General Principles of Confession

General Principles Of Confessions (Sections 24-30)

Submitted To: Dr. Sabina Salim U.I.L.S.

Submitted By: Dilraj S. Bhinder 125/10

Introduction The substantive law relating to Confessions is contained in sections 24-30 of the Indian Evidence Act, and the adjective law is contained in Sections 164,281 and 463 of the Criminal Procedure Code, 1973. Sections 24-26 lay down when confessions are not relevant i.e., provable. While sections 27-29 are limitations to their operation. Confessions are received in evidence in criminal cases upon the same principle on which admissions are received in civil cases, namely,  The presumption that a person will not make an untrue statement against his own interest.  A man of sound mind and full age, who makes a statement in ordinary simple language and has not been victim of malpractices, threat or inducement in making such statement, must be bound by the language of statement and by its ordinary plain meaning and the act spoken of must be given its legal consequence.

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Definition The term confession is nowhere defined in the Evidence Act. All the provisions relating to confessions occur in the heading “admission”. This shows the legislative intent of not distinguishing between and “admission” and “confession”, so far at least definition is concerned. The definition of “admission” as given in section 17 becomes applicable to confession also. Section 17 defines “admission” as “a statement oral or documentary, which suggest any inference to any fact in issue or relevant fact”. If such a statement is made by a party to civil proceeding it will be called an admission and if it is made by a party charged with a rime it will be called a confession. Thus, in terms of the act, a confession s a statement made by a person charged with a crime suggesting an inference as to any facts in issue or as o relevant facts. The inference that the statement should suggest should be that he is gilty of crime. According to Stephens Digest of the Law of Evidence “A confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime.” However in Pakala Narayan Swami vs. Emperor1 the Privy Council did not accept the definition for the purposes of Indian Evidence Act and observed that “a confession must either admit in the 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 itself a confession, for example, an admission that the accused is the owner of and was in recent possession of a knife or revolver which caused death with no explanation of any other man‟s possession. The definition is not contained in Evidence Act 1872, and in that act it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed crime”

1

AIR 1939 P.C. 47 2

Conditions For relevancy of Confession The following conditions must be satisfied for relevancy of a confession:  It must not be caused by inducement, threat or promise (Section 24)  It must not be made to a police officer (Section 25)  It must be made I immediate presence of a Magistrate when the accused is in the custody of police officer (Section 26)  It must be made after impression, caused by any inducement, etc., has been fully removed (Section 27)  The Confession of an accused is relevant only against himself, subject to Section 30. In Thimma vs. State of Mysore2 the hon‟ble Supreme Court held that an unambiguous confession, if admissible in evidence and free from suspicion of falsity is a valuable piece of evidence possession a high probative force.

2

AIR 1971 SC 1871 3

Section 24 S24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him3.

PRINCIPLE: According to the section, a confession by an accused is irrelevant if it is caused by 1. Inducement 2. Threat; or 3. Promise The inducement, threat or promise should have (a) reference to the charge against the accused; (b) proceeding from a person in authority, and (c) sufficiently given the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any evil of temporal nature in reference to proceeding against him. In Man Bhadur Gurung vs. State of Sikkim 4 the magistrate herself had satisfied that there was no policeman in courtroom or in any place where proceedings could be seen or heard and questions and answers showed that the accused was prepared to make confessional statement and two days time was given 3 4

Section 24 of Indian Evidence Act 2002(4) Crimes 1136 4

to the accused for reflection and the statement was recorded by the Magistrate after satisfying herself that the statement has been made by the accused voluntarily such confessional statement cannot be said to be result of any duress, coercion or inducement by the police or any other person.

