Report No. 69
Section 30 provides that, when more persons than one are jointly tried 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 against such other person also. The section is obviously a departure from the general rule (section 21) applicable to all admissions, whereunder an admission is evidence only against the person who makes it. The reason which is said to have justified this departure, is that, if a person implicates himself (while implicating others), there is guarantee that the implication is true. It is also said that it is difficult in such a situation to require the court to exclude the statement altogether from its mind, when it comes to consider the case against the other accused.
The theory is that when a person admits his guilt and exposes him-self to the pains and penalties provided for it, there is a guarantee for his truth. Thus, the assumption underlying the section is. that self-implication takes the place of the sanction of oath, and serves as a guarantee of the truth of the accusation against the other.
11.80. Reasoning not convincing.-
We do not, however, find this reasoning convincing. The present provision, in our view, suffers from several major defects. In the first place, self-implication may be a substitute for oath, but it is not an adequate substitute for cross-examination. It is to be remembered that when A and B are tried together and a confession by A implicating both of them is admitted under section, B has no opportunity of cross-examining A on so much of his confession as implicates B also. It is impossible for B to effectively rebut what A has said, because most of the rebuttal evidence will have to be in the negative, and it is difficult to prove the negative without cross-examination.
The difficulty of proving the negative has been the main foundation for the importance which the law has attached to cross-examination. Since B cannot compel A to enter the witness box (A being an accused person himself), cross-examination is ruled out. Thus, the present section practically leaves B in the hands of A so far as A's confession is concerned. Moreover, a confession may be true as regards the maker, but untrue as far as it affects others. Such untruth may arise from malice, or revenge or from other circumstances, which one cannot readily catalogue or recount.
11.81. Suggestions received on the point.-
It may be noted that with reference to section 30, a number of suggestions have been received from time to time for its deletion. One of the High Courts made such a suggestion,1 a few years ago. The High Court point-ed out that as the law now stands, there can be no conviction under sec-tion 30 without the fullest and strongest corroboration on material particulars.2
A suggestion for the repeal of section 30 was made by a Bar Association.3 Such a suggestion was also made long ago by a Chief Presidency Magistrate4, a District and Session Judge,5 and a State Law Commission.6 The suggestion by the Chief Presidency Magistrate refers to the fact that section 30 has been described as a needless tampering, with the wholesome rule of English Law.
1. file 3(1) /55 L.C., S. No. 56 (High Court of andhra Pradesh).
2. Ram Prakash v. State of Punjab, 1959 SCA 524 referred to.
3. Serial No. 29, File No. 3(1)/55-L.C., Collection No. 1, p. 78 (Tripura Bar Association)
4. S No. 8 File No. 3(1)/55-L.C., Part I, p. 76 Col. No. 2 (Chief Presidency Magistrate Madras).
5. S No. 8 File No. 3(1)/55-L.C., Part I, p. 103, Col. No. 2 (District Judge, Coimbatore).
6. S No. 22, File No. 3(1)/55-L.C., Part I, p. 153, Col. No. 2 (State Law Commission, We Bengal).
11.82. It may be of interest to note that the Ministry of Law itself for-warded to the Law Commission a note by one of its officers for the repeal of section 307. The note quotes judicial criticism describing the evidence as dangerous material and as needless tampering with the wholesome rule of the English law. It criticises the principle in section 30 as "extraordinary" and as only prejudicing fair trial.
11.83. Judicial criticism.-
It may be noted that judicially also, the section has not escaped Judicial criticism. criticism. It has been described as "a needless tampering with the wholesome rule of the English law",1 and as a "most unsatisfactory section"2 by Courts Troutter C. J. In an Oudh case3, such evidence was described as "exceptionally dangerous".
Reilly J. observed in a Madras easel-4
"Section 30, Evidence Act, is a very exceptional, indeed an extraordinary, provision, by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that we do not stretch it one line beyond its necessary intention".
1. Lelaram (in re:), AIR 1925 Mad 805 (807) (Coutts Troutter, C.J.).
2. Lilaram (in re:), AIR 1925 Mad 805 (807).
3. Baboo Singh v. Emperor, AIR 1936 Oudh 156 (159) (King, C.J. and Nanavatty, J.).
4. Periyaswami v. Emperor, AIR 1931 Mad 177 (178).
11.84. Logical basis not sound.- Reilly J. observed in a Madras easel-
"Section 30, Evidence Act, is a very exceptional, indeed an extraordi-nary, provision, by which something which is not evidence may be used against an accused person at his trial. Such a provision must be used with the greatest caution and with care to make sure that we do not stretch it one line beyond its necessary intention".
11.84. We have already pointed out1 that the logical basis on which the section is based is not sound. Apart from this defect, the section, in practice, creates a complication, namely, while the confession covered by the section can be "taken into consideration", it is not technically regarded as "evidence2", and the section does not declare it to be relevant within the meaning of section 5, although it is one of the factors which fall within the definition of 'proof. In view of this weakness, courts have insisted on independent evidence against the accused, and have held that a conviction based merely on the confession of a co-accused would be bad in law3.
The confession of the co-accused is regarded merely as a material for corroborating other evidence, and that too a weak material. As has been explained by the Supreme Court4, if the other evidence is capable of belief independently of the confession, then, of course, it is not necessary to call the confession for aid; but 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 confession), he may call in aid the confession and use it "to lend assurance to the other evidence" and thus fortify himself in believing that which he would not accept without such aid.
1. Bhuboni Sahu v. King, (1949) 76 IA 147 (155): AIR 1949 PC 257.
2. See the Judgment of Jenkins, C.J. in Emperor v. Lalit Mohan, 1911 ILR 38 Cal 559.
3. See the Judgment of Jenkins, C.J. in Emperor v. Lalit Mohan, 1911 ILR 38 Cal 559.
4. Kashmira Singh v. State, AIR 1952 SC (1952): SCR 526 (530) (Fazl Ali, Mukherjea and Bose, P.).