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CONFESSION[1] (Ss.24 to 30)

Table of Contents

QUESTION BANK

Discuss the principles governing Law relating to ‘Confession’ and explain their judicial value.
Explain the general principles concerning ‘Confession’ as per the Indian Evidence Act, 1872.
Explain the general principles governing ‘confession’ and explain its judicial value.

SHORT NOTES

Retreated Confession.

SYNOPSIS

Definition: –
Kinds of confession: –
Judicial Confession: –

Retracted Confession: –

Extra Judicial Confession: –

III. Confession when irrelevant: –

Confession caused by inducement threat or promise from a person in authority (S.24):
a) Persons in authority: –
b) Inducement threat or promise: –
Confession to Police (S.25): –
Confession by accused while in the custody of police (S.26): –
Confession when relevant: –
Confession leading to the discovery of fact (S.27): –
a) Ingredients of (S.27): –
b) Constitutional Validity of S.27: –
Confession after removal of an impression of inducement threat or promise (S.28): –
Confession made under promise of Secrecy (S.29): –
Confession of co-accused (S.30): –

Explanation:

Distinction between ‘Admission’ and ‘Confession’ –
Civil / Criminal: –
Genus / Species: –
Evidence Value: –
Against / Favorable: –
Confession of co-accused / Admission of the defendant: –
Admission or confession by himself: –
Prove own statement: –

I. Definition: –

Ss.24 to 30 deal with the confession.

The Evidence Act does not define’ confession. ‘ However, Stephen’s definition of confession in his ‘Digest of the Law of Evidence’ was prevalent until 1939.

Stephen defined ‘confession’ as ‘an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.’
In 1939 the Privy Council in Narayan Swami V. Emperor defined confession.

Lord Atkin observed in ‘Privy Council’ that-

“A confession must either admit in terms the offence or at any rate 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, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused the death would not be consistent with the natural use of language to construe confession.”

In other words, ‘confession’ may be defined as “an admission of the offence by a person charged with the offence”.

II. Kinds of confession: –

Confessions are of two kinds, viz. –

1. Judicial Confession[2]: –

Judicial Confessions are made before the magistrate or Court in due course of legal proceedings. Thus, a confession made before the beginning of the trial to the magistrate, who records them in accordance with the provisions of S.164 of the Criminal Procedure Code, and a confession made before the judge during the trial is called a judicial Confession. The judicial confession of an accused is good evidence, and he can be convicted on the strength of it.

Retracted Confession[3]: –

A confession is called ‘retracted’ when the maker withdraws it at the time of trial before a sentence is passed against him. In other words, a retracted confession is a confession made by an accused person and subsequently retracted (taken back).

Retraction of confession is a common phenomenon in India. Normally, a confession of guilt is the most conclusive evidence that one can have. In such circumstances, questions about the evidentiary value of such a Retracted Confession may arise. Does the question often arise as to whether a Retracted Confession may form the basis of conviction if believed to be true and voluntarily made? To arrive at this conclusion, the Court must consider the reasons for making the confession or retracting it and the facts and circumstances surrounding it. There is no absolute rule that a Retracted Confession can’t be acted upon unless the same is corroborated materially.

Following are some of the rules regarding Retracted Confessions –

A confession is not to be regarded as involuntary merely because it is restricted.
Against the maker of confession (accused), it may form the basis of conviction if it is believed by Court to be true and voluntarily made.

Against the co-accused, Court should not rely on it without independent corroborative evidence.

In Subramania Gaunde Vs. The State of Madras[4].

Facts: – Accused was tried for murder. At the time of investigation, he confessed, giving full details of how he committed the murder. A bloodstained drawer and a banian worn were seized from him. On his information, a bloodstained bed sheet was recorded. At the trial, the accused denied confession having been made voluntarily, i.e., retracted his confession.

Held: – The confession was voluntary, and the reasons for retraction are untrue. In the absence of any other evidence, the evidence of blood on the drawer, banian, and bed sheet was considered to corroborate the confession, and his conviction was upheld.