OBJECT: This section is mainly integrated to safeguard the interest of the accused, on the ground of pubic policy and for proper administration of justice. The Supreme Court in Aher Raja Khima vs. State of Saurashtra5observed that “it is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realizes that he says may be used against him.” The Apex Court in Shankaria vs. State of Rajisthan6 observed that it is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt. Therefore, when in capital case the prosecution demands a conviction of the accused primarily on the basis of his confession recorded under Section 164 Cr.P.C. the court must apply a double test: 1. Whether the confession was perfectly voluntary? 2. If so, whether it was true and trustworthy? Satisfaction of first evidence is sine qua non for its admissibility in evidence. If the confession appears to the court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24, Evidence Act, it must be excluded and rejected bervi manu. In such a case, the question of proceeding further to apply the second test does not arise. If the first test is satisfied, the court must, before acting upon the confession, reach the finding that what is stated in the therein is true and reliable. For judging the reliability of such a confession or, for the matter, of any substantive piece of evidence, thereis no rigid cannon of universal

5 6

AIR 1956 SC 217 AIR 1978 SC 1248 5

application. Even so, one broad method which may be useful in most cases for evaluation of a confession may be indicated. The court should carefully examine the confession and compare it with the rest of evidence, in the light of the surrounding circumstances and probabilities of each case.” Further this section place responsibility on the court. Under the latter part of the section, the court has to form an opinion that the inducement, threat, or promise by the person in authority is sufficient to give the accused person grounds, which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of temporal nature. The responsibility of the court would be great because the court must relegate itself to the position of the accused and see whether the inducement, threat or promise given to the accused would appear reasonable to make the accused feel that he would gain an advantage or avoid any evil of temporal nature with reference to the charge against him7. Thus it can be seen that this section through its wording has given the fullest discretion to the court to reject he alleged confession if it entertains a suspicion.

ESSENTIALS OF A CONFESSION: Admissions and confessions are exception to the hearsay rule; they are placed in the category of relevant evidence in Sections 17-30 presumably on the ground that, being declarations against the interest of the person making them, they are probably true. Their probable value does not depend upon their communication to another, though, just like any other piece of evidence, they can be admitted in evidence only on proof that can be offered by witness who heard the admission or the confession, as the case may be. Before a confession is relied upon, it must be clear and unequivocal, whether it is judicial or extra-judicial confession. Before a confession can be accepted in evidence, it must be established by cogent evidence what were the exact words used by the accused. Even if so much 7

Satbir Singh vs. State of Punjab/ AIR 1977 SC 1294 6

is established, prudence and justice demands that such evidence cannot be sole ground of conviction. It may used only as a corroborative piece of evidence8. Further confession must either admit in terms of offence, or at any rate substantially all the acts, which constitute the offence. An admission of gravely incriminating fact, even a conclusively incriminating fact, is not itself a confession. Also an admission of a fact, however incriminating, but not by itself establishing the guilt of the maker of such admission, doesnot amount to a confession within the meaning of Sections24 and 25 of the Evidence Act. A statement made under section 164 Cr.P.C , which does not amount to a confession, can be used against the maker as an admission with in purview of Ss. 18-21. Further any confessional statement not relating to the alleged crime, which is not the subject matter of the indictment, cannot be relevant under this section and cannot be relied upon.

MADE BY AN ACCUSED: The expression “accused person” in section 24 and the expression “a person accused of any offence” in section 25 have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.

REFRENCE TO CHARGE AGAINST ACCUSED PERSON: “Charge” means a criminal charge or a charge of an offence in a criminal proceeding. The inducement, threat, or promise, must be with reference to the offence, with which the accused is charged.

PERSON IN AUTHORTY: The expression does not mean person-having control over the prosecution of the accused. The test would seem to be, has the person authority to interfere in 8

Saboo vs. State of UP/ AIR 1966 SC 40 7

the matter under enquiry as, for example, a person engaged in apprehension, detention or prosecution of the accused, or who is empowered to examine him and any concern or interest in it would be sufficient to give him that authority. The belief of the accused that the persons to whom he made a confession were “persons in authority” is not sufficient to bring him within the term. A confession made to the recording officer of the Border Security Force was held to be not voluntary. The accused had remained in detention for 3 months and was not permitted to meet anybody including his relatives9.

