279

CHAPTER - VII

EVIDENTIARY VALUE OF CONFESSIONS

A confession when proved and declared relevant,

next question is what is its evidentiary value? No hard

and fast rule can be laid down, it is in the wisdom of

the judge to determine the evidentiary value of a

confession according to circumstances of each case.

It is easy to determine the evidentiary value of a

confession. However, problem arises when the confession

of the accused is blended with other exculpatory

portions. Strictly speaking this statement is no longer

a confession, since it includes exculpatory elements in

it.-L Nevertheless statement contains inculpatory portion

which can be relied upon by the court along with other

evidences. But can the court split up the statement and

accept inculpatory portion while rejecting exculpatory

one?

It has been a settled trend among appellate courts

that such statements must be tendered in evidence as a

whole or rejected as a whole though it is not necessary

1. See Supra Chapter II.

 280

that it should be believed or disbelieved as a whole.2

In Balmokund v. Emperor.2 it was held that :

(a) where there is otherevidence, a portion of

the confession may, in the light of that
evidence, be rejected while acting upon the
remainder with other evidence;

(b) where there is no other evidence and

exculpatory element is not inherently
incredible, the court cannot accept the
inculpatory element and reject the
exculpatory one.

In A. Nacresia v. State of Bihar.4 it was held that

separation of confessional F.I.R. into confessional and

non-confessional is misleading and entire confessional

2. Balmukund v. Emperor, A.I.R. 1931 All. 1,2;

Hanumant v. State of M. P. . A.I.R. 1952’S.C. 343 at
350; Palvinder kaur v. State of Punjab. A.I.R.
1952 S.C. 353; Sant Ram v. State, A.I.R. 1953 H.P.
105; N.K. Vasu v. State. A.I.R. 1954 Trav. Co. 282
at 357; Mohammad Pasha v. State of Hyderabad.
A.I.R. 1956 Hyd. 2 80; In re Danaeti Salteya,
A.I.R. 1957 A.P. 213; In re Upputholla
Sriniwasulu. A.I.R. 1958 A.P. 37; Narain Singh v.
State of Punjab. 68 Cr. L.J. 73 0; Narbahadur
Dariee v. State. A.I.R. 1965 Assam 89; Jashwant
Singh v. State. A.I.R. 1966 Raj.83; A. Naaesia v.
State of Bihar. A.I.R. 1966 S.C. 119; Jai Ram Oiha
v. State. A.I.R. 1968 Orissa 97; Nishikant Jha v.
State of Bihar. A.I.R. 1969 S.C. 422; Jethamal v.
Asstt. Collector of Customs. A.I.R. 1974 S.C. 699;
Bhacrwan Singh v. State ofHaryana. A.I.R. 1976
S.C. 1797.
3. A.I.R. 1931 All. 1,2.
4. A.I.R. 1966 S.C. 119.
 281

F.I.R. being hit bysection 25 must be excluded. Here

whole of the F.I.R. was tendered but disbelieved by the

court.

In Nishikant Jha v. State of Bihar. ^ court

accepted inculpatory portion of confessional statement

and rejected the exculpatory as the latter was not only

inherently incredible but was also contradicted by his

subsequent statement under section 342 of the Cr.P.C.,

1898. Here the court, though splitted the statement

into two parts but have not disturbed the well accepted

rule laid down in Balmokund v. Emperor. ^ The Supreme

Court upheld the splitting, relying on Nishikant Jha's

case.7 in Jethamal v. Asstt. Collector of Customs.8 and

Bhagwan Singh v. State of Haryana.^

After deciding how much part of the confessional

statement is to be accepted in accordance with cases

discussed in preceding paragraph, the real question now

is what is the evidentiary value of the confession

accepted by the court.

