Report No. 185

Section 30

Section 30 concerns the 'consideration of proved confession affecting person making it and others jointly tried for same offence':

It reads as follows:

"Section. 30: When more persons than one are being tried jointly for the same offence, and a confession made by one of such person 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."

Explanatio.- "Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.

There are two illustrations given below the section as follows:

(a) "A and B are jointly tried for the murder of C. It is proved that A said, "B and I murdered C". The court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B sai.- "A and I murdered C".

This statement may not be taken into consideration by the court against A, as B is not being jointly tried."

The joint trial contemplated by the section must be for the same offence, that is, under the same section of the penal law, including.- by reason of the Explanatio.- an attempt to commit or abetment of the offence; and the trial must be in accordance with the provisions of the Criminal Procedure Code, 1973 (vide section 223).

In the 69th Report, the Commission recommended (para 11.89) the repeal of section 30 mainly because the "co-accused" can hardly rebut the incrimination as he cannot cross-examine the accused who made the confession. It was felt that this position is a potential source of great injustice in many cases and practically amounted to a violation of the principle that no man should be condemned unheard.

The co-accused against whom the allegation is made cannot take the risk of entering the witness-box and his privilege against self-incrimination by being exposed to cross-examination. If he does not enter the witness-box, there will be injustice. He may be unable to rebut the allegations made by the other accused since the person who made the statement is not available for crossexamination. The English law, it was pointed out, does not accept this principle.

It was also pointed out (para 11.93) that there are different views as to the meaning of the word 'proved' and that the view that section 30 does not apply to a 'confession made in the course of the trial' is correct. (We accept the latter of these views as accepted in para 11.93 of the 69th Report, as being the correct view. This is supported by the express language of section 164(1) of the Code of Criminal Procedure, 1973.)

On the other hand the basic logic of section 30 is that a person who is prepared to implicate himself in the offence could be speaking the truth. In the 69th Report, it was observed (see para 11.80) that this is not convincing and self-implication is not an adequate substitute for cross-examination. The co-accused cannot be compelled to prove a negative nor sectionhe have an opportunity to cross-examine the accused who implicated him. In US the right to 'confront' by cross-examination is treated as a fundamental basis for fairness in a criminal trial. The statement of an accused may be on account of malice, or revenge or other circumstances.

Reference was made to the views of Bar Associations, Judges and State Law Commissions (see para 11.81) for the repeal of section 30 and also to a note by the Ministry of Law itself which was forwarded to the Law Commission.

Therefore, the Commission recommended repeal of section 30.

We are inclined to take a different view that section 30 should not be repealed. We shall now give our reasons. Now, the Supreme Court in Kashmira Singh v. The State AIR 1952 SC 159, allowing an appeal by the co-accused observed:

"The proper way to approach a case of this kind is, first to marshall 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."

It is quite important to notice that the confession is not given an oath and cannot be used as substantive evidence on which the conviction of the co-accused can be based, nor is it treated as 'relevant', the section only says the court'may take into consideration' the confession by a co-accused.

Another aspect is whether an accused could absolve himself and implicate his co-accused. Some High Courts have held that this is not permissible. Further, in a charge of murder where the accused stated that the other accused killed and then under threat, compelled him i.e. the deponent to dispose of the body (s.207 IPC), the confession, it was held, could not be used against the co-accused (Periaswamy v. R ILR 54 Mad 75). implicate his co-accused. Some High Courts have held that this is not permissible. Further, in a charge of murder where the accused stated that the other accused killed and then under threat, compelled him i.e. the deponent to dispose of the body (s.207 IPC), the confession, it was held, could not be used against the co-accused (Periaswamy v. R ILR 54 Mad 75).

An opposite view has also been expressed by some High Courts that the word 'offence' may be read as 'offences' and a person may exonerate himself of one of the offences and implicate others with regard to other offences (Mia Khan v. R, AIR 1923 Lah 293); In re Manicka Padayachi, AIR 1921 Mad 490; Mirza Zahid v. R, AIR 1938 All 91; Shiva Bai v. R, ILR 50 Bom 683.

Sarkar says (15th Ed, 1999, p. 602) that the former view is correct and that a confession must implicate the maker and the other accused in all the 'offences' for which they are jointly tried and that the section must be interpreted strictly.

Of course, where the accused who confessed dies, the statement is held admissible under section 32(3), see Haricharan Kurmai v. State of Bihar, AIR 1964 SC 1184 following and approving Bhuboni Sahu v. The King, AIR 1949 PC 257. In the latter case, Sir John Beaumont observed: it is "weak evidence". The Delhi High Court observed PUCL v. CBI, 1997 Crl LJ 3242 (Del):

"a confession of a co-accused is obviously evidence of a very weak type. 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 cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmitics. section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. 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 weighed with the other evidence."

Section 15 of TADA specifically provided that the confession of a co-accused shall be admissible in the trial of the co-accused, abettor or conspirator for an offence under that Act or Rules. But co-accused must have been tried under TADA but the confession is not admissible if the coaccused is not tried under TADA.

There are a number of judgments of the Supreme Court in the context of section 30. The latest is State v. Nalini (the Rajiv Gandhi Murder case) 1999(5) SCC 253. In this case, the Court was concerned with the non obstante clause in TADA, which excluded the provisions of the Evidence Act and thereby made the confession of an accused 'admissible' i.e. substantive evidence.

The majority, Wadhwa & Quadri JJ considered the law under section 30 and held that while section 30 only permitted the confession of a co-accused to be 'considered', though the TADA allowed it to be treated a "substantive evidence (see page 573 para 680); Quadri J however said (para 706) that rule of prudence cautions the judicial discretion that it cannot be relied upon unless corroborated generally by other evidence on record. The caution referred to by the Privy Council in Bhuboni's Sahu' case by the Privy Council which was quoted in Kashmira Singh's case by the Supreme Court was referred to. It reads as follows:

"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."

If the accused's confession against a co-accused is not substantive evidence and cannot be used except for corroboration of other reliable evidence and the only purpose the confession serves is to lend further assurance to the evidence otherwise available, is the criticism that the coaccused who is incriminated does not have a fair trial because he cannot cross-examine the deponent-accused who made the confession justified?

In our opinion, it is not necessary to go to the length of repealing section 30 in as much as the Supreme Court has clearly held in Kashmira Singh's case that when there is other reliable evidence, sufficient to support a conviction, the Court need not rely on this statement of the co-accused; but where there is other reliable evidence and the Court is searching for some corroboration, it can use the confession of one accused against another for that purpose.

We, however, feel that the confession must relate to all the offences in regard in which the deponent-accused is allegedly involved and the confession cannot be one made in the course of the trial. These two aspects, we propose to bring into section 30 by way of amendment.

The title shall be amended by adding the words "or offences" after the word "offence".

In the light of the above, we do not think section 30 should be repealed. We recommend its retention in a modified form as follows:

"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence or offences.- When more persons than one are being tried jointly for the same offence or offences, and a confession made, before the commencement of trial, by one of such persons affecting himself and some other of such persons in respect of same offence or all the offences affecting himself and some other of such persons is proved, the Court may, where there is other relevant evidence against such other person or persons, take into consideration such confession as lending credence against such other person or persons as well as against the person who makes such confession.

Explanation: 'Offence' as used in this section, includes the abetment, of or attempt to commit the offence.

Illustrations

(a) A and B are jointly tried for murder of C. It is proved that A sai.- "B and I murdered C". The court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B sai.- "A and I murdered C." This statement may not be taken into consideration by the court against A, as B is not being jointly tried."

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