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What is evidentiary value of the statement of accused? Explain & illustrate
· Introduction
Law of evidence allows a person –who is a witness to state the facts related to either to a fact in issue or to relevant fact, but not his inference. It applies to both criminal law and civil law. It is quite difficult to define properly the evidentiary value which we get from serving as or based on evidence. On the other hand, the accused is a person who is in a trial for committing a crime. So the statement of the accused does not have greater evidentiary value as the person who has already committed crime might not that much reliable whom can the court trust. The defendant (accused) is, however, entitled to rely on the fact that he is of previous good character as making it less likely that he would have committed the offence. If there is any room for doubt, his good character may be thrown in the scales in his favor.<href=”#_ftn1″ name=”_ftnref1″ title=””>[1]
The essay will be discussed in two separate parts. Firstly, we would define the evidentiary value and the statement of accused; secondly, how the statement of accused has the evidentiary value and what would happen if the accused confesses.
· Definition
a. Define “ evidentiary value” :
Evidentiary is something constituting evidence or having the quality of evidence and something that relates to the evidence in a particular case.
Examples:
i. A’s statement at the scene of a car wreck that one of the drivers was speeding has evidentiary value because it says something about how the accident happened.
ii. If a judge holds a hearing to decide whether or not a particular piece of evidence is admissible at trial, that hearing might be called an evidentiary hearing.
Based on the unique reproducible striations and/or impressions produced during the normal functioning of a firearm, it is possible to identify
v cartridge cases and shot shell cases as having been fired in a particular firearm, based on firing pin impressions, breech face marks, and chamber marks,
v Fired and unfired cartridge cases and shot shell cases as having been cycled through the actionof a particular firearm, based on extractor and ejector marks as well as other mechanism marks. Although the identification of a cartridge case or shot shell case as having been fired in a particular firearm carries more weight as evidence, the identification of these items as having been at least cycled through the action of a firearm is still significant and may have probative value.
b. Define “ the statement of accused”:
The Statement (answers and explanations) given by the accused is entirely for the benefit of accused and the accused only. The statement cannot be used by the Court against him or her nor is the prosecution permitted to use to fill up any gap or lacuna left in the prosecution evidence.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
The statement ought to be treated like any other evidence and the material in favor of the accused. The same should be given due weight and adequate emphasis while recording the guilt against the accused. The answers given by the accused may be taken into consideration, but the same generally cannot take the place of evidence that has to be adduced by the prosecution. Any stand taken by the accused in his statement cannot be used as evidence, unless its truth is otherwise established. When the circumstances stated by the accused become probable, the accused is entitled to get benefit of reasonable doubt. The statement of one accused cannot be used against co-accused.
i. Confessional Statement:
The confessional statement either inculpatroy or exculpatory, if not referred to the accused or the main aspect of the confessional statement of the accused was not brought to his notice during his examination, in ordinary course, it should not be used against him. Such a confessional statement should be kept out of consideration.<href=”#_ftn3″ name=”_ftnref3″ title=””>[3]
The confessional statement not having been put to the accused in his examination though cannot be used for any purpose what so ever, but when a confessional statement not mentioned during examination of accused found to be true and voluntary and corroborated by other evidence then it may be considered, even as the basis of the conviction.<href=”#_ftn4″ name=”_ftnref4″ title=””>[4] Similarly, during his examination under section 342 Cr.P.C., if a confessing accused does not deny his confessional statement or makes any suggestion challenging the voluntariness or truthfulness of the same then the confessional statement may be used against the accused.<href=”#_ftn5″ name=”_ftnref5″ title=””>[5]
ii. Admission of guilt made by the accused during his examination:
Admission of guilt made by the accused during his examination, if found clear, unambiguous and ungratified, the court may consider it as evidence and proceed to convict him. If it is made during trial, it should be read over during examination of accused as a whole. But where the accused admits the occurrence in explaining circumstances against him set up his own version and seeks to explain his conduct pleading that he has committed no offence, such admission can only be taken into consideration in its entirety. Court cannot dissect the statement and to pick out a part of the statement which may be incriminating and then examined whether the explanations furnished by the accused for his conduct is supported by the evidence on record. If the accused admits any incriminating circumstances appearing in evidence against him, such admission cannot be rejected mainly on the ground that the same were advanced as a defence strategy.
iii. Court’s dealing upon the statement of an accused alone:
When the court deals upon the statement of an accused alone and there is no other evidence available which disproves any portion of that statement, the whole of that statement and not only a part of it which may go against the accused should be taken into consideration.
