct transmission of the confession statement in the facts of

the case creates any doubt as to the genuineness of the said

confessional statement.
We do not think this principle laid down by this Court in Mohd. Khalid (supra)

under Section 30 of the Evidence Act could be applied to confession recorded

under Section 15 of the TADA Act. Herein it is relevant to note that Section

15 of the TADA Act by the use of non-obstante clause has made confession

recorded under Section 15 admissible notwithstanding anything contained in

the Indian Evidence Act or the Code of Criminal Procedure. It also specifically
provides that the confession so recorded shall be admissible in the trial of a co­
accused for offence committed and tried in the same case together with the
accused who makes the confession. Apart from the plain language of Section

15 which excludes the application of Section 30 of the Evidence Act, this

Court has in many judgments in specific terms held that Section 30 of the

Evidence Act has no role to play when the court considers the confession of an

accused made under Section 15 of the TADA Act either in regard to himself-

or in regard to his co-accused.

Therefore the argument of learned counsel that a confessional statement

of an accused made under Section 15 of the TADA Act can be used only to
coiToborate other substantive evidence produced by the prosecution cannot be

accepted.
At this , stage, we may take note of the fact that accused have also made

confessional statements and based on those statements, they have also pleaded

guilty and have been convicted which conviction and sentence have become
final since the same was not challenged. The court below has treated the
statements found in these confessional statements as corroborative pieces of
evidence to support the confession made by A-2. Learned counsel for the
 231

appellants have contended that a confessional statement of a co-accused

cannot be used as a corroborative piece of evidence if the court comes to the

conclusion that the confession of an accused requires corroboration from other

sources to accept the same. It other words, the argument of learned counsel for

the appellants is the confession of one accused cannot be used as a

corroborative piece of evidence to support the confession of another accused.

Their contention is that if corroboration is necessary then the same should be

not from a confessional statement of a co-accused but should be from other

sources. We do not think there is any force in this argument. As noticed

hereinabove, Section 15 of the TADA Act has statutorily made the

confessional statement of an accused as an evidence admissible against a co­

accused, therefore, it is futile to contend that if corroboration is necessary to

accept a confessional statement of an accused, the same cannot be found in

another confession of a co-accused in the same trial, unless, of course, the

Court on facts and circumstances of a case considers it necessary to seek

corroboration from an independent source. However, if both the confessions

are of such quality that the Court does not consider it safe to act on such

confessions then like any other piece of evidence the confessions of co­

accused cannot be used even for corroborating another confession of another

accused on the principle that one doubtful piece of evidence cannot be

corroborated by another doubtful piece of evidence. Therefore, in our opinion,

an acceptable confession of a co-accused can be used as a corroborative piece
of evidence in a trial under TADA Act, even to corroborate a confession of
another accused in the same trial. (RCR Criminal 2003(2) p. 844), Supreme
Court.

Justice Virender Singh of Hon’ble, Punjab and.Haryana Court in

Criminal R. No. 606 of 1989. D/d. 4.2.2004 observed that:

 232

Confessional statement of accused against co-accused - It is inadmissible and

cannot be read in evidence.

Virender Singh, J. - Mahesh Inder Singh, the petitioner herein, stands
convicted by the learned Judicial Magistrate 1st Class, Phagwara vide

impugned judgment dated 7.3.1989 under Sections 420/468 IPC and has been

sentenced to undergo RI for one year and to pay a fine of Rs. 2000/- under

Section 420 IPC and in default of payment of fine to undergo further RI for
one month; to undergo RI for one year and to pay a fine of Rs. 200/- under

Section 468 IPC and in default of payment of fine to undergo further RI for

one month. However, both the sentences are ordered to run concurrently.

Aggrieved by the impugned judgment of conviction and sentence, he preferred

an appeal and the same also stands dismissed vide impugned judgment dated

12.7.1989 for learned Additional Sessions Judge, Kapurthala. Hence, this

revision.
It is worth-mentioning here that one Surjit Kaur wife of Kashmir Singh,

resident of Matfalu, Tehsil Phillaur, district Jalandhar was also booked along

with the present petitioner but she was declared Proclaimed Offender during

trial. It has been brought to my notice that till the dismissal of the appeal, she
was not arrested by the prosecution agency. Learned State counsel has also
submitted that he is not aware of the fact as to whether she has been even

arrested in the case of face trial.

The petitioner was a Head Clerk in State Bank of Patiala, Phagwara.

The present case was registered by Shri D.R. Budhiraja, Branch Manager,
State Bank of Patiala, Phagwara on 31.8.1982 on his written complaint
alleging therein that one Mohinder Kaur wife of Piara Singh, resident of
village Khera has a saving bank account No. 11492 with the State Bank of
Patiala but the depositor has not made any withdrawal or deposit in the said
 233

account since long. The last deposit was made in her account on 4.11.1978. On
17.3.1982 the pass book of Mohidner Kaur was produced before the bank
authorities by one Gurdial Singh for its completion and at that time the

concerned dealing Clerk noted that fro the said amount a sum of - Rs. 5,007-

was withdrawn on 3,12.1981, Rs. 5000/- on 30.12.1981 and another amount of

Rs, 5500/- on 28.1.1982, The enquiry further reveals that this amount was

withdrawn by someone else representing herself that this amount was

withdrawn by someone else representing herself to be Mohinder Kaur by

singing and presenting three withdrawal forms of different dates. On these

allegation a formal FIR Ex. PW13/A was got recorded. The police took into
possession the three withdrawal forms vide which the amount was withdrawn
from the aforesaid saving account. The account opening form as well as the
photographs for opening an account in the name of Surjit Kaur was also taken

by the investigating agency. The specimen handwriting/signatures of the

present petitioner and Surjit Kaur were obtained and those were sent for

comparison to the Scientific Officer (handwriting) in the Forensic Science

Laboratory, Punjab, Chandigarh. During the investigation, statement of Surjit

Kaur was also recorded in which she has stated that the present petitioner was

getting the amount withdrawn through her on ,the pretext that her sister

Mohinder Kaur was ill and could not come.

After completion of the investigation, the present petitioner was sent
for trial. He was charged under Section 419/420/468 IPC. The pn

support of its case had examined as many as 13 witnesses. I shall be discussing

the statements of the relevant witnesses at the appropriate stage.
The defence taken up by the petitioner as emerges from his statement
recorded under Section 313 Cr. P.C. is that he has been falsely implicated in

this case as he was President of the Union of State Bank of Patiala and was
 234

also office-bearer of other bank Employees Federations and was having

strained relations with Shri D.R. Budhiraja, then the Bank Manager in defence
also the petitioner has examined Mohinder Lai Gupta as DW1, Avtar Singh

Malhotra as DW2 and tendered certain documents. I has heard Mr. K.S.

