Information leading to discovery and confession of a co-accused (sections 23 proviso and 24)

Bharatiya Sakshya Adhiniyam · Unit II · Topic 6 of 26 · 6 min read

How much of a statement by an accused in police custody can be proved when it leads to discovery (the proviso to section 23(2), old s.27), Pulukuri Kottaya on 'fact discovered', the Article 20(3) cases, and the limited use of a co-accused's confession under section 24.

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On this page

1. The proviso to section 23(2)
2. "Fact discovered": Pulukuri Kottaya
3. Article 20(3) and the proviso
4. Points the examiner looks for
5. Section 24: confession of a co-accused
6. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Find the provision. Old s.27 is now the proviso to section 23(2). Section 181(2) BNSS confirms it by name: the bar on using police statements does not "affect the provisions of the proviso to sub-section (2) of section 23" of the Adhiniyam. Old s.30 (co-accused) is now section 24.

1. The proviso to section 23(2)

When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

It is an exception to sections 23(1) and 23(2). The reasoning: if the information is confirmed by the finding of a thing, there is a guarantee that at least that part of it is true.

The conditions:

the informant is a person accused of an offence;
he is in the custody of a police officer (formal arrest is not needed; surveillance or restriction of movement may be custody);
a fact is discovered in consequence of the information; and
only the portion that relates distinctly to the fact discovered is proved.

2. "Fact discovered": Pulukuri Kottaya

In Pulukuri Kottaya v. Emperor (Privy Council, 1947) the Privy Council held that the "fact discovered" is not the object produced but the fact embracing the place from which it is produced and the knowledge of the accused as to it. The information must relate distinctly to this fact. In the classic example, the statement "I will produce a knife concealed in the roof of my house" is admissible. The words "with which I stabbed A" are not: they relate to the past use of the knife, not to its discovery, and are a confession barred by section 23.

Applied to an exam answer: write out the accused's statement, then strike off everything except the part that led the police to the place and the object. What survives is admissible.

3. Article 20(3) and the proviso

State of U.P. v. Deoman Upadhyaya, 1960 INSC 107, AIR 1960 SC 1125. The section is not discriminatory under Article 14 merely because it applies only to persons in custody. The distinction rests on a reasonable classification.
State of Bombay v. Kathi Kalu Oghad, 1961 INSC 229, AIR 1961 SC 1808 (eleven judges). Information given by an accused in custody leading to discovery is not testimonial compulsion forbidden by Article 20(3) unless it was compelled. Mere custody does not imply compulsion. Giving specimen signatures or fingerprints is not being a "witness" against oneself.
Selvi v. State of Karnataka, (2010) 7 SCC 263, decided 5 May 2010. Compulsory narco-analysis, polygraph and brain-mapping (BEAP) tests violate Articles 20(3) and 21. Results of tests taken voluntarily are still not admissible as such, but any information or material subsequently discovered with the help of a voluntary test can be admitted under old s.27.

4. Points the examiner looks for

Joint disclosure. Where two accused give information at the same time, courts scrutinise which statement led to the discovery; a simultaneous joint statement is viewed with caution.
Already known facts. If the police already knew where the object was, nothing is "discovered" and the statement cannot be proved under the proviso.
The statement must be proved, not only the recovery. The officer must depose to the exact words that led to the discovery. A recovery alone is relevant as conduct under section 6, but without the statement it does not link the accused to knowledge of the place.
Weight. A discovery statement is corroborative. Alone, it seldom proves murder; it shows knowledge of where the weapon or body was, which may be explained.

5. Section 24: confession of a co-accused

When more persons than one are being tried jointly for the same offence, and a confession made by one of them affecting himself and some other of them is proved, the Court may take into consideration such confession against the other as well as against the maker.

Joint trial for the same offence (Explanation I: includes abetment and attempt).
The confession must implicate the maker substantially as much as the co-accused. A statement that shifts the blame is not a confession.
It must be proved, that is, legally admissible: a confession to police is barred by section 23 and cannot be used against anyone.
New, Explanation II: a trial held in the absence of an accused who has absconded or failed to comply with a proclamation under section 84 BNSS is deemed a joint trial.
Illustration (b): if B is not being tried jointly with A, B's statement "A and I murdered C" cannot be considered against A.

Evidentiary value. A co-accused's confession is not "evidence" within the section 2(1)(e) definition: it is not given on oath, not tested by cross-examination, and comes from a person with a motive to minimise his own role.

Kashmira Singh v. State of Madhya Pradesh, 1952 INSC 12, AIR 1952 SC 159. The proper way is first to marshal the other evidence against the accused; if it is enough for conviction, the confession may be used to lend assurance to it. The confession cannot be the starting point.
Haricharan Kurmi v. State of Bihar, 1964 INSC 23, AIR 1964 SC 1184 (Constitution Bench). The confession of a co-accused is a much weaker type of evidence than an accomplice's testimony. It can be used only to lend assurance to other evidence; it cannot by itself found a conviction.

Do not confuse with the accomplice. An accomplice who turns approver gives evidence on oath and is cross-examined; a conviction on his corroborated testimony is legal (section 138, old s.133). A co-accused's confession under section 24 is not tested at all, and is weaker still.

6. Problem

A, arrested for murder, tells the Inspector: "I killed X with an axe and threw the axe into the well behind my field. I will show you." He leads the police to the well and the axe is recovered. B, tried jointly with A, had earlier confessed before a Magistrate that he and A killed X. What can be proved against A?

Conclusion. From A's statement, only "threw the axe into the well behind my field. I will show you" is admissible under the proviso to section 23(2) (Pulukuri Kottaya); "I killed X with an axe" is a confession to police barred by section 23(1). B's judicial confession implicates B himself and may be taken into consideration against A under section 24, but only to lend assurance to the other evidence (Kashmira Singh, Haricharan Kurmi). The recovery and B's confession together, without more, would be thin ground for convicting A of murder.

How this is examined

"Confession by co-accused" (June 2025) and "Evidentiary value of information received from an accused in custody" are short notes; the discovery question also appears as a problem with a statement to be split. Quote the proviso exactly, give Pulukuri Kottaya, and state that it is now in section 23. For section 24, list the conditions and quote Kashmira Singh.

Now try the real questions: Bharatiya Sakshya Adhiniyam past question papers.