SECTION 24 – CONFESSION BY CO-ACCUSED

(Under the Bharatiya Sakshya Adhiniyam, 2023 (BSA))

1. Introduction

In criminal cases involving more than one accused, a common issue is whether a confession made by one accused can be used as evidence against the other accused persons. Section 24 of the Bharatiya Sakshya Adhiniyam (BSA) deals with this exact problem. It provides a conditional rule: the confession of one person may be taken into consideration against the others — but only in certain limited and controlled situations.

This section is based on a careful balance between fair trial rights and the need to consider all available evidence. The courts treat this kind of confession as weak and secondary evidence it cannot be used alone to convict, but can support other independent proof if strict conditions are met.

2. Text of Section 24 (Simplified Language)

• If two or more persons are being tried together for the same offence, and
• One of them makes a confession that affects both himself and the other(s),
• Then the court may take that confession into consideration against the co-accused too.

This is not an automatic rule. The use of the word "may" means the court has discretion, and it is not mandatory to rely on such a confession.

3. Conditions for Applicability

This section does not apply in all cases. The following strict conditions must be satisfied:

(i) There Must Be Multiple Accused Persons

There must be more than one accused in the case. A sole confession cannot be used against someone who is not part of the trial.

(ii) They Must Be Jointly Tried

The accused must be facing trial together, in the same proceeding and for the same offence. If the person who made the confession is tried separately, or if the other person is added later, the section does not apply.

(iii) The Confession Must Affect the Maker and the Others

The confession must involve all the accused, including the one who made the statement. If the confession only blames the others but does not admit personal guilt, it cannot be used under this section.

(iv) The Confession Must Be Legally Admissible

The confession must be voluntary and proved according to law. If it is inadmissible for any other reason (e.g., made to police, or under threat), it cannot be used against anyone including co-accused.

4. Nature of This Evidence – Not Substantive Evidence

The Supreme Court has repeatedly held that a co-accused’s confession is not substantive evidence. That means it cannot by itself prove the guilt of another person. It can only be used to:

• Support other evidence
• Corroborate existing facts
• Provide additional weight, but never act as the main or only proof

The court in Kashmira Singh v. State of M.P. (AIR 1952 SC 159) famously observed that:

“A confession of a co-accused is not evidence in the ordinary sense of the term... It is not such evidence as is admissible under Section 3 of the Evidence Act.”

5. Judicial Discretion and Caution

Even when all legal requirements are met, the court has discretion — it may consider the confession, but is not obliged to do so.

The rationale is simple:

• The confession is made without oath
• The co-accused has no opportunity to cross-examine
• It is essentially a hearsay statement, which is only allowed under a special legal exception

Therefore, courts apply great caution, and they look for external corroboration before relying on such statements.

6. Illustrative Examples

Example 1: Valid Use of Co-Accused Confession

A and B are arrested for robbery and are tried jointly. A says: “B and I planned the robbery together. I broke the lock and B stole the cash.” This confession involves both persons and admits A’s own guilt. If there is other independent evidence against B (like CCTV, eyewitness, or recovered property), then A’s confession can be used to support B’s conviction.

Example 2: Invalid Confession

If A says: “B committed the robbery. I was only watching,” then A has not admitted full involvement. The confession is more like accusation, and cannot be used under Section 24 because A is not fully taking the blame along with B.

7. Difference Between Section 24 and Section 10 (Conspiracy)

8. Retracted Confession – Effect

If the co-accused later retracts the confession (i.e., denies it), the value becomes even weaker. Courts have held:

• A retracted confession can still be used against the maker if found to be voluntary.
• But it is too risky to use it against others unless there is very strong corroborative evidence.

In State v Nalini (Rajiv Gandhi Assassination Case), the court held that retracted confessions could not form the basis for conviction unless corroborated in material particulars.

9. Conclusion

Section 24 provides a limited exception to the general rule that one person’s confession cannot be used against another. It allows a co-accused’s confession to be considered only when they are jointly tried, and even then, only with great caution. Courts will never convict anyone solely on this basis. Independent evidence is required. This provision is a tool to support, not replace, standard legal proof.

It protects the accused from being convicted based on uncross-examined, possibly self-serving statements, while still allowing courts to consider every relevant fact when deciding the truth.