5. A.I.R. 1969 S.C. 422.

6. Supra note 3.
7. Supra note 5.
8. A.I.R. 1974 S.C. 699.
9. A.I.R. 1976 S.C. 1797.
 282

The Guidelines regarding evidentiary value of

confessions can be traced out of judicial decisions. One

guideline provided' by the legislature is section 31 of

the Act which says that :

admissions are not conclusive proof of the

matter admitted, but they may operate as
estoppel under provisions hereinafter
contained.

All that section 31 says is that an admission is

not conclusive proof. All the same an admission may be

sufficient proof without corroboration.

Let us distinguish between evidentiary value of

judicial and extrajudicial confessions. In Birey Singh

v. State.10 it was observed :

It may be doubted whether a conviction can be

based solely upon an extrajudicial confession, but
there is no reason for hesitating to base
conviction on a judicial confession. The evidence
of verbal confessions of guilt may have to be
received with great caution. . . but many of the
reasons which necessitate great caution do not
operate in the case of a judicial confessions.11

In Guramma v. State of Mysore.12 it was explained

10. A.I.R. 1953 All. 785; see also, Om Prakash v.

State A.I.R. 1957 All. 388.
11. Id. at 190.
12. 1957 M.L.J. (Cr.) 413.
 283

that an extrajudicial confession does not stand on the

same footing as a judicial confession. The Magistrate

administers the necessary warning to the accused, gives

him time and sees that there is no pressure or influence

exerted on him. In extrajudicial confessions which are

not even recorded in writing, there are no such

safeguards. It is because of these dangers, law insists

that so far as extrajudicial confession is concerned, as

contrasted to a confession recorded by Magistrate, there

should be material corroboration connecting the accused

with the crime.

So far as judicial confessions are concerned

conviction can be based upon them and there is no law

requiring for corrboration of judicial confession and

there is no conflict of opinion. But it has become an

established rule of prudence to seek corrboration for a

retracted judicial confession.13

. 1 4
In Thima and Thima Ra~iu v. State of Mysore. xt

was observed that probative value of an extrajudicial

13. Subramania Gounden v. State of Madras. A.I.R. 1958

S.C. 66. See also, Puran Singh v. State of Punjab.
A.I.R. 1953 S.C. 459. .
14. A.I.R. 1971 S.C. 1871.
 284

confession depends upon all relevant factors, such, as,

the person to whom the confession is made, the time and

place of making it, the circumstance in which it is

made and finally the actual words used. In Rahim Beg v.

State of U. P. ,15 it was emphasised that where an

extrajudicial confession is alleged to have been made to

a person having no history of previous association

between the witness and confessing accused as may

justify the inference that the accused could repose

confidence in him, it is highly improbable that the

accused would have gone to him and blurt out a

confession. In such circumstances confessions should

not be relied upon. This was endorsed in State of

Puniab v. Bhaian Sincrh.1 and recently in Lakhan Pal v.

State of M.P..17

There is a cleavage of opinion regarding the

evidentiary value of extrajudicial confessions.

According to one view confessions afford evidence of

highest value. The other view is that they are weak

type of evidence.

15. A.I.R. 1973 S.C. 343.

16. A.I.R. 1975 S.C. 258.
17. A.I.R. 1979 S.C. 1620.
 285

In Maghar Sincrh v. State of Punjab.18 it was held

that extrajudicial confession' cannot be termed to be a

tained evidence and if corroboration is required it is

only by way of abundant caution. If the court believes

that the witness before whom the confession is made and

is satisfied that the confession was voluntary, then in

such a case conviction can be founded on such evidence

alone.

