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evidence_law:confession

Confession

Introduction

The term “confession” is not defined in the Indian Evidence Act. However, it is dealt with from Section 24 to 30 of the Evidence Act and in Section 164, 281 and 463 in the Criminal Procedure Code, 1973. Section 24 says that confessional statement made and inadmissible. Similarly, Section 24 and 26 exclude evidence of confessional statements to police officer. Section 27 deals with how much of information received from accused may be proved. Section 28 and 29 are in the nature of exception to Section 24. Section 30 deals with the admissibility of confession of a co-accused jointly tried with the accused.

The expression “confession‟ means “a statement made by an accused admitting his guilt. It is an admission or acknowledgement as to commission of an offence. If a person accused of an offence (accused) makes a statement against himself, it is called confession or confessional statement. According to Sir James Stephen “a confession made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.” Confession cannot be regarded as the sole basis for a conviction as prudence and justice dictates that such evidence may be used as corroborative piece of evidence. Deliberate and voluntary confessions of guilt, if proved are considered the most effectual proofs in law. Confession should be voluntarily and it can be given orally or in written form.

It is a rule of universal law that “a person may be convicted on the basis of his confession made in a judicial proceeding”. The underlying principle is enshrined in two Latin maxims as stated below;

  1. Confession in Judicio Omini Probatione Major Est: It means “confession in judicial proceedings is greater than any other proof”.
  2. Confession Facta in Judicio Est Plena Probatio: It means “confession is the absolute proof.‟

Pakala Narayan Swami v. Emperor, AIR 1939 PC 47

In this case, Lord Atkin stated that “A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”. A mixed-up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession. Thus, if the maker does not incriminate himself the statement will not be a confession.

Palvinder Kaur v. State of Punjab, AIR 1952 SC 354

Facts - “Palvinder was on trial for the murder of her husband; the husband’s body was recovered from a well The post mortem could not reveal whether death was due to poisoning or what. In her statement to the court, she said that her husband, a photographer, used to keep handy photo developing material which is quick poison; that on the occasion he was ill and she brought him some medicine; that the phial of medicine happened to be kept nearby the liquid developer and the husband while going for the medicine by mistake swallowed the developer and died; that she got afraid and with the help of the absconding accused packed the body in a trunk and disposed it into the well.” The statement, thus, consisted of partly guilty and partly innocent remarks.

It was held that a statement that contains self-exculpatory matter (e.g. killing done in private defence) which if true would negative the offence, cannot amount to a confession. This is so because a confession must be accepted or rejected as a whole, and the court is not competent to accept only inculpatory part (self incriminating) and reject exculpatory part (self-defence).

Nishi Kant Jha v. State of Bihar, (1959) SCR 1033

The Court held that there was nothing wrong in relying on a part of the confessional statement and rejecting the rest, and for this purpose, the court drew support from English authorities. Under the English law, a confession is not rejected only because of the exculpatory statements.

Laksman Shah v State of W.B., (AIR 2001 SC 1760)

In this case, the statement of the accused which showed that he joined an assembly when it had already decided to chase the victim and finish him was regarded as a confession.

The Supreme Court observed: “The statement must be read as a whole (instead of dissecting it into different sentences) and then only the court should decide whether it contains admission of his inculpatory involvement in the offence. If the result of that test is positive then the statement is confessional, otherwise not.”

Shabad Pulla Reddy v State of A.P., (AIR 1997 SC 3087)

In this case, where the accused confessed that he knew about the conspiracy to commit the murder in question but did not confess that he was a party to the crime, die statement was held to be not relevant as a confession.

Forms of Confession

A confession may occur in any form. It may be written or oral. It is not necessary for the relevancy of a confession that it should be communicated to some other person.

There are two types of confession, they are:-

  1. Judicial Confession
  2. Extra-judicial Confession

It may be made to the court itself (judicial confession) or to anybody outside the court (extra-judicial confession). While, judicial confession is a good piece of evidence, the extra-judicial confession is a weak kind of evidence and has to be used with great caution.