Nalwa, learned counsel for the petitioner and Mr, Ashish Verma, learned

Assistant Advocate General, Punjab. With their assistance, I have also gone

through the entire record.

Learned counsel for the petitioner with full vehemence has submitted

that both the Courts below have not properly appreciated the evidence led by

the prosecution and this has resulted into miscarriage of justice. Advancing his

arguments, the learned counsel has submitted that both the courts below have
not taken into account the fact that the duty assigned to the present petitioner
was to fill up the form of illiterate persons so that they did not feel any
inconvenience. Des Raj Budhiraja PW7 has also admitted this fact in his cross

examination while replying to a specific question put to him regarding filling

up of withdrawal forms. The other argument advancement by the learned

counsel is that the present petitioner has no connection with the making of

payment as it was to be made by the Cashier only and in this regard my

attention has also been drawn to the cross examination of PW7 D.R. Budhiraja

wherein he has specifically stated that no payment could be made till the

cheque/voucher is signed on the back of the cheque/voucher and the voucher

dated 30.12.1981 for Rs. 5000/- shows that the amount was taken by Mohinder
Kaur herself. He has further stated that as per the procedure of the Bank, the

money withdrawn is paid after getting the signatures tallied with the specimen
signatures already with the Branch. From this the learned counsel develops

that if any irregularity has been committed at the time of tallying the specimen
 235

signatures or completing the other necessary formalities, the present petitioner

cannot even be remotely connected with the same.

The learned counsel for the petitioner then contends that even the report

of the Scientific Officer (Handwriting) does not support the case of the

prosecution as the expert has not been able to express any definite opinion on
the questioned signatures when they were compared with the specimen writing

of the petitioner.
The other limb of arguments advanced by the learned counsel for the
petitioner is that even otherwise both the Courts below have given much

weightage to the statement of Surjit Kaur whereas the said statement cannot be

legally take into accused against the present petitioner being a statement of an

accused against the co-accused. In support of his contentions, learned counsel

has relied upon the judgment of Hon’ble Apex Court render in Suresh

Budharma Kalani alias Pappu Kalani v. State ofMaharashtra.

Relying heavily on the aforesaid submission, the learned counsel states

that the prosecution case is on slippery wicket qua the present petitioner and a

such he deserves acquittal. Learned State counsel has, however, refuted all the
arguments advanced by the learned counsel for the petitioner and has
submitted that the petitioner does not deserve acquittal as both the Courts

below after appreciating the entire evidence found him guilty for the charge.
After hearing the rival contentions of both the sides, I am of the view that the
prosecution has not been able to bring home the guilt to the present petitioner.
In my view, both the courts below have in fact presumed the forgery

against the petitioner whereas it has to be proved by cogent evidence. The mis­
reading of the evidence in this case has also resulted into miscarriage of
justice. For this reason, I have felt the necessity of re-scanning the entire
 236

evidence in this case for the purposes of satisfying the correctness, legality or

propriety of the finding.

From the evidence adduced, it is very clear that the job assigned to the

present petitioner was to fill up the forms of illiterate persons so that the

customers did not feel any inconvenience in the Bank. This fact is admitted by

Shri D.R. Budhiraja PW7. So far as withdrawal position at the time of

withdrawal. It is otherwise admitted by Shri D.R. Budhiraja PW7 in his cross-
examination that no payment can be made till the cheque/vocher is signed on

the back of the cheque/voucher and that the signatures of the withdrawal forms

are to be tallied by the specimen signatures. Concededly, this was not the job
of the petitioner at all. Simply that he had field up the withdrawal forms in

which Surjit Kaur (since declared Proclaimed Offender) impersonating as

Mohinder Kaur has allegedly withdrawn the amount, the present petitioner

cannot be said to have committed any forgery.

The prosecution agency during the investigation had also obtained

specimen signatures and specimen writing of the present petitioner to tally it

with the questioned documents. The signatures of Surjit Kaur and Mohinder

Kaur were also taken during investigation. As per report of the Scientific
Officer the present petitioner is not linked with the signatures on the

withdrawal forms. Even if the withdrawal forms indicate that the present

petitioner within the four comers of forgery punishable under Section 468 IPC.

The petitioner thus deserves acquittal for this charge.

At the same time, the ether charge of Section 420 IPC is also not
proved in this case. Both the courts have been taken into account a statement
(confessional) allegedly the role played by the present petitioner in

withdrawing the said amount. The said statement legally cannot be read

against the petitioner being inadmissible in evidence. The judgment is Suresh

 237

Budharma Kalani alias Fappu Kajani’s case (supra) relied upon by the learned
counsel for the petitioner is squarely applicable to the case of the present
petitioner. In my considered view the statement of Suraj Kaur has to be

ignored altogether against the present petitioner.

Thus, there remains no legal evidence with the prosecution to prove

any of the two charges framed against the petitioners. Consequently, the

present revision petition is allowed. Both the impugned judgments are set
aside being manifestly illegal, unjust and perverse and the petitioner is
acquitted of the charges. He is discharged of his surety bond submitted by him

during the pendency of the present revision petition. RCR Criminal 2004(2), p.
824, P & H.
In another judgment Justice K. G. Bajakrishnan & Dr. A.R.
Lakshmanan, JJ. of Supreme Court of India in Criminal Appeal No. 531 of

2004. D/d 28.9.2004 observed that:

(a) Evidence Act, Section 30 - Indian Penal Code, Section 302 - Extra

Judicial confession by accused that the alongwith other two co-accused

committed the murder - Accused subsequently absconded and
declared PO- Accused thus not tried alongwith other two co-accused -
Extra judicial confession made by accused cannot be admitted in

evidence as he was not tried alongwith other co-accused - Extra

judicial confession made by accused could have been taken into

consideration only when he was tried along with the co-accused,
(b) Terrorist and Disruptive Activities (Prevention) Act, 1987, Section 15

(as amended by Act 43 of 1995) - Confession made by co-accused is

admissible against the accused if co-accused and accused and tried

together in the same case.
 238

(c) Terrorist and Disruptive Activities (Prevention) Act 1987, Section 15 -

Evidence Act, Section 30 - Confession made by accused under Section

15 of TADA - Provisions of Cr. P.C. are not applicable - Confession

recorded under Section 15 of the TADA Act is admissible against the

co-accused as a substantive evidence - However, substantive evidence

does into necessarily mean substantial evidence - It is the quality of

the evidence that matter.