GROUNDS WHICH WOULD APPER TO HIM REASONALBE: The word “apperar” imprts judicial discretion. It shows that the court has to decide the preliminary question of admissibility on a consideration of the evidence and surrounding circumstances. The court to determine the sufficiency of inducement, threat or promise as affording certain ground, to see whether the ground would appear reasonable for the supposition mentioned in the section, and to judge whether the confession appears to have been in consequence of the inducement, threat or promise. In King- Emperor vs. Akhilevashari Prashad 10 it was observed that the inducement must be of temporal type i.e. not spiritual or religious. Confessions obtained by exhortations are admissible in evidence. A merely moral exhortation to tell truth is not objectionable

9

Hardev Singh vs. Union of India/ 2000 Crlj 2585 (1925) 4 Pat 646

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Section 25 S.25 Confession to police officer not to be proved- No confession made to a police officer shall be proved as against a person accused of any offence.

PRINCIPLE: Under this section a confession made to a police officer is inadmissible in evidence except in so far as proved by section 27. The principle upon which the rejection of confession made by accused to a police officer, or while in custody of such officer, is founded, is that a confession thus made or obtained is untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession. In Queen Empress vs. Babulal 11 it was observed that rules contained in sections 25, 26, and 27 of the evidence act were not originally treated in British India as, strictly speaking, rules of evidence, but rather as rules governing the action of police officers, and as matters of criminal procedure. The Legislature had in view malpractices of police officials in extorting confessions from accused persons in order to gain credit by securing convictions, and those malpractices went to the length of positive torture, the legislature, in laying down such rules, regarded the evidence of police officers as untrustworthy, and the object of the rule was to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confession during the trial of accused person.

SCOPE: The provision does not exclude all statements made to the police but only confessions made by the accused. A statement even if it goes against the accused is admissible if it does not amount to a confession. It is immaterial whether the police officer to whom the confession is made is the officer investigating the case 11

(1884) 6 All 509 9

or not. The fact that he is police officer is sufficient to invalidate the confession; to whatever crime it may refer.

OBJECT: In State of Gujrat vs. Anirudh Singh12the apex court laid down the object of section 25 and stated that it is to ensure that the person accused of the offence would not be induced by threat, coercion or force to make a confessional statement and the officers would also make every effort to collect the evidence of the commission of every crime de hors the confession to be extracted from the accused while they are in custody of police.

POLICE OFFICER: The term should not be read in strict technical sense but according to its more compressive and popular meaning. It applies to every police officer and is not restricted to officers in regular police force. In Rajaram vs. State of Bihar13 the Supreme Court observed that: “The test for determining whether a person is a police officer for the purpose of section 25 of the Evidence Act would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be officer in charge of a police station, establish a direct or substantial relationship with the prohibition enacted by section 25, that is, recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or question as to what the other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer confer

12 13

AIR 1997 SC 2780 AIR 1964 SC 828 10

upon him are of very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession. Who are police officers: - The following officers are held as “police officers” within the meaning of Section 25:  Excise Officer (Under Bihar and Orissa Act)  A Special Officer of the Commercial tax Department  An Officer appointed under the Bombay Sales Tax Act.  Security officer of H.E.C.  Officers of J.K. Rifels  Officers under Orissa Home Guard Act  Police Constable Guarding the Treasury  Village Administrative officer

CONFESSION BY WAY OF F.I.R: The evidence Act draws a distinction between statements, which amount to confessions, and those, which are admissions falling short of confessions, and statements of the latter kind are admissible unless they are hit by Section 162 of Cr.P.C. further it was held in Aghnoo vs. State14 that where the accused gave First Information to the police, the fact of his giving that information is admissible under section 8. If it is a non-confessional one, it is admissible under Section 21, but a confessional statement cannot be used against the accused under Section 25, except to the extent it is permitted under section 27 of the Evidence Act.

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AIR 1966 SC 119 11

Section 26 S. 26 Confession by accused while in custody of police not to be proved against him- “No confession made by any person whilst he is in the custody of a police officer, unless it is made in immediate presence of a Magistrate, shall be proved as against such person.”

PRINCIPLE: This section is a further extension of the principle laid down in section 25. The object is to prevent the abuse of the powers by the police. Under section 26 no confession made by a person in custody to nay person other than police officer, shall be admissible unless made in immediate presence of a Magistrate. The reason is that a person in custody of police is presumed to be under their influence and it provides opportunities for offering inducement or extorting confessions. The presence of the Magistrate secures the free and voluntary nature of the confession and the confessing person has the opportunity of making a statement uncontrolled by fear of police.

