Confessions of Co-Accused in Indian Criminal Jurisprudence: Evidentiary Value, Statutory Framework, and Judicial Trends

Confessions of Co-Accused in Indian Criminal Jurisprudence: Evidentiary Value, Statutory Framework, and Judicial Trends

Introduction

The evidentiary status of a confession made by one accused implicating another is a perennial point of contestation in Indian criminal trials. Although such confessions are linguistically compelling, they sit uneasily with principles of fair trial, the privilege against self-incrimination (Article 20(3), Constitution) and the adversarial requirement that incriminating evidence be tested by cross-examination. This article critically examines the statutory framework—primarily Section 30 of the Indian Evidence Act, 1872—and the rich body of case-law that has sculpted a nuanced, prudential doctrine on confessions of co-accused. Special regimes under anti-terror and narcotics statutes, the interface with discovery under Section 27 Evidence Act, and the constitutional backdrop are also analysed, with particular emphasis on recent Supreme Court pronouncements.

Statutory Framework

2.1 The Indian Evidence Act, 1872

Section 30 permits a court, when two or more persons are “tried jointly for the same offence,” to “take into consideration” a confession made by one accused that “affects himself and some other” accused. The provision—unlike Sections 24-27 that regulate admissibility of confessions—speaks only of the use of an already proved confession. Judicial interpretation has consistently shorn Section 30 material of the status of substantive evidence; it has, instead, been accorded the limited role of corroborative assurance.[1]

2.2 Special Statutes

  • Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA): Section 15 makes a confession recorded by a police officer of the rank of SP admissible per se; the 1993 amendment, however, conditions its use against a co-accused on the requirement that both be “charged and tried together.”[2]
  • Prevention of Terrorism Act, 2002 (POTA): Section 32 mirrors TADA but is hedged by stricter recording safeguards (vide Rules 5-15) and judicial custody mandates.
  • Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS): Statements under Section 67 have been treated as confessions admissible against the maker, yet their use against a co-accused remains subject to the prudential limits evolved under Section 30 jurisprudence.[3]

Historical Evolution of Judicial Approach

3.1 Colonial Foundations

Early High Court decisions such as The Empress v. Ashootosh Chuckerbutty (1878) recognised that Section 30 created an exceptional rule enabling courts to look at co-accused confessions, but cautioned that conviction should not rest solely thereon unless corroborated by independent evidence sufficient per se.[4]

3.2 Formative Privy Council and Post-Independence Cases

The Privy Council in Bhuboni Sahu v. King (1949) declared such confessions “obviously evidence of a very weak type.” The Supreme Court’s seminal decision in Kashmira Singh v. State of M.P. (1952) laid down the “two-step” test: (i) marshal substantive evidence sans confession; (ii) only if residual doubt persists may the confession be looked at for assurance.[5] Haricharan Kurmi v. Jogia Hajam (1964) reaffirmed that Section 30 does not convert the confession into substantive evidence and cannot override the requirement of corroboration.[6]

3.3 Contemporary Supreme Court Refinement

  • Pancho v. State of Haryana (2011) quashed convictions resting primarily on an extra-judicial confession, reiterating that a retracted confession of a co-accused is weaker than accomplice evidence and cannot substitute independent proof.[7]
  • State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) distinguished between the use of confessions under special statutes (POTA) and the Evidence Act, but nevertheless stressed the prudential necessity of “general corroboration” before relying on a confession against a co-accused.[8]
  • Surinder Kumar Khanna v. DRI (2018) (NDPS context) underscored that, in the absence of other incriminating material, statements of co-accused under Section 67 could not sustain conviction.[9]

Special Regimes: TADA and POTA

4.1 Doctrinal Shift under TADA

The early TADA era allowed a confession to be the foundation of conviction for co-accused (Section 15, pre-1993). Post-amendment, and following the Constitution Bench in State v. Nalini (1999), the Supreme Court clarified that such confessions, though substantive evidence, are still subject to the charged-and-tried-together condition and to the rule of prudence requiring corroboration.[10] Hardeep Singh Sohal v. State of Punjab (2004) further held that failure to satisfy the dual condition (charged + tried) renders the confession inadmissible against the co-accused.[11]

4.2 Post-TADA Clarifications

Kalpnath Rai v. State (CBI) (1997) read Section 15 TADA to place confessions on the same footing as Section 30 Evidence Act when used against co-accused; Esher Singh v. State of A.P. (2004) subsequently stressed that Kalpnath Rai stood impliedly overruled by Nalini on this point, reaffirming the substantive character of Section 15 confessions, albeit with the prudential overlay.[12]

