Confession of Co-Accused: Section 30 Evidence Act & BSA

Confession of One Co-Accused Against Another: The Law of Joint Trial Confessions

The Governing Provision

Both questions posed here are governed by the same statutory provision — Section 30 of the Indian Evidence Act, 1872, which corresponds without material change to Section 24 of the Bharatiya Sakshya Adhiniyam, 2023. It reads: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

The Illustration appended to Section 30 is itself the precise scenario posed in the first question: "A and B are jointly tried for the murder of C. It is proved that A said 'B and I murdered C'. The Court may consider the effect of this confession as against B." The statute, therefore, answers the first question directly: yes, the court may consider the confession against B. But this answer, while accurate, is dangerously incomplete unless one understands the profound qualifications that the courts have woven around it over more than a century of jurisprudence.

The Word "May" and Its Significance

The provision uses the word "may" and not "shall." This is not drafting accident — it is deliberate legislative restraint. The section does not say that the confession of one co-accused shall be evidence against the other, or that the court must consider it. It confers a discretion: the court may take into consideration such confession. This means that the confession of A saying "B and I murdered C" does not become substantive evidence of B's guilt in the way that a direct witness's testimony would. The courts have drawn a sharp and consequential distinction between taking into consideration a confession and treating it as proof.

Sir Lawrence Jenkins, in the celebrated Calcutta High Court decision in Emperor v. Lalit Mohan (ILR 1911 38 Cal 559), stated this with classic economy: the confession of a co-accused "can only be used to lend assurance to other evidence against an accused." The Supreme Court of India emphatically adopted and amplified this formulation in Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC 159), where Bose J. gave what has become the standard operational method for applying Section 30.

The Kashmira Singh Methodology

In Kashmira Singh v. State of Madhya Pradesh (AIR 1952 SC 159), the Supreme Court articulated the correct approach with surgical clarity. Bose J. held that the proper way to approach a joint trial in which the confession of one accused implicates another is in two distinct stages.

First, the court must "marshal the evidence against the accused excluding the confession altogether from consideration" and assess whether, if that independent evidence is believed, a conviction could safely rest upon it.

Second, if the independent evidence is sufficient on its own, the confession need not even be called in aid. But "if the judge is not prepared to act on the other evidence as it stands" — meaning the independent evidence is just below the threshold of certainty — "he may call in aid the confession and use it to lend assurance to the other evidence and thus satisfy himself in believing that which without the aid of the confession he would not be prepared to accept."

This is the golden rule of Section 30: the confession of A is not a sword with which the prosecution directly wounds B. It is a buttress — something that lends additional support to an independent structure of evidence that is already standing, even if unsteadily. If there is no independent structure at all, the confession of A cannot construct one from scratch against B.

Why the Confession of a Co-Accused Cannot Be Substantive Evidence

The confession of a co-accused stands in a fundamentally different legal category from the confession of the accused himself. When an accused person makes a confession, it is his own direct declaration against his own interest, which carries intrinsic probative weight. The confession of a co-accused, however, is not made on oath. It has not been tested by cross-examination on behalf of the accused against whom it is sought to be used. It is, in the language of evidence law, more in the nature of an admission by a third party than a direct piece of testimony.

The Supreme Court settled this conclusively in State NCT of Delhi v. Navjot Sandhu (AIR 2005 SC 3820) — the Parliament Attack case — where it held that "the confession of a co-accused cannot be elevated to the status of substantive evidence which can form the basis of conviction of co-accused." The same position was reiterated in Mohd. Jamiludin Nasir v. State of West Bengal (AIR 2014 SC 2587), where the Apex Court held that where there are sufficient materials to support the prosecution case, the confession of a co-accused may be pressed into service to lend assurance — but it cannot stand alone as the sole basis of conviction.

Conditions for Section 30 to Apply

Before the confession of one co-accused can be taken into consideration against another under Section 30, the following conditions must all be satisfied:

First, there must be a joint trial of the accused persons — not merely a trial of the person who made the confession, but a simultaneous trial of both the confessor and the person against whom it is sought to be used. If A has been tried and convicted separately, his confession cannot be used against B who is tried later. Section 30 has no application in such circumstances. The second Illustration under Section 24 of the BSA, 2023 makes this explicit: "A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said 'A and I murdered C'. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried."

