The Confessional Statement and the Absent Witness

Item (i): The signed statement to the Sub-Inspector. This is inadmissible as a confession. Under section 25 of the Evidence Act 1872, no confession made to a police officer shall be proved against an accused. Under section 26, no confession made in police custody shall be proved unless made in the immediate presence of a Magistrate. The statement was recorded by a Sub-Inspector while Jashim was in police custody, so both sections 25 and 26 bar its proof. The fact that it was signed does not cure the defect. It may, however, be used under section 27 to the extent it leads to the discovery of a fact (e.g. recovery of the weapon), but only that portion is admissible, and only if the discovery is proved.

Item (ii): The police officer's testimony that Jashim 'confessed'. This is also inadmissible. It is a confession to a police officer (section 25) and, if made in custody, section 26 applies. The oral repetition of a confession to police is equally barred. The officer cannot circumvent sections 25 and 26 by giving oral evidence of what the accused said.

Item (iii): The dying declaration. A dying declaration is admissible under section 32(1) of the Evidence Act as a statement of a person who is dead, relating to the cause of his death. It is not required to be recorded by a Magistrate, though the Supreme Court has laid down guidelines for recording. The neighbour's recording is admissible if the shopkeeper was conscious and believed death to be imminent. The unavailability of the neighbour does not make the declaration inadmissible; it goes to weight, not admissibility. The court may admit the written record if it is proved, and may consider whether the declarant had the opportunity to identify the assailant.

The conviction cannot stand if it rests on inadmissible evidence. The High Court Division, on appeal, will examine whether there is remaining admissible evidence sufficient to sustain the conviction.

• The signed statement and the police officer's testimony must be excluded from consideration. A conviction based on a confession hit by sections 25 and 26 is unsustainable.
• The dying declaration is admissible, but it is weak evidence standing alone: it was recorded by a neighbour, not a Magistrate, the declarant's condition is not clearly established, and the neighbour is unavailable for cross-examination. The court will scrutinise it with caution and look for corroboration.

If, after excluding the inadmissible items, the only evidence is the dying declaration, the appellate court may find that the prosecution has not proved guilt beyond reasonable doubt. The appeal should be allowed and the conviction set aside. The court may also consider whether the investigation was tainted by the illegal recording of the confession, and may comment adversely on the investigating officer's conduct.

The proper course is for the appellate court to re-appraise the evidence and, if the admissible evidence is insufficient, acquit the accused. The court should not substitute its own finding of guilt based on the confession.

Safeguards:

1. Production before a Magistrate within 24 hours of arrest (Article 33 of the Constitution and section 61 of the Code of Criminal Procedure). Jashim was in custody for two days before production, which is a breach.
2. Recording of a confession by a Magistrate, not a police officer. Under section 164 of the CrPC, a confession must be recorded by a Magistrate, who must explain to the accused that he is not bound to confess and that the confession may be used against him, and must record it in the manner prescribed.
3. Warning against self-incrimination and confirmation that the confession is voluntary.
4. Right to counsel and the opportunity to retract.
5. Medical examination to rule out coercion, and separation from police during the recording.

The breach of these safeguards has two effects. First, the confession is inadmissible under sections 25 and 26 of the Evidence Act. Second, the illegal detention beyond 24 hours is a violation of the constitutional right to be produced before a Magistrate, which may entitle Jashim to compensation or other relief, and which taints the investigation. The court may draw an adverse inference against the prosecution and may exclude the confession even if it were otherwise technically admissible, on the ground of involuntariness. The Sub-Inspector's conduct may also expose him to departmental and criminal action.