CONFESSIONAL STATEMENT : Legal requirements for recording, its use and evidentiary value

Introduction:

Confession is a species of admission. The term “Confession” has not been expressly defined in any statute; this term finds mentioned in the Code of Criminal Procedure and the Evidence Act. According to the dictionary meaning confession is “an acknowledgement of offence”. As defined, in a very wider sense, by Stephen in his Digest of the Law of Evidence, confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime. Confession is a statement which is a direct acknowledgement of guilt and does not include merely inculpatory admission which falls short of being admission of guilt. Lord Atkin observed [AIR 1939 PC 47(52)] that no statement containing self-exculpatory matter could amount to confession, if the exculpatory statement was of some fact, which if true, could negative the offence alleged to be confessed. As considered in State Vs. Lalu Miah and another, 39 DLR(AD) 117 (per M.H. Rahman J). “A confession must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence”.

The confessional statement, not being a mere statement of the occurrence, is the direct and specific admission of the guilt or admission, in substance, of all the facts constituting the offence, made by the confessing accused voluntarily giving a true statement of the occurrence implicating himself, sometimes other co-accused, as being involved in commission of the offence. A self exculpatory statement or, a statement in which the maker denies his guilt is no confession.

Confessional statement alone can form the basis of conviction against its maker and, in appropriate cases, it lends assurance to the other substantive evidence as against other co-accused tried jointly for the same offence. It is, therefore, of great importance that the recording Magistrate should be well acquainted with the procedure and principles governing recording of confessional statement and, on the other hand, the trying Magistrates and the Judges, whenever they deal with the confessional statement, must apply their judicial mind with analytical insight and it is their duty to evaluate the confessional statement in accordance with the established norms of appreciation of the confessional statement, both judicial and extra judicial, to base upon it in a particular case.

Types of confessional statements:

Confessional statements are of two kinds- Judicial Confession and Extra-Judicial Confession.

For the purpose of evaluation, confessions are termed as-

a) Inculpatory Confession,

b) Exculpatory Confession,

c) Voluntary/ Involuntary Confession,

d) Confession containing True/ Partly True/ Partly False Statement,

e) Voluntary but not true confession.

f) Retracted Confession (meaning thereby submitting petition for retraction or challenging its voluntary character during examination under section 342, Cr.P.C.),

A judicial confession is made to and recorded by a competent Magistrate in accordance with the provisions of sections 164 and 364 of the Code of Criminal Procedure. The extra judicial confession may be of two categories- one is made to any person or group of persons other than Magistrate or police and another is made to the police in the form of information leading to recovery of some weapon or article of offence etc. (section 27of the Evidence Act).

Laws and principles governing recording of confessional statement:

Sections 164 and 364 of the Code of Criminal Procedure provide how the confession should be recorded and signed. Sections 24 to 30 of the Evidence Act deal with admissibility and inadmissibility of confessional statement. Also in a plethora of judicial pronouncements the principles have been laid down for governing the recording of confessional statement, its admissibility and use as evidence and the norms of appreciation as to its reliability and forming the basis of conviction.

Who can record:

Any Metropolitan Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Government may record the confessional statement (Judicial Confession). The Magistrate need not have jurisdiction to try or handle the relevant case.

Extra-Judicial Confession may be recorded by any person capable of recording. Even it may be oral statement.

Who can make:

Any accused may make confessional statement. Also juvenile offender (the term ‘accused’ should not be used in case of ‘juvenile offender’) may make the confessional statement. But special precaution is required in case of juvenile offender. In case of child offender, the Magistrate must take all requisite precautions for satisfying himself that the confession is voluntary and free from any undue influence or inducement or from the influence of police. The Magistrate should afford the offender an opportunity to see his parents and his counsel or at least should have taken greater care than the case of an adult accused in seeing that the child has not been either seduced or coerced in making the confession. 

Even a deaf and dumb person may make confessional statement by signs. But special care is required in recording the statement of such person. It is unsafe to record such statement except with the aid of a person capable of understanding the exact meaning of signs of such person. 