The extra-judicial confession allegedly made by Balwinder Singh can only be

considered under Section 30 of the Indian Evidence Act 1872. The extra­

judicial confession cannot be admittedj.n evidence as Balwinder Singh was not

tried along with the appellants. It interesting to note that though a charge sheet

was filed against' Balwinder Singh, in the judgment he is shown as a

proclaimed offender. According to the prosecution, Balwinder Singh was

arrested on 18.4.1993. They came to know that one taxi driver who had

committed various crimes has been roaming in the city in a vehicle without

registration number. In the meanwhile, one Maruti car without registration

number came and the same was intercepted and its driver was taken into

custody. He was in possession of a point thirty-two bore revolver loaded with

five live cartridges. He told them that his name was Balwinder Singh.

According to the'prosecution he escaped from custody and was later declared

as a proclaimed offender. The counsel for the appellants contended that

Balwinder Singh was killed in a lake encounter by the police; for which a
criminal case also is filled against some of the police officers. In any case,

Balwinder was never tried along with the present appellants. The extra-judicial
confession made by Balwinder Singh could have been taken into consideration

only when he was tried along with the present appellants.

 239

A perusal of these provisions would show that by Act No. 43 of 1993,

certain serious changes have been made in the matter of admissibility of

confession made by a co-accused. Prior to the Amendment Act 34 of 1993, if a

confession had been made by a co-accused that he had committed the offence,

the Designated Court could draw a presumption that the accused had
committed such offence, unless the contrary was proved. This provision was

completely taken away and instead of that the confession of a co-accused

recorded under Section 15 of the TADA Act was made admissible subject to

certain conditions. One major change that was brought into effect was that

such a confession recorded under Section 15 of the TADA Act by a co­

accused could be made use of against that accused provided the co-accused is

charged and tried in the same case together with the accused. The scope and
ambit of the confession recorded under Section 15 of the TADA Act was

considered elaborately by a 3-Judge Bench of this Court in State v. Nalini. The

majority decision in that case was that the confession recorded under Section

15 of TADA Act is a substantive evidence, although Thomas, relying on the

earlier decision of this Court in Kalpnath Rai v. State held that even if

confession of an accused is admissible under Section 15 of TADA Act, it is

not a substantive piece of evidence and cannot be used against a co-accused
unless corroborated by other evidence. However, the majority consisting of

Wadhwa and Quadri, JJ held that Section 15 of the TADA Act starts with a

non obstante clause as it says that neither the Evidence Act nor the Code of
Criminal Procedure will apply and this was certainly a departure from the
ordinary law and when the legislature enacted that the Evidence Act would not

apply, it would mean all the provisions of the Evidence Act including Section

30 and, therefore, confession recorded under Section 15 of the TADA Act is

admissible against the co-accused as a substantive evidence. However, it was
 240

clarified that substantive evidence does not necessarily mean substantial

evidence, it is the quality of the evidence that matters.

Section 15 of the TADA Act as amended by Act 34 of 1993 clearly

stipulates that the confession recorded under Section 15 of the TADA Act is

admissible only if the -confessor is charged and tried in the same case together

with the co-accused. After the amendment of 1993, the addition of the words

“co-accused, abettor or conspirator” and the insertion of the new ‘proviso’ to

the effect that “the co-accused, abettor or conspirator is charged or tried

together with the accused” clearly shows that the confession could be

considered by the court only when th&ico-accused who makes the confession is
charged and tried along with other accused.
Unfortunately, Balwinder Singh @ Fauji is alleged to have escaped
from custody by 4th or 5th of May, 1993 and the charge itself was framed by

the court later and Balwinder Singh was treated as a proclaimed offender by

the Special Judge. The Special Judge relied on the decision reported in Esher

Singh v. State of Andhra Pradesh and held that merely because one accused

died before charges were framed, that does not affect the confessional

statement. The learned judge was also of the view that by operation of Section

30 of the Indian Evidence Act, the confession of the co-accused could be made
use of The stand taken by the Special Judge is incorrect. We do not think that
Esher Singh’s case (supra) lays down the law that a confession recorded under

Section 15 could be made use of as admissible evidence even if the co­

accused, who made the confession was not charged or tried along with other

accused. On the other hand, the decision clearly states that after the
amendment the designated court could use the confession of one accused
against another accused only if the following two conditions are fulfilled:
 241

1. The co-accused should have been charged in the same case along with

the confessor
2. He should have been tried together with the confessor in the same case.

Another important contention urged by the appellant’s counsel is that PW-24,

while recording the confession violated the mandatory provisions regarding

the manner in which the confession is to be recorded. Under Section 28 of the

TADA Act Terrorist and Disruptive Activities (Prevention) Rules, 1987 are

made. RCR Criminal 2004(4), p. 688, Supreme Court.

Recent view regarding confession of co-accused by Justice J.M. James

of Kerala High Court is that accused cannot be convicted on basis of

confession of co-accused if there is no independent evidence against him.
(a) Evidence Act Section 30, Confession of co-accused- conditions to be

satisfied are:
1. There should be confession of inculpatory nature;

2. The maker of the confession and the co-accused should

necessarily have been tried jointly for the same offence; and

3. The confession made by one accused should affect him as well

as the co-acCused meaning that the confessor cannot absolve

himself from the offence and involve the co-accused in it while

making the confession.

(b) Evidence Act, Section 30- Narcotic Drugs and Psychotropic

Substances Act, Section 20(b) and 25 — Confession of co-accused —
Prosecution of accused under NDPS Act - no independent evidence
available against the accused - Accused cannot be convicted on basis

confession of co-accused. Moreover the co-accused was not jointly

tried with accused.

 242

Analysing Section 30 of the Evidence Act, the Apex Court in Kalpanath Rai v.

State, laid down three conditions viz. (i) there should be confession of

inculpatory nature; (ii) the maker of the confession and the co-accused should

necessarily have been tried jointly for the same offence and (iii) the confession

made by one accused should affect him as well as the co-accused; meaning
that the confessor cannot absolve himself from the offence and involve the co­

accused in it while making the confession.