SCOPE: Section 25 applies to confessions made to the police. Section 26 governs confessions while in police custody made to any person other than the police. Hence section 25, and 26 do not lay down identical positions. They provide two clear definite rules. Section 25 bars a confession made to Police Officer whether the confessor is in the custody of the police or not, while Section 26 goes further and enacts that the confession made to any person like a fellow- prisoner, doctor, visitor etc, while the confessor is in the custody of the police, is inadmissible unless made in presence of a Magistrate.

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In Palka Narayan Swamy vs. The King Emperor 15 the Privy Council observed that a confession includes any statement made by any person whilst in custody of the police and appears o apply to such statements to whomsoever made eg. To fellow prisoner, a doctor or a visitor, Section 162 of Cr.P.C does not cover such statements.

CUSTODY: The word „Custody‟ is not defined in the Act. But it implies that there must be some limitation upon the liberty of the citizen, rather directly or indirectly cause by the police, which may include arrest, detention, surveillance or any restraint on his movement. It doesn‟t necessarily mean custody after formal arrest; it is sufficient if there is some form of police surveillances, or restriction by the police on the movement of the person concerned. Police custody extends to a case where the accused is deemed to have submitted to custody of the police officer, by submitting to the interrogation and making statement about discovery and thereby ceases to be a free man. The words „in custody‟ which are to be found in this and other sections of the act include surveillance or restriction on the movements of the person concerned, which may be complete as, for instance, in the case of an arrested person, or may be partial. In Farman Shah vs. State16 the apex court held that in considering whether an accused is in police custody when his confession is recorded, the crucial test is whether at the time when the accused makes the confession he is a free man or his movements are controlled by the police either by themselves or though some other agency employed by them, for the purpose of securing the confession. Even a temporary absence of policeman or police officer would not terminate his custody and the accused shall be deemed to be in custody of the police even in such circumstances.

15 16

AIR 1939 PC 47 1981 CrLJ SC 13

IMMIDIATE PRESENCE OF MAGISTRATE: A confession is admissible, if made to a magistrate or to a person other than Police Officer but in the immediate presence of Magistrate, but it will be inadmissible if it is made to a police officer eve in presence of a Magistrate. The presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable. Further immediate presence of Magistrate means his presence in the same room where the confession is being recorded. His presence in the adjoining room cannot afford the same degree of protection against torture17. Further confession to a private person in presence of a police officer is also barred by section 26. Also a statement made to the police and heard by a private person cannot be regarded as an extra- judicial confession as this section hits it.

17

Singh Avtar, Principles of the Law of Evidence, Central Law Publications, 20th Edition 14

Section 27 S.27 How much of information received from accused may be provedProvided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

PRINCIPLE: This section 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 not to have been extracted. It comes into operation only 1. If and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and 2. If the information relates distinctly to the facts discovered. The broad ground for not admitting confessions made to a police officer under inducement, threat or promise is the danger of admitting false confessions, but the necessity for exclusion disappears in a case provided for by this section when the truth of the confession is guaranteed by the discovery of facts in consequence of information given. The principle underlying this section was taken from the amended section 150, of the Criminal Procedure Code, under the Amendment Act, 8 of 1869. When evidence Act was enacted in 1872, that section 150, Cr.P.C., was transferred to the Evidence Act. Under this section: a) There must be information b) It does not matter whether the information amounts to confession or not c) That the person must be in custody of police

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d) In consequence of the information a fact must be deposed to as discovered e) In such a case so much of the information as relates distinctly to the fact thereby discovered may be proved. Explaining the Scope of this section in general terms, their Lordships, in Pulukuri Kottaya vs. Emperor18 , observed that “Section 27, which is no artistically worded, provides an exception to the prohibition imposed by previous section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in custody of police officer must be deposed to, and thereupon so much of information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of the information given, some guarantee is afforded thereby that information is true and accordingly can be safely allowed to be given in evidence. Normally this section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon, or ornaments, said to be connected with the crime of which the informant is accused. In M.G. Thakore vs. State of Gujrat19 the apex court observed that whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise, having reference to the charge against him and proceeding from person in authority, is not provable against him in any proceeding in which he is discharged with the commission of an offence. Where in pursuance of the statement made by accused on the specific question by the investigating officer stolen property was discovered, the said statement of the accused could not be said to be volunteered and was inadmissible in evidence. 18 19

