There is a total embargo on using incriminating aspects contained in a confessional statement of an accused against him. It cannot be used to record a finding of guilt against the accused, the Madras High Court held on Monday.

Such usage would also militate against certain basic postulates of penal law. There was no prohibition in using such incriminating part in the confessional statement in favour of the accused. It could be referred to to find out under what circumstances the offence had been committed, the court ruled.

A Division Bench comprising Justices K.N.Basha and P.Devadass was allowing an appeal against the sentencing of a person to life for committing a murder and 10 years rigorous imprisonment for robbery. The trial court in its judgment held that for finding out the nature of the offence committed, the confessional statement of the accused could be referred to and relied on.

On April 15, 2008 Thangammal of Kai-Kalathur in Perambalur district was founding hanging from a tree. Her jewellery were found missing. Four days later, the police arrested Balu alias Balamurugan and recorded his confessional statement. Pursuant to this, the accused produced Thangammal’s ornaments.

On May 18 last year, the Additional Sessions Judge, Mahila Court, Perambalur, held that for deciding the nature of the offence committed, the confessional statement of the accused could be referred to and accepting the recovery evidence, it held that the two charges were proved.

Against this, Balu preferred appeal. The appellant’s counsel contended that in the absence of any evidence to connect the accused to the murder merely based on a presumption under the Evidence Act, the accused could not be convicted.

Allowing the appeal, the Bench said the principle that “no confession made to a police officer is admissible” was firmly ingrained in Section 25 of the Evidence Act. But there are certain exceptions to it. If it is made in the presence of a Magistrate, it could be relied on.

Further, a limited exception to this aspect had also been made in Section 27 of the Act.

The limited exception to the prohibition of admissibility of confession made to police was so much of information leading to the discovery of a fact alone (such as a hide-out for the weapon or booty or spoils of the crime.) Only the non-incriminating part was admissible in evidence, Mr.Justice Devadass writing the judgment for the Bench said.

“But the trial court took it in other way. It had really misunderstood the scope of Section 27 of the Evidence Act. It is the result of the misunderstanding of the decisions of this court. What the trial court did was it had referred to the incriminating aspects in the confession statement of the accused and relied on it to convict him. Thus, it had used it against the accused.”

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