I have already discussed the principle, as laid down by the Apex Court,

that a confession made by one accused is not a substantive evidence against a

co-accused. In Kashmira Singh’s case (supra) it has been clearly laid down
that the Judge has to appreciate the evidence against the accused, excluding
the confession altogether from consideration and has to see whether he could

believe that evidence and conviction could safely be based on it. But if the

Judge is not prepared to act on that evidence, and even if believed, it is

necessary to look for further evidence, then alone the Judge may call in aid the

confession statement of a co-accused and sue the same to “lend assurance to

the other evidence and thus fortify himself’ in believing, without the aid of the

confession, he would not be prepared to accept the evidence available against

the accused. In Harichara Kurmi’s case (supra) also, the larger Bench of Apex

Court, quoted with approval, the observations of Reilly, J. in Peritaswami’s

case (supra), where it was held that a confession described in Section 30 of the
Evidence Act may be thrown into the scale as an additional reason for

believing the existing evidence against the accused. In the case at hand, I do
not find any convincing evidence by which the prosecution has proved as per

law, that the accused has committed the offence alleged against him.
Therefore, not only the case had not been jointly tried with the other accused,
whose confessions have been relied on by the court below, but also there is no
 243

independent acceptable evidence against the appellant. RCR Criminal 2005(3)

p. 359, Kerala High Court.

6.5 Section 30, Evidence Act

Under our law a confession affecting the maker thereof and a co­

accused in a joint trial for the same offence, may be considered both against
the maker and a co-accused. This provisions is contained in Section 30 of the
Evidence Act. It is as follows: Section 30, Evidence Act : “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 who makes such confession.

6.6 The Rule is an Innovation

A provision corresponding to this section was not in existence prior to

the enacting of this section. A similar provision was not to be found, in the

older enactments, such as the Evidence Act of 1855 or the Criminal Procedure

Codes of 1861 and 1872. So in former times a former times a confession of an

accused person is treated as evidence only against him and it could not be

taken to be corroborative evidence of any kind of evidence, against anybody

other than himself. Similarly in Queen v. Darbarro Das it was held that the

confession of one prisoner could not be used as corroborative evidence against

another prisoner. In Queen v. Sadhu Mandal Phear, J. expressed the position in

much stronger language as follows: “Until the passing of the Indian Evidence Act,

such dangerous material as this could not be used as evidence against the co­

accused person, and even by that Act, the legislature only bestowed a discretion

upon the court to take into consideration, such a confession as against such person

as well as against the person who made such confession.”

 244

6.7 Principle
Normally a confession is useful as evidence against the accused person
who makes it. But by Section 30 of Evidence Act, it is laid down that it may be
taken into consideration against the co-accused also, provided it affects the
confessor as well as the co-accused. This is an important qualification because a
person would not incriminate himself for the sake of incriminating the other co­
accused, unless it is true. In other words the self-incrimination of an accused
person vouchsafes the truth of the accusation of the other. West J. in Empress v.
Daji Narsu, very emphatically said that “Where a person admits guilt to the fullest
extent and exposes himself to the pains .and penalties provided for his guilt, there
is a guarantee for the truth of the statement of the accused and the legislature
provides that the statement may be considered against his co-prisoners charged
with the same crime, ‘Straight, J., in Queen Empress v. Fagrup expressed this
principle as follows: “What was intended was that where a prisoner, to use a
popular phrase makes a clean breast of it and unreservedly confesses his own guilt
and at the same time implicates another who is jointly tried for the same offence,
his confession can be taken into consideration against such other as well as
against himself, because the admission of his own guilt operates as a sort of a
sanction, which to some extent takes the place of the sanction of an oath, and
affords some guarantee that the whole statement is a true one.” In another case the
same learned Judge pithily said that the confessing prisoner - must “tar himself
and the person or persons he implicates with one and the same brush”. “The
object sought by the rule of law,” said West J., in Queen Empress v. Nur
Mahomed’ is a safeguard for sincerity and for information.”
6.8 Undependable Material in Practice - Psychological at Aspect
The principle on which a confession affecting both the maker and a co­
accused in a joint trial for the same offence is made admissible, is apparently
sound for no man may be presumed to incriminate himself and another to the
 245

same extent for the pleasure of it, or with the sole purpose of roping in another

person. The rancour and bitterness which takes possession of a culprit in

respect of his close confident and erstwhile accomplice are immeasurably

intense, if the former were to be betrayed by the latter. Having been faced with

the situation of a closing in moves taken by the authorities against him, and the

growing mass of evidence against him, a culprit may be driven to desperation

and his unbending attitude begins to crumble. His edifice of resolve not to
confess, is completely blasted, when the knows that his accomplice had given

clues for the detection of the crime to the authorities. That would be a situation
where he would feel thoroughly helpless and also thoroughly disgusted with
his accomplice. So such a culprit has a great temptation to ‘tilt the balance on

the side of his co-accused as far as their common guilt is concerned. Such

instances are more numerous than cases of accusing oneself and another on the

sole consideration of vindication of truth. Hence, in practice, a confession of

an accused affecting himself and another or other co-accused persons,

becomes an undependable material.

6.9 English Law is Different from the Indian Law as far as this Particular

Rule is Concerned
This provision is contrary to the principle of law in England. Markby in

his “Evidence” says: “The principle is flatly in contradiction to the law of

England, where Judges always take the greatest pains to prevent the statements
of prisoners affecting the case of a fellow prisoner.” The following passage
from Taylor contains the English Law on the subject:

“A prisoner is not liable to be affected by the confession of his

accomplices; and so strictly is this rule enforced, that where a

person is indicated for receiving stolen goods, a confession by;
the principal that he was - guilty of the theft, was held by all the
 246

judges to be evidence of that fact as against the receiver; and it

would be the same if both parties are indicated together, and the
principal were to plead guilty. Even in cases of conspiracy after

the common enterprise is at an end, whether by accomplishment

or by abandonment, no one is permitted by a subsequent act or

declaration of his own to affect the other conspirators. His

confession therefore, subsequently made is only admissible in

evidence against himself.”

The ancient Roman law, which is the mother of many modem laws,
had also not got any rule such as thebone under consideration. Rule criticized
as no other rule is.