Where to record:

Confessional statement should not be recorded in the jail and should ordinarily be recorded in the court during court hours. Even it may be recorded in the chamber of the Magistrate.

Wherein to record:

The confessional statement should be recorded in prescribed Form (M-84) but for dearth of Form, plain paper may be used. Also plain paper may be annexed in case of lengthy statement.

Magistrate is not bound to record:

The language “may record his statement or confession” as used in section 164 of the Code of Criminal Procedure, indicate that a Magistrate is not bound to record the confession. Whether he does so or not is a matter of duty and discretion and not of obligation. It means that the Magistrate should record the confessional statement only when he believes that the maker is willing to make the confessional statement voluntarily to give a true statement of the occurrence confessing his involvement therein. But when it appears to the Magistrate that the accused has been compelled to make the confession by torture or threat or influence or by any other manner, the magistrate should not proceed to record the confessional statement. 

Legal requirements for recording the confessional statement:

Recording of confessional statement is a matter not only of form but also of substance. The recording Magistrate should make his real endeavour for ascertaining that the accused is making the statement voluntarily and should record the confessional statement by strictly following the provisions of sections 164 and 364 Cr. P.C.

Section 164(2) of the Code provides- “Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion best fitted for the circumstances of the case. Such confessions hall be recorded and signed in the manner provided in section 364 .......”. Sub section (3) of the same section provides- "A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record”.

The requirements of section 364 of the Code of Criminal Procedure, amongst others, are-

(a) The whole of the examination of an accused, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the court or in English.

(b) Such record shall be shown or read over to the confessing accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands.

(c) The accused shall be at liberty to explain or add to his answers.

(d) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate.

(e) In cases in which the examination of the accused is not recorded by the Magistrate himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability.

According to the letters and spirit of sections 164 and 364 of the Code of Criminal Procedure, section 24 of the Evidence Act, and according to a number of judicial pronouncements in the leading cases the following, amongst others, may be identified as the duties of the recording Magistrate:

(a) The recording Magistrate should disclose his identity before examining the accused brought before him. He must disclose that he is a Magistrate and not Police Officer.

(b) The Magistrate should make real endeavour to place the accused person at ease, dispel all the fear, inducement and hope from accused’s mind enabling him to make the confession of his own volition, absolutely free and voluntary according to the best dictates of his own inner conscience. The magistrate should assure that the accused would not be remanded to the police custody. As held in State Vs. Abul Hashem, 3 MLR (HCD) 30, when the accused is produced from the police custody, it is the duty of the Magistrate to remove fear of police torture from the mind of the accused. When the accused was produced from police custody and again he was sent back to the police custody after recording the confessional statement, conviction basing upon such confession was held to have suffered from legal infirmity. But, according to the decision in [Dipok Kumar Sarkar V. State, 8 BLD(AD) 109] there is no legal requirement to inform the accused that he would not be remanded to police custody even if he dose not make any confession. But of course, if the Magistrate has any reason to believe that the accused is under apprehension of police, he may assure him so. Therefore, for mere omission in informing the accused that he would not be remanded to police, the confessional statement will not take away the voluntary character of the statement.

(c) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him.

(d) The Magistrate should record the questions put to and answers obtained from the accused person. The following (Phraseology of questions may be different) may be some of the relevant questions:-

(i) Have you understood that you are not bound to make confessional statement?

(ii) Have you understood that if you make the confession it can be used against you as incriminating evidence?

(iii) Why are you making the confession?

(iv) Has anybody threatened or induced you or given you any hope or compelled you in any manner for making the confessional statement?

(v) Are you willing to make the confessional statement voluntarily?

(vi) If you are willing to make the confession, will you make the true statement?

The phraseology of questions is not material. Important is whether by those questions, the accused person understands the consequence of his confessional statement and he is made conscious of the fact that he is not bound to make confession and if he makes such confession it can be used as evidence against him. The object of putting questions and obtaining answers is to be satisfied that the confession is not a result of inducement, threat, hope, promise or torture.

The above questions and answers recorded in the prescribed Forms may be one of the important considerations for the courts in arriving at the conclusion as to the voluntary nature or otherwise of the confession.

