Vol. 12 · pages 636–640

615LAW OF EVIDENCE Points to note : 1. Sec. 28 Confession after…………..is removed. 2. Sec. 29 Queries. I. Does Sec. 24 apply to statements made by the Accused under Sec. 287 Cr. P. C. before the Committing Magistrate. Q. Not settled. 17 Bom. L. R. 1059. II. Does Sec. 24 apply to statement of an Approver under pardon under Sec. 339 (2) Cr. P. C. (22 Bom. L. R. 1247). § Use of Confessions. 1. Statement made by an Accused person binds him only so because of two reasons. (i) The general rule of law is that an Admission made by one person could prejudicially affect another person. (ii) The statement made by an accused person is not on oath. (iii) The statement is not subject to cross-Examination. 2. But if the statement is a Confession which affects both himself and another person, then Section 30 says the Court may take into consideration the confession made by the Accused against other persons mentioned in the Confession. 3. Section 30 is therefore an exception to the general rule. The reason for this exception is the fact of self-implication which is said to take the place as it were of the sanction of an oath or is rather supposed to serve as same guarantee for the truth of the accusation against the other. 4. With regard to the use of the confession of one Accused against another accused, the important words are “ Court may take into consideration” . This means, (1) That the use is not obligatory. It is permissive and discretionary. Court is permitted to use it. Court is not bound to use it. (2) Court may Consider it. The word consider is significant.

616 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (1) A statement made by a witness is “evidence”, according to the definition of that term. A confession by an accused person affecting himself and his co-accused is not “evidence” in that special sense. It is in the sense that it is a matter before the Court which it may consider. The question is while allowing it to be so considered, does it do away with the necessity of other evidence ? There is no direct answer given in the Evidence Act. But all the Courts have held that it does not do away with the necessity of other evidence. The reasons are : (1) Confession is never a complete guarantee of its truth against the other persons whom it involves. 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. (2) Confession cannot be placed above the testimony of an accomplice because the latter is subject to Cross Examination while the former is not and if testimony of an accomplice requires corroboration a confession must. Conclusion. If there is (a) absolutely no other evidence in the case, or (b) the other evidence is inadmissible such a Confession alone will not sustain a Conviction. There must be corroboration. When persons are accused of an offence of the same definition, arising out of a single transaction, the Confession of one may be used against the other, though it inculcates himself through acts separable from those ascribed, to his accomplice, and capable, therefore of constituting a separate offence from that of the accomplice. 8 Bom. 223 : 7 Mad. 579 Abatement—Same offence 1. Importance of the words made and proved. Does the section include statement made by one accused at the trial which incriminates himself and implicates a co-accused ? The answer is that it does not.

617LAW OF EVIDENCE The Section is not to be read as though the words “ at the trial” were inserted after “made” and the word “recorded” substituted for “proved”. (1890) 14 Mo. Jur. N. S. 516. The Section does not refer to the statements made at the trial. It refers to statements made before and proved at the trial. The use of the term proving a Confession is inapplicable to the procedure where the Judge asks questions and the accused gives explanation. 45 All. 323. 2. Importance of “Jointly tried” . In this connection two important questions arise—When one Accused confesses and in his confession implicates a coaccused and pleads guilty. (i) In such a case can he be treated as being jointly tried with the rest, as to let in his confession under this section against co-accused ? (2) In such a case can an Accused who pleads quilty be called as a witness against those who do not plead guilty ? Q. I. His Evidence cannot be taken into consideration because he ceases to be jointly tried. 5 Bom. 63; 7 Mad. 102; 19 Bom. 195. Although it is open to the court to continue the trial without convicting the Accused who pleaded guilty, yet it is unfair to defer convicting them merely in order that their confessions may be considered against the other accused. 23 All. 53. Q. II. This depends upon the definition of the word accused : When does an accused person cease to be an accused person ? Until an Accused person who has pleaded guilty is convicted or acquitted, he is still an accused person and is therefore not a competent witness against the co-accused. 13 C. W. N. 552. Until an Accused person who has pleaded guilty is convicted and sentenced, he is still an Accused person and is therefore not a competent witness against the co-accused. 3 Bom. L.R.

618 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Summary. 1. When a person pleads guilty—he ceases to be jointly tried but he does not cease to be accused person. So that on plea of guilty his confession cannot be taken into consideration against other accused because they are not co-accused jointly tried : nor can he be called as a witness because he continues to be an accused until sentenced. 2. When a person pleads guilty and he is jointly tried and ceases to be an accused person, his Confession cannot be used but he becomes a competent witness. Relevancy of Judgments. Sec. 40 Where the question is whether a Court ought to take cognizance of a suit or to hold such trial. The existence of a judgment order or decree which prevents any Court from taking cognizance of a suit or holding a trial is relevant fact. Comment. 1. The law by which a prior judgment order or decree prevents a civil court from taking cognizance of a suit is contained in the Civil Procedure Code and the law by which a prior judgment prevents a criminal Court from holding a trial, is contained in the Cr. P. C. 2. The relevant Sections of the C. P. C. are 11-14. Provisions summarized in Field p. 260. 3. The relevant Section of Cr. P. C. is section 434. 4. Under Section 40 a Judgment is relevant if its effect is to conclude the court. 5. Such a judgment must be just between the same parties and on the same issues. 6. A Judgment inter partes does not bind a stranger. The principle underlying the rule is that no man ought to be bound by proceedings to which he was a stranger and over which he had no control.

619LAW OF EVIDENCE Exception to the Rule (I) Sec. 41. enacts an exception to the rule, under it. A final Judgment of a competent court in the exercise of (i) Probate Jurisdiction(ii) Matrimonial(iii) Admirality (iv) Insolvency. which confers or takes away a legal character or which declares any person to be entitled to any specific thing is admissible. Comment: 1. This means that a judgment inter partes is admissible in a proceedings between persons who were not parties to that proceedings. 2. This section deals with what are called judgments in rem without using that expression. All judgments are inter partes. But some inter partes judgments are judgments in personam and some are judgments in rem. Both are inter partes. Instead of defining judgments in rem—the section enumerates them. 3. The result is that every judgment which gives or takes away a character is not admissible. It is only judgments given in the exercise of particular kind of jurisdiction which is admissible. Illus. Adoption is not admissible as between strangers. It is a Judgment which confers a statics. But it is not admissible because it is not under any of the jurisdiction mentioned. (II) Exception. Sec. 42. Judgment in personam is relevant as between strangers if the judgment relates to a subjects of a public nature. Subjects of a public nature. (1) Customs. (2) Prescriptions.