2020 (4) TMI 886 - SC - Indian Laws

Terrorist activities - bomb was planted but was subsequently diffused - reliance placed on confession of the Appellant for his conviction - confession is substantive piece of evidence or not - voluntary and truthful confession or not - admissible evidence or not. Whether the Appellant has made the confession (Ex. P-57) voluntarily and truthfully? - HELD THAT - The law of confession is embodied in Sections 24 to 30 of the Indian Evidence Act 1872. The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. In this connection it is relevant to notice the observations of Privy Council in PAKALA NARAYANA SWAMI VERSUS EMPEROR 1939 (1) TMI 13 - BEFORE THE PRIVY COUNCIL where it was held that a confession must either admit in terms of an offence or at any rate substantially all the fact which constitute the offence. An admission of a gravely incriminating fact even a conclusively incriminating fact is not by itself a confession. It is well-settled that a confession which is not free from doubt about its voluntariness is not admissible in evidence. A confession caused by inducement threat or promise cannot be termed as voluntary confession. Whether a confession is voluntary or not is essentially a question of fact. In the instant case it is evident that from out of the questions put by PW-28 and the answers elicited and the manner in which the Accused has made the statement are all the foundations upon which it is to be found out as to whether the statement was made voluntarily or not. If the certificate is not supported by any of the above inputs then the certificate needs to be rejected. The police officer cannot record such a certificate out of his own imagination and the entire proceedings should reflect that the certificate was rightly given based on the materials - In the present case there is nothing on record to prove the voluntariness of the statement. Ex. D-1 and D-2 and other circumstances would go to show that the Appellant could not have made the statement voluntarily. Therefore the confession statement of the Appellant requires to be rejected. Whether the statement of two other co-Accused is admissible in evidence? - HELD THAT - In the instant case no doubt the Appellant was absconding. That is why joint trial of the Appellant with the other two Accused persons could not be held. As noticed above Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-Accused for offence committed and tried in the same case together with the Accused who makes the confession - if for any reason a joint trial is not held the confession of a co-Accused cannot be held to be admissible in evidence against another Accused who would face trial at a later point of time in the same case. We are of the further opinion that if we are to accept the argument of the learned Counsel for the Respondent-State it is as good as re-writing the scope of Section 15 of the TADA Act as amended in the year 1993. Since the trial of the other two Accused persons was separate their confession statements are not admissible in evidence and the same cannot be taken as evidence against the Appellant - the Designated Court was not justified in convicting the Appellant - Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Voluntariness and admissibility of the appellant's confession.
2. Admissibility of co-accused's confession in a separate trial.

Issue-wise Detailed Analysis:

1. Voluntariness and Admissibility of the Appellant's Confession:

The primary issue was whether the appellant's confession (Ex. P-57) was voluntary and truthful. The law of confession, as per Sections 24 to 30 of the Indian Evidence Act, 1872, requires that a confession must be voluntary and free from any inducement, threat, or promise. The court emphasized that a confession caused by inducement, threat, or promise cannot be termed as voluntary. The guidelines laid down in Kartar Singh v. State of Punjab (1994) 3 SCC 569, which mandate that the confession should be recorded in a free atmosphere and the accused should be warned about the consequences of the confession, were not followed properly in this case. The appellant alleged that he was tortured and coerced into making the confession, and there were no contemporary records to show that the required warnings were given. The court found that the confession was not recorded in compliance with the statutory requirements and thus rejected the voluntariness of the statement.

2. Admissibility of Co-accused's Confession in a Separate Trial:

The second issue was whether the confession statements of the co-accused (Ex. P-26 and P-27) were admissible in evidence against the appellant. Section 30 of the Indian Evidence Act mandates that for a confession of a co-accused to be admissible, there must be a joint trial. The Constitution Bench in Kartar Singh (supra) held that the confession of a co-accused is a substantive piece of evidence provided there is a joint trial. In this case, the appellant was absconding, and hence, there was no joint trial. The court reiterated that if there is no joint trial, the confession of a co-accused is not admissible in evidence against another accused who faces trial later. The court referred to the precedent in Ananta Dixit v. The State (1984 Crl. L.J. 1126), which held that the confession of an accused tried previously is inadmissible against an accused tried later. Consequently, the court held that the confession statements of the co-accused were not admissible in evidence against the appellant.

Conclusion:

The court concluded that the Designated Court was not justified in convicting the appellant based on the inadmissible confessions. The appeal was allowed, and the judgment and order dated 04.12.2009 passed by the Presiding Judge, Designated Court No. 2, Chennai, in Calendar Case No. 1/2007, was set aside. The appellant was acquitted of the charges, and the bail bond executed by the appellant and the surety, if any, was canceled.