An extra- judicial confession is made to anybody outside the court, and it could be a direct admission of guilt or in the form of repentance or in any other way. “An extra-judicial confession to afford a piece of reliable evidence must stand the test of reproduction of exact words, the reason and motive for confession and the person selected in whom confidence is reposed”. For example: - A confession made to the Municipal Commissioner with whom the accused had no special friendship was held to be not trustworthy.

Note: Confessions when Irrelevant: Involuntary Confessions given under (Section 24-26)

Confessions caused by Inducement, threat or promise

Section 24 of the Indian Evidence Act, 1872 speaks about, “Confession caused by Inducement, threat or promise”.

Ingredients: To attract the prohibition enacted in Section 24 the following facts must be established:

  1. That the statement in question is a confession;
  2. That such confession has been made by the accused;
  3. That it has been made to a person in authority;
  4. That the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority;
  5. Such inducement threat or promise must have reference to the charge against the accused; and
  6. The inducement, threat or promise must in the opinion of the court be sufficient to give the accused ground, which would appear to him reasonable, for supporting that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.

When these conditions are present, the confession is said to be not free or voluntary and will not be receivable in evidence. It is necessary that the above conditions must cumulatively exist. A positive/ strict proof of the fact that there was any inducement, threat, etc. is not necessary. Anything from a barest suspicion to positive evidence would be enough to discard a confession. A Confession to be admissible in evidence, it must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. A Confession made by an accused in a criminal proceeding is irrelevant, if it is caused by any inducement, threat or promise.

Where the prisoner is only told to tell the truth without exciting any hope or fear in him, his statement cannot be regarded as being made in response to any threat or promise. Similarly, where a constable told a prisoner that he need not say anything to criminate himself, but what he did say would be used in evidence against him. However, where the objectionable words being that ‘it would be better to speak the truth’, held that the confession was involuntary.

Where the accused was told by the magistrate, “Tell me where the things are and I will be favourable to you”, or “If you do not tell the truth you may get yourself into trouble and it will be worse for you”, etc, the statements were held to be attracted under Sec 24. However, mere moral or spiritual inducements or exhortations will not vitiate a confession via. where the accused is told, “Be sure to tell the truth”, or “You have committed one sin, do not commit another and tell the truth”.

Person in authority — The inducement, threat or promise should proceed from a person in authority, i.e., one who is engaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him viz. government officials, magistrates, their clerks, police constables, wardens and others in custody of prisoners, prosecutors, attorneys, etc A purely private person/Panchayat officer cannot be regarded as a person in authority, even if he is able to exert some influence upon the accused.

In case of ordinary confessions, the burden is not upon the prosecution to establish that the confession was made without threat, inducement or promise. However, it is the right of the accused to have the confession excluded, if some evidence of mal practice is proved by the accused.

Confessions to Police Officer

Section 25 of the Indian Evidence Act, 1872 speaks about, “Confession to police officer not to be proved”. Confession under Section 25 may be a statement directly made to a Police Officer orally or in writing or indirectly made to such Police Officer. The reason is the Police Officers in India resort to third rate methods to extort Confession. Confessions to Police Officer are excluded even if arrest and custody are illegal. In England, a confession made to a police officer would be relevant evidence; if the Judge feels confident that there was no oppression and the statement was free, fair and voluntary, he may admit it.

Police Officer – A police officer not only includes a member of the regular police force, but also would include any person who is clothed with the powers of a police officer viz. a chowkidar, a village headmen, a home guard etc Thus, excise inspectors are held to be police officers, but not the custom officers or an officer under the FERA or a member of the Railway Protection Force It has been held that mere power of arrest, search and investigation are not enough and the police officers should also be empowered to file a charge sheet or lodge a report before a Magistrate.