Interface with Section 27: Discovery and Corroboration

The “doctrine of confirmation by subsequent events” permits admissibility of that portion of a statement leading to discovery of a fact. In State of U.P. v. Deoman Upadhyaya (1960) the Supreme Court upheld Section 27’s constitutionality, noting that the provision balances police coercion concerns with truth-discovering utility.[13] Later, State of Maharashtra v. Damu (2000) emphasised that discovery pursuant to a co-accused’s confession can reinforce voluntariness and reliability, yet it remains corroborative, not substantive, against others.[14]

Analytical Observations

6.1 Confession versus Admission

While every confession is an admission (Section 17 Evidence Act), the reverse is not true. The Patna High Court in Irsad Alam v. State of Bihar (2014) reiterated that statements falling short of complete guilt may still operate as admissions under Section 21, attracting a different admissibility calculus.[15]

6.2 Prudential Rationale

Judicial reticence stems from: (a) absence of oath; (b) inability of the implicated co-accused to cross-examine; (c) potential for self-exculpation or revenge; and (d) risk of police-engineered confessions. High Courts have consistently branded co-accused confessions as “weaker than accomplice evidence.”[16]

6.3 Constitutional Perspective

Article 20(3) furnishes an absolute protection to the maker of a compelled confession, but its derivative use against another accused confronts due-process objections grounded in Article 21. The Supreme Court has navigated this terrain by (i) insisting on voluntariness safeguards (e.g., Section 15(2) TADA; Section 32(4) POTA), and (ii) super-adding the corroboration mandate when the confession travels beyond its maker.

Implications for Trial Strategy

  • Prosecution: Must build an independent evidentiary edifice—ocular, forensic, circumstantial—before inviting the court to “take into consideration” a co-accused confession.
  • Defence: Can challenge both the admissibility (non-compliance with statutory recording provisions) and the weight (lack of corroboration, retraction, custodial pressure) of such confessions.
  • Judiciary: Required to record an explicit finding on the sufficiency of substantive evidence prior to drawing assurance from the confession.[17]

Conclusion

Indian courts have fashioned a sophisticated equilibrium: while recognising the probative potential of a co-accused’s confession, they temper that potential through statutory safeguards and a robust rule of prudence. The trajectory from Kashmira Singh to Pancho reveals a consistent leitmotif—corroboration is the lynchpin. Special statutes like TADA and POTA elevate such confessions to substantive evidence, yet judicial practice continues to insist that they rarely operate solo. As the criminal process confronts new investigative technologies and trans-national conspiracies, the jurisprudential insistence on corroborative reliability remains the surest guard against miscarriages of justice.

Footnotes

  1. Kashmira Singh v. State of M.P., AIR 1952 SC 159; Bhuboni Sahu v. King, (1949) 76 IA 147.
  2. Hardeep Singh Sohal v. State of Punjab, (2004) SCC; see also the Constitution Bench in State v. Nalini, (1999) 5 SCC 253.
  3. Surinder Kumar Khanna v. DRI, (2018) 8 SCC 271; Kanhaiyalal v. Union of India, (2008) 4 SCC 668 (referenced in Khanna).
  4. The Empress v. Ashootosh Chuckerbutty, (1878) ILR 4 Cal 483.
  5. Kashmira Singh, supra; methodology adopted subsequently in Pancho v. State of Haryana, (2011) 10 SCC 165.
  6. Haricharan Kurmi v. Jogia Hajam, AIR 1964 SC 1184.
  7. Pancho v. State of Haryana, (2011) 10 SCC 165.
  8. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
  9. Surinder Kumar Khanna, supra.
  10. State v. Nalini, supra, para 581; see also State of J&K v. Wasim Ahmed Malik, (2015) SC.
  11. Hardeep Singh Sohal, supra.
  12. Esher Singh v. State of A.P., (2004) 11 SCC 585.
  13. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.
  14. State of Maharashtra v. Damu, (2000) SCC (Cri) 1088.
  15. Irsad Alam v. State of Bihar, 2014 SCC OnLine Pat 5170.
  16. See, e.g., Bakul Bora v. State of Assam, 2004 Cri LJ (Bom.) and Munu Mura v. State of Assam, 2013 Cri LJ.
  17. Guideline crystallised in Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13.