(e) The Magistrate should record the particulars as to when and wherefrom the accused was arrested and wherefrom the accused was placed before him.

(f) The Magistrate should ask the accused persons whether he has been mentally or physically tortured while in police custody and record the answer. The Magistrate should make a note on whether or not any mark of physical torture is found on any part of the body of the accused.

(g) After making examination as above the accused should be given a reasonable time for reflection to ponder over the matter and during that time the accused should be placed under care of a person who is under control of the Magistrate. At that place no police should be allowed to stay. (Reasonable time is at least 3 hours).

(h) After the time given for reflection is over, the Magistrate should again ask the accused whether he is willing to make the confession voluntarily and if the answer is yes, the accused should be warned again that his confessional statement may be used against him as incriminating evidence.

(i) Inside the room or within sight no police officer should be allowed to remain present and all the police officers should be turned out from that room.

(j) No oath should be administered to the accused before recording the confessional statement.

(k) Confession should be recorded in the words of the accused, but it is not always correct to say that confession not recorded exactly in the words of the accused is inadmissible [Nausher Ali Sarder and others Vs. State, 39 DLR(AD) 194-paragraph-9].

(l) The recorded statement should be read out and explained to the confessing accused.

(m) When the accused confirms that the confessional statement has been recorded correctly, it shall be signed by the accused and by the Magistrate.

(n) The Magistrate must make a memorandum at the foot of the recorded statement to the following effect-

“I have explained to (name) that he is not bound to make a confession and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him” [Section 164(3), Cr.P.C.].

Making of the above memorandum is mandatory; its non compliance affects voluntary character of the confession.

(o) Again it is unavoidable duty of the Magistrate that he shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused [Section 364(2), Cr.P.C.].

Other General Guidelines:

The Form (M-84) used for recording the confessional statement by the Magistrate itself is a small guiding booklet. The left margin of the form contains certain instructions. The Form states, inter alia:

“Magistrates should clearly understand the great importance of giving their closest attention to the procedure to be followed, from first to last, in the recording of confessions. This procedure should be followed without haste, with care and deliberation, it being understood that this duty is not a distasteful and minor, appendage or addition to their normal functions, but one which is of consequence to the confessing accused, his co-accused and court responsible for the administration of criminal justice. A confession which is recorded perfunctorily and hastily is a source of embarrassment to the trial court, the prosecution and the defence.” Along with the above guidelines all other guidelines given in the prescribed Form should be carefully gone through by the recording Magistrate and thereafter the following duties are to be performed:

(a) The Magistrate should fill in all the blanks in the Form;

(b) He should put his signature at all the places shown in the Form;

(c) Under paragraph 3 of the Form the name of the Peon and the place where the accused is kept to wait should be specifically mentioned;

(d) The name, address and particulars of the accused as required under Column 7 of the Form must be specifically written;

(e) Where and at what time the accused is forwarded should be mentioned under Column 10 of the Form;

(f) As required under Column 9 of the Form, if during recording of the statement it appears to the Magistrate that the statement made or about to be made is not voluntary, forthwith the Magistrate shall stop recording of confession stating reasons thereof; and 

(g) Under Column 8 of the Form the Magistrate should give reasoning, in brief, why he has believed that the statement made before him is voluntary;

(h) The Magistrate should specifically note in the Form whether there is any mark of physical torture on any part of the body of the accused. Also the allegation of the accused of mental or physical torture, if any, must be noted in the Form.

When the accused is not given any time for reflection, no question was put to him to ascertain whether he was prepared to make the statement of his own free will, it can not be said that the Magistrate has made any genuine effort to find out the real character of the confession. If the Magistrate does not fill up the important paragraphs of the Form, the manner of recoding the confession is not acceptable. Recording of the confession in such manner casts seriously doubt as to the voluntary character of the confessional statement [Md. Azad Shaikh Vs. State, 8 BLD(HCD) 50]).

