SVKMS

NMIMS SCHOOL OF LAW

PROJECT SUBMITTED ON;

STANCE OF THE COURTS ON THE EVIDENTIARY VALUE OF
CONFESSIONS OF A CO-ACCUSED
IN COMPLIANCE TO THE PARTIAL FULFILLMENT OF THE MARKING
SCHEME, FOR TRIMESTER VII OF 2016-2017, IN THE SUBJECT OF:
INTERPRETATION OF STATUTE AND PRINCIPLES OF LEGISLATIONS
SUBMITTED TO FACULTY:
ISHNOOR ARORA

SUBMITTED BY:
RIDDHI TULSHIAN
B.B.A. LL.B. (HONS.)
YEAR III
ROLL NO. A056
RECEIVED BY: _____________________
ON DATE: __________ TIME: ________

INDEX
SR.NO
1.
2.
3.
4.
5.
6.

PARTICULARS
ABBREVIATIONS
TABLE OF CASES
INTRODUCTION
CASE ANALYSIS
CONCLUSION
BIBLIOGRAPHY

PG.NO.
3
4
5-7
8-17
18-21
22

ABBREVIATIONS
1. I.O.
2. I.E.A.
3. Cr.P.C.
4. P.W.
5. C.P.C.
6. V.
7. S.
8. U/S
9. IPC
10. AIR
11. SCC
12. SC
13. ILR
14. SLP
15. Cr.L.J
16. Bom.
17. Q.
18. SCR
19. r/w

- Investigating Officer
- Indian Evidence Act
- Criminal Procedure Code
- Prosecution Witness
- Civil Procedure Code
- Versus
- Section
- Under Section
- Indian Penal Code
- All India Reporter
- Supreme Court Cases
- Supreme Court
- Indian Law Reporter
- Special Leave Petition
- Criminal Law Journal
- Bombay
- Queen
- Supreme Court Reporter
-Read with

TABLE OF CASES
1. Pakala Narayan Swami vs. Emperor, (1939) 41 BOMLR 428
2. Pancho v. State of Haryana, AIR 2012 SC 523
3. Kashmira Singh v. State Of Madhya Pradesh, 1952 SCR 526
4. Haricharan Kurmi v. State Bihar AIR 1964 SC 1184
5. C.B. Xavier Cochin v. Food Inspector Mattemcherey AIR 1968 Kerala 66
6. R. v. Applely 3 Start 33.
7. Bhagi vs. R., 1950 HP 35
8. Badri Ram Didwania v. State of Bihar 1987 Patna 283.
9. Peyyala Yesubabu vs. State, 2002 CrLJ 1290
10. Gopal Sah v. State of Bihar (2008) 17 SCC 128
11. Bhuboni Sahu v. The King 76 Ind App 147
12. Emperor v. Lalit Mohan Chukerbutty 38 Cal. 559

1. INTRODUCTION
The term confession has not been defined under the Evidence Act, 1872; the General
Clause Act, 1897; the Criminal Procedure Code, 1898 or any other statutory laws
prevalent in India to date. In the absence of any statutory definition of confession we have
to rely on the definitions suggested by the jurists and the definitions given in different
judgements

to understand the meaning of confession. Confession is a direct

acknowledgement of guilt by the accused. Sir James Fitzjames Stephen who drafted the
Evidence Act, 1872 defined confession thus: A confession is an admission made at any time
by a person charged with crime, stating or suggesting the inference that he committed the
crime.1
This definition was formerly adopted in various cases by the judges in the Indian subcontinent till 1939. But the Privy Council disapproved this definition in 1939 and held
that a statement merely suggesting inference that the maker of the statement has
committed a crime cannot be considered as a confession. A confession must in terms
admit offence or at any rate substantially all the facts which constitute the offence. The
definition of confession given in Narayanswami case has been accepted and been applied
over the years till now by the courts of India.
In Pakala Narayan Swami v. Emperor2 Lord Atkin observed A confession must either
admit in terms the offence or at any rate substantially all the facts which constitute the
offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact
is not in itself a confession.
The law of confessions is codified under Indian Evidence Act, 1872 and Code of Criminal
Procedure, 1973.