AIR 1947 PC 67 1993 CrLJ 730 16

In S.G. Niak vs. State of Maharashtra20 the accused allegedly stated that the injuries sustained by him were caused due to dog bite and the evidence showed that only one of those injuries was attribute to dog bite, still the statement of the accused could not be used in evidence against him. In Vikrim Singh vs. State of Punjab.21 it was observed by the apex court that the words “ accused of any offence” under Section 27 would not operate only after formal arrest under Section 46(1) of Cr.P.C. The accused persons were in police custody at the time of recoveries on the basis of their disclosure statements. Such recoveries could not be held to be not admissible under Section 27.

DOCTRINE OF CONFIRMATION: In State of Karnatka vs. David Razario 22 the Hon‟ble Supreme Court observed that the basic idea embedded in this section is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that, if any fact is discovered as a search made on strength of any information obtained from prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-culpatory in nature if it results in discovery of fact, it becomes reliable information.

CONDITIONS NECESSARY FOR OPERATION OF S.27: 1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to with question of relevancy. The relevancy of fact discovered must be established according to prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. 2. The fact must have been discovered. 1999 CrLJ 471 AIR 2010 S.C. 1007 22 AIR 2002 SC 3272 20 21

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3. The discovery must have been in consequence of some information received from the accused and not by accused‟s own act. 4. The persons giving the information must be accused of any offence 5. He must be in custody of a police officer 6. The discovery of a fact in consequence of information received from an accused in custody must de deposed to 7. Thereupon only that portion of the information, which relates distinctly os strictly to the fact discovered, can be proved. The rest is in admissible23

CONSTITUNAL VALIDITY: The constitunal validity of Section 27 has been challenged much time on the ground that it is violative of Art. 20(3) of the Constitution of India. Article 20(3) syas: “No person accused of any offence shall be compelled to be a witness against himself.” The Supreme Court in State of Bombay vs. K.K. Oghad 24 held that the statements admissible under Section 27 of the Evidence Act are not within the prohibition of Art. 20(3) unless compulsion has been used in obtaining the information. The mere fact that there accused was in custody at the time he made the confession did not make it a compelled statement tough the fact coupled with others might establish that the statement was compelled. In Panda vs. Union of India25 the Supreme Court, dealing with the argument that Art. 20(3) only provides that an accused cannot be compelled to be witness against himself, observed that he expression “to be a witness” bears the wider meaning of “bearing testimony orally or written in court or out of court by a

Dhirajlal Ratanlal, The Law of Evidence, Wadhwa and Company Nagpur, 22nd Enlarged Edition, 2006 24 AIR 1961 SC 1808 25 AIR 1963 SC 23

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person accused of an offence”. It would therefore include statements under section 27. The decision of SC has been treated as setting the law on the question. In State of U.P. vs. Deoman Upadhiyaya26 the constitunal validity of Section 27 was challenged on the basis that it is violative of Art 14 of Constitution of India. The apex court held that Section 27 is not violative of Art 14. Dealing with that it discriminates between confessions made by persons in custody of a police officer and persons in custody not in custody, the Supreme Court held that the distinction made between the two classes of persons couldn‟t be called arbitrary, artificial or evasive. Persons in custody and persons not in custody do not stand on the same footing nor require identical protection.

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AIR 1960 SC 19

Section 28 S.28 Confession made after removal of impression caused by inducement, threat or promise relevant- If such a confession as s referred 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 as relevant.