But a rule of caution was laid down in Wakil Navak

v. State of Bihar.It was observed (that before court

can act on an extrajudicial confession, the

circumstances under which it is made, the person to whom

it is made will be considered along with two rules of

caution). First, whether the evidence of confession is

, , nn
reliable and secondly whether it finds corroboration. u

How much corroboration is required? It was held in

Balbir Singh v. State of Punjab.21 that the

corroboration of each and every circumstance is not

necessary in following words :

18. A.I.R. 1975 S.C. 1320.

19. (1971) 3 S.C.C. 778.
20. See also, P.K. Singh v. State of Manipur. A.I.R.
1956 S.C. 9.
21. 58 Cr. L.J. 481.
 286

The rule of prudence does not require that

each and every circumstance mentioned in the
confession with regard to the participation
of the accused person in the crime must be
separately and independently corroborated....
If the rule requires that each and every
circumstance mentioned in the confessional
statement must be separately and
independently corroborated, then the rule
would be meaningless, inasmuch as the
independent evidence itself would afford
sufficient basis for conviction and it would
be unnecessary to call the confession in
aid.22

In Thimma and Thimma Raiu v. State of Mysore.23 it

was observed that an extrajudicial confession is often a

very weak piece of evidence. The first disability is

that whenever there is an extrajudicial confession by

the time it comes to the court one is not in a position

to know in what actual words the accused had spoken

which reduces the value of extrajudicial confession.

In Jauta v. State of Haryana.24 it was further

held that evidence about an extrajudicial confession is.

in the nature of things a weak piece of evidence. It

22. Id. at 490; see also, Ratan Gond v. State of

Bihar. A.I.R. 1959 S.C. 18.
23. A.I.R. 1971 S.C. 1871.
24. A.I.R. S.C. 1545; see also, State of Punjab v.
Bhaian Singh. A.I.R. 1975 S.C. 258; H.P.
Administration v. Smt. Shiv Devi. A.I.R. 1959 H.P.
3 at 10.
 287

was also observed that value of confession can be gone

into only if the existence is established by the leading

reliable evidence about the accused having made it.

Evidentiary Value of Confession of Co-accused :

When a person makes a confession, which affects

both himself and another, the fact of self implication

takes the place, as it were, of the sanction of oath,

or, rather supposed to serve as some guarantee for truth

of accusation against the other.25 The guarantee,

however, is a very weak one, for, the fact of self-

inculpation is not in all cases, a guarantee, for the

truth of a statement, even against the person making it,

much less is it so as against another. Further a

confession may be true so far as it implicates the

maker, but may be false and concocted through malice and

revenge so far as it affects others. So there is a risk

of condemning the innocents with the guilty one.

The supreme Court in Kashmira singh v. State of

M.P..26 following the decision of Privy Council in

25. Queen Empress v. Jaarup, (1885) I.L.R. 7 All.

646, 648.
26. A.I.R. 1931 S.C. 159.
 288

Bhuboni_Sahu v. The King,27 held that confession of a

coaccused is not evidence in the ordinary sense of the

term as defined in section 3 of the Act. It is not

required to be given on oath, nor in the presence of the

accused, and it cannot be tested by "cross examination".

It is much weaker type of evidence then evidence of an

approver which is not subject to any of those

infirmities. It cannot be made the foundation of a

conviction and can only be used in support of other

evidence. The Supreme Court further observed that the

proper way is, first, to marshall the evidence against

the accused excluding the confession altogether from

consideration and see whether, if it is believed a

conviction could safely be based on it. If it is

capable of belief independently of the confession, then

of course it is not necessary to call the confession in

aid. But cases may arise where the judge is not

prepared to act on the other evidence as it stands even

though, if believed, it would be sufficient to sustain a

conviction. In such an event the judge may call in aid

27. Id. at 177. See also, Dewan Chand v. State of

U.P... A.I.R. 1956 S.C. 56.
 289

>

the confession and use it to lend assurance to other

evidence and thus fortify himself in believing what

without the aid of the confession he would not be

prepared to accept.

Section 30 of the Act provides that court may take

the confession into consideration. But section does not

say that the confession is to amount to proof. Clearly,

there must be some other evidence. The confession is

only one element in the consideration of all facts

proved in the case. It cannot be put into scale and

weighted with other evidence. The matter was put

succinctly m Emperor v. Laiit Mohan. ° where it was

held that such a confession can only be used to "lend

assurance to other evidence against a coaccused" or to

put it in another way as Beilly, J., did in re Periva

Swami Moonan2^

(T)he provision goes no further than this

where there is evidence against coaccused
sufficient, if believed, to support his
conviction, then the kind of confession
described in s.30 may be thrown into scale as
an additional reason for believing that

28. (1911) I.L.R. 38 Cal. 559 at 588.