Considerations for ascertaining the voluntary character of the confessional statement:

Upon putting questions to and obtaining answers from the accused the Magistrates should form a view and impression about whether the accused person is willing to make his statement voluntarily. The provisions of section 24 of the Evidence Act should be kept in consideration with great importance. This section clearly indicates that a confession cannot be accepted and shall be deemed irrelevant if it is made as a result of inducement, threat or promise having reference to the charge against the accused person; proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. For example, when an accused is under threat of being sent back to the police remand, he is likely to make a confession out of fear of police torture.

For ascertaining whether the confessional statement is voluntary and true, it is the duty of the Magistrate and trial court to look into how long the accused was under police custody and whether the accused once refused to make confessional statement and after being taken on remand he has again been produced for recording his confessional statement. In the circumstances, along with other materials, that the accused was in police custody for unexplained two days before producing him for making confessional statement, the confessional statement was not considered to be true and voluntary [State Vs. Farid Karim, 8 BLT(AD) 87 ].

Section 29 of the Evidence Act, 1872 sometimes gives rise to grave confusions. When section 24 of the Evidence Act makes it clear that confessions are inadmissible if they are made under threat, inducement or promise by a person in authority with reference to the charge, section 29 of the same Act states that admissions are not inadmissible by the courts as evidence if made by a person under a promise of secrecy or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when the accused was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him. This section also gives rise to the question whether confessions made under such circumstances can be treated to be voluntary. However, admissibility of a statement made by any of the means or under any circumstances mentioned in section 29 depends on the careful consideration of the entire gamut of the facts and circumstances of a particular case. It must be borne in mind that admitting into evidence does not necessarily mean that the confession should be based upon for recording conviction. The whole circumstances under which the confession was made and recorded must be put under strictest scrutiny along with other evidence on record. Mere reading of section 29 of the Evidence Act without keeping in view the provisions of section 24 of the same Act may result in dangerous consequence.

Extra judicial confession:

A confession may be made before a person or group of persons which may be called as extra judicial confession. All the incidents of confession as stated under section 24 of the Evidence act are applicable in case of such confession. It should be looked into whether extra judicial confession was extorted by threat, promise, inducement, torture etc. and whether there was any police or even Dafader at the place where the confession was made, whether the extrajudicial confession is voluntary and true and whether the person(s) before whom the confession was made was trustworthy. In considering such trustworthiness this is further requirement that the court must consider whether there was any enmity between the accused and the person(s) before whom such confession was made; and such person has or had any reason to falsely implicate the accused person; and the circumstances in which the confession was made and other relevant aspects.

Extra judicial confession is covered by privilege:

There are certain statements, called privileged statements which are excluded from proof to be given of them (Sections 122, 126, 127 Evidence Act). The person (Husband/Wife; Advocate; Clerks; etc.) to whom such confession is made cannot be compelled to give evidence of such confession.

How to put into evidence:

The question often raised is whether the court can admit into evidence and base upon the confessional statement without calling the recording Magistrate. Under section 80 of the Evidence Act the court shall presume that the confessional statement and other document as specified under this section is genuine; that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such confession was duly taken. But in all cases, presumption under section 80 as to the confessional statement is not available. The confessing accused should not be denied the opportunity of cross-examining the recording Magistrate. When there is no legal evidence against the confessing accused, for ascertaining whether the confessional statement is voluntary, the recording Magistrate should be examined. As a rule of law and prudence the Magistrate who recorded the statements must be examined before putting the confessional statements into evidence. As held in Babul @ Abdul Majid Khan Vs. State, 42 DLR(AD) 186, when there are many reasons for criticising the confession, this presumption is, nevertheless, rebuttable ..... it is injudicious to rely upon confession without calling the Magistrate as witness. The court is required to see not only that the forms under sections 164 and 364, Cr.P.C. was complied with but the substance underneath the law equally adhered to.

It is important to note that for non-examination of the Magistrate the confessional statements may be treated to be inadmissible when there is a question of prejudice on the part of the accused. There may be circumstances when the Magistrate is not examined, confessional statement was not tendered and admitted into evidence marking as exhibit, identity of the maker was not established; and there was no proof who forwarded the confessing accused to the Magistrate, the confessional statement was not accepted as sole basis of conviction [Sayed Ali Vs. State,7 BLC (HCD)180].