PRINCIPLE: This section makes it possible for a confession to be relevant provided such confession is made after the impression caused by any inducement, threat or promise has been fully removed. Thus this section forms an exception to Section 24. The proper position of this section therefore should have been immediately after Section 24. Under this Section in order to treat a confession hit by section 24, as relevant, the court, form the facts and circumstances of each case, has to come to a definite conclusion that the impression caused in the mind of the accused to make a confession by inducement, threat or promise, has been fully removed. The burden is on the prosecution to satisfy the court by clear evidence that the impression caused by any such inducement; threat or promise has been fully removed from the mind of the accused.

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Section 29 S.29 Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.- If such a confession is otherwise relevant it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever have been the form of those questions, or because he was not bound to make such confession, and that evidence of it might be given against him.

PRINCIPLE: Under this section, if confession is otherwise relevant, it does not become irrelevant merely because of certain circumstances referred to in the section. Under Section 24, if the confession were caused by any inducement, threat or promise relating to the charge and proceeding from a person in authority, it would not be relevant. So if there were no such threat, promise or inducement, it would become relevant. Under Section 25, confession to a police officer is not admissible. If it not made to a police officer but is made to any other person, it would become relevant. Under section 26, though confession is made while in police custody, if it is made in the immediate presence of the Magistrate, it would be relevant. Under this section a relevant confession does not become irrelevant merely because

it was

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

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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 him27.

“IF SUCH CONFESSION IS OTHERWISE RELEVANT”: These words indicate that before the provision of this section can be invoked, it mist appear that the confession in question is admissible under the preceding sections of the Act. If for any of the reasons mentioned in Ss. 24, 26 and 28, the confession is inadmissible, then there is no question of applying the provisions of Section 29. Section 29, therefore, assumes that there is no bar to the admissibility of the confession in question arising from any of the said earlier provisions and it then proceeds to invalidate or negative other possible objections or bars that may be raised against its admissibility.

SECTION 29 AND SECTION 164 OF Cr.P.C.: The question has repeatedly arisen whether in a case where the provisions in Section 164 Cr.P.C, were not complied with in recording a confession of an accused, the confession would still not become irrelevant u/s 29, if such confession was otherwise relevant. Section 164 of Cr.P.C provides the formalities to be undergone by Magistrates in recording confession. It says, among other things, the Magistrate shall explain to the person making the confession that he is not bound to make it. But this section says that a confession does not become irrelevant because the accused was not warned that he is not bound to make it. The Bombay HC in Emperor vs. Ramnath Mahabir 28 held that the Cr.P.C “is a special enactment applying only to certain statements made in particular circumstances contemplated by section 164”. It cannot override the general provisions of this section except where these circumstances bring the section into operation. Dhirajlal Ratanlal, The Law of Evidence, Wadhwa and Company Nagpur, 22nd Enlarged Edition,2006. 28 (1925) 28 Bom LR 111 27

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Section 30 S.30-Consideration of proved confession affecting person making it and others jointly under trial for some offence- When more persons than one are being tried jointly for same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession.

OBJECT AND EVIDENTIARY VALUE: The object of this section is that where an accused person unreservedly confesses his own guilt, and at the same time implicates the another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes place of the sanction of an oath and so affords some guarantee that the whole statement is a true one29. The section says nothing, not r it would have been desirable to say anything about the evidentiary value of the confession of a co-accused. All that the section says and was necessary to say is that such confession may be taken into consideration against all of them, leaving the weight of the confession to the discretion of the court. Their Lordships of the Privy Council, in Bhuboni Sahu vs. The King 30 observed that the confession may be considered by the court, but section does not say that the confession is to amount to proof; clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence. Justice Nandi A.K., Indian Evidence Act, 1872, Kamal Law house, 6th Edition, 2010 30 AIR 1949 PC 1257 29

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In Kashmira Singh vs. State of M.P.31, the Hon‟ble SC observed that the proper way to approach a case of this kind is, first marshal the evidence against the accused, excluding the confession altogether from consideration, and see weather, if it is believed, a conviction could safely be based o it. If it is capable of belief independently of the confession, then of course, it is not necessary to call the confession in aid. In Pratham vs. State of Haryana 32 , the Apex court observed that, “Though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act but it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co- accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.”

INGREDIENTS: Before a statement of one of the accused persons can be taken into consideration against the other accused under section 30 of the act, the following ingredients/conditions must exist/be fulfilled:  There must be joint trial for the same offence  It must be a confession  The confession of guilt must effect 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.