1 Stephen, Sir james Fitzjames, Digest of the Law of Evidence, article 21

2 (1939) 41 BOMLR 428
5

1.1 CONFESSIONS OF A CO-ACCUSED

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 confession3. The confession of a co-accused is no doubt
admissible in evidence. The co-accused confession un-corroborated by any other evidence is
not sufficient to sustain to conviction. The court cannot 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. When more persons than one are being tried jointly for the same offence
and a confession made by one such persons affecting himself and some other 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.
1.1.1 Scope
The section enacts that when more than one person is being tried jointly for the same offence,
a confession made by one person 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. The word may, in this section makes it clear that it
is the discretion of the court to consider the confession or not, against such other person. It is
not bound in law to use such confession against such other persons.
The confession of a co-accused is no doubt admissible in evidence. The co-accused
confession un-corroborated by any other evidence is not sufficient to sustain to conviction.
The court cannot straightway start with the confession of co-accused. If there is substantial

3 http://www.indianlawcases.com/Act-The.Indian.Evidence.Act,.1872-2209
6

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.4
1.1.2 JOINT TRIAL
If 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 committed
the offence the other did not deny it. It was held that this statement of one was not evidence
against the other.5 It is necessary that the person confessing and other person against whom
his confession is to be taken into consideration should be tried jointly.
There should be a joint trial for the same offence of the accused. The joint trial should be
legal. If from any cause the accused who made the confession cannot be legally tried with the
accused against whom the confession is to be used, the court should not attach any value to
the confession. Also the offence should come under the same legal definition, i.e., under the
same section of law.6

1.1.3 EVIDENCE OF ACCOMPLICE

An accomplice being a participant in the crime, his testimony suffers from 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 by other evidence.7

1.1.4 SELF-EXCULPATORY STATEMENTS NOT ADMISSIBLE UNDER SECTION

30

4 C.B. Xavier Cochin v. Food Inspector Mattemcherey AIR 1968 Kerala 66.
5 R. v. Applely 3 Start 33.
6 Bhagi vs. R., 1950 HP 35
7 Badri Ram Didwania v. State of Bihar 1987 Patna 283.
7

Where the accused made a confession and when it was read as a whole, it appeared that he
was really trying to throw the main blame against others and that he was an unwilling
spectator of the crime committed by others, it was held that such confessions cannot be used
against the other accused.8

8 Peyyala Yesubabu vs. State, 2002 CrLJ 1290

8

2. CASE ANALYSIS
2.1 PANCHO vs. STATE OF HARYANA
AIR 2012 SC 523, (2011) 10 SCC 165
2.1.1 CASE IN BRIEF: Two Special Leave Petitions were filed by the appellants against the
same judgment and order dated 3/5/2005 of the Punjab and Haryana High Court to the Two
Judge Bench of the Supreme Court. Accused 1- Pratham, Accused 2- Pancho and Accused 3Gajraj were tried by the Additional Sessions Judge, Faridabad in Sessions Case No. 40 of
11.12.2002 / 30.11.1999 for offence punishable under Section 396 of the IPC. According to
the prosecution, two more persons were involved in the offence in question viz. Shishu RamShishu, who expired after the charge was framed and one Bhago, who is absconding. He is
declared absconder.
Appellants in this case were prosecuted for an offence under Sec.396 IPC9, for causing the
death of a farmer by shooting and taking away his tractor but were convicted for an offence
under Sec.30210 r/w 3411 IPC and were sentenced to death. The High Court confirmed the
conviction but reduced the sentence to life imprisonment against which they preferred a
Special Leave Petition (SLP). While the appellants contended that the extra judicial
confession was not proved and the confession of the co-accused which was retracted was not
to be considered, respondent resisted the same. It was held that, only after the charge was
proved with the other evidences, to add assurance to such proof, the confession of the
co-accused could be used. There was no necessity for the accused to travel 30-40 KM and
make extra judicial confession after 4 months from the date of occurrence. The charge was
held as not proved and the appeal was allowed.
9 Section 396 in The Indian Penal Code: Dacoity with murder.If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

10 Section 302 in The Indian Penal Code: Punishment for murder.whoever commits murder shall be
punished with death, or imprisonment for life, and shall also be liable to fine.
11 Section 34 in The Indian Penal Code: Acts done by several persons in furtherance of common intention.
When a criminal act is done by several persons in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him alone.

