(a) When two or more persons are tried jointly for the same offence, (including its abetment and attempt) and
(b) A confession made by one such person affecting himself and some other of such persons is proved,—
The Court may take into consideration such a confession,
(i) As against such other person, and
(ii) As against the person who makes such a confession.
Illustration: (a) A and В 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 С was murdered by A and B, and that В said “A and I murdered C.” This statement may not be taken into consideration by the Courts against A, as В is not being jointly tried.
It will be seen that S. 30 is an exception to the rule that the confession of an accused is relevant against himself only.
This section marks a departure from the English Common Law. Both under the English and the Roman systems of law, a confession of a prisoner is not admissible against his accomplice. This departure from the well-established principles of English law has been adversely criticised by judges and jurists alike. For instance, Mark by remarks: “The provision is flatly in contradiction to the law of England, where judges always take the greatest pains to prevent the statements of a prisoner affecting the case of a fellow prisoner.”
Section to be strictly construed:
On the whole, Section 30 has introduced an innovation of a serious nature and is capable of causing a miscarriage of justice, unless it is properly understood and applied. Time and again, Courts have held that it must be very strictly construed. As observed by Reilly, J. in an Indian case, the section must be construed with “the greatest caution and with care, to make sure that we do not stretch it one line beyond its necessary intention.”
Evidentiary Value of a Confession under S. 30:
S. 30 of the Act empowers the Court to take into consideration a confession made by one of the accused against the others when they are being jointly tried. The confession of an accused is undoubtedly a very strong piece of evidence against the accused himself, provided it is voluntary and the Court is satisfied that it is true. But it is a weak piece of evidence against the co-accused.
It is not evidence in the legal sense of the term. The person who makes a confession does not step into the witness-box, his testimony is not subjected to cross- examination and it is really, in a sense, ex-parte evidence against the other accused. Therefore, Courts have gone so far as to lay down that there must be sufficient evidence, independently of the confession, which would warrant a conviction of the accused.
It is only when there is such evidence that the Court may proceed further and look at the confession of the co-accused, and consider it as additional evidence that would further weigh the balance against the accused.
The confession of a co-accused does not come within the definition of “evidence” contained in S. 30 of the 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. (Bhuboni Sahu v. King, A.I.R. 1949 RC. 247).
The proper approach is 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 the conviction.
In such an event, the Judge may call the confession in aid and use it to lend assurance to the other evidence, and thus fortify himself in believing that without the aid of the confession, he would not be prepared to accept the other evidence. (Kashmira Singh v. State of Madhya Pradesh, A.I.R. 1952 SC. 159)
The Supreme Court has reaffirmed the above principle in Hari- charan Kurmi v. State of Bihar, (A.I.R. 1964 S.C. 1184) and held that the confession of a co-accused 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 an assurance in support of its conclusions deductible from other evidence.
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.
“May Take Into Consideration”:
The word “may” in this section is important. It shows that such a confession is not, technically speaking, “evidence” in the sense that by itself it can support a conviction. Rather, the section gives a discretion to the Court to use it against a co-accused. Explaining the effect of these words, Jackson, J. observed in R. v. Chandra;
“The section does not provide, as has been repeatedly pointed out, that such a confession is evidence; still less does it say that it may be a foundation of a case against the person implicated. The Legislature very guardedly says that it may be taken into consideration, and I think that the obvious intention of the legislature in so saying was that the circumstance of such person being implicated by the confession of one of those who are being jointly tried with him should be taken into consideration as bearing upon the truth or sufficiency of such evidence”.