31 32

AIR 1952 SC 159 AIR 2012 SC 238 24

All the conditions should exist at a time and if any of the conditions is missing in a case this section has no applicability and the accused cannot be roped33.

APPLICABILTY OF CONFESSION: The court is to apply a double test for deciding the applicability of a confession i.e., i.

Whether the confession was perfectly voluntary, and

ii.

If so, it is true and trustworthy.

Satisfaction of the first test is sine qua non for its admissibility in evidence. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker; it is not likely that the maker would implicate himself untruly. So section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession.

TRIED JOINTLY: There must be joint trial of the accused. The joint trial should be legal. In form any cause the accused who made the confession cannot be legally tried with the accused against which the confession is to be used, the court should not attach any value to the confession.

Dhirajlal Ratanlal, The Law of Evidence, Wadhwa and Company Nagpur, 22nd Enlarged Edition, 2006 33

25

Extra Judicial Confession These are made by the party elsewhere than before a Magistrate or in Court. The words used by the accused in confessing are very much important and, therefore, the same words would be necessary to give to the court an impression of what the true confession was. Further an extra-judicial confession can be accepted without corroboration of evidence if it inspires confidence. Where the witnesses asked the accused as to what had happened to the missing girl and on showing his ignorance, they persisted and pressurized him by putting questions and in such process the accused made extra-judicial confession of the offence, it was held that the confession, was extracted.34 The law in regard to extra-judicial confessions may be stated thus, “An extrajudicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. Usually, and as a matter of caution, Courts require some material corroboration to an extra- judicial confessional statement. Extra-judicial

confessions,

voluntarily

made

and

fully

consistent

with

circumstantial evidences establish the guilt of the accused.” Extra-judicial confession can be accepted as evidence only if the Court is satisfied that it is both voluntary and true. It must be received with great caution. The exact words used by the accused should always be ascertained; and before it is accepted as a piece of evidence justifying a conviction, the Court should satisfy itself on the following points: 1. What were the circumstances under which it was made or in what manner was it obtained? 2. Was the confession made by the accused voluntarily? 3. What was the reason for the accused to have confided in the witness who proves it and to have made a clean breast of his action?

34

Arumugham v. Slate of T.N., 1994 Cr LJ 520 (Mad). 26

4. Did the witness truly understand the sense of what was stated to him, or is there any room for a mistake or misapprehension? 5. Have the words uttered by the accused been correctly reproduced or is the witness improving on the statement which was made to him? 6. Has the witness any personal motive to depose falsely against the accused, or have the police, in their eagerness to prove the commission of a crime, put up that witness to prove a confession35. In Kumar vs. State of Tamil Nadu36, the Hon‟ble Supreme Court observed, “The law is well settled as to what extent extra-judicial confession can be relied on. If the same is voluntary and made in a fit state of mind, it can be relied upon along with other materials. It is true that the extra-judicial confession is a weak type of evidence and depends upon the nature of circumstances like the time when the confession was made and the credibility of the witnesses who speak to such a confession.” In Sahib Hussain @ Sahib Jan vs. State of Rajisthan37 the accused commited the offence of murder and made confession before his friend. He was convicted on the basis of the confession along with other material facts. The Hon‟ble Supreme Court further observed that “The extra judicial confession, though weak type of evidence, can form the basis for conviction if the confession made by the accused is voluntary, true and trustworthy and if it inspired confidence.

http://www.preservearticles.com/2012032929284/short-notes-on-extra-judicialconfession.html 36 Criminal Appeal no. 1450 of 2009, SC 37 AIR 2013 SC 1159 35

27

Evidentiary value of Confession Confessions are considered highly reliable because no rational person would make an admission against himself unless prompted by his conscience to tell the truth. The Supreme Court in Shankaria vs. State of Rajisthan38 has explained the evidentiary value of a confession. It was observed that it is well settled that a confession, if voluntary and truthfully made, is an efficacious proof of guilt. Therefore, when in a capital case the prosecution demands conviction of the accused primarily on the ground of his confession recorded under Section 164 Cr.P.C, the court must apply a double test i.

