Munnalal vs State of M. P. - 1987 Supreme(MP) 499

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: C.K. Joshi
For the Respondents: Swami

Headnote:(1) Evidence Act, 1872 – S. 25, 26 and 27 – confessional part in memorandum of recovery – cannot be proved.
       (2) Evidence Act, 1872 – S. 27 and 30 – confession in memorandum of recovery – not a provable confession under S. 30.
        Short Note
       1. This revision petition is directed against framing of charged under Secs. 302, 302/34 and 120 – B of the I.P.C. against the petitioner (vide S.T. No. 65/87 of the Court of Session, Ratlam).
       Held : The contention of the learned counsel for the petitioner is that there is no admissible material to sustain the charges framed against the petitioner.
       2. The point for consideration is whether the revision petition deserves to be allowed.
       3. Section 30 of the Evidence Act providing for consideration of proved confession affecting the person making it and others jointly under trial for the same offence, reads thus :
       "When more persons than one are being tried jointly 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 as against such other person as well as against the person who makes such confession".
       [Explanation. – 'Offence' as used in this section, includes the abetment of, or attempt to commit, the offence].
       4. The contention of the petitioner's learned counsel is that in the memorandum dated 27 – 1 – 87 made by the petitioner's co – accused Jagdish it has no doubt been stated that the petitioner was also involved in the murder but he contends that this statement is not covered under Sec. 27 of the Evidence Act and, therefore the confessional part pertaining to the petitioner's involvement in the crime cannot be proved against either of them in view of the provisions embodied in Sees. 25 and 26 of the evidence Act. In this connection the decision in H.P. Administration v. Omprakash (AIR 1972 SC 975) may usefully be perused.
       Secs. 25 and 26 of the Evidence Act are in these terms :
       "25. Confession to police officer not to be proved. –
       No confession made to a police officer, shall be proved as against a person accused of any offence".
       "26. Confession by accused while in custody of police not be proved against him. –
       5. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.
       6. From a combined reading of sections 25 and 26 it is clear that there is force in the contention sought to be canvassed by the petitioner's learned counsel. The confessional part under consideration is not convered by section 27 of Evidence Act and cannot be proved whether against the person making it (vide section 26) or against his co – accused (vide Sec. 25). In view of these provisions Sec. 30 of the Evidence Act which contemplemplates provable confessions cannot be invoked. AIR 1972 SC 975 followed. Petition allowed.