IMPORTANT CONCEPTS IN CONFESSION:

 

IMPORTANT CONCEPTS IN CONFESSION:

A. CONFESSION OF CO-ACCUSED:

There are number of cases in which prosecution is relying upon the confession of co-accused, involvement of an accused can be identified by the confession of co-accused. Hence, the confession of co-accused has got its own importants in appreciating the evidence. For easy reference section 30 of Indian Evidence Act is extracted hereunder. It is settled law that confession of co-accused can be taken to consideration as a corroborative piece of evidence and it can be considered only in joint trial of the accused.

[Kashmira Singh vs State Of Madhya Pradesh] - . 1952 AIR 159, 1952 SCR 526  

 

 

“Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused ? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King(1) "It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by crossexamination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approv- er, which is not subject to any of those infirmities."  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.

In [Senthil @ Senthilkumar Vs state]. Relevancy of judicial confession of co-accused – judicial confession made by A2 can be used against him as substantive evidence but not against coaccused.

1. Judicial magistrate administering oath on the accused and recorded confession of accused.

2. No certificate given by the judicial magistrate regarding the voluntariness of confession as contemplated under Section 164 Cr.P.C.

Whether proper ? can it be acted upon ?

No, learned magistrate did not record whether the accused was willing to make confession voluntarily or not. Since there was no satisfaction on the part of the learned Judicial Magistrate regarding the voluntariness of the accused the confession cannot be acted upon.

Whether confession of co-accused is substantive evidence?  [Banu, N. v. State] - Confession of A3 as against A2 being confession of co-accused cannot be used as substantive evidence, but can be used against A2 as corroborative evidence. (Paras. 97 & 109)

[Hardeep Singh Sohal and others Vs State of Punjab ]

6. 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 admitted in evidence as Balwinder Singh was not tried along with the 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.

Madras – [Mayilvaganan Vs Inteligence officer, Narcotics Controll Bureau, Chennai.]

12. As rightly pointed out by the learned senior counsel for the eighth accused, except the reference as to the complicity of the petitioner in the confession statement of A.1 and A.5, there is no material on record to incriminate the petitioner herein. The matter has now been pending as against the petitioner even without framing charge against him.

14. Straightaway, let me refer to an authority, which applies squarely to the facts and circumstances of this case, in [Suresh Budharmal Kalani v. State of Maharashtra] wherein the Hon'ble Supreme Court has categorically held that the confession of an accused, who has been discharged, is not at all admissible as against a co-accused. It has been further observed that the trial Court is not justified in taking into consideration such confession of the discharged accused for framing charges against the co-accused on the ground that the prosecution could examine him as a witness for establishing the facts disclosed in his confession.

DB Madras – [N.Banu Vs State of Tamil Nadu]

Para 97. “This statement of A3 to P.W.79 amounts to confession falling within the ambit of Section 24 of the Evidence Act. So far as this confession of A3 is concerned, as per the law laid down by the Hon'ble Supreme Court in [Kashmira Singh Vs State of Madhya Pradesh] reported in interpreting Section 30 of the Evidence Act, this being a confession of a co-accused, it could be used not as a substantive evidence but only as a corroborative evidence to strengthen the conclusion arrived on the basis of the other evidences that A2 was involved in the conspiracy.”  “So far as the second accused is concerned except the co-accused confession of A3 to P.W.79, there is no other evidence to prove that he participated in the occurrence in which the deceased was killed. As per the law laid down by the Hon'ble Supreme Court in Kashmira Singh case referred to above, the confession of the co-accused cannot be a substantive evidence to convict A2 under Section 302 r/w 120(B) I.P.C. Therefore the second accused is entitled for acquittal from the said charge. Since the prosecution has proved the presence and participation of accused 4 to 6 and since all these accused came to the place of occurrence with a common intention to commit the murder of the deceased in pursuance of the conspiracy, they are liable to be punished for the offence under Section 302 r/w 34 r/w 120(B) I.P.C.”

