“Offence,” as used in this section, includes the abetment of, or attempt to commit the offence.
(a) A and Â 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 Ñ was murdered by A and B, and that Â said—“A and I murdered C.”
This statement may not be taken into consideration by the Court against A, as Â is not being jointly tried.
This section is an exception to the general rule that a confession of an accused is inadmissible against other accused persons who are jointly tried. It makes a departure from the common law of England. Section 30 lays down when there are more than one accused who are jointly tried for the same offence and a confession made by one of them at the trial, the court may take into consideration the confession against all accused [(Illustration (a)]. If the statement of the accused does not amount to a confession it is not admissible against co-accused. Because, a confession of an accused especially when it is self-exculpatory, cannot be used against a co-accused, when the confessing accused was not facing any trial. “The principle on which the confession of one accused is allowed to be used against co-accused is that self implications are supported to provide some guarantee of the truth of accusation made against the other.” It is also not necessary that the confession of the co accused must be made to a magistrate.
The principle that a confession by one accused may be taken into consideration against co-accused is founded on: (i) more than one accused are jointly tried, (ii) they are tried for the same offence, (iii) confession should have been made by one of them, and (iv) the confession should be legally proved. “On the whole, the section has not been looked upon with favour by the judges who have to administer the law, and it has been laid down in an uninterrupted series of cases that a confession by an accused is not to be treated as “evidence” (in the sense used in Section 3) against his co-accused, but it may only be taken into consideration (i.e. an element in the consideration of all facts in the case) along with other evidence and that a conviction based solely on such confession send unless substantially corroborated by independent evidence”—SARKAR.
Confession of co-accused:
The Privy Council once observed that “a confession of a co-accused is obviously evidence of a very weak type. It does not come within the definition of ‘evidence’ contained in Section 3. 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 again observed that “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.”
The Supreme Court accepted the views of the Privy Council and observed that the confession of an accused against the co-accused is not evidence in the ordinary sense of the term. If the co-accused escapes from custody and the charge itself were framed as proclaimed offender, the confession of the co accused cannot be made use.
Although the principles laid down in Section 30 is not very sound policy of the law “seems to rest on the recognition of the palpable fact that such a confession cannot fail to make an impression on the Judge’s mind, which it was therefore to control limits than to ignore altogether.”
In Prakash Dhawal Khairnar v State of Maharastra it was held that confessional statement of one accused recorded under section 164, Cr. PC by a magistrate would be admissible against the other accused as both were jointly tried. If the confession is not recorded by the magistrate under section 164, Cr. PC it may be used under section 30 of the Evidence Act if they are not regulated by Section 24 of this Act.
In TADA case the Section 15 of the TADA requires joint trial of the accused, but there is a point of difference; while under section 30 of the Evidence Act the confession of an accused may be taken into consideration against co-accused under section 15 of the TADA, the confession is admissible against the co-accused and is the substantive evidence against the co-accused.
The principle of admissibility of confession under Section 15 of TADA has to be distinguished from the provisions of Cr. PC. and Sections 24 to 30 of the Evidence Act. The provision of Section 15 of the TADA is mandatory in nature and Section 30 of the Evidence Act is discretionary in nature and the print of admissibility of confession against co-accused when jointly tried. The confession recorded by the police officer under section 32(1) of the Prevention of Terrorism Act, 2002 cannot be taken into consideration under section 30 against the co-accused.
Rule to be observed:
“The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from the consideration and see that if it is believed, conviction should safely be used 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.
However, 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 that without the aid of the confession would not be prepared to accept it.
The confession of a co-accused is not so substantive evidence, it can be pressed in service only when the court is inclined to accept the other evidence and feels the necessity of seeking for an assurance in support of his conclusion deducible from the other evidence.” A statement of an accused would be admissible against a co-accused only under Section 30 of the Evidence Act. Such a statement of the co-accused is required to be corroborated by adduction of independent evidence. A confession of a co-accused can be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and sees the necessity of seeking for an assurance in support of the conclusion deducible therefore.
Recently the Supreme Court has observed that the confession of a co-accused can be used only for corroborative purposes but not as a substantive evidence. The confession cannot be held to be used only to corroborate other substantive evidence produced by the prosecution. A confession intended to be used against a co-accused stands on lower level than an accomplice evidence, because the latter is at least tested by cross-examination while the former is not.
It was also held by the Supreme Court that the Section 30 permits the taking into consideration of the confession of an accessed against co-accused subject to conditions laid down in the section. Where the statement of the accused does not contain anything incriminating the accused, it cannot be used against a co accused. Thus, the confession of co-accused cannot be substantive evidence against other accused. “It is per is not evidence.”
Co-accused being jointly tried:
A confession by an accused may be taken into consideration provided other co-accused are jointly tried for the same offence. To make a joint trial legal, the accusation must be a real one and not merely an excuse for a joinder of charges which otherwise cannot be joined. “Same offence” means identical offence and not an offence of the same kind. Where an accused who was jointly tried but died before the judgment, it was held that the confession was admissible against his co-accused and could be used only for corroborating the other evidence on the record and not as substantive evidence. The stress in section so is pre-requisite of joint trial for the same offence.
Confession of co-accused and testimony of accomplice:
The confession of co-accused under section 30 does not have higher probative value than that of the testimony of an accomplice in the court of law. The confession of co-accused alone is not legally sufficient to uphold a conviction.