29. A.I.R. 1931 Mad. 177.
 290

evidence.30

It has been a settled trend that confession of

coaccused cannot be used ' as substantive piece of

evidence and cannot form the basis of conviction because

it is not an evidence as defined in section 3 of the

Act. It can be pressed into service only when court

is inclined to accept other evidence and feels the

necessity of seeking for an assurance in support of its

conclusion deducible from the said evidence.

The question whether a conviction can be legally

based on the uncorroborated confession of coaccused is

of merely acedemic interest, since it has been universal

trend of appellate courts in India to require

corrboration of such a confession. The corroborative

30. Id. at 177. See also, Dewan Chand v. State.

A.I.R. 1965 Orissa 66.
31. R. v. Khandia. (1891) I.L.R. 15 Bom. 66; R. v.
Nirmal Das. (1900) I.L.R. 22 All. 445; Debendra v,
R. A.I.R. 1929 Patna 257; Kasimuddin v. R., (1935)
I.L.R. 62 Cal. 312;re Raia Gooalan. A.I.R. 1949
Mad. 117; Bhuboni Sanu v. The Kina. A.I.R. 1949
P.C. 257; Kashmira Singh v. State. A.I.R. 1952
S.C. 139; Raiu v. State. A.I.R. 1953 Bom. 297;
Nathu v. State. A.I.R. 1956 S.C.56; Krishan Behari
Lai v. State. A.I.R. 1956 M.P. 86; Ram Chandra v.
State of U.P. . A.I.R. 1957 S.C. 381; Bhaluka
Behere v. State. A.I.R. 1957 Cut. 200.; H.C. Kurmi
v. State of Bihar. A.I.R. 1964 S.C. 1184.
 291

evidence must be such which confirm the confession in

material particulars.32 It is, however, not necessary

that there should be corroboration on each and every

detail, nor is it necessary that the corroborative

evidence should itself be sufficient for conviction.33

Regarding evidentiary value of confession of

coaccused, the Law Commission of India has gone further

and recommended that no weight should be attached to it

and section 30 should be repealed.34 The Commission was

not convinced with the assumption underlying the section

30, that fact of self implication takes the place of

sanction of oath and serve as a guarantee of the truth

of the accusation against other. They expressed their

disagreement in the following words:

The present provision in our view, suffers

from several major defects. In the first
place, self implication may be a substitute
for oath, but it is not an adequate
substitute for cross-examination.35

32. Sabit Khan v. Bahadur Khan. 20 Cr. L.J. 497;

Kasimuddin v. Emperor. 36 Cr. L.J. 485; Allah
Baksh v. Emperor. A.I.R. 1933 Lah. 956; Surian
Sinah v. Emperor. 33 Cr. L.J. 251.
33. Uggappa Puiari v. Emperor. A.I.R. 1929 Mad. 498.
34. 69th Report, Page 225, para 11.94.
35. Id. at 225, para 11.90 (Emphasis original).
 292

The ' Commission gave an hypothetical illustration

to support their view in the following words :

It is to be remembered when A & B are tried

together and a confession by A implicating
both of them is admitted under section 30, B
has no opportunity of cross examining A on so
much of his confession as implicates B also.
It is impossible for B to effectively rebut
what A has said, because most of the rebuttal
evidence will have to be in the negative, and
it is difficult to prove the negative without
cross examination. The difficulty of proving
has been the main foundation for the
importance which the Law has attached to
cross-examination. Since B cannot compel A to
enter the witness box (A being the accused
person himself), cross-examination is ruled
out. Thus, the present section practically
leaves B in the hands of A so far as A's
confession is concerned.36

Judicial trend is also towards criticising section

30. In re Lila Ram.37 it was described as "most

O Q ,
unsatisfactory section". In Baboo Singh v. Emperor, ° it

was described as "exceptionally dangerous".