2. Extra Judicial Confession[5]: –

Extra Judicial Confessions are those confessions that are made by the accused person elsewhere than before the magistrate or in the Court. Confessions made to private persons, police officers, or judicial officers in their private capacity are instances of such Extra Judicial Confessions.

Extra Judicial Confessions are regarded as the weakest type of evidence. Therefore, the Court has to use it with great caution. The Court generally requires corroboration to such Extra Judicial Confession.

III. Confession when irrelevant: –

A confession is irrelevant and inadmissible if made in the following cases (mentioned under sections 24 to 26)-

1. Confession caused by inducement, threat, or promise from a person in authority[6] (S.24): –

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 an 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 (accused) reasonable for supposing that

by making it (confession), he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

a) Persons in authority: –

The section provides that the confession caused by inducement, threat, or promise by the person in authority is inadmissible. A ‘person in authority’ is a person engaged in the apprehension, detention, or prosecution of the accused or the person empowered to examine him. It would also include a person who is concerned with the investigation of a case. Thus, ‘A person in authority’ would mean ‘police’ who is in charge of the investigation and the magistrate who is to try the case. Person in authority also includes the Zamindar of the accused, the master of the accused, or any other person like Village Magistrate, Mukhia or President of Village Panchayat, etc., wielding some influence over the accused. It must be borne in mind that a person in authority is one who exercises some influence over the accused.

b) Inducement threat or promise: –

If the confession is caused by an inducement threat or promise by the person in authority is inadmissible. It signifies that any sort of threat or violence must not obtain the confession nor by any promise, either direct or indirect, express or implied, howsoever slight the hope or fear produced thereby may be.

2. Confession to Police (S.25): –

This section states that a confession made to the police officer is inadmissible in evidence. An exception to this section is S.27. It is because a confession made to the police is untrustworthy. The reason for the rule is to stop extortion of confession by the police and to avoid the danger of admitting false confessions. Similarly, the statements of the accused during an investigation are excluded by S.162 of the Criminal Procedure Code. Thus, the fact that the police officer is or is not an investigating officer is immaterial.

Every statement made to a police officer by an accused person is not a confession, and statements which are not of incriminating nature are admissible. The word ‘confession’ in this section is not restricted to actual admissions of guilt but includes inculpatory statements[7] from which inference of guilt can be made or which suggest the guilt of the person making it. Confession made to a police officer by a person when he was not accused of any offence is admissible, but if the person subsequently becomes an accused and the statement is tendered in evidence against him, it must be treated in the same way as if he had been accused at the time of making it.

In Queen Express Vs. Pancham[8].

Facts: – An accused person makes a confession to a police officer in the hearing and presence of a private person.

The point in the issue was can a private person give evidence of the confession by the accused?

Held: – The private person cannot give evidence of the confession by the accused in the presence of a police officer.

3. Confession by the accused while in the custody of police (S.26): –

When any fact: –

is deposed to
as discovered in consequence.
of information received from an accused person.
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 thereby discovered.
may be proved.

The section lays down that no confession which any person makes while in police custody can be proved against him unless it was made in the immediate presence of the magistrate.

Explanation to the section provides that ‘magistrate’ in this section does not include the Head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere unless the Headman is a magistrate exercising the powers of a magistrate under the Code of Criminal Procedure Code, 1882.

S.25 applies to confessions made to the police, while S.26 applies to confessions made to persons other than the police when in police custody.

IV. Confession when relevant: –

A confession is relevant and admissible in the cases mentioned under sections 27 to 29.

1. Confession leading to the discovery of the fact[9] (S.27): –

This section states that if the discovery of a fact supports the confession of an accused, then it may be presumed to be true and not to have been extracted. This section is an exception to Ss. 25 and 26. This section allows that part of the statement made by the accused to the police (whether it amounts to a confession or not), which relates distinctly to the fact thereby discovered, to be proved. Thus, even a confessional statement made to police that relates distinctly to the ‘discovery of fact’, such fact may be proved under S.27. The term ‘discovery of fact’ here has some reference to some material object capable of being exhibited, e.g. knife, spear, khurpi, revolver, clothes worn by the deceased, ornaments, etc.

