Report No. 69
11.85. Position in England.-
In England, unless there is some common object or conspiracy England. between them, there is no privity between co-defendants1, nor between prisoners jointly indicted2. And, the confession of a co-accused is not admissible against the other accused.
1. Daniels v. Potter, (1830) 4 C&P 262.
2. K. v. Gunewardene, (1951) 2 KB 600 (610): (1951) 2 All ER 290 overruled on another point in Toohey, 1965 AC 595.
11.86. Position in the U.S.A.-
The question has been discussed in the U.S.A.. Where two or more of the co-criminals are tried jointly as co-defendants, and the statement of one of them is offered against the maker, even though its contents implicate others than the maker, is it admissible? The question was discussed in Delhi Paoli case1, where the Supreme Court held that there was no objection to this, as long as the jury was given a precautionary instruction to consider the confession as evidence only against the defendant who made it.
1. Delhi Paoli v. United States, (1957) 352 US 232.
11.87. However, in 1968, the Supreme Court took a different view in Bruton v. United States, (1968) 391 US 123, even on this narrow use. The basic constitutional doctrine invoked in this case was the right to confrontation. The court held that if the precautionary instructions referred to in the earlier judgment Delhi Paoli case are ignored by the jury, the result is that evidence against the second defendant is offered in the form of the first defendant's confession, and this is so even though, because of the privilege against self-incrimination, the second could be expected to abide by the precautionary instructions, the receipt of one defendant's confession would impair the right of confrontation and ,Toss-examination on the part of others who are implicated in that confession. This was the basis of the later decision.
11.88. As was pointed out in Barber v. Page, 390 US 721: 20 Lawyers' Edn. 2nd 758, one of the important objects of till right of confrontation was to guarantee that the fact finder had an adequat opportunity to assess the credibility of witnesses.
11.89. Recommendation to repeal the section.-
Having taken into account all aspects of the matter, we have come Recommendation to the conclusion that section 30 should be repealed. Soundness of the principle onion. to repeal the sect. which it is based is debatable. The supposed substitute for oath is self-implication. Assuming that self-implication is an acceptable substitute for oath, it is, in our view, no substitute for effective cross-examination. And, as we have dis-cussed above, the co-accused can hardly rebut the incrimination against him effectively. This position is a potential source of great injustice in many cases, and practically amounts to a violation of the principle that no man ought to be condemned unheard.
The person incriminated by the confession of a co-accused is in a dilemma. If he enters the witness box, he does so at the risk of losing his privilege against self-incrimination by being exposed to cross-examination without restrictions. If he does not enter the witness box, there will be injustice. He may be unable to rebut the allegations made by the confessing accused, since the latter (unless he enters the witness box) would not be available for cross-examination.
11.90 and 11.91. We are, therefore, of the view that even the limited use to which the confession can be put under the section is not justifiable, and we recommend that the section should be repealed.
11.92. Expression proved.-
One of the requirements of section 30 is that a confession made by one accused affecting himself and some other accused should be 'proved'. Some controversy appears to exist on the point whether a confession in the coarse of the trial would come under the section. The word 'proved' would seem to indicate a contrary position and justify a narrow view. This narrow view is, in fact, sup-ported by the decisions of some High Courts1. A contrary view has, however, been taken in some decisions2.
1. (a) Emp. v. Mahadev, ILR 45 All 323: AIR 1923 All 322 (325) (Walsh, J.).
(b) R. v. Ashootosh, 1878 ILR 4 Cal 483 (FB).
(c) Maharumathu (in re:), AIR 1931 Mad 820 (821) (Beasley, C.J. and Sundaram Chetty, J.).
(d) V. Sumitra v. Emp., AIR 1940 Nag 287 (288, 291) (Niyogi and Grover, JJ.).
(e) Kunwar Sen v. Emp., AIR 1933 Oudh 86: ILR 8 Luck 286. f) Des Raj v. State, AIR 1951 Punj 14 (17), para. 21 (Hamam Singh, J.).
2. a) Cooper v. Emperor, ILR 54 Born 531: AIR 1930 Born 354 (358) (Mirza & Broomfield, JJ.). b) Emperor v. Valu, AIR 1939 Mad 737 (Burn & Stoddart, JJ.).
(b) Dial Singh v. Emperor, AIR 1936 Lah 337 (Yung, C.J. & Rangilal, J.).
(d) Rijhuma! v. Emperor, AIR 1937 Sind 218 (Davis, C.J.).
11.93. On the present language, the narrower view is correct, that is to say, the section does not apply to a confession made in the course of the trial. However, the point will be academic after reference.
In short, our recommendation as to section 30 is that it should be repealed, for the reasons given above1.
1. Para. 11.91, supra.
11.95. Section 31-Admissions not conclusive proof, but may estop.-
Section 31 provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppel under the provisions hereinafter contained. It follows that an admission may be rebutted in appropriate circumstances. In allowing such rebuttal, the law favours the investigation of truth by all expedient methods1. The doctrine of estoppel, by which further investigation is precluded, being an exception to the general rule, and being adopted only for the sake of general convenience, and for the prevention of fraud, will not be extended beyond the reasons on which it is founded. Therefore, admissions, whether written or oral, which do not operate by way of estoppel, constitute only prima facie and rebuttable evidence against their makers and those claiming under them, as between them and others.
No change is needed in the section.
1. See Woodroffe.