Apart from above defects, the section in practice,,

creates a complication, namely, while the confession can

be "taken into consideration", it is not technically

regarded as "evidence", and the section does not declare

36.. Ibid.
37. A.I.R. 1925 Mad. 805, 807.
38. A.I.R. 1936 Oudh. 156, .159.
 293

it to be relevant within the meaning of section 5. That

is why courts have insisted on independent evidence

against the accused and have held that a conviction

based merely on the confession of a conaccused would be

* “3 Q

bad m law. ^ The confession of a coaccused is regarded

as weak evidentiary material. As has been explained by

Supreme Court in Kashmira Singh v. State,40 if the other

evidence is capable of belief independently of the

confession, then of course, it is not necessary to call

the confession for aid.

After taking into account all above considerations

Law Commission of India, recommended abolition of

section 30. They gave following additional reasons:-

Soundness of principle on which it is based

is debatable. Self implication is no
substitute for cross-examination... . this
position is a potential source of great
injustices in many cases, and practically
amounts to violation of the principle that no
man ought to be condemend unheard. The
person incriminated by the confession of a
coaccused is in dilemma. If he enters the
withness box, he does so at the risk of
losing his privileges against self­
incrimination by being exposed to cross

39. Emperor v. Laiit Mohan. (1911) I.L.R. 38,

Cal. 559.
40. A.I.R. 1952 S.C. 159.
 294

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.41

Evidentiary Value of Retracted Confession :

The Evidence Act makes no difference between

retracted and unretracted confession and both are

equally admissible and may be taken into consideration

against the accused though less weight would be attached

to a retracted confession.42
i

The mere fact that a judicial confession is

retracted does not show that it was voluntary and fact

of retraction is immaterial. It was held in Manohar

Singh v. Emperor.43 that once a confession is proved to

be voluntarily made, there is nothing in law to prevent

the court from basing a conviction on retracted

confession alone, if it believes it to be true. But it

is settled rule of evidence that unless a retracted

judicial confession is corroborated in material

41. 69th Report, Page 225, para 11.89.

42. Gour Chandra v. R., A.I.R. 1929 Cal. 14.
43. A.I.R. 1946 All. 15.
 295

particulars, it is not prudent to base a conviction in

criminal case on its strength alone.44

Where an extrajudicial confession is retracted,

it was held by the Supreme Court in Abdul Ghani v. State

A C
of U.P., 3 that retracted extrajudicial confession can

also legally form the basis of conviction, though as a

matter of prudence the courts try to look for

corroboration from some independent source so as to

satisfy their conscience that confession was true.

A C
In Pvare Lai Bharaawa v. State of Ran asthan* . it

was observed that :

A retracted confession may form the legal

basis of a conviction if the court is
satisfied that it was true and was
2 ...

voluntarily made. But it has been held that

a court shall not base a conviction on such a
confession without corroboration. It is not
a rule of law but it is only a rule of
prudence. It can not even be laid down as an
inflexible rule of practice or prudence that
under no circumstances such a conviction can
be made without corroboration, for a court
may, in a particular case, be convinced of
the absolute truth of a confession and
prepared to act upon it without corrboration;

44. Puran v. State of Punjab. A.I.R. 1953 S.C. 460.

45. A.I.R. 1973 S.C. 264. See also, Balbir Singh v.
State of Punjab. A.I.R. 1957 S.C. 216; Ramchander
v. State of Bihar A.I.R. 1967 S.C. 349.
46. A.I.R. 1963 S.C. 1094.
 296

but it may be laid down as a general rule of

practice that it is unsafe to rely upon a
confession, much less in retracted
confession, unless the court is satisfied
that retracted confession is true and
voluntarily made and has been corroborated in
material particulars.47

This trend was also endorsed in Edioa annama v.