iv. Failure of accused to establish his plea:
Failure of accused to establish his plea made during his examination can not by itself lead to his conviction. But during his examination under section 342 Cr.PC, if any alibi or special plea is taken by the accused as his defense or innocence, the burden of proof lies upon the accused.<href=”#_ftn6″ name=”_ftnref6″ title=””>[6]
Where the evidence against the accused consists of circumstantial evidence only, and if the same was not asked to explain, cannot be used against the accused. However, failure of the court to bring to notice of the accused the inculpatory material appearing against him will not itself render the conviction bad unless the accused has been prejudiced in his defence. Where the statement recorded under section 342 Code of Criminal Procedure contains both exculpatory and inculpatroy parts, only inculpatory part of the statement may be taken into consideration.
Silence or failure of the accused to explain the circumstances appearing in the evidence against him is a strong circumstance which can be used against him. Similarly in case of evasive answer of the accused adverse inference can be drawn against him. False answer of the accused against the established facts may be counted as providing a missing link for completing the chain.
v. Incriminating circumstances:
The circumstances or the evidences incriminating not put to the accused must be excluded from consideration, because the accused did not have any chance to explain them. Generally an accused offers his explanation verbally with or without any supporting document to convert the evidence recorded against him. But if the accused files any written statement during his examination under 342 Cr.P.C. it should not be treated as the Memo. of accuser’s case. It is also not evidence.<href=”#_ftn7″ name=”_ftnref7″ title=””>[7]
Similarly, the documents, if any, filed by the accused during his examination merely form part of his statement there under, which does not require any formal proof nor such statement can be treated as evidence within the meaning of section 3 of the Evidence Act. The Trial Court may consider such statement for the benefit of the accused only. But this statement cannot be used by the prosecution to fill up any gap or lacuna nor the court can use any such statement against the accused.<href=”#_ftn8″ name=”_ftnref8″ title=””>[8]
· 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.<href=”#_ftn9″ name=”_ftnref9″ title=””>[9]
(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.<href=”#_ftn10″ name=”_ftnref10″ title=””>[10] 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.<href=”#_ftn11″ name=”_ftnref11″ title=””>[11] <href=”#_ftn12″ name=”_ftnref12″ title=””>[12]
(iii) Exculpatory Confession:
Exculpatory statement is one wherein the accused making it does not implicate him. 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.<href=”#_ftn13″ name=”_ftnref13″ title=””>[13]
(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.<href=”#_ftn14″ name=”_ftnref14″ title=””>[14]
(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.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15] 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.<href=”#_ftn16″ name=”_ftnref16″ title=””>[16] If extracted upon physical assault or inducement, it has no value.<href=”#_ftn17″ name=”_ftnref17″ title=””>[17]
(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.<href=”#_ftn18″ name=”_ftnref18″ title=””>[18]
(v) Voluntary confession containing untrue statements:
Though voluntary, if it is not true, confessional statement cannot form the sole basis of conviction.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19] 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.<href=”#_ftn20″ name=”_ftnref20″ title=””>[20]
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.<href=”#_ftn21″ name=”_ftnref21″ title=””>[21]
· Conclusion
To sum up it is chiefly on question of science or trade (where there often is a difficulty, and occasionally, an impossibility, of obtaining more direct and positive evidence) the accused, are allowed to give their opinions in evidence as well as testify to facts. In the conclusion it should be mentioned that the statement given by the accused during his examination under section 342 of the Code of Criminal Procedure, may not be sacrosanct but certainly it deserves proper consideration. The statement of accused under section 313 of Cr. P. C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution.