Section 25 absolutely excludes from evidence against the accused a confession made by him to a police officer under any circumstances whatsoever. Whether such person is in police custody or not, whether the statement made during investigation or before investigation is irrelevant. However mere presence of a police officer does not render the statement inadmissible. If person A is making a confession to person B and a police officer happen to overhear the same, such a confession will be considered voluntary and admissible.

If the confession is made in FIR then only that part of a confessional First Information Report is admissible which does not amount to a confession or which comes under the scope of Section 27. The non-confessional part of the FIR can be used as evidence against the informant accused as showing his conduct under Section 23.

Confessions in Police custody

Section 26 of the Indian Evidence Act, 1872 speaks about, “Confession by accused while in custody of police not to be proved against him”.

The section will come into play when the person in police custody is in conversation with any person other than a police officer and confesses to his guilt. The section is based on the same fear, namely, that the police would torture the accused and force him to confess, if not to the police officer himself, at least to someone else. Thus the confession is likely to suffer from the blemish of not being free and voluntary.

The word custody does not mean formal custody; it means police control even if be exercised in a home, in an open place or in the course of a journey and not necessarily in the walls of a prison (actual arrest). The immediate presence of police officers is not necessary, so long as the accused persons are aware that the place where they are detained is really accessible to the police. A temporary absence of the policeman makes no difference.

Exception to Section 26: - If the accused confesses while in police custody but in the immediate presence of a Magistrate, the confession will be valid. The presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable. The Magistrate must be present in the same room where the confession is being recorded. A confession made while the accused is in judicial custody or lockup will be relevant, even if policemen are guarding the accused. The mere fact that the accused, after having made a confession before a police officer, subsequently says before a Magistrate that “I” told the police officer that I murdered B, does not render the statement admissible.

Note: Confessions when relevant given under (Section 27-29).

Information received from accused in Police custody

Section 27 of the Indian Evidence Act, 1872 speaks about, “How much information received from accused may be proved”. Section 27 is an exception to the Sections 24, 25 and 26. According to Section 27, when an information, given by the accused in police custody leads to the discovery of an incriminating material object, like jewellery, weapons etc. the portion of the information can be proved. The reason is such discovery guarantees truth of the information.

Conditions:– For application of Section 27, the following conditions are to be satisfied.

  1. The accused in police custody has given some information in his confessional statement.
  2. Such information must relate to the discovery of certain fact relating to the commission of some offence.
  3. In pursuance of such information, the police discovered certain facts.
  4. The facts discovered must be connected with (or relevant to) the offence.

When the above conditions are satisfied, only that portion of the information which directly relates to the fact discovered, shall be relevant.

Illustration: A is tried for murder of B. If A, in police custody says “I have killed B and buried the dead body in my garden‟. Accordingly, if the body is found, A’s statement (confession) becomes provable under Section 27.

Under the Evidence Act, there are two situations in which confession to police are admitted in evidence. One is when the statement is made in the immediate presence of a Magistrate, and the second, when the statement leads to the discovery of a fact connected with the crime. Section 27 is founded on the principle that if the confession of the accused is supported by the discovery of a fact, it may be presumed to be true and riot to have been extracted. That is why, Section 27 is a proviso or exception to Section 25 and 26 of the Act.

Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object e.g. a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused. The ‘discovery of fact’ includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. However, information as to the ‘past use’ of the object produced is not related to its discovery.

Constitutional validity of Section 27

The validity of Section 27, Indian Evidence Act, 1872 was challenged on the ground that, it violates Article 20(3) of the Indian Constitution. According to Article 20(3) of the Indian Constitution, “No person accused of an offence shall be compelled to be a witness against himself‟. It is the responsibility of the prosecution to prove the guilt of the accused. The constitutional validity of Section 27, Indian Evidence Act was challenged on the ground that, using information given by the accused for discovery of a fact against him, makes the accused, a witness against himself.

