The confession of a co-accused is not evidence under Section 3 of the Evidence Act. It is not required to be recorded on oath and it cannot be tested by cross-examination.
First the Court should altogether exclude such confession from consideration. It must see if there is evidence in the case sufficient to sustain a conviction. If the finding is that there is not sufficient evidence, the matter ends there and a conviction cannot be upheld eventhough there is in addition a confession by a co-accused.
If on the other hand, the Court finds that the other evidence is of such a nature as to be sufficient to sustain a conviction provided it is believed, the confession of a co-accused comes into use and can be called in aid for lending assurance to the belief in that evidence.
The confession must implicate the maker himself substantially to the same extent as his companions in the crime before it can be used against the accused.
Sec. 30 of the Evidence Act alone permits the Court to take into consideration the confession of a co-accused against others if it is made by him affecting himself and some other.
The various principles referred to above though by no means exhaustive will afford sufficient guidance to the Magistrates in particular and all the Presiding Officers of the Criminal Courts in general in appreciating the oral evidence that may be adduced in criminal cases.
The Courts called upon to decide criminal cases while appreciating evidence have to take into account the documentary evidence as well. They have to call in aid sometimes certain presumptions of law. If need be, they have to take judicial notice of certain facts as well. It may be seen that whereas it is manifest that the evidence that may be given in any inquiry or trial under the mandate of Sec. 5 of the Evidence Act, is of the existence or nonexistence of every fact in issued and of such other facts as are relevant under the Indian Evidence Act and of no others.
And what are relevant facts have been referred to in Sees. 6 to 55 of the said Act, the method of proof is not merely by way of oral testimony of witnesses.
There are other methods as well. One such method which is most common is the documentary proof. The documents may be public or private. Private documents are other than the Public Documents. (Sees. 74 and 75 of the Indian Evidence Act).
Method of proof of Public Documents has been stated in Sees. 77 to 79 and the presumptions which have to be raised in relation to certain documents have been mentioned in some of the subsequent sections. It is necessary that these presumptions should be kept in mind while judging the evidence.
The proof of private documents has to be adduced by producing the originals, if available. They have to be duly proved by a person who wrote and signed them (Sec. 67) and if any such person is dead or cannot be found or denies his handwriting or signature, they may be proved by;
(a) The evidence of the persons who are familiar with this handwriting or signature;
(b) By a comparison of the signature or writing of that person with his signature or writing which is admitted, or proved to the satisfaction of the Court (Sec. 77).
Thus even in relation to the documents, oral testimony becomes necessary and the principles of appreciation of evidence already referred to will apply. It should be further remembered that the documentary evidence being not prone to lapses of memory may have its special value as against the oral evidence but that has to be judged in the circumstances the document was executed or brought into being.
This has to be borne in mind while attaching weight and value to the evidence. Under the Evidence Act, the Court has to take judicial notice of certain facts without calling upon the party to prove as provided in Sees. 56 and 57.
Thus the Court would do well to take all these factors into consideration while appreciating the evidence and coming to its conclusions in criminal cases.