BIBLIOGRAPHY
1. Islam, A. (n.d.). Confessional Statement: Legal requirements for recording, its use and evidentiary value. Retrieved from http://www.jatibd.org/Confessional%20Statement-3.doc
2. Al-Azad, M. R. (n.d.). Examination of the accused under section 342 of the code of criminal procedure. Retrieved from http://www.jatibd.org/Examination%20of%20the%20Accused-5.doc
3. Statement of Accused u/s 313 Cr PC is Not ‘Evidence’: Delhi High Court. (2011, January 27).Retrieved from http://www.legalblog.in/2011/01/statement-of-accused-is-not-evidence.html
4. Evidentiary value of previous statements of the accused. (2008, March 26). Retrieved from http://www.sense-agency.com/icty/evidentiary-value-of-previous-statements-of-the-accused.29.html?cat_id=1&news_id=10819
5. Dying Declaration – Evidentiary Value: The Law. (2011, October 23). Retrieved from http://www.legalblog.in/search/label/Evidence
6. Mulchand Sampatraj Shah vs Dayashankar, Assistant. (1800, November 1). Retrieved from http://www.indiankanoon.org/doc/1509749/
7. Criminal procedure code: Evidentiary value of FIR. (2011, December 12). Retrieved from http://legalservicesindia.com/article/article/evidentiary-value-of-fir-936-1.html
8. Klip, A. , & Sluiter, G. (Eds.). (1998). Prosecutors In Annotated leading cases of international criminal tribunals (pp. 204-207). Retrieved from <href=”#v=onepage&q&f=false”>http://books.google.com.bd/books?id=kwR88rsWaoC&printsec=frontcover#v=onepage&q&f=false
9. Evidentiary definition. Retrieved from http://legaldefinitions.co/evidentiary.html
10. Definition: evidentiary. Retrieved from http://www.websters-online-dictionary.org/definitions/evidentiary
11. 313 Statement of Accused in the court. (2012). Retrieved from
http://crl-law.blogspot.com/2010/08/313-statement-of-accused-in-court.html
12. National institute of justice. Nij.gov: Evidentiary Value. Retrieved March 20, 2012 from http://www.nij.gov/training/firearms-training/module09/fir_m09_t04_01.htm
13. Evidentiary Value of Expert Opinion Under Indian Evidence Act. (2007, July). Retrieved from http://works.bepress.com/cgi/viewcontent.cgi?article=1004&context=krishnaareti
<href=”#_ftnref1″ name=”_ftn1″ title=””>[1] Supra note 36 at p.589
<href=”#_ftnref2″ name=”_ftn2″ title=””>[2] Refs: 14 BLD- 167.
<href=”#_ftnref3″ name=”_ftn3″ title=””>[3] Refs: 45 DLR- 755.
<href=”#_ftnref4″ name=”_ftn4″ title=””>[4] Refs: 46 DLR-212, 11 BLD (AD) – 80, 16 BLD (AD)- 293, 2 BLC (AD)- 27 & 2 LG (AD)- 104.
<href=”#_ftnref5″ name=”_ftn5″ title=””>[5] In the case of Iftekher Hossain (Md.) @ Al-Manun & others -vs- The State reported in 59 DLR(AD)- 36, when it was found that during examination under section 342 Cr.P.C. the accused neither denied his confessional statement nor any suggestion was put regarding the same, rather he admitted the occurrence, the Appellate Division held that the confessional statement and admission before the court coupled with evidence on record proved the case against the accused.
<href=”#_ftnref6″ name=”_ftn6″ title=””>[6] Ref: 21 BLD (AD)-103 & 53 DLR-268.
<href=”#_ftnref7″ name=”_ftn7″ title=””>[7] In the case of Hasan (Md.) alias Md. Hasan -vs- the State reported in 60 DLR – 56, the High Court Division relying on 42 DLR (AD) – 31, held that written statement submitted by the accused when he was examined under section 342 Cr.P.C. is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and circumstances recorded and if the statement gets support from the evidence on record due weight may be given on it. More Refs: 45 DLR- 521.
<href=”#_ftnref8″ name=”_ftn8″ title=””>[8] Refs: 6 MLR (AD) -166, 21 BLD (AD) -103 & 14 BLD-167.
<href=”#_ftnref9″ name=”_ftn9″ title=””>[9] 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. 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.
<href=”#_ftnref10″ name=”_ftn10″ title=””>[10] 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.
<href=”#_ftnref11″ name=”_ftn11″ title=””>[11] 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.
<href=”#_ftnref12″ name=”_ftn12″ title=””>[12] 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.
<href=”#_ftnref13″ name=”_ftn13″ title=””>[13] 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[Ibrahim Mollah and others Vs. State 7 BLD(AD) 248].
<href=”#_ftnref14″ name=”_ftn14″ title=””>[14] 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”.
<href=”#_ftnref15″ name=”_ftn15″ title=””>[15] 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[State Vs. Hassan Ali, 19 BLD(HCD) 42-18].
<href=”#_ftnref16″ name=”_ftn16″ title=””>[16] Mobarak Hossain Vs. State, 3 BLD(AD) 329
<href=”#_ftnref17″ name=”_ftn17″ title=””>[17] 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.
<href=”#_ftnref18″ name=”_ftn18″ title=””>[18] 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 there from 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]
<href=”#_ftnref19″ name=”_ftn19″ title=””>[19] 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]
<href=”#_ftnref20″ name=”_ftn20″ title=””>[20] 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[ State Vs. Bellal Hossain, 20 BLD(HCD) 45]
<href=”#_ftnref21″ name=”_ftn21″ title=””>[21] 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.