2.1.2 RATIO OF THE CASE: In dealing with a case against an accused, the court cannot
start with the confession of a co-accused; it must begin with other evidences 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.
2.1.3 ISSUE: What is the evidentiary value of the retracted confession of a co-accused and
whether it can be used to convict a co-accused?
2.1.4 JUDGEMENT OF THE SUPREME COURT
The Accused-1 Pratham and Accused-2 Pancho, were released on bail by the Supreme Court
and the impugned judgement and order of the High Court was set aside.
Applying the principles to the case on hand, the court found that so far as Accused-2 Pancho
is concerned, except the evidence of alleged belated discovery of certain articles at his
instance, which is already found to be doubtful, there is no other evidence on record to
connect him to the offence in question. When there is no other evidence of sterling quality on
record establishing his involvement, he cannot be convicted on the basis of the alleged extrajudicial confession of the co-accused as extra-judicial confessions have weak evidentiary
value and Courts look for corroboration from other evidence, whether there are other
cogent circumstances on record to support it. Thus we can say that extra judicial confession is
a weak form of evidence and there should be other corroborative piece of evidence.
Accused-1 Pratham, which in the opinion of the court, was also not credible. Once Accused-1
Pratham's extrajudicial confession is obliterated and kept out of consideration, his conviction
also cannot be sustained because the court has come to the conclusion that the alleged
discovery of articles at his instance cannot be relied upon. There is thus, no credible evidence
to persuade the court to uphold the conviction of Accused-1 Pratham.
In view of the above, the court set aside the impugned judgment and order. Accused-1
Pratham and Accused-2 Pancho were released on bail. Their bail bonds stood discharged.
2.1.5 ANALYSIS OF THE JUDGEMENT OF THE COURT
Now, extrajudicial confession made by Accused-1 Pratham was the main plank of the
prosecution case. It is true that an extrajudicial confession can be used against its maker, but
as a matter of caution, courts look for corroboration to the same from other evidence on
record.

10

In Gopal Sah v. State of Bihar12, the Court while dealing with an extrajudicial confession
had held that an extrajudicial confession is on the face of it is weak evidence and the
courts are reluctant, in the absence of chain of cogent circumstances, to rely on it for the
purpose of recording a conviction. Hence, the court in this case found that the extrajudicial
confession of Accused-1 Pratham did not inspire confidence.
Also there is the Prosecution Witness, Nathi Singh, to whom Accused-1 Pratham confessed
having shot the deceased Kartar Singh with a country made pistol. Witness Inspector Ranbir
Singh also stated that Accused-1 Pratham confessed to him that they had shot dead the
deceased. The above two witness statements, to whom extra-judicial statements were made;
since the confession was made after 5 months to Nathi Singh, this delay creates a doubt about
its credibility. Also, the village of Nathi Singh is about 35-40km away from the village of
Accused-1 Pratham and there stands no reason as to why Accused-1 would do so. Also no
relation between Accused-1 and Nathi Singh has been established. Hence, there stands no
reason as to why the Accused-1 would come and make an extra-judicial confession to Nathi
Singh. It may be stated here that in his statement recorded under Section 313 of the
Criminal Procedure Code13, Accused-1 Pratham has denied that he made any such
statement. This retraction further makes a dent in the alleged extrajudicial confession.
Accused-2 Pancho was arrested on 16/8/1999. According to the prosecution, his statement
resulted in recovery of a country made pistol of .315 bore. The recovery of country made
pistol is made more than about six months after the date of incident. Even though forensic
and expert reports state the bullet fired to be matched to that of the pistol found, there is no
evidence as to whose possession the pistol was for the 6 months after the incident. Belated
discovery of these articles raises a question about their intrinsic evidentiary value.
So the main question which needed to be considered by the Court was that what is the
evidentiary value of a retracted confession of a co-accused?
In Kashmira Singh v. The State of Madhya Pradesh14 referring to the judgment of the Privy
Council in Bhuboni Sahu v. The King 15 and observations of Sir Lawrence Jenkins in
12 (2008) 17 SCC 128
13 Section 313 in The Code of Criminal Procedure, 1973: Power of the Courts to examine the accused.
14 AIR 1952 SC 159
15 76 Ind App 147
11