There may be cases when the recording Magistrate cannot be examined for reasons of death, staying abroad for long period, etc. In appropriate cases, when the question of identity of the confessing accused is met up, there is no likelihood of prejudice on his part, and the confessional statement is recorded in accordance with the provisions of sections 164 and 364 of the Code of Criminal Procedure, it is permissible under the enabling provision of section 80 of the Evidence Act to presume only that the “confession was taken in accordance with law and that it was true and duly taken”, without examining the recording Magistrate. Before acting on the basis of section 80 of the Evidence Act, the Judge must take into consideration the whole attendant circumstances, whether there is acceptable reason of non-appearance of the recording Magistrate as witness, the question of prejudice on the accused and the judicial pronouncements relevant and applicable in the particular circumstances of the case.

Evidentiary value of confessional statement:

A. Against maker:

(i) A confessional statement is incriminating evidence against its maker unless its admissibility is excluded. Confession can form the sole basis of conviction against its maker on the conditions that it is true and voluntary; it fits in the circumstances of the particular case which may at least create an impression that it is true and it either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. There is no compulsion that a true and voluntary confession needs to be materially corroborated for using it against its maker. But in the particular circumstances in State Vs. Shafique 43 DLR(AD) 203, it was held that there being no corroboration on any material particular of the confessional statement, it was unsafe to maintain conviction of the respondent under section 302/ 34, Penal Code, though the respondent implicated himself to be an offender.

The confessional statement cannot be used against its maker when it is proved that it was obtained by inducement, threat or promise (Section 24, Evidence Act). But when it is found that threat or promise or inducement was before making the confession, but in the opinion of the court, the confessional statement was recorded after removal of such threat, promise or inducement- such confession may be admissible (Section 28, Evidence Act).

(ii) Retracted Confession:

When an accused alleges that he has not made the confession voluntarily or that he has made the confession as a result of mental or physical torture that amounts to retraction. In paragraph 49 of the judgment in State Vs. Lalu Miah and another reported in 39 DLR(AD) 117, it was held that retraction of a confession at an earliest opportunity may lend support to the defence plea that the confession was not voluntary one, but from a belated retraction of a confession no inference adverse to the accused can be made. An accused may be convicted even on a retracted confession if it is inculpatory but corroboration is required, but this rule of prudence, however, does not require that each and every circumstance mentioned in the confessional statement must be separately and independently corroborated then the rule will be meaningless, as an independent evidence itself would afford sufficient basis of conviction and it would be unnecessary to call the confession in aid. When retracted, it is the duty of the court, as a rule of caution, to take into consideration the reasons shown in the retraction petition. But for mere reason of filing retraction petition, the confessional statement cannot be readily and mechanically brushed aside. If it is found that the confession, at the time of making it, was voluntary and true, subsequent retraction cannot make any difference from the confession which is not retracted. As against the maker himself, his confessional statement, judicial or extra judicial, whether retracted or not retracted, can, in law, validly form the sole basis of his conviction [State vs. Minhun @ Gul Hassan, 16 DLR 9(SC) 598]. In Amir Hossain Hawlader Vs. State reported in 4 BLD(AD) 193, it has been held that a retracted confession, like the one which is not retracted, may form the sole basis of conviction of its maker.

(iii) Exculpatory Confession:

Exculpatory statement is one wherein the accused making it does not implicate himself. Without any other direct or circumstantial evidence qualifying the said confession, it is of no avail to the prosecution for sustaining the order of conviction. There may be cases where maker does not implicate himself and, on the other hand, implicate other persons in his confessional statement. It is then a so-called confession which alone cannot be relied upon as against its maker and also against other co-accused [Ibrahim Mollah and others Vs. State 7 BLD(AD) 248].

In a case of murder where it was found that there was no common intention, the confessing accused stated nothing incriminating against himself as playing any role in commission of murder except being present in the scene of the occurrence, the conviction awarded by the Sessions Judge was held manifestly wrong, the confessional statement being considered to be exculpatory [Ashraf Ali @ Sheru Vs. State, 7 BLC(HCD) 616 ].