Before the constitution came into force, the information leading to discovery was provable and admissible, whether it was given by the accused voluntarily or compulsion. But, after the constitution came in to force, such information obtained by compulsion is not admissible on the ground that, it violates Article 20(3) of the constitution.This view was followed by A.P. High Court in “Re madugula Jermaiah1)” Allahabad High Court in “Amin v. State2)” and Bombay High Court in “Amrut v. State 3)”. But the Mysore High Court in “Re Govinda Reddy4)” was of the view that Section 27 of the Evidence Act, is not controlled by Article 20(3) of the Constitution.

The above conflict was resolved by the Supreme Court in “State of Bombay v. Kati kallu Oghad5)” that, such information obtained does not give rise to a presumption that the information was given under compulsion. It is the prosecution to find out whether the accused gave the information voluntarily or by compulsion.

State of Rajasthan v. Bhup Singh(1997 10 SCC 675)

The statements admissible under Section 27 are not admissible against persons other than the maker of the statement. The discovery must be made by the police as a result of information given by the accused and not by any other source. Statements made by the accused in connection with an investigation in some other case which lead to the discovery of a fact are also relevant.

Mohd. Inayatullah v. State of Maharashtra (AIR 1976 SC 483)

In this case, the accused charged with theft, stated: “I will tell the place of deposit of the three chemical drums which I took out from the Haji Bunder on first August” The facts discovered were: chemical drums, the place of deposit of drums, and the accused’s knowledge of such deposit. It was held that only the first part of statement, namely, “I will tell the place of deposit of three chemical drums” was relevant because only this part was the direct cause of the fact discovered. The rest of the statement was a simple confession (past history) which led to no discovery.

Gurcharan Singh v. The State of Himachal Pradesh, Crl. Appeal 806/2011,

Judgment delivered on 16th October, 2019

The case of the prosecution in brief is that the appellant (accused) is the husband of Daljeet Kaur (deceased/ wife) and had been working in Greece for a few years. He often used to come to India to meet his wife and two children. It is alleged that the deceased suspected that the appellant was having an illicit relationship with his sister-in-law (Kamaljit Kaur) and therefore questioned him. She is said to have told her parents and her brother that the appellant used to beat her whenever she objected to this illicit relationship. On the date of the incident i.e. 09.02.2005, following a quarrel with the deceased, the appellant beat her with a wooden bat and committed her murder with a Takua. Supreme Court observed that-

We find that there are only two circumstances against the appellant that are relevant for our consideration, given that there are no eye witnesses to the incident. These two circumstances are: (a) the motive for commission of the offence and (b) disclosure statement by the appellant and discovery of material pursuant thereto in terms of Section 27 of the Indian Evidence Act, 1872“.

On the second issue, the Supreme Court observed that-

As far as the next circumstance of disclosure and discovery is concerned, there are again conflicting versions that have been put forth by the witnesses. PW 2, an independent witness, was the signatory to the so called disclosure statement of the accused. However, he has admitted in his deposition before the Court that the accused did not make any such statement before the police and that nothing was recovered by the police at his instance. Another independent witness, PW-4, has also deposed before the Court that no disclosure statement was made by the accused. If it is so, the recovery allegedly made by the police would not fall under Section 27 of the Indian Evidence Act, 1872 and recovery circumstance cannot be treated as having been proved satisfactorily in accordance with law“.

It further observed “Further, even though the wooden bat and Takua (small axe) were both seized from the house, only the Takua was received by the Forensic Science Laboratory for chemical examination. It was found that the Takua contained human blood of the same blood group as that of the deceased. Though these facts have been proved, the moot question that has not been answered by the prosecution is how the weapon could be connected to the appellant. Upon our consideration, we find that there is no connecting link which shows that the appellant has committed the murder by using sharp edged weapon which was seized by the police, to commit the murder of the deceased”.