Emperor v. Lalit Mohan Chukerbutty 16 this Court observed that proper way to approach a
case involving confession of a co-accused is, first, to marshal the evidence against the
accused excluding the confession altogether from consideration and see whether, if it is
believed, a conviction could safely be based on it. If it is capable of belief independently of
the confession, then it is not necessary to call the confession in aid.
In Haricharan Kurmi v. State Bihar 17 the Constitution Bench of this Court was again
considering the same question. The Constitution Bench referred to Section 3 of the Evidence
Act and observed that confession of a co-accused is not evidence within the meaning of
Section 3 of the Evidence Act. It is neither oral statement which the court permits or requires
to be made before it as per Section 3(1) of the Evidence Act nor does it fall in the category of
evidence referred to in Section 3(2) of the Evidence Act which covers all documents
produced for the inspection of the court. This Court observed that even then Section 30
provides that a confession may be taken into consideration not only against its maker, but
also against a co-accused. Thus, though such a confession may not be evidence as strictly
defined by Section 3 of the Evidence Act, it is an element which may be taken into
consideration by the criminal court and in that sense; it may be described as evidence in a
nontechnical way. This Court further observed that Section 3018 merely enables the court to
take the confession into account. It is, not obligatory on the court to take the confession into
account. This Court reiterated that a confession cannot be treated as substantive evidence
against a co-accused.

2.1.6 CONCLUSION
The Supreme Court held that confessions of a co-accused arent 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 the trial court cannot begin on the basis of the
confession of the co-accused to form its opinion in a case. Rather, the courts must analyse all
16 38 Cal. 559
17 AIR 1964 SC 1184
18 Section 30 in The Indian Evidence Act, 1872: Consideration of proved confession affecting person
making it and others jointly under trial for same offence.When more persons than one are being tried jointly
for the same offence, and a confession made by one of such persons affecting himself and some other of such
persons is proved, the Court may take into consideration such confession as against such other person as well as
against the person who makes such confession.

12

the evidence which are being adduced, and on being satisfied with the guilt of accused, might
turn to the confession in order to receive assurance to the conclusion of guilt which the court
has reached on the said evidence. Referring to previous apex court verdicts, the court said it is
not obligatory to take the confession into account and that it is the discretion of the court.

13

2.2 KASHMIRA SINGH v. STATE OF MADHYA PRADESH

1952 AIR 159, 1952 SCR 526
2.2.1 CASE IN BRIEF: The appellant Kashmira Singh had been convicted of the murder of
one Ramesh, a small boy aged five, and had been sentenced to death. He was granted special
leave to appeal. Three other persons were tried along with him. They were his brother
Gurudayal Singh, his nephew Pritipal Singh (son of Gurudayal), a boy of eleven, and one
Gurubachan Singh. Gurudayal and Pritipal had been acquitted. Gurubachan Singh confessed
and was convicted. He was also sentenced to death. He has not appealed here.
2.2.2 RATIO OF THE CASE: The proper way to approach a case of this kind is, first, to
marshal the evidence against the accused excluding the confession altogether from
consideration and see whether, if it is believed, a conviction could safely be based on it. If it
is capable of belief independently of the confession, then of course it is not necessary to call
the confession in aid. But cases may arise where the judge is not prepared to act on the other
evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.
In such an event the judge may call in aid the confession and use it to lend assurance to the
other evidence and thus fortify himself in believing what without the aid of the confession he
would not be prepared to accept.
2.2.3 ISSUE: How far and in what way the confession of an accused person can be used
against a co-accused?
2.2.4 JUDGEMENT OF THE COURT
The appeal was allowed on the charges of murder, conspiracy and kidnapping and reverses
the findings and sentences on those charges and acquits the appellant of them. However the
appellant was convicted of an offence under S. 201 of Indian Penal Code19, and sentenced to
seven years' rigorous imprisonment.
A number of rulings were cited, including one of the Privy Council, and it was argued that in
those cases persons were convicted of murder on similar facts. However the court did not
intend to examine them because no decision can be a guide on facts. Each case has its own
19 Section 201 in The Indian Penal Code: Causing disappearance of evidence of offence, or giving false
information to screen offender.