Second, the confession must affect the maker as well as the co-accused. A confession that admits the guilt of the confessor but exculpates the co-accused, or one that implicates the co-accused but entirely exonerates the maker, does not fall within Section 30. The Supreme Court held in Balbir Singh v. State of Punjab (AIR 1957 SC 216) that "a confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration."

Third, the joint trial must be legal. If the joint trial is for any reason illegal or irregular, the confession cannot be used against the co-accused.

Fourth, the confession, to be taken into consideration against the co-accused, must first be proved as a confession — it must be voluntary, free from inducement, threat or promise, and not hit by Sections 24, 25, or 26 of the IEA (Sections 21, 22, or 23(1) and (2) of the BSA, 2023). A confession that is inadmissible against the maker cannot be used against the co-accused either.

The Second Question: B's Confession Implicating A in Kidnapping and Murder of a Child

A and B are co-accused of kidnapping and killing a child. A denies guilt. B confesses that he along with A committed the crime. This scenario is textbook Section 30 territory, and the analysis follows directly.

B's confession — "A and I committed the crime" — affects both the maker (B) and the co-accused (A). They are being tried jointly for the same offence. Section 30 therefore permits the court to take into consideration B's confession against A. But the critical question is: how far does this confession carry the prosecution's case against A?

The answer is: it carries the case only as far as support or corroboration, not as independent proof. In Kashmira Singh the Supreme Court was emphatic that the court must first evaluate all independent evidence against A — eyewitness accounts, forensic evidence connecting A to the child, last seen evidence, phone records, circumstantial evidence of motive, or any other independent material. If that independent evidence, taken alone, is sufficient to sustain a conviction of A, the case is proved against A and B's confession becomes merely a reinforcing circumstance. If the independent evidence falls short of certainty, the court may then take B's confession into account to lend it the additional assurance needed to reach conviction.

What the court cannot do — and this is the bedrock principle — is convict A on the basis of B's confession alone, in the absence of any independent evidence against A. As the Supreme Court stated in State of Tamil Nadu v. Kutty (AIR 2001 SC 2778), "the confession of a co-accused cannot be treated as substantive evidence to convict a person other than the person who made the confession on the evidentiary value of it." Where the high court in that case had rejected the co-accused's confession and acquitted him, the Supreme Court held that no part of that confession could be used to corroborate the confession of the other accused.

The position becomes further nuanced when B retracts his confession after making it. A retracted confession is always viewed with greater caution, but retraction does not by itself render the confession false or useless. The Supreme Court held in Ram Prakash v. State of Punjab (AIR 1959 SC 1) that a retracted confession may, as a matter of prudence elevated to a rule of law, be used against a co-accused only if it is supported by "full and strong corroboration in material particulars both as to the crime and as to his connection with that crime."

Practical Application: A Tabular Summary

Aspect	Position in Law
Can court use B's confession against A?	Yes — but only to take into consideration, not as substantive proof (Section 30 IEA / Section 24 BSA)
Can A be convicted on B's confession alone?	No — confession of co-accused cannot be sole basis of conviction
What is the proper use?	To lend assurance to independent evidence that already tends to show A's guilt
Must trial be joint?	Yes — Section 30 applies only in a joint trial for the same offence
Does B's confession need to affect B too?	Yes — it must implicate both the maker and the co-accused substantially
What if B retracts the confession?	Needs full and strong corroboration before it can even be used to lend assurance against A

The Foundational Rationale

Why does Section 30 allow even this limited use of the co-accused's confession? The answer lies in what Sir Lawrence Jenkins called "a sort of sanction" — when a person unreservedly confesses his own guilt and simultaneously implicates another, the very act of admitting his own culpability operates as a moral guarantee of the whole statement. A man who is prepared to damn himself is, the law somewhat cautiously recognises, less likely to be lying about the involvement of another. This is why the provision requires that the confession must affect the maker himself — it is precisely that self-implication that provides the limited guarantee upon which the court may rely.

However, this guarantee is limited and imperfect, which is why the Supreme Court over decades has consistently refused to treat it as substantive evidence. As was observed in Pradeep Kumar Jain v. State of UP (2003 Cr LJ 682), where no other evidence could be collected except the confession of a co-accused, the court held that continuing the proceedings on that basis alone "would be an abuse of the process of the court." The criminal law of India, in this provision, has found a careful middle path: the confession of a co-accused is not ignored, but neither is it elevated to a position it cannot legitimately occupy. It is, in the memorable phrase that has come to define the law of Section 30, a consideration, not a conclusion.