Whether the confession was perfectly voluntary, and

ii.

If so, it is true and trustworthy.

Satisfaction of the first test is sine qua non for its admissibility in evidence. Normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker; it is not likely that the maker would implicate himself untruly. So section 30 provides that such a confession may be taken into consideration even against the co-accused who is being tried along with the maker of the confession. In State vs. Nalini 39 the court negative the contention that a confessional statement is not a substantive piece of evidence. A confession under Section 15 of the TADA Act, 1987, is not merely of corroborative nature to be used I support of other evidence, it is of substantive nature itself.

38 39

AIR 1978 SC 1248 AIR 1999 SC 3240 28

Admissions and Confession Distinguished According to Stephen, “An admission is a statement, oral or written, suggesting an inference as to any fact in issue or relevant or deemed to be relevant to any such fact, made by or on behalf of any party. An “Admission” is a statement of fact, which waives or disperses with the production of evidence by conceding that the fact asserted by the opponent is true. Admissions are admitted because the conduct of a party to a proceeding, in respect to the manner in dispute, whether by acts, speech, or writing, which is clearly inconsistent with the truth of his contention, in fact relevant to the issue. There are many common features between an admission and a confession. All the provisions relating to them are given under the heading of “admission” and that speaks of the legislative intention of treating them as one and the same at least to certain extent. But there are obvious points of distinction too. The act lays down different rule as to their relevancy. The points of difference are as follows:  Firstly, the provisions relating to confessions occur under the heading “admissions”, it follows that the word “admission” is more comprehensive and includes confessions too. A confession is only a species of admission. Thus every confession is an admission but every admission is not a confession  Secondly, though the definition of admission given under section 17 should equally apply to confessions also because the term “confession” is nowhere defined in the Act.  Thirdly, a confession is the admission of guilt in reference to a crime and, therefore, invariably runs against the interest of the accused. The term “admission”, on the other hand, refers to every statement whether it runs against or in favour of the party making it, and that is why S. 2 permits a person, in certain exceptional cases, to prove his own statements. 29

 Fourthly, the conditions of relevancy are different. An admission made to any person whatsoever is relevant whether he be a policeman or a person in authority or whether it was the result of an inducement or a promise. But in the case of a confession the law steadfastly adheres to the principle that the confession must be free and voluntary.  Fifthly, an admission made under a promise of secrecy is not relevant, but by virtue of provisions Section 29 a confession is provable even if it was obtained under a promise of secrecy.  Sixthly, by virtue of the provision in S.30 the confession of an accused person is relevant against all co-accused who are being tried with him for the same offence. In the case of admissions, statements of co-plaintiff or those of a co-defendant ae no evidence against the others.  Seventhly, a confession always proceeds from a person who has committed an offence or is accused of any crime, but in reference to admissions sections 18, 19 and 20 regard the statements of certain persons, who are not parties to the case, as admissions against the parties  Lastly, the effect of an admission is that it does not constitute a conclusive proof of the fact admitted, though it may operate as an estoppel against the party making the admission. As to the value of a confession there is no provision in Evidence Act, but the courts have always regarded confession as a satisfactory proof of the guilt of the accused. In State (N.C.T. of Delhi) vs. Navjot Sidhu @ Afsal Guru40, the apex court distinguished

between

admission

and

confession

and

observed

that,

“Confessions which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement, oral or documentary, Which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to 40

AIR 2005 SC 3820 30

a confession . While Sections 17 to 23 deal with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act.

31

Bibliography 1. Dhirajlal Ratanlal, The Law of Evidence, Wadhwa and Company Nagpur, 22nd Enlarged Edition, 2006

2. Singh Avtar, Principles of the Law of Evidence, Central Law Publications, 20th Edition 3. Polein Murphy, Law of Evidence, Universal Publishers, 5th Edition, 2000 4. Meer Ali & Woodroffe, Law of Evidence, Butterworths 18th Edition, 2009 5. http://www.preservearticles.com/2012032929284/short-notes-on-extrajudicial-confession.html

6.

Chawlas Law Finder

32