State of A.P..48 and Kashi Nath v. State of

Maharashtra.49 But, in Bhagwan Singh Rana v. State of

Haryana.50 where postal employee was found stealing

articles from unregistered percel, it was held that

conviction based on retracted but voluntary confessional

statement given by the accused in his own writing, was

correct, and corroboration was unnecessary.

The corroboration, if at all needed, is the

general corroboration of the important incidents and it

is not necessary that a retracted confession should be

corroborated in each material particular. This was held

47. Id. at 1096.

48. A.I.R. 1974 S.C. 799. See also, Ram Chander v.
State of U.P.. A.I.R. 1957 S.C. 381.
49. A.I.R. 1973 S.C. 1219. See also, re Man singh
Parma Teli. A.I.R. 1959 M.P. 267 at 269.
50. (1976) 3 S.C.C. 101.
 297

i*1 State of U.P. v. Boota Singh.51 But if material

corroboration is forthcoming and court is satisfied then

court is justified in convicting the accused.52!

As we have discussed that the evidentiary value of

confession of coaccused is very weak one.55 The position

of the retracted confession of coaccused is a fortiori

still worse.54 In Ram Prakash v. State of Punjab.55 it

has been held that although a retracted confession may

be taken into consideration against a coaccused by

virtue of section 30 of the Act, its value is extremely

weak and there could be no conviction without the

fullest and strongest corroboration on material

particulars.

51. A.I.R. 1978 S.C.1770. See also, Harbans Lai v.

State. A.I.R. 1967 H.P. 10 at 13; Rasila & Others
v. State. 63 Cr. L.J. 229; Hem Rai Devi Lai v.
State of Aimer. A.I.R. 1954 S.C. 462; Noor Mohd.
v. State. A.I.R. 1959 Ker. 46 at 50; State v.
Dabru & Others. A.I.R. 1957 H.P. 52 at 56.
52. State of Maharashtra v. M.K. Waity. A.I.R. 1980
S.C. 1224.
53. Bhuboni Sahu v. The King. A.I.R. 1949 P.C. 257;
see also, Kashmira Singh v. State of M.P.. A.I.R.
1952 S.C. 159.
54. Netar Pal v. The State. 66 P.L.R. 530.
55. 60 Cr. L.J. 473; see also, Haroon Haii v. State of
Maharashtra. A.I.R. 1968 S.C. 832; Ram Prakash v.
State of Punjab. A.I.R. 1959 S.C. 1.
 298

Trend which emerges out of analysis of above

rulings is that rule of practice and prudence requires

corroboration of retracted confession. This rule of

practice is so consistently followed that it virtually

amounts to a rule of law. 14th report of Law Commission

recommended that this rule should be given statutory

recognition.56 But 69th Report of the Law Commission

after a careful consideration concluded that it is

better to leave the matter as it is, so that the court

may decide the matters on a consideration of all

evidence before it, giving such credence to confession

as it thinks fit in the circumstances of the case.57

Confession of co-accused : Position under TADA, 1987 :

The position of confession of an accused person

under TADA 1985 and TADA 1987 stands on different

footing. A comparative study of TADA, 1985 and 'f'ADA,

1987 shows that there was no provision for taking into

consideration certain confession made to higher police

officers in TADA, 1985 whereas a new section has been

56. Law Commission of India. 14th Report, Vol. 2, page

751, para 41.
57. 69th Report, page 222, para 11.77.
 299

introduced in TADA, 1987 for taking into consideration

confession made by a terrorist or disruptionist.

Confession of such persons has been made admissible in

the trial of a terrorist or disruptionist provided the

confession is made to police officer not lower in rank

than S.P. and such confession is recorded by such

officer either in writting or on any mechanical device

like cassettes, tapes or sound tracks from out of which

sounds or images can be reproduced.

The above Inclusionary Rule of section 15 of TADA,

1987 now stands extended to co-accused, abettor or

conspirator of the offence. This a new trend shown by

the legislature by amending TADA, 1987 by enacting TADA

(Amendment) Act, 1993.