14

special circumstances and must be decided on its own facts. For example, in most of the cases
cited the accused was associated with the disposal of the body very soon after the occurrence
and at the scene of the crime. Here, twelve hours had elapsed and the first connection proved
with the disposal is at a place over half a mile distant from where the boy is said to have been
murdered. Hence, herein the appellant was not prosecuted for murder.
2.2.5 ANALYSIS OF THE JUDGEMENT OF THE COURT
A co-accused who confesses is naturally an accomplice and the danger of using the testimony
of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no
way lessened when the "evidence" is not on oath and cannot be tested by cross- examination.
Prudence will dictate the same rule of caution in the case of a witness who though not an
accomplice is regarded by the judge as having no greater probative value. But all these are
only rules of prudence. So far as the law is concerned, a conviction can be based on the
uncorroborated testimony of an accomplice provided the judge has the rule of caution,
which experience dictates, in mind and gives reasons why he thinks it would be safe in a
given case to disregard it.
The Privy Council observed in Bhuboni Sahu v. The King20: "The tendency to include the
innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable
occasions, and it is very difficult for the court to guard against the danger. The only real
safeguard against the risk of condemning the innocent with the guilty lies in insisting on
independent evidence which in some measure implicates such accused.
We will examine the reliability of Gurubachan's confession against the appellant. Now there
were some glaring irregularities regarding this confession and though it was safe for the
Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to
it throughout the Sessions trial despite his pleader's efforts to show the contrary, a very
different position emerges when we come to the appellant. The first point which emerges
regarding this is that the confession was not made till the 25th of February 1950, that is to
say, not until two months after the murder. We also do not know how long he was kept in
police custody and it could be possible that he was not there voluntarily. Also Gurubachan
was interrogated several times and was confronted with Pritipal. Gurubachan was kept for 5
days in the police quarters and even after the confession was recorded, he stayed in police
quarters for a couple of days and later he was sent to the magisterial lock up.
20 (1949) 76 I A.147
15

All this makes it unsafe to disregard the rule about using accomplice testimony as
corroboration against a non-confessing accused. None of the judges who have handled this
case has given any reason why this rule could safely be departed from in this particular case.
In the circumstances, I do not feel that the confession by itself can be used to corroborate the
few evidences which barely point towards the appellant as the murderer.
There are no evidences which connect the appellant to the scene of crime except the
confession of a co-accused and an anticipated intention. The Court could not convict the
appellant for murder on the basis of such poor evidence and hence it convicted the appellant
under S. 201 of IPC and sentenced him to 7 years imprisonment.

2.2.6 CONCLUSION
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.
1. Joint trial: The person who is making a confession and the other accused persons are
being tried jointly.
2. Same offence: All the accused are being tried for the same offence.
3. Confessions: The confession must affect the confessioner as well as the other accused
persons.
Thus the conditions laid down in this case are to be followed by the Courts strictly as this is a
very sensitive issue and involves convictions of innocent people if the confessions of coaccused are considered as strong pieces of evidence.