[Kishore Bhadke Vs State of Maharashtra]

Joint disclosures statement – Section 27 IEA – A joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in chorus – When two persons in custody are interrogated separately and simultaneously and both of them furnish similar information leading to discovery of fact which was reduced into writing, such disclosures by two or more persons in police custody do not go out of the purview of S.27 altogether – Whether that information is crediable is matter of evaluation of evidence.

[Surinder Kumar Khanna Vs Intelligence Officer]

“Apart from statements of co-accused there was no material suggesting involvement of appellant in crime in question –scuh confessional statement of co-accused could not by itself be taken as substantive piece of evidence against another co-accused – It could at best be used or utilized in order to lend assurance to court – In absence of any substantive evidence, it would be inappropriate to base conviction of appellant purely on statements of co-accused – appellant entitled to be acquitted of charges leveled against him – orders of conviction and sentence set aside.

B. TEST TO FIND OUT WHETHER STATEMENT OF ACCUSED IS A CONFESSION OR NOT:

* A statement which contains an exculpatory assertion of some fact, which is true would negative the offence alleged, cannot amount to confession [Veera Ibrahim v. state of Maharastra]

* The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. A self exculpatory matter cannot amount to confession [Shankar & ors. Vs. State of Tamilnadu].

* Confession would mean incriminating statement made to police suggesting inference of the commission of the crime and therefore it is confined to evidence to be adduced in a court of law. [Commissioner of Police vs. Narendar Singh].

C. CONFESSION IN FIR:

A confession in an FIR is wholly inadmissible because it is a confession to a police officer and it is an FIR by an accused so it wholly inadmissible. [Babu @ Babau v. State of Madhya Pradesh];.

D. PROPERTY RECOVERED FROM OPEN PLACE:

1. [PURANLAL V. State of U.P];: recovery made at the instance of the accused – from public place accessible to all – accused could not be said to have exclusive knowledge of the same.

2. [State of Himachal Pradesh v. Jeet Singh];: recovery made from place open and accessible to all – unless incriminating articles are hidden or concealed, its discovery at the instance of the accused shall not be admissible.                                                                               . ARREST AND CUSTODY – DISTINCTION:

There is a remarkable distinction between police custody and arrest by police. The term arrest has been defined in Section 41 of Code of Criminal Procedure, 1973, but what is meant by custody has not been defined in the Code of Criminal Procedure.

In every arrest there must be a custody but not vice versa. Arrest is a mode of formally taking a person into police custody, but a man may be in police custody in other ways.

The word “in custody” used in Section. 27 of the Indian Evidence Act only denotes surveillance or restriction on the movements of the person concerned. [Harbans Singh v. State]; [K.M.Cheriyan v. D.Johnson]:

F. WHETHER SIGNATURE OF THE ACCUSED IS NECESSARY IN RECOVERY MEMO OR CONFESSION STATEMENT.

No, the absence of the signature of the accused in the confession statement or in the recovery Mahazar will not make the said documents inadmissible because;

(1) No law mandates that signature of the accused has to be obtained in the confession statement and the recovery Mahazar.

(2) The said documents can be proved in the absence of the signature of the accused by examining independent witnesses.

86[Dr. Sunil Clifford Daniel v. State of Punjab]; absence of signature of accused on recovery memo does not make the recovery improper.                                                                                           G. DISTINCT RECOVERY:

(1) In pursuance of statement of accused dead body was recovered – the said statement was already in FIR – Sec. 27 is not attracted [Inder Das v. State of Rajasthan].

(2) The word distinctly means directly, indubitably, strictly, unmistakably [Mohammed Inayadullah V. State of Maharashtra]::: [Anter Singh v. State of Rajasthan].

(3)[Chanrandas Swami Vs State of Gujarat] – Section 302 IPC – “Fact discovered” – disclosure statement – fact that dead body had already been recovered from same place does not undermine admissibility of disclosure made by A-3 to IO about location where dead body of deceased was dumped by him, which information was exclusively within his personal knowledge, and as rightly found by courts below was admissible under S.27.

IX. CONCLUSION:

Thus, all the facts discovered in consequence of information / confession by the accused is not admissible into evidence. Since, in most of the cases, the Prosecuting Agency is coming forward with the confession and material objects, the study on the subject confession and recovery in the light of the above judgments will give light on the path of the advocates.