Do ‘Disclosure Statement’ and ‘Judicial Confession’ implicating him/herself and some other person seal the fate of the maker and other person irretrievably and conclusively?

Via disclosure statement before police U/S 161 and confessional statement before Magistrate U/S 164 of the CrPC, main accused person confesses to his guilt and also names some other person as co-accused. Does it seal the fate of the accused and co-accused irretrievably and conclusively? However, later on, main accused person alleges that he had given the statement due to the pressure exerted by the police. Can accused person retract the confessional statement and what is evidentiary value of retracted confession?
- Section 133 in The Indian Evidence Act, 1872: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Section 114 in The Indian Evidence Act, 1872: Court may presume existence of certain facts……………………………………………………………...(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars.....

Section 28 in The Indian Evidence Act, 1872: Confession made after removal of impression caused by inducement, threat or promise relevant

Section 29 in The Indian Evidence Act, 1872: Confession otherwise relevant not to become irrelevant because of promise of secrecy etc

Section 30 in The Indian Evidence Act, 1872: Consideration of proved confession affecting person making it and others jointly under trial for same offence

- Section 164 in The Code Of Criminal Procedure, 1973: Recording of confession s and statements

Section 306 in The Code Of Criminal Procedure, 1973: Tender of pardon to accomplice.

Section 321 in The Code Of Criminal Procedure, 1973: Withdrawal from prosecution.

Note: 
1. The general rule regarding corroboration that has emerged is not a rule of law but merely a rule of practice which has acquired the force of rule of law in both India and England. The rule states that: A conviction based on the uncorroborated testimony of an accomplice is not illegal but according to prudence it is not safe to rely upon uncorroborated evidence of an accomplice and thus judges must exercise extreme caution and care while considering uncorroborated accomplice evidence.
2. A confession is substantive evidence against its maker. If it has been duly recorded and suffers from no legal infirmity, it would suffice to convict the accused who made the confession, though as a matter of prudence, the Court expects some corroboration before acting upon it. Even then slight corroboration would suffice. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to pass a conviction on its strength alone.

SUPREME COURT ORDAINED “STANDARD OPERATING PROCEDURE” IN ALL CASES OF DEATH AND GRIEVOUS INJURY IN POLICE ENCOUNTERS

SUPREME COURT ORDAINED “STANDARD OPERATING PROCEDURE” IN ALL CASES OF DEATH AND GRIEVOUS INJURY IN POLICE ENCOUNTERS

People’s Union for Civil Liberties & Anr. V. State of Maharashtra & Ors. (CRIMINAL APPEAL NO.1255 OF 1999), DOD SEPT 23, 2014

In light of the guidelines issued by NHRC, suggestions of the appellant – PUCL, amicus curiae and the affidavits filed by the Union of India, State Governments and the Union Territories, the Supreme Court  issued the following requirements to be followed as the standard procedure for thorough, effective and independent investigation in all cases of death and grievous injury in police encounters  by treating them as law declared under Article 141 of the Constitution of India:

(1) Whenever the police is in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form. Such recording need not reveal details of the suspect or the location to which the party is headed. If such intelligence or tip-off is received by a higher authority, the same may be noted in some form without revealing details of the suspect or the location.

(2) If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay. While forwarding the report under Section 157 of the Code, the procedure prescribed under Section 158 of the Code shall be followed.

(3) An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter). The team conducting inquiry/investigation shall, at a minimum, seek:

(a) To identify the victim; colour photographs of the victim should be taken;

(b) To recover and preserve evidentiary material, including blood-stained earth, hair, fibers and threads, etc., related to the death;

(c) To identify scene witnesses with complete names, addresses and telephone numbers and obtain their statements (including the statements of police personnel involved) concerning the death;

(d) To determine the cause, manner, location (including preparation of rough sketch of topography of the scene and, if possible, photo/video of the scene and any physical evidence) and time of death as well as any pattern or practice that may have brought about the death;

(e) It must be ensured that intact fingerprints of deceased are sent for chemical analysis. Any other fingerprints should be located, developed, lifted and sent for chemical analysis;

 (f) Post-mortem must be conducted by two doctors in the District Hospital, one of them, as far as possible, should be Incharge/ Head of the District Hospital. Post-mortem shall be videographed and preserved;

(g) Any evidence of weapons, such as guns, projectiles, bullets and cartridge cases, should be taken and preserved. Wherever applicable, tests for gunshot residue and trace metal detection should be performed.

(h) The cause of death should be found out, whether it was natural death, accidental death, suicide or homicide.

(4) A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.

(5) The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be

sent to NHRC or the State Human Rights Commission, as the case may be.

 (6) The injured criminal/victim should be provided medical aid and his/her statement recorded by the Magistrate or Medical Officer with certificate of fitness.

(7) It should be ensured that there is no delay in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

(8) After full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code. The trial, pursuant to the chargesheet submitted by the Investigating Officer, must be concluded expeditiously.

(9) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest.

(10) Six monthly statements of all cases where deaths have occurred in police firing must be sent to NHRC by DGPs. It must be ensured that the six monthly statements reach to NHRC by 15th day of January and July, respectively. The statements may be sent in the following format along with post mortem, inquest and, wherever available, the inquiry reports:

(i) Date and place of occurrence.

(ii) Police Station, District.

(iii) Circumstances leading to deaths:

 (a) Self defence in encounter.

(b) In the course of dispersal of unlawful assembly.

(c) In the course of affecting arrest.

(iv) Brief facts of the incident.

(v) Criminal Case No.

(vi) Investigating Agency.

(vii) Findings of the Magisterial Inquiry/Inquiry by Senior Officers:

(a) disclosing, in particular, names and designation of police officials, if found responsible for the death; and

(b) whether use of force was justified and action taken was lawful.

(11) If on the conclusion of investigation the materials/evidence having come on record show that death had occurred by use of firearm amounting to offence under the IPC, disciplinary action

against such officer must be promptly initiated and he be placed under suspension.

(12) As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357-A of the Code must be applied.

(13) The police officer(s) concerned must surrender his/her weapons for forensic and ballistic analysis, including any other material, as required by the investigating team, subject to the rights

under Article 20 of the Constitution.

(14) An intimation about the incident must also be sent to the police officer’s family and should the family need services of a lawyer / counselling, same must be offered.

(15) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt.

(16) If the family of the victim finds that the above procedure has not been followed or there exists a pattern of abuse or lack of independent investigation or impartiality by any of the functionaries as above mentioned, it may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident. Upon such complaint being made, the concerned Sessions Judge shall look into the merits of the complaint and address the grievances raised therein.

NOTE:

1.      Section 100 IPC…when the right of private defence of the body extends to causing death.—The right of private defence of the body extends….. to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

            (First) — Such an assault as may reasonably cause the apprehension that death will  otherwise be the consequence of such assault;

            (Secondly) —Such an assault as may reasonably cause the apprehen­sion that grievous hurt will otherwise be the consequence of such assault;

2.       CrPC 46: Section 46 of the Criminal Procedure Code: Arrest how made……in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action…..if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest…..nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.