However, the discovery must have resulted from some information from the accused. If the police know the whereabouts of the thing alleged to be discovered, the information cannot be said to have led to it and is inadmissible.

a) Ingredients of (S.27): –

The fact of which evidence is sought to be given must be relevant to the issue.
The fact must have been discovered, e.g. knife, spear, revolver, ornaments, etc.
The discovery must have resulted from some information received from the accused.
The person giving the information must be accused of any offence.
He must be in the custody of a police officer.
Only that much information, which relates distinctly to the discovered fact, may be proved.

In Jaffer Husain Vs. The State of Maharashtra[10].

Fact: The accused was charged with stealing a diamond packet. He stated, ‘I will point out one Ram Singh, at Bombay Central Railway Station to whom I have given a packet containing diamonds of different sizes more than 200 in number’. He led the police to the waiting hall and pointed out the accused No.3. But it was found that the police had already learned from a newspaper about the involvement of accused No.3 in the crime and his custody of diamonds.

Held: The accused’s statement is inadmissible in evidence. As the accused was deposed, no new facts, like diamonds, etc., were discovered, but police beforehand knew this.

b) Constitutional Validity[11] of S.27: –

Art.20 (3) of the Indian Constitution reads, “No person accused of an offence shall be compelled to be a witness against himself.”

The above clause deals with the doctrine of ‘testimonial compulsion’ or ‘Rule against self-incrimination’. According to this Rule, no person can be compelled to testify against himself. The burden of proving the guilt of the accused lies on the prosecution. The prosecution’s responsibility is to prove the guilt of the accused by bringing necessary evidence. The prosecution cannot compel the accused to testify against himself. Such compulsion violates the right of the accused under Art.20(3) of the constitution.

In several cases, the constitutionality of S.27 was challenged on the ground that using the information given by the accused, which leads to the discovery of a fact against him, violates Art.20(3), which makes the accused a witness against himself. Some High Courts[12] have held that any information obtained from an accused under compulsion leading to the discovery is irrelevant under section 27. In contrast, other High Courts[13] have held that it is relevant and does not violate Art. 27.

However, this controversy was set at rest by the Supreme Court in the State of Bombay V. Kati Kalu Oghad[14].

Supreme Court held that – the mere fact that the accused was in police custody does not give rise to a presumption that the information was given under compulsion. The information becomes inadmissible only when it is proved by positive evidence that it was obtained under compulsion.

2. Confession after removal of an impression of inducement threat or promise[15] (S. 28): –

If such confession, as referred to in S. 24, is made after the impression caused by any inducement, threat, or promise is (in the opinion of the Court) fully removed, it is relevant.

This section is to be read with S. 24. S.24 makes confession under threat, inducement, or promise inadmissible. This section says that if the confession is made after the impression created by such threat, inducement or promise is completely removed, the confession will be admissible.

Whether the impression has been removed is a question of fact, and it must be judged in the light of the circumstances of each case.

In Emperor V. Ganesh Chandra Golden[16].

Facts: An accused made a confession to a Panchayat before arrest. The villagers kept him in custody until the police arrived the next day. The police formally arrested him and presented him before the magistrate, who recorded his confession.

Held: – that the improper influence employed by the Panchayat continued to the time of the recording of the confession by the magistrate and that such confession is inadmissible Under section 28.

3. Confession made under promise of Secrecy[17] (S.29): –

According to this section, a relevant confession does not become irrelevant merely (i.e. not hit by Ss.24 to 26) because it was made –

Under a promise of secrecy, or
In consequence of a deception practised on the accused or

When the accused was drunk or

In answer to questions that which accused need not have answered; or
As a consequence of the accused not receiving the warning that he was not bound to make it, and if he makes it, it might be used against him.

However, statements made in sleep by a person are not receivable in evidence.

S.164 (2) of the Criminal Procedure Code provides that the magistrate shall, before recording a confession made to him during the course of an investigation, explain to the person making it (accused) that he is not bound to confess. If he makes it, it may be used as evidence against him.

This raises the question of whether