It is however submitted that the sine que non for

the applicability of Inclusionary Rule of section 15 is

that the co-accused, abettor or conspirator is charged

and tried in the same case together with the accused

before a confession may be read against any one of them.

These conditions are at par with those contained in

section 30 of the Evidence Act.

 300

So the net position under section 30 of the

Evidence Act is that the court "may take into

consideration" the confession of co-accused against

other accused person also if condition of section 30 are

proved. Similarly under section 15 of TADA, 1987 the

confession of accused is made admissible against co­

accused, abettor and conspirator if above mentioned

conditions are fulfilled.

Section 15 (2) lays down another condition before

a confession is made admissible against a. co-accused

abettor or conspirator. This condition is that the

Police officer, shall before recording any 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. Another safeguard

mentioned in section 15(2) is that such Police officer

shall not record any such confession unless upon

questioning the person making it, he has reason to

believe that the confession was made voluntarily.

Value of Confession - Presumption :

Admitted facts need no proof. But it is in the

 301

wisdom of the judge to determine the value of a

confession according to circumstances of each case. The

guidelines regarding evidentiary value of confession can

be traced out of judicial decission. One such guideline

is provided in section 31 of the Evidence Act which says

that admission are not conclusive proof of the matter

admitted, but they may operate as estoppel. This means

that an admission is not conclusive proof. But ratio of

judicial decisions discussed earlier shows that

admission may be sufficient proof without corroboration.

Section 21 of TADA, 1987 raises certain

presumptions regarding value of confession. This

section deals with presumptions as to terrorist offences

only mentioned in section 3 of TADA, 1987. A

comparative study of TADA, 1985 and TADA, 1987 shows

that no such preumption was legislated in TADA, 1985.

The raised presumption under TADA, 1987 is as follows

In a prosecution for an offence of terrorist act

u/s 3(1) of the Act, the designated court shall presume,

unless the contrary is proved, that the terrorist had

committed such offence if it is proved -

 302

(i) that a confession has been made by a co-

accused that the accused has committed the

offence;58 or

(ii) that the accused has made a confession of the

offence to any person other than a Police

officer;59

A close look at section 21 shows that above

presumption is raised only in respect of offences u/s

3(1) of TADA, 1987 with reference to terrorist acts

only. However, no such presumption is raised in respect

of disruptive activities punishable under section 4 of

TADA, 1987.

If is respectfully submitted that this presumption

of "shall presume" though rebuttable is a heavy

presumption and the offender may not be able to

discharge it so easily, specially in those circumstances

when a confession has been made by a co-accused that the

accused had committed the offence or when an accused had

made a confession to any person other then a Police

officer.

58. See section 21 (c) of TADA, 1987.

59. See section 21 (d) of TADA, 1987.
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It is submitted that above mentioned presumption

of "shall presume" is not justified. Although the

legislature had shown a different trend when clause (c)

and (d) were added in section 21 of TADA, 1987. Such

clauses and raised presumption were absent in TADA,

1985.

But now the legislature has shown a reverse trend

by deleting aforesaid presumption by TADA (Amendment)

Act 1993.From section 21, clauses (c) and (d) have

been rightly ommitted by TADA (Amendment) Act 1993

w.e.f. 22nd May 1993. Thus, enhanced value of

confession has been broughtback to its original

position. Fortunately, no such clause is adopted in

Criminal Law (Amendment) Bill, 1995.

Be that as it may, it is entirely for the court

trying the offence to decide the question of

admissibility, reliability and value of confession in

its judicial wisdom strictly adhering to the law. Same

is the position while attaching any value to the

60 . See TADA (Amendment) Act, 1993. Act No. 43 of

1993 .
61. See Annexure VII.
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confession of a co-accused against another accused.

Court must satisfy itself that there was no trap, no

track and no importune seeking of evidence during the

custodial interrogation and all the conditions required

by the Evidence Act or TADA, 1987 are fulfilled.