Extra Judicial Confession Of A Co-Accused Cannot Be Relied On As Substantive Evidence ; It's Only A Corroborative Piece Of Evidence : Supreme Court

The Supreme Court observed that the extra judicial confession of a co­-accused could not be relied on as substantive evidence.

The confession of a co­ accused could be used only in support of the evidence and could not be made a foundation of a conviction, the bench of  CJI UU Lalit and Justice JB Pardiwala observed.

The bench observed thus while allowing the appeal filed by a murder convict. In this case, the murder accused was acquitted by the Trial Court, but the Karnataka High Court allowed the appeal filed by the State and convicted the accused. The High Court had relied on an extra judicial confession made by one co-accused to convict the accused.

One of the contentions raised in appeal before the Apex Court was that the High Court committed a serious error in making the extra judicial confession as the basis and thereafter going in search for corroboration. This confession of a co­accused, even if proved, cannot be the basis of a conviction and although it is evidence in the generic sense, yet it is not evidence in the specific sense and it could afford corroboration to other evidence and cannot be the supporting point or the sole basis of the conviction, it was contended. On the other hand, the State contended that the extra judicial confession alleged to have been made by the co-accused is admissible against the accused.

Referring to Section 30 of the Indian Evidence Act and earlier decisions of the Supreme court, the bench observed:

To come to the ratio, we find that the view was affirmed that confession of a co­accused could only be considered but could not be relied on as substantive evidence... The case in hand is not one of a confession recorded under Section 15 of the TADA Act. On the language of sub­section (1) of Section 15, a confession of an accused is made admissible evidence as against all those tried jointly with him. So, it is implicit that the same can be considered against all those, tried together. In this view of the matter also, Section 30 of the Evidence Act need not be invoked for consideration of confession of an accused against the co­accused, abettor or conspirator charged and tried in the same case along with the accused. The accepted principle in law is that the confessional statement of an accused recorded under Section 15 of the TADA Act is a substantive piece of evidence against his co­accused, provided the accused concerned are tried together. This is the fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence.

While allowing the appeal and restoring acquittal of the accused, the bench observed that the evidence of discovery of the weapon, clothes and dead body of the deceased at the instance of the accused can hardly be treated as legal evidence.

Case details

Subramanya vs State of Karnataka | 2022 LiveLaw (SC) 887 | CrA 242 OF 2022 | 13 October 2022 | CJI UU Lalit and Justice JB Pardiwala

Counsel: Adv Krishna Pal Singh for the appellant, Adv V.N. Raghupathy for respondent- State

Headnotes

Indian Evidence Act, 1872 ; Section 30 - Confession of a co­accused could only be considered but could not be relied on as substantive evidence - Fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence (Para 66 -68)

Constitution of India, 1950 ; Article 136 - Criminal Appeal - Circumstances under which an appeal would be entertained by Supreme Court from an order of acquittal passed by a High Court summarised. (Para 45-46)

Criminal Trial - Circumatantial Evidence - In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. (Para 47-49)

Criminal Trial - Extra judicial confession - A weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession - Admissibility and evidentiary value of extra judicial confession (Para 54-58)

Indian Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. (Para 78-87)

Indian Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. (Para 89)

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