Supreme Court also observed “Even assuming that such a weapon was seized from the house of the deceased, this would not be sufficient to bring home the guilt against the accused for the offence under Section 302 IPC especially since there are no other circumstances against the appellant”.

Note: Sections 28 and 29 provide for exceptions to Section 24.

Confession made After Removal of Threat,Inducement, etc

Section 28 of the Indian Evidence Act, 1872 speaks about, “Confession made after removal of Threat, Inducement, threat or promise, relevant”. “If such a confession as is referred to in Section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed it is relevant”.

Section 28 deals with the validity of confession which is made after the effect of inducement is already over (e.g. by lapse of time). Thus, a confession, which is rendered irrelevant under Section 24, may become relevant under Section 28.

“The word ‘fully’ in Section 28 is significant, it means ‘thoroughly’, ‘completely’, ‘entirely’, so as not to leave any trace of the impression created by torture or fear; for, confession forced from the mind by the flattery of hope or by torture or fear comes in so questionable a shape that no credit can be given to it. A free and voluntary confession is presumed to flow from the strongest sense of guilt and therefore, it is admitted as proof of the crime.”

Confession Relevant because of Promise of secrecy

Section 29 of the Indian Evidence Act, 1872 speaks about, “Confession Otherwise Relevant not to become Irrelevant because of Promise of Secrecy, etc”.

Under this section all confessions will be relevant which are made under:

  1. A promise of secrecy, or
  2. In consequence of a deception or artifice practiced on the accused, or
  3. When he was drunk, or
  4. Because it was elicited in answer to a question, or
  5. Because no warning was given that he was not bound to say anything and that whatever he might say would be used as evidence against him.

In criminal cases, the public interest lies in prosecuting criminals and not compromising with them. Therefore, where an accused person is persuaded to confess by assuring him of the secrecy of his statements or that evidence of it shall not be given against him, the confession is nevertheless relevant. Where the two accused persons were left in a room where they thought they were all alone, but secret tape recorders were recording their conversation, the confessions thus recorded were held to be relevant. A confession secured by intercepting and opening a letter has also been held to be relevant. A confession obtained by intoxicating the accused is equally relevant.

Confession of Co-Accused

Section 30 of the Indian Evidence Act, 1872 speaks about, “Consideration of proved confession affecting person making it and others jointly under trail for same offence”.

When more than one person is being jointly tried for one and the same offence or offences they are called ‘co-accused’. The philosophy of Section 30 is that confession of co-accused affords some sort of sanction in support of the truth of his confession against others and himself. However, it does not necessarily follow that because a man has truly implicated himself, therefore his implication of another is also true. It is opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross-examine the person making the statement. This section is an exception to the rule that the confession of one person is entirely inadmissible against another.

The principle behind this section is that where an accused person confesses his own guilt, as a result, implicates another person who is being jointly tried with him for the same offence, and then the confession made him can be used against the other person too. The reason is that when a person admits his guilt then the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. But this is a weak guarantee because a statement may be true as far as the effect on the confessor is concerned but the statement can be said in malice as well when its effect to the other people is concerned.

The expression ‘same offence’ in Section 30 means the identical offence and does not mean offence of the same kind. If different offences are committed in course of the same transaction and many persons are tried jointly for different offences (viz. abduction and rape), the confession of one of such persons cannot be used against the others.

Badri Prasad Prajapati v. State of M.P. 2005 CrLJ 1856,1858

The ingredients to be fulfilled in case of evidence against other co-accused were given: –

  • There must be a joint trial for the same offence;
  • It must be a confession;
  • The confession of guilt must affect himself and others, i.e., implicate the maker substantially to the same extent as the other accused;
  • The confession of guilt must be duly proved.

All the conditions should exist at one time and if any of the condition is missing in a case, this section had no applicability and the accused cannot be roped.