(iv) Confession containing exculpatory and inculpatory statement:

There may be confessional statement containing inculpatory and also exculpatory statement. Question often arises whether reliance can be placed on the inculpatory part of such confession. In State Vs. Lalu Miah and another reported in 39 DLR(AD) 117, paragraph 39, the view taken was “....... Notwithstanding the general principle that a confession should be accepted or rejected as a whole, but in certain facts and circumstances, the inculpatory part may be accepted if the exculpatory part is found to be false or basically improbable, regard being had to reason and human conduct”.

(iv) Extra judicial confession:

(a) Extra judicial confession by its very nature is weak type of evidence. It is unsafe to base conviction of an accused on his extra judicial confession alone. The value of such confession as evidence depends upon the veracity of witnesses to whom it was made [State Vs. Hassan Ali, 19 BLD(HCD) 42-18]. Extra judicial confession can well be relied upon, but the court must bear in mind two rules of caution- first: whether the evidence regarding confession is reliable and second: whether it finds corroboration. With precaution such confession can be taken into consideration along with other evidence and attending circumstances. If the other evidence and circumstances are found meagre lacking independent corroboration, the extra judicial confession, even if found to be true, cannot be the basis of conviction against its maker [Mobarak Hossain Vs. State, 3 BLD(AD) 329]. If extracted upon physical assault or inducement, it has no value. For Instance, if an extra judicial confession is made before a Dafader and there is evidence of beating the accused by him, it should be left out of consideration.

(b) Confession under police custody:

Normally confession made before police or under police custody is inadmissible (Sections 25 and 26, Evidence Act). But when some incriminating article is recovered following such confession, it is admissible according to section 27 of the Evidence Act which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. For example, when an accused confessed before police that he had concealed the dead body of his wife in a latrine-well and the dead body was recovered therefrom by police. Such information can be admissible and can be relied upon for basing the conviction [Dipok Kumar Sarker Vs. State, 8 BCR(AD) 141, Paragraph 16].

(v) Voluntary confession containing untrue statements:

Though voluntary, if it is not true, confessional statement cannot form the sole basis of conviction. For example, when confessing accused states in his confessional statement that he dealt a blow on the head of the victim by iron rod but from the evidence it is found that there was no injury caused by iron rod on the victim, the statement is not true and such confession cannot form the sole basis of conviction [State Vs. Abul Basher @ Bashir @ Khaleque and another, 9 BLT(AD) 218]. When the whole prosecution evidence contradicts the confession, the accused is entitled to benefit of doubt. But when the prosecution case is proved by other evidence on record, the confessing accused cannot be acquitted on the plea that his confession is untrue and non-voluntary. When confessional statement is partly true and partly false or in other words does not disclose the full picture of the occurrence, the confessional statement can be used against the maker and there is no legal bar in upholding the conviction on the basis of the confession [State Vs. Bellal Hossain, 20 BLD(HCD) 45]. When it is found from the incriminating confessional statements that the accused made conspiracy with other co-accused and the accused was present standing outside the place of occurrence, the confessing accused can be safely convicted for abetment of murder though not confessed that he has committed murder [Hazrat Ali and others Vs. State, 44 DLR(AD) 51].

B. Against other co-accused:

The confession of one co-accused does not fall within the definition of evidence under section 3, Evidence Act. It cannot be made on oath. It is not made in presence of other co-accused against whom it was made. Its veracity cannot be tested by other co-accused affected in the confession. This is weak type of evidence as against other co-accused. It does not amount to proof. Therefore, the confessional statement of one accused cannot be treated to be the substantive evidence as against other co-accused.

