SHORT NOTE
DELHI HIGH COURT
Sanjiv Khanna and G.P. Mittal, JJ.
Dinesh —Appellant
versus
State —Respondent
Criminal Appeal No. 310 of 1999
Decided on 19.5.2014

IMPORTANT POINT
Extra judicial confession could be used only to lend assurance to other evidence against a co-accused.

Headnote:Indian Penal Code, 1860—Section 302/34—Conviction of appellant on basis of extra-judicial confession of co-accused (who died during pendency of appeal) and recovery of blood stained clothes and weapon farsa at the instance of appellant—Sustainability of conviction—Deceased was father of co-accused and on the day dead body of deceased was found lying in a field that co-accused went to PW17, brother of deceased and confessed to have killed his father with active participation of appellant—Extra judicial confession by an accused against co-accused was weak type of evidence which could not be made the foundation for conviction of co-accused—Evidence regarding recovery of blood stained clothes at the instance of accused was discrepant and contradictory—Why accused have had preserved them till two days was against natural and normal instinct—Recovery of weapon farsa from a well at the instance of appellant also appeared to be doubtful—Conviction could not be sustained. (Paras 4 to 6, 10, 13, 18 and 19)

       (ii) Evidence Act, 1872—Sections 3 and 30—Extra judicial confession by an accused implicating co-accused also—Admissibility of such evidence against co-accused—It could not be used to base a conviction of co-accused.

       Held: At the outset, we record that the extra judicial confession became the primary and principal evidence relied upon by the prosecution against Arjun, but no extra judicial confession is attributed to the appellant-Dinesh. The legal issue whether extra the judicial confession made by late Arjun, can be relied upon and made the basis for conviction of Dinesh was answered in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159. In the said case, reference was made to the decision of the Privy Council in Bhuboni Sahu v. The King 1949(76) IA.147to the effect that extrajudicial confession of a co-accused did not come within the definition of ‘evidence’ under Section 3 of the Evidence Act as it was not required to be given on oath, in the presence of the accused and could not be tested by cross-examination. It was categorised as a weak type of evidence which cannot be made the foundation for conviction of co-accused and could only be used in support of other evidence. Reference was made to the opinion of Sir Lawrence Jenkins In Emperor Vs. Lalit Mohan Chuckerbutty, 1931 ILR 75 (Madras), wherein, it was succinctly put that extra judicial confession could be used only to lend assurance to other evidence against a co-accused and as observed by Reilly J. in re Periyaswami Moopan 1911 I.L.R. 38 Cal. 559, that Section 30 of the Evidence Act went no further than stating that evidence against the co-accused was sufficient, if believed, to support his conviction, confession made by co-accused in view of said Section could be an additional reason in the scale for believing the (primary) evidence.

       The aforesaid view finds resonance and approval in the decision of the Constitution Bench in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 wherein reference was made to Sections 3 and 30 of the Evidence Act. The question whether confession of an accused could be used against the co-accused, who had been implicated or it could be only used against the maker, was again answered elucidating that confession was strictly not an evidence against co-accused under Section 3 of the Evidence Act, but in a non-technical way, Section 30 enabled the Court to take the confession into account, inspite of it not being obligatory and though it was not to be treated as substantive evidence against the co-accused. The proper way was to exclude the extra judicial confession against co-accused and examine other evidence. If the said evidence appeared to be satisfactory and the Court was inclined to hold that the said evidence sustained the charge framed against co-accused, then the Court could turn to the confession with a view to reassure the conclusion. The Court cannot start with the confession of a co-accused and must begin with other evidence adduced by the prosecution and after formation of opinion with regard to the quality and effect of the said evidence, it was permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind was about to reach on the other evidence. (Refer also to State of M.P. v. Paltan Mallah, AIR 2005 SC 733 and Pancho v. State of Haryana, AIR 2012 SC 523).

       (iii) Evidence Act, 1872—Section 27—Joint disclosure by two accused and recovery of pursuant to such disclosure—Information should be given without any break and almost simultaneously—Whether and to what extent such a simultaneous disclosure could be relied upon by the court was a matter of evaluation of evidence.

       Held: Even if we accept that this is a case of joint disclosure, it would be important to notice the observations of the Supreme Court in State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005(11) SCC 600.

       In the aforesaid paragraph, the Supreme Court, while accepting that ‘joint disclosures’ can fall under the purview of Section 27 of the Evidence Act, has observed that the information should be given without any break and almost simultaneously to avoid criticism from the stand point of credibility and nexus with recovery. Admissibility and credibility are two different aspects and, therefore, credibility of the discovery of the two Pharsas from the well, in this situation, which was a fact stated by Arjun to Chiranji Lal (PW17) on 10th January, 1993 and in his disclosure statement recorded earlier on 11th January, 1993, to some extent affects the credibility of the disclosure made by the appellant Dinesh. However, the testimonies of PWs10 and 14 can be relied upon as relevant evidence under Section 8 of the Evidence Act.

       Result: Appeal allowed.