16

2.3 HARICHARAN KURMI AND JOGIA HAJAM VS. STATE

OF BIHAR
1964 AIR 1184, 1964 SCR (6) 623

2.3.1 CASE IN BRIEF: The two appellants Haricharan Kurmi and Jogia Hajam were
charged along with four other persons with having committed an offence punishable under S.
396 of the Indian Penal Code21. During the night intervening the 24th and the 25th March,
1960, they committed dacoity in the house of Deokinandan Jaiswal, and during the course of
the said dacoity, they committed the murder of Damyanti Devi, wife of the said Deokinandan
Jaiswal. The names of the four other accused persons are; Ram Bachan Ram, Joginder Singh,
Ram Surat Choudhary and Achheylal Choudhury. The learned Sessions Judge, Muzaffarpur,
who tried the case, found all the six accused persons guilty of the offence charged. He
accordingly convicted them of the said offence and sentenced them to imprisonment for
life.
This order of conviction and sentence was challenged by the said six accused persons by
preferring appeals before the Patna High Court. The High Court has held that the learned trial
Judge was right in convicting five of the six appellants. In regard to Joginder Singh, however,
the High Court was not inclined to agree with the conclusion of the trial Judge and gave the
benefit of doubt to him. Joginder Singh was acquitted, and Ram Bachan Ram, Ram Surat
Choudhury and Achheylal Choudhury, were sentenced to imprisonment for life. In regard to
the two appellants, however, the High Court took the view that the ends of justice required
that the sentence of imprisonment for life imposed on them should be enhanced to that of
death. Accordingly, the rule against them was made absolute and they had been ordered to be
hanged. It is against this order of conviction and sentence that the present appeals have been
brought before the Supreme Court by special leave.

2.3.2 RATIO: It was adjudged that the confession of the co-accused was not evidence
within the meaning of Section 3 of the Evidence Act, 1872. It could be used only to give
21 Section 396 in The Indian Penal Code: Dacoity with murder.If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

17

assurance to conclusion of guilt based on other evidence The distinction between evidence of
an accomplice under Section 133 and confession under Section 33 of the Evidence Act is that
the former is evidence under Section 3 and the Court might treat it as substantive evidence
and seek corroboration in other evidence but the latter is not evidence under Section 3 and the
Court should first start from other evidence and then find assurance in the confessional
statement for conviction.
2.3.3 ISSUE: Whether the High Court has erred in law in treating the confession made by the
co-accused-Ram Surat Choudhury, as substantive evidence against all the accused? Whether
the confession made by the co-accused person can be used against all the accused, and
whether it is inconsistent with the consensus of judicial opinion in regard to the true scope
and effect of section 30 of the Indian Evidence Act?

2.3.4 JUDGMENT OF THE COURT:

The appeals were allowed and the orders of conviction and sentence passed against the two
appellants Haricharan Kurmi and Jogia Hajam were set aside and the accused were ordered to
be acquitted. In the opinion of the Supreme Court, the judgment of the High Court shows that
it made a finding against the appellants substantially because it thought that the confessions
of the co-accused persons could be first considered and the rest of the evidence could be
treated as corroborating the said confessions. The Supreme Court was, therefore, satisfied that
the High Court was not right in confirming the conviction of the two appellants under S. 396
of the Indian Penal Code22.

2.3.5 ANALYSIS OF THE JUDGEMENT OF THE COURT

While dealing with the evidence in this case, the first crucial decision was that whether the
evidence other than the confessional statements of the co-accused persons, particularly Ram
Surat, on whose confession the High Court has substantially relied, is satisfactory and tends
to prove the prosecution case.

22 Section 396 in The Indian Penal Code: Dacoity with murder.If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten
years, and shall also be liable to fine.

18

Now, the judgment of the High Court showed that it made a finding against the appellants
substantially because it thought that the confessions of the co-accused persons could be first
considered and the rest of the evidence could be treated as corroborating to the said
confessions. I am, therefore, satisfied that the High Court was not right in confirming the
conviction of the two appellants under S. 396 of the Indian Penal Code. It is that the
confession made by Ram Surat is a detailed statement and it attributes to the two appellants a
major part in the commission of the offence. It is also true that the said confession had been
found to be voluntary and true so far as the part played by Ram Surat himself is concerned,
and so, it is not unlikely that the confessional statement in regard to the part played by the
two appellants may also be true. But it is precisely in such cases that the true legal approach
must be adopted and suspicion, however grave, must not be allowed to take the place of
proof. As I have already indicated, it has been a recognised principle of the administration of
criminal law in this country for over half a century that the confession of a co-accused person
cannot be treated as substantive evidence and can be pressed into service only when the court
is inclined to accept other evidence and feels the necessity of seeking for an assurance in
support of its conclusion deducible from the said evidence. In criminal trials, there is no
scope for applying the principle of moral conviction or grave suspicion. In criminal cases
where the other evidence adduced against an accused person is wholly unsatisfactory and the
prosecution seeks to rely on the confession of a co-accused person, the presumption of
innocence which is the basis of criminal jurisprudence assists the accused person and
compels the Court to render the verdict that the charge is not proved against him, and so, he is
entitled to the benefit of doubt.
2.3.6 CONCLUSION: Now, the two appellants had been given the benefit of doubt as the
High Court had begun the trial with the confession of the co-accused and then looked for
evidence. But this is the wrong approach. A court can use confession of a co-accused as
corroborative evidence when they have strong substantial evidence. This course adopted by
the High Court in dealing with the case of the appellants on the basis of the confession
made by the co-accused person is, it is urged, inconsistent with the consensus of judicial
opinion in regard to the true scope and effect of section 30 of the Indian Evidence Act.
Hence, the appellants were acquitted and the principle laid down in the case of Kashmira
Singh v. State of Madhya Pradesh had been followed and applied.