No other section ahs evoked such a furors of judicial disapprobation

and stem criticism as Section 30 of the Evidence Act. By every possible

device of interpretation the operation of this section is sought to be kept in

narrow confines. Judges have not stinted in language to express their

conscientious-objection regarding this rule. In R. v. Joffer Ali Glover., said that

section introduced a dangerous element; and Phear J., characterized this matter

as “dangerous material”. Couts Trotter CJ., in re Lilaram, said : “I have always

thought that this was a most unsatisfactory section and was a needless

tampering with the wholesome mle of the English Law that a confession is
only evidence against the person who makes it.”
Reilly J., observed that “it is very exceptional, indeed are extraordinary

provision, by which something which is not evidence may be used against an

accused person at his trial; such a provision must be used with the greatest
caution and with care to make sure that we do not stretch it one line beyond its
necessary intention.”
 247

Learned authors also have not viewed with favour this provision,

Norton says : ‘This section introduced an innovation of a very serious

character. It has always been held that a confession only binds or affects the

party making it. The present section makes it receivable against a third party

when he is jointly indicated with the confessing criminal. The objection, if

any, is not to go to the weight of the confession. The Judge may take it into

consideration as against the third party. I conceive that even this is a dangerous
latitude, in India more especially. When the third party is indicated, but not

jointly, with the party confessing the confession is still not receivable against
such third party. I see no ground for the distinction now drawn where the
parties are jointly indicated.” Cunningham in the introduction to his book on

Evidence says: “The Judges are relieved from the attempts to perform an

intellectual impossibility by a provision, that, when more persons than one are
tried for an offence and one makes a confession, affecting himself and any

other of the accused, the confession may be taken into consideration against

.such other person as well as the person making it. Such a confession, is of
course, in the highest degree suspicious, it deserves ordinarily very little

reliance; but nevertheless it is impossible for a single Judge to ignore it, and

under the Evidence Act, he need no longer pretend to do so. The exclusion in
fact, was one of those rule of evidence borrowed from the English system.”
The learned author says that “the policy of the section was much criticized”
and endorses what one writer had said, namely, “that the best consideration

which the court can give a confession within this section will probably be to

hold that it will not act upon it against third parties.”

6.10 Salient Features of the Provision

This section has not laid down that the confession under it should be

evidence both against the maker and the co-accused. As the legislature has not
 Z45

gone so far as to assign to this material, the status of evidence, it can be said

that the legislature is conscious of the inherent weakness of the confession

under Section 30 to have high evidentiary value. The section is very guardedly

worded and uses the expression “may take into consideration” a confession

such as is mentioned in Section 30. This expression furnishes the key for the

interception of the section and also pin-points its logic and rationale. Giving a

plain meaning to the section in the light of the above observations, this section

goes no further than this that is, where there is evidence against the co-accused

sufficient if believed, to support his conviction, then it may be thrown into the

scale as an additional reason for believing that evidence. Cunningham in his

Evidence says “that the Indian judge has simply to consider whether the

confession ought to have any weight with him and if any weight how much, in

the opinion he forms about the case. The exclusion of confession of this kind

from the definition of evidence is intended, apparently to remind the Judge

that he is dealing with very unsound material and that, though he takes them

into consideration, he must not rely on them as the sole and even as the chief

basis of his belief.” The justification for this provision, therefore, is that it does

not make this kind of confession substantive evidence against the co-accused;

but it only enables a court to take it into consideration along with other

evidentiary material to see whether the guilt of the co-accused is driven home

to him. So conviction of co-accused for an offence can never be based upon

the confession of the other accused taking his trial along with the former

person and even if it is taken into consideration, there must be other cogent

and substantial evidence pointing to the guilt of the co-accused for drawing a

verdict of guilty as far as the co-accused is concerned.

 249

6.11 Section must be Strictly Construed

It has been held over and over again in a catena of decisions that this
section has to be construed very strictly. Thus it has been said “Section 30 of

Act I of 1872, introduces, as it does, an entirely new, and I am inclined to

think, rather dangerous element into the conduct of criminal trials, and ought

to be constructed with great strictness.” It was remarked in In re-Maridimuthu,

that this section should be construed “with the greatest caution and with care

to make sure that we do not stretch it one line beyond its necessary intention.”
The same anxiety which characterized he interpretation of this section

so as not to make it comprehensive in import, is to be seen in the judicial

interpretation according to. which for invoking the rule of this section, the

confession prisoner must “implicate himself to the same extent as his co­

prisoner whom he incriminates. There is authority even in older cases for

saving “That the statement of one prisoner cannot be taken as evidence against

another prisoner under Section 30 unless the parties are admittedly in parti

•delicto i.e. when the confession prisoner implicates himself to the full, as
much as his co-prisoner whom he is criminating.” {Emperor v. Baijoo)21 to the

effect, West J., in Emperor v. Daji Narsu,22 it was observed, and it is as

follows; “When a person admits guilt to the fullest extent and exposes himself

to the pains and penalties provided for this guilt, there is guarantee for his truth

and the Legislature provides that his statement may be considered against his

fellow prisoners charged in the same crime, Straight, J. in Emperor v.

Jagrup23 summed up this position in the following excellent manner : “What

was intended with regard to Section 30 of the Evidence act, was that, where a

21
25 WR430,Cr.
22
6 Bom. 28B.
23
7 All 646.
 250

prisoner, to use a population phrase, makes a clean breast of it, and

unreservedly confesses his own guilt, and at the same time implicates another

person who is jointly tried with him for the same offence, his confession may

be taken into consideration against such other person as well as against

himself, because his own guilt operates a sort of sanction which to some

extent, takes the place of an oath, and so affords some guarantee that the whole

statement is a true one. But where there is no full and complete admission of

guilt, no such sanction or guarantee exists and for this reason, the ‘confession’

in Section 30, cannot be construed as including a mere inculpatory admission

which falls short of being an admission of guilt.” The same learned Judge in R.
v. Ganiraj24 expressed the implications of Section 30 as follows - The test,

Section 30 intended to be applied to a statement of one prisoner proposed to be

used in-evidence as against another, is, to see whether it is sufficient by itself

to justify the conviction of the person making it of the offence for which he is

being jointly tried with the other person or persons against whom it is

tendered. In fact to use a popular and well understood phrase, the confessing

prisoner must far himself and the person or persons he implicated with one and

the same brush.”

The principle in Ganiraj’s case has been followed in R. v. Mulu,25 and

Bhadraswar v. R.26 But the rule laid down in R. v. Ganiraj was explained in

later decisions to mean that all that is required to make the confession

admissible against a co-accused is that it should substantially implicated its

maker in regard to the offence for which he and his co-accused are charged.

2 All 444.
2 All 646.
AIR 1928 Calcutta 418, 109 Indian Cases 351.
 251

Admission of actual guilt is not necessary. It is sufficient if the admission

constructively established his guilt as well as that of a co-accused.