Section 30 of the Evidence Act simply makes the confession of a co-accused relevant fact and, therefore, it may be taken into consideration against other co-accused [Amir Hossain Hawlader and others Vs. State, 37 DLR(AD) 139, 4 BLD(AD) 193]. In the same case it was held that it is the established rule of evidence as well as rule of prudence that confessional statement of co-accused shall not be used as the sole basis of conviction in the absence of independent corroborative evidence. In the particular circumstances of the case, confession one accused can be taken into consideration as the evidence against co-accused when facts and circumstances are supportive of such confession [Nausher Ali Sarder and others Vs. State, 39 DLR(AD) 194]. The confession of one co-accused is considered as a weak type of evidence against other co-accused and to base upon such confession for convicting other co-accused, there must be at least some sort of corroboration from other evidence and circumstances. The matter of using confessional statement against co-accused was raised before the Privy Council (AIR 1949 PC 257) and it was held that section 30 provides that the court may take the confession into consideration and thereby make it evidence on which the court may act, but the section does not say that the confession amounts to proof, clearly there must be other evidence, the confession is only one element in the consideration of all facts proved in the case, it can be put into the scale and weighed with other evidence. Then the question as to how the confession of a co-accused can be weighed out was addressed in Maqbool Hossain Vs. State, 12 DLR(SC) 217 by holding “The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other person, sufficient to sustain his conviction. It is well settled that there ought to be other evidence, whether direct or circumstantial, linking a person with the crime, before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person”. In what way the confession of a co-accused can be dealt with has been settled in the decision in Lutfun Nahar Begum Vs. State, 27 DLR(AD) 29 wherein it was held that confession of a co-accused cannot be treated to be the substantive evidence against another accused but it can be used only to lend assurance to other evidence. The spirit of the principles laid down in Babor Ali Molla Vs. Sate, 44 DLR(AD) 10 and Ustar Ali Vs. Sate 3 BLC(AD) 53 is that a confession made by a co-accused in a joint trial for the same offence affecting himself and others may be taken into consideration and that such confession may lend assurance to the other evidence. In Paragraph 20 of the judgment in Abdus Salam Mollah Vs. State, 13 BLC(AD)17 the confusion on the evidentiary value of a confessional statement against non-confessing co-accused in the same trial for the same offence was taken into account and it was held that when the confession made by an accused is found voluntary and true, such confession affecting the confessing accused and some others tried in a joint trial for the same offence can be taken into consideration as against the non-confessing accused in finding such non-confessing accused guilty only when there is substantive evidence against the non-confessing accused. It was further clarified that the confession of a co-accused can be taken into consideration along with substantive evidence as an extra weight against the co-accused tried jointly for the same offence.

Therefore, the spirit of section 30 is that this is an enabling provision to take into consideration the confessional statement of a co-accused against other co-accused tried jointly for the same offence but such confession cannot be used as substantive piece of evidence and as the sole basis of conviction as against the co-accused; such confession may lend assurance to other substantive evidence, against such co-accused. Mere abscondance of an accused is not to be treated to be corroborative of a confessional statement of a co accused and such statement cannot be the basis of conviction of the absconding accused [Amir Hossain Hawlader and others Vs. State, 4 BCR(AD) 236].

Bringing confessional statement to the notice of the accused is mandatory:

The trial court must bring to the notice of the confessing accused the confessional statement while examining him under section 342 of the Code of Criminal Procedure for enabling him to explain the circumstances appearing against him. Therefore, for basing upon the confessional statement it is mandatory that the accused person should be given an opportunity to explain about his confessional statement. The failure of the trial court to mention about the confessional statement at that stage will prejudice the accused and it will amount to infringement of the provision of section 342, Cr.P.C. As held in Abul Kashem and others. Vs. State, 49 DLR(HCD) 573, when only evidence of involvement of the accused appellant were from their confessional statements, but during their examination under section 342, Cr.P.C. the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same- this has prejudiced the appellant in their defence. But circumstances may be that though the confessional statement is not brought to the notice of the accused, the confessional statement may well be used against him if he is not prejudiced. When it was found that the accused persons were present during recording evidence; in their reply they stated that the confessions were obtained from them by police torture and inducement; they were aware of their confessional statements; none of the confessing accused retracted their confession either by application from the jail or directly by filing application in the court; it was only suggested to the Magistrate and the Investigating Officer that the confessions were obtained by police torture which was denied; the accused repeated the same during examination under section 342 Cr.P.C.; and there was no material to substantiate the said allegation, it was held that no reliance could be placed on such unsubstantiated allegation at a latter stage of the trial and that the accused persons were not prejudiced (Mezanur Rahman and others Vs. State, 16 BLD(AD) 293). When the Judge neglected his duty to make a proper examination of the accused under section 342 of the Code of Criminal Procedure; did not draw the attention of the accused to their confessional statements, nor even to the evidence of only eye-witness, but on the other hand, the accused person submitted a joint written statement giving their defence, inter alia, that being asked by police they refused to confess and that at the behest of the police they were again very badly beaten and taken to the court for recording their confession, the accused persons were aware of their confessional statement, it was held, in the circumstances of that case, that the accused persons were not prejudiced by the scrappy examination Abu Taher and others Vs. State, 10 BCR(AD) 290. Noteworthy that in the immediate foregoing two decisions the observation of the Appellate Division respectively were- “Although the trial court should draw the attention of the accused to the main incriminating pieces of evidence against him, particularly the confessional statement, while examining him under section 342 Cr.P.C. ............” and “..... the trial Judge neglected his duty to make a proper examination ........” . Therefore, though the Appellate Division has found, in the particular circumstances of those two cases, that the accused persons have not been prejudiced but the quoted observations clearly indicate that the Judge or Magistrate must not neglect his duty to properly examine the accused persons and in doing so the confessional statement must be brought to the notice of the accused persons during examination under section 342 of the Code of Criminal Procedure.

Conclusion :

It is commonly and generally alleged by the confessing accused persons and their lawyers that the confession has been extracted by police torture. Also in many of the retraction petitions and during examination under section 342, Cr.P.C., the allegation of mental and physical torture is raised. There is no guideline, nor is there any practice to separately dispose of the retraction petition upon any inquiry into the allegation of torture for compelling an accused to make the confessional statement. The Constitution of the People’s Republic of Bangladesh, the supreme Law of the land [Article 35(4)], provides “no person accused of any offence shall be compelled to be witness against himself”. If, in fact, confessions are obtained by compelling the accused in any manner, it is clearly violative of the constitutional right guaranteed to the accused. Therefore, the recording Magistrate must be careful in ascertaining whether the accused placed before him for making confessional statement was compelled by torture or by any other manner to make a statement against himself. On the other hand, the trial court as well as the appellate court should make a careful scrutiny of the confessional statement, the entries in the Form for recording such statements, comments of the Recording Magistrate and his evidence given in the court.

Since the confessional statements alone can form the basis of conviction, the Magistrate should not act mechanically in recording the confessional statements; it is the solemn duty of a Magistrate to strictly follow the provisions of sections 164 and 364 of the Code of Criminal Procedure for avoiding the possibilities of causing injustice. There may be cases where only for non-compliance of those provisions a confessional statement may be left out of consideration by the trial court and appellate court though confessional statement was made voluntarily. It is important that the procedure and manner followed by the recording Magistrate must be reflected in the prescribed Form so that the trial court/ appellate court can see whether the recording Magistrate has made real endeavour for ascertaining voluntary nature of the confession.

The recording Magistrate must keep in view that for his omission to follow the procedure and guidance, for his slightest negligence and carelessness, an innocent person may be convicted upon a confession shown to be voluntary but not in fact voluntary and, on the other hand, a real culprit may be acquitted though he has made a true confession.

It is not enough for the recording Magistrate that he himself be satisfied that the confession is true and voluntary; he should also reflect everything as required by law for scrutiny of the court which is the ultimate forum to arrive at the decision as to whether the confessional statement is true and voluntary.

(Apology : This article, though I believe that it has been prepared on the basis of the provisions of law and principles laid down in some of the leading cases, may not be exhaustive and there may be unintentional lapses. Reference to the decisions has been made covering only some of the many circumstances. Before applying the principles referred to above, the court must consider, upon going through the judgments of those leading cases, whether those principles fit in a particular case. If any updated decision of the apex court is found and/or referred to, it should be followed if fitted in the particular facts and circumstances of a case.)