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3. CONCLUSION
The question about the part which a confession made by a co-accused person can play in a
criminal trial, has to be determined in the light of the provisions of S. 30 of the Act.
Section 30 provides that 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 basis on which
this provision is found is that if a person makes a confession implicating himself that may
suggest that the maker of the confession is speaking the truth. Normally, if a statement
made by an accused person is found to be voluntary and it amounts to a confession in the
sense that it implicates the maker, it is not likely that the maker would implicate himself
untruly, and so, S. 30 provides that such a confession may be taken into consideration even
against a co-accused who is being tried along with the maker of the confession. There is no
doubt that a confession made voluntarily by an accused person can be used against the maker
of the confession, though as a matter of prudence criminal courts generally require some
corroboration to the said confession particularly if it has been retracted. When s. 30 provides
that the confession of a co-accused may be taken into consideration, what exactly is the
scope and effect of such taking into consideration is precisely the problem which has
been raised in many cases. It is clear that the confession mentioned in s. 30 is not evidence
under s. 3 of the Act.
Section 3 defines "evidence" as meaning and including:
1. All statements which the Court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry; Such statements are called oral evidence;
2. All documents produced for the inspection of the Court; Such documents are called
documentary evidence.
Technically constructed, this definition will not apply to a confession. Part (1) of the
definition refers to oral statements which the court permits or requires to be made before it,
and clearly, a confession made by an accused person is not such a statement; it is not made or
permitted to be made before the court that tries the criminal case.
Part (2) of the definition refers to documents produced for the inspection of the court, and a
confession cannot be said to fall even under this part. Even so, S. 30 provides that a
confession may be taken into consideration not only against its maker, but also against a co-