6.12 Confession should affect the maker as well as co-accused

Where a person being tried jointly with other persons, made a statement

disowning any guilty knowledge, seeking to clear himself, at the expense of

other persons. It is necessary that the statement should amount to a distinct

confession of guilt. Statements however criminating made by a prisoner in

self-exculpation or to reduce his guilt to something lower than what is alleged
against the other, should not be taken into consideration against anybody

except himself. An accused said that he went under pressure and fear of

imminent death to the place of occurrence, that he took no part in the dacoity,
that he stood outside the house and that at the end went away, was held to be a

self-exculpatory statement but not a confession.

6.13 The Meaning of Confession made by one Person Affecting himself

and another
The expression used in the section is a “confession made by one person

affecting himself and some other persons”. So we have to see what is meant by

the expression “affecting the maker and some other persons”. The ordinary
dictionary meaning of the word ‘affect’ is to produce effect or result on
something else. So it can be said the confession made by one person when it
produces its result or effect on the maker as well as on a co-accused is said to
affect them. Now the natural effect or the result of the confession is to
incriminate a person in the commission of an offence. So this section can be

interpreted to mean that a confession when it implicates both the maker as well
as the co-accused in the commission of an offence, then such a confession may

be taken into consideration both against the maker and the co-accused. We
have seen in some of the decided cases that the tendency is to hold that an
 252

accused person should completely and unreservedly confess to his having

committed the offence and at the same time, attributing some guilty part to the
co-accused in the commission of the offence so that his confession may be

also considered against the co-accused. The consensus of the views regarding

this aspect is that the statement of the confession accused must implicated him

substantially to the same extent as it implicates the co-accused or co-accused

persons. But same decisions have looked askance at a confession which does
not ascribe a major part to the confessor, for taking such confession into

consideration against co-accused persons. But the real test does not appear to

see whether the confessing accused .ascribes to himself a major or minor part
in the crime. It has to be merely seen whether at the time of implicating his co­
accused, he furnishes a full and correct account of the crime, at the same time
without any reservations divulging his own share of guilt in the perpetration of
the crime. It may not always be the case that the confessing accused takes a

leading or major part in the commission of an offence. But his confession so as

to affect the other co-accused must folly reveal what little part, however minor

it may be, that he took in doing a criminal act. But where an accused person

makes a statement punctuated by an assiduous attempt on this part to keep in

bold relief his own part with the obvious object of clearing himself of blame or
minimizing his guilt at the expense of others, it is nothing but an exculpatory

and self-serving statement. So such a statement cannot be used against the co­
accused for any purpose. The ordinary meaning of the section does not warrant

one to say that the confession should affect both, the maker and the co-accused

to the same degree. This is apparent from the explanation to the section.
According to the explanation, the word “offence” in the section was used in
the sense to include the abetment of or attempt to commit the offence. So

when a person who has committed the offence and the person who has abetted
 253

the commission , of the offence are tried together, the confession of the bettor

so as to affect him can only contain statements regarding this own abetment.
His confession also may give the details of the actual commission of the

offence by the other or other persons. Then it cannot be said that the abettor

has taken a minor part and so the confession cannot be considered against the
co-accused. Under such circumstances as far as the abettor is concerned,

nothing more than the facts relating to his abetment can affect him in his
confession, and the facts touching the actual commission of the offence by the

other accused in the confession affect the other accused. So such a confession

is what is contemplated under Section 30.

6.14 Tried Jointly - Significance

Tried jointly’ - before a confession can be taken into consideration
against a co-accused, it is necessary that the confessor and the co-accused

should be tried jointly for the same offence. As the expression used, in the
section is tried jointly, it appears that all other proceedings other than a trial as

such are excluded. So accused persons in the proceedings before the stage of
charge and in committal proceedings cannot be said to be tried jointly. Who

can be tried jointly is also prescribed by law. Section 239, Cr. P.C. says that
(1) persons accused of the same offence committed in the course of the same
transaction, (2) persons accused of an offence and persons accused of

abetment, of an offence or of an attempt to commit such offence, (3) persons

accused of more than one offence of the same king committed by them jointly
within the period of twelve months, (4) persons accused of different offences

committed in the course of the same transaction, (5) persons accused of an

offence which includes theft, extortion or criminal misappropriation, and
persons accused of receiving or retaining, or assisting in the disposal or

concealment of, property possession of which is alleged to have been

 254

transferred by any such offence committed by the first named persons, or of

abetment of or attempting to commit any such last mentioned offence, (6)

persons accused of offences under Section 411 and 414 of the I.P.C. or either

of those sections in respect of stolen property the possession of which has been

transferred by an offence.

6.15 One or more Persons should be Legally Tried Jointly

“Tried Jointly” in Section 30, means legally tried jointly. Thus where it
is not possible to try a certain number of persons jointly, it cannot be said that

they are tried jointly and any confession of any one of such accused persons

cannot be used under Section 30. Thus the confession of an accused jointly
tried in fact with another cannot be used against the other, if form any cause,

such as the absence of legal commitment, the prisoner alleged to have

.confessed has to be dissociated from the proceedings. To make a joint trial

legal, the accusation should be a real one a distinct from being merely an

expedient to justify joinder of charges.

Is it necessary that the confessing accused should implicated himself and

his co-accused in all the offences for which they are jointly tried
Persons can be tried jointly for a number of offences which they had

committed during the course of a transaction. Then a question arises, whether

the confession of one of the accused should implicate him and his co-accused
in all the offences regarding which they are jointly tried, for taking it into

consideration against the co-accused? Or is it possible to consider the

confession with regard to one common offence, if the confession implicates

the maker and a co-accused in the matter of its commission, even though
regarding other common offences, the confessor implicates his co-accused but

not himself? In some cases the view taken is that “offence” includes

“offences” and so the confession must implicate the maker and to co-accused
 255

in all the offences for which they are jointly tried. Thus, when A is charged
along with B and C for the offences of sodomy and murder and A makes a

statement that all of them committed sodomy and the murder was committed

by B and C, it was held that the confession of A is not admissible against B

and C even regarding the offence of sodomy though it is admissible against the

maker.
In Periyasami v. R.,21 it was held that in a charge of murder and

disposal of the dead body, against tow persons, the confession of one of them
should implicate both the accused regarding both the offences, before it could

be considered against them. In this case the confessor said that the other

accused killed a man and under threat compelled him to help in disposing of

the body. In the trial in another case of two persons, P was charged with
offence of committing rape on a girl and H with the offence of abducing her,

The confession of P regarding the offence of rape, containing a reference to

the offence of abduction committed by H, cannot be sued against H. Where

two persons were jointly tried, one under Section 372 and the other under

Section 373, IPC, and neither was charged for the offence of abetment, the

confession of one is held to be not admissible against the other.

Confession of one of several accused persons regarding only one of several

similar offences for which all the accused are jointly tried

But there are a group of cases which took a different view. According

to these cases, a confession implicating the maker and co-accused with regard
to one of several offences for which they are jointly tries, can be taken into
consideration against both of them in respect of that offence along. Thus
where the accused pus the blame for a murder entirely on the co-accused

persons, but implicates himself and the others with regard to the offence of
27
54 Mad. 75.
 256

robbery, it is admissible against them so far as the offence of robbery is

concerned, but not as regards the offence of murder. In one case two accused
persons were jointly tried for the major offence of murder, and they were also

tried for the minor offence of hurt by poisonous substance. The confession of

one regarding offence under Section 328 IPC implicating both, operates
against them in respect of the minor offence but not in respect of the offence

of murder.
The protagonists of the view the Section 30, Evidence Act, should be

strictly construed would like to restrict the application of Section 30, to a

confession which implicates both the maker and co-accused regarding all the

offences for which they are tried. But what is the plain meaning of the words
used in the section? It merely says that a confession be taken into

consideration both against its maker and a co-accused, if it affects both of

them regarding the offences for which they are jointly tried. The expression

used is not ‘fully affects’. So when a confession implicates its maker and a co­

accused regarding one of several offences for which they are tried, it is

nonetheless, affecting its maker and the co-accused who are taking their trial
jointly.

6.16 Co-Accused
When more than one person are being tried for one and he same
offence or offences, they are called co-accused.28

(A) Illustrations - “A.” and “B” are jointly tried for the murder of “C’\ It
is proves that “A” said, “B” that I murdered.
(B) “A” is on his trial for the murder of C. There is evidence to show that
“C” was murders by A and B and that “B” said, A and I murder “C”.

28
Vinayakv. State ofMaharashtra, AIR 1984 S.C. 1793.
 257

This statement may not be taken into consideration by the court against

A as B is not being tried jointly.

Three essential conditions of section 30 are:

(a) Person confessing and others are being tried jointly.

(b) They being tried by the same offence.

(c) Confession is affecting the confess and the other accused.

6.17 Joint Trial

Section 30 only relates the confession made by accused person who

being jointly tried for the same offence at the same time with the accused

against whom the confession is used. Two persons are charged with murder

and one of them made a statement to a Magistrate, it was held that the
statement of an accused could only be taken into consideration as against the

other person U/S 30. If two accused were being tried jointly the same offence.

The tried jointly means “legally tried jointly and not imply tried jointly

as a matter of fact. The confession of person who is dead and was never
brought to trial is not admissible U/S 30 as the confession of co-accused.29

When a person makes a confessional statement implicating himself and the

another accused, but did before the commencement or completion of a enquiry
his statement is not admissible U/S 30 of Evidence Act.

But where during the joint trial of two accused persons one died but

before his death, his confession has been put on the record, it was held that the
confession could be used against the other accused.30

The confession of an approver can be used U/S 30 only when he is

being tried jointly with the prisoners and not after he has become approver and
removed from the dark.

Achhaylal Singh v. Emperor, AIR 1947 P.C. 90.

Ram Sarup v. Emperor, 1937 Calcutta 39.
 258

An approved can not be deemed as being jointly tried with the accused,

his confession is not therefore admissible U/S 30 against the accused. A

confession of an absconding co-conspirator who is not tried jointly with other

conspirators can not be used against the latter.

Where a jointly trial start but could not last as one of the accused
absconded and the case of that accused was separated U/S 51231 Section 30 of

the Act would not attracted and the statement of the other accused, was not
useable against the absconding accused.32

“A, B & C commit murder of D. A is arrested B and C absconded. A

makes a confession. He is tried and convicted. After words B and C arrested,

sent for trial. At their trial the confession of “A” can not be taken into

consideration for the simple reason that they are tried separately or not
jointly.”

When the confessing person pleaded guilty and was therefore,

convicted and sentenced. It was held that he could no longer be considered as

being jointly tried with the others. A statement made by co-accused can not,
when he had been ordered to be tried separately be used against the accused

examining the co-accused as a witness in the case.

6.18 Plea of Guilty

Where a confessing accused pleads guilty, he should be sentenced and
put aside or the judge without immediately passing the sentence ought to wait
to see what evidence discloses. If the latter course is adopted, a confession

may be considered against the co-accused. In a warrant case, it is discretion of

the Magistrate to defer conviction of the accused who pleads guilty and use his

confession against the other. In session’s case where the accused is pleaded his

31
Cr. P.C. 1898.
32
Assistant Collector of Customs New Delhi v. Harbans Lai SarafCr. LJ. 618.
 259

guilt outside the court and the court and accepts his guilt and convicts him, his
plea of guilty is not treated against the other accused against whom the case
proceeds because : hey tried jointly.33 It is the discretion sessions court to

accept or refuse the plea of guilty. If it refuses his plea and his plea of guilty is

on his trial and my confession made by him will be admissible against others

who have lot pleaded guilty.

In the absence of independent corroboration of confessional statement

made by tow of the accused persons guilt of other accused is not proved.

6.19 For the Same Offence

The joint trial must be of the same offence or for its abetment of
attempt. Some offence means the offence coming under the same legal
definition and arising out of same transaction or the same substantive offence
or same specific offence. It means an identical offence and not an offence of

the same kind. Offences are of the same kind when they are punishable with

same amount of punishment under the same section of Indian Penal Code or

any specific law or local law.

If “A” and C are tried jointly and both of them are charged for having

caused grievous hurt to ‘B’ and if ‘A5 makes a statement that he and C caused
grievous hurt ‘B\ the statement may be used against both of them.

Section 30 does not cover offences in some transaction by different

persons. If different offences .are committed in course of same transaction and

many persons tried jointly for different offences. The confession of one of

such persons can not be used against others. Where two persons are tried
jointly, but one is charged with offences under Section 372 and other under
Sec. 373 a confession made by one of their can not admitted against the other

under Section 30 of the Act.

33
Mohd. Yusuf v. Emperor, 1931 Calcutta 1941.
 260

In a case, a number of persons were changed U/S 302 jointly. One of

them was charged U/S 201.34 The accused who was charged U/S 201 IPC

confessed the offence. These confession of the accused can not be under taken

against the accused persons who were charged U/S 302 IPC.
A statement of one accused leading to discovery can not be used
against a co-accused under section 30 of the Evidence Act.36

6.20 Affecting Himself and some other

A statement entirely exculpates himself and inculpates his other fellow

prisoners is not comes under the , scope of this section. It does not amount to

confession of the maker’s own individual guilt for which he and others are
tried jointly. This type of statement can afford no guarantee of its truth.37

The section applies to the case where confession of the accused

indirectly covers. In a case it was held that the confession of the accused

implicates him substantially to the same extent as it used implicates the person
against whom it is to be used for the offence jointly tried.38

The Allahabad High Court held that a confession in which the

confessor assigns to himself a minor or subordinate part of offence and major

part to his fellow prisoners jointly tried can not be used against the later.39

The Supreme Court has laid down in Balbir Singh v. State of Punjabi

That a confessional statement of one accused can be taken into consideration

against the other accused it. The conditions laid down U/S 30 are fulfilled. On

of the condition is that confession must implicate the substantially to the same

extent as the other accused person. If he throws main blame of the other

34 Indian Penal Code.

35 Ganganna v. Emperor, AIR 1946 Madras 124.
36 Nabi Mohd. v. State ofMaharashtra, 1980 Cr. L.J. 860.
37 Krishna Narayan v. State of U.P. 1976 Cr. L.J. 503.
38 Kunhaman v. State ofKerala,1974 Cr. L.J. 328.
39 Shambu v. Emperor, 1932 ALJ 162.
40 AIR 1957 SC 216.
 261

accused and makes out that he was an unwilling spectator of the crime

committed by the other accused, it can be stated that he confession can not be
used at all against the other accused.41

In conclusion it is submitted that the confession made by accused must

be affected himself and other accused equally that is, it must effect both of
them and no more.

6.21 Made
This section applied only to confessions made before magistrate to
prove the trial. The confession may have made at any time before the trial or at
the time of trial. The section requires that the confession whatever made must
be proved before the court, is taken into consideration against the accused.

6.22 Proved
Section 30 requires that a confession made by an accused which is to be
used against the other fellow prisoners must be proved in the court. U/S.42
Where a prisoner makes a confession in the absence of another prisoners and
the other prisoner have had no opportunity of denying or even of knowing
about that confession, can not be said to have been proved. It is only after the
proper proof is given that it may be taken into considered. It means proved
before the prosecution case come to an end.
Where the accomplice made a confession that ornaments looted in
dacoity were kept in a particular place in house of the co-accused in
consultation with him. He had promised to pay their price after melting them.
The ornaments were recovered from the place stated by the accused., There
was ample corroboration of the confession and same could be used against the
co-accused.43

Charan Dass v. State, 1971 Orissa 100.

Section 3 Indian Evidence Act, A fact is proved if after considering the matter before the
court, it believes to exist.
43
Bibhuti v. State, 1979 Cr. L.J. (NOC) (2) Allahabad.
 262

6.23 May take Into Consideration

Section 30 does not say that a confession made by accused will be

evidence against the co-accused. It says that the court may take into such

evidence consideration. The confession of the co-accused is not an evidence

U/S 3 of the evidence Act. No conviction can be based upon it solely, It can

only be used to corroborate other evidence of the record. It might assist the
court in coming to the conclusion that other evidence is true. The confession
can only be used to keep to satisfy the court that the evidence is true.44

It is the discretion of the court to take into consideration. The

confession of one of the accused against the other accused tried jointly. In
order that it may be used against co-accused. The confession should implicate

that the confessing persons substantially to the same extent as it implicates the
persons against whom it is to used. In the absence of sufficient evidence

against the other accused to sustain there conviction, the confession of the co­

accused can not even to be take into consideration.

The word ‘may’ does not show that the every confession is of very
small value against co-accused. The judge is given a discretion but the

discretion must be exercised injudicial manner.

It is necessary that being other evidence on record to which this
statement can laid assurance.

The word may take into consideration show that such confession is not
more than an element in the consideration of all the fact of the case and they

do not have the effect of doing away with the necessity of other evidence.
Confession of accused against co-accused can be considered if there is
other circumstantial evidence. In a warrant case, eleven accused were put up

for trial. Ten accused pleaded guilty and on acceptance of their please of
44
Chandra Dass v. State, AIR 1952 Calcutta 618 1977(3) SCC 342.
 263

guilty, the were convicted and sentenced. Thereafter some evidence was
recorded and as the case was triable as a warrant case, a change was levied
against the eleventh accused after few months. It was held that against the

eleventh accused in trial, provisions of Section 30 could not be considered into

service for the purpose of relying on the confessions of the co-accused.

Confessional statement of co-accused in no evidence and it can be used only to

support the prosecution case. It can not be a basis for framing of charge
against co-accused.43

6.24 Retracted Confession

The retracted confession can into be take into consideration against the
co-accused or the confessing accused.46 It can only be used in support of other

evidence. It can not be made the foundation of a conviction. Its value is

extremely weak. The evidentiary value of retracted confession against co­

accused is considerably less. Fullest corroboration of such confession is

necessary. A retracted confession is sufficient evidence for convicting the

confessor if the court believes it to be true.

The sum up the confession of an accused person is to be taken into

consideration, under this section, against is co-accused must be of the offence

for which accused are being tried jointly. The jointly trial must be of very

offence for which they are being tried jointly. ,

The confession is to be taken into consideration under this section must

be proved formally before the case for the prosecution comes to an end. The

amount of the credibility of the retracted confession depends upon the

circumstances of the case. Such a confession can used only to support the

1980 Cr. L.J. (Gujrat) 234.

Ram Parkesh v. State ofPB AIR 1959 SC 1.
 264

other evidence. The privy council is ruling has been approved by the Supreme
Court in a case Kashmira Singh v. State ofM.Pf

Retracted confessions are not sufficient in itself for finding of guilt.

Only self inculpatory statements of accused person amounts to

confession. If only a part of statement is inculpatoiy and the rest exculpatoiy,

it can not be relied upon either against accused persons or against co­
accused.48

A retracted confession which does not inculpate the offence can not be
treated as evidence against the other co-accused.49

A confession falling under this section 30 is admissible against the

accused as well as co-accused even though it is retracted all. The amount of
credibility, depends upon the circumstances of the case. It must be
corroborated.30

-— o -—

AIR 1952 SC 159, Sudhir Chand v. State, 1971 Cr. L.J.

Baldeo Gwaia v. State ofAssam, 1977 Cr. L.J. 1516.
Ram Naik v. State, AIR 1965 Orissa 31.
State ofAssam v. U.N. Rajkowa, 1975 Cr. L.J. 354.