Evidentiary value of section 30

Section 30 does not say that the confession of one accused will be evidence against the other co-accused. It only says that the court may take into consideration such confession. The confession of co-accused is not “evidence”, as it is not recorded on oath, nor it is given in the presence of the accused and nor its truth can be tested by cross-examination. It is an evidence of a very weak type.

The confession of co-accused may only be taken into consideration along with other evidence in the case, and it cannot alone form the basis of a conviction. It can be used only, if necessary, to corroborate other evidence of the record. It can only be used to help to satisfy a court that the other evidence is true.

Retracted Confession

When a person, having once recorded a confession which is relevant, goes back upon it at the trial, saying either that he never confessed or that he wrongly confessed or confessed under pressure, that is called a ‘retracted’ confession.

A court shall not base a conviction on such a confession without a general corroboration from independent evidence. Even if a confession is inculpatory, corroboration is necessary if the confession is retracted. The court can take into consideration retracted confession against the confessing accused and his co-accused.

Pakkirisamy v. State of T.N., (1997) 8 SCC 158

In this case, an extra-judicial confession was recorded by the village assistant in the presence of the village administrative officer; the accused made no reference to the confession in his statement recorded by the C.J.M. under Section 164, Cr.P.C. and only said that he was innocent and had not committed any offence, it was held that this could not be called a retraction of the confession.

State of T.N. v. Kutty, (AIR 2001 SC 2778)

The Supreme Court has held that retraction is too insufficient a reason for overruling a confession (State of T.N. v Kutty AIR 2001 SC 2778). A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and voluntarily made. In the case of a retracted confession, one has only to find out whether the earlier statement which was the result of repentance, remorse and contrition was voluntary and true or not and it is with that object that corroboration is sought for.

Evidentiary value of Confession

A confession is considered the best and most conclusive evidence, as no person will make an untrue statement against his own interest It is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt However, the evidentiary value of a confession is not very great As observed by Best, a confession may be ‘false’ due to mental aberration, mistake of law, to escape physical or moral torture, to escape ignominy of a stifling enquiry, due to vanity, to endanger others by naming them as co-offenders, and so on. Therefore, confessions may not always be true. It would be very dangerous to act on a confession put into the mouth of the accused by a witness and uncorroborated from any other source. It would not be quite safe to base a conviction for murder on a confession by itself.

Difference between Admission & Confession

“Sidheshwar Nath V. Emperor, AIR 1934 All 351, 152 Ind Cas 174” Statement is genes, admission is species and confession is sub-species.

There are many common features between an admission and a confession. But there are obvious points of distinction to a The Act lays down different rules as to their relevancy.

  1. Confessions find place in criminal proceedings only. Admissions are generally used in civil proceedings, yet they may also be used in criminal proceedings.
  2. Every confession is an admission, but every admission is not a confession. The word ‘admission’ is more comprehensive and includes a confession also. A confession is only a species of admission.
  3. A confession is the admission of guilt and, thus, invariably runs against the interest of the accused. A confession should necessarily be of inculpatory nature. The term ‘admission’ includes every statement whether it runs in favour of or against the party making it. However, there is nothing in Evidence Act which precludes an accused person from relying upon his own confessional statements for his own purposes.
  4. A confession always proceeds from the accused or suspect person, but in reference to admissions, the statements of certain persons, who are not parties to the case, as admissions against the parties.
  5. The confession of an accused person is relevant against all his co-accused who are being tried with him for the same offence (Section 30). In the case of admissions, statements of a co-plaintiff or those of a co-defendant are no evidence against the others.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
  • E-mail: adv.abhishek3995@gmail.com
1)
AIR 1957, AP 611
2)
AIR 1958 All 293
3)
AIR 1960 Bom, 488
4)
AIR 1958 Mys. 150
5)
AIR 1961 SC 1808: 1961 (2) Cr. LJ 856 (SC)


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Created on 2020/12/14 20:50 by Japhin Raj • Last modified on 2021/04/09 22:12 (external edit)