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accused person; that is to say, though such a confession may not be evidence as strictly
defined by s. 3 of the Act, it is an element which may be taken into consideration by the
criminal court and in that sense, it may be described as evidence in a nontechnical way. But it
is significant take like other evidence which is produced before the Court, it is not obligatory
on the court to take the confession into account.
When evidence as defined by the Act is produced before the Court, it is the duty of the
Court to consider that evidence. What weight should be attached to such evidence is a
matter in the discretion of the Court. But a Court cannot say in respect of such evidence that
it will just not take that evidence into account. Such an approach can, however, be adopted by
the Court in dealing with a confession, because s. 30 merely enables the Court to take the
confession into account.
As we have already indicated, this question has been considered on several occasions by
judicial decisions and it has been consistently held that a confession cannot be treated as
evidence which is substantive evidence against a co-accused person. In dealing with a
criminal case where the prosecution relies upon the confession of one accused person against
another accused person, the proper approach to adopt is to consider the other evidence against
such an accused person, and if the said evidence appears to be satisfactory and the court is
inclined to hold that the said evidence may sustain the charge framed against the said accused
person, the court turns to the confession with a view to assure itself that the conclusion which
it is inclined to draw from the other evidence is right. Clearly there must be other evidence.
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.
The confession is only one element in the consideration of all the facts proved in the case; it
can be put into the scale and weighted with the other evidence." It would be noticed that as a
result of the provisions contained in s. 30, the confession has no doubt to be regarded as
amounting to evidence in a general way, because whatever is considered by the court is
evidence; circumstances which are considered by the court as well as probabilities do amount
to evidence in that generic sense. Thus, though confession may be regarded as evidence in
that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as
defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an
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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 guilty which
the judicial mind is about to reach on the said other evidence.
In appreciating the full effect of the provisions contained in s. 30, it may be useful to refer to
the position of the evidence given by an accomplice under s. 133 of the Act.
Section 133 provides that an accomplice shall be a competent witness against an accused
person; and that conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice. Illustration (b) to s. 114 of the Act brings out the legal position
that an accomplice is unworthy of credit, unless he is corroborated in material particulars.
Reading these two provisions together, it allows that though an accomplice is a competent
witness, prudence requires that his evidence should not be acted upon unless it is materially
corroborated; and that is the effect of judicial decisions dealing with this point.
The point of significance is that when the Court deals with the evidence by an accomplice,
the Court may treat the said evidence as substantive evidence and enquire whether it is
materially corroborated or not. The testimony of the accomplice is evidence under s. 3 of the
Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as
such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the
requirement which has now become virtually a part of the law that it is corroborated in
material particulars.
Thus, there have been various discussions as to the evidentiary value of the confession of a
co-accused in a court of law and largely it is considered as corroborative evidence in all the
cases. The three cases dealt with in this paper, namely- Pancho v. State of Haryana, AIR 2012
SC 523, Kashmira Singh v. State Of Madhya Pradesh, 1952 SCR 526 and Hari Charan
Kurmi v. State of Bihar, A.I.R. 1964 S.C. 1184, have all been judicial advancements in this
field of law. All these cases are positive cases and the judges have widely interpreted the
word evidence. The judges have applied the Golden Rule of Interpretation while dealing
with the confession of a co-accused. Even though the confession of a co-accused does not
come within the meaning of evidence under S. 3 of the Indian Evidence Act, the courts
have widely interpreted the word and included it to be a part of evidence as it is stated in
S. 30 of the said act.
The courts have also harmoniously constructed two sections, namely S. 3 and S. 30 of
the said act. S. 3 does not seem to include the confession of a co-accused as evidence,
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whereas S. 30 states that the courts might take the confession of a co-accused as
evidence against the accused. Thus the courts stated that the confession of a co-accused
could be treated as evidence but not substantive evidence and only as corroborative
evidence. Also the courts cannot start with the confession of a co-accused. It can only
look into the confession when it has strong substantive evidence and it requires other
corroboration.
The three cases discussed in this paper lead to one conclusion: Confessional statement of
co-accused in no evidence and it can be used only to support the prosecution case. It
cannot be a basis for framing of charge against co-accused. These judicial decisions lead to
advancement of justice as they do not prosecute any accused just on the basis of the
confessions of the co-accused and look into all the evidences presented before them. These
cases lay down a very important principle that a case cannot be started with the confession of
a co-accused but can be only used corroborative evidence and not substantive evidence.
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.
The confession of a co-accused is no doubt admissible in evidence. The co-accused uncorroborative by any other evidence is not sufficient to sustain to conviction. The court
cannot 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 coaccused may be taken into consideration to set that doubt at rest

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BIBLIOGRAPHY
Websites Referred:

http://heinonline.org/HOL/LandingPage?

handle=hein.journals/undauslr16&div=6&id=&page, Last Visited on 1.08.2016

http://www.lawyersclubindia.com/judiciary/As-per-section-3-of-the-Evidence-Act-

Confession-of-the-Co-accused-can-not-be-taken-as-evidence-2948.asp, Last Visited

on 1.08.2016
http://www.deccanherald.com/content/201050/confessions-co-accused-not-

substantive.html, Last Visited on 2.08.2016

http://blog.ipleaders.in/confessions-co-accused-evidentiary-value-critical-analysissection-30-evidence-act/#ftn6, Last Visited on 1.08.2016

Books Referred:

Law of Evidence, Ratanlal & Dhirajlal, 25th edition, 2013

The Indian Evidence Act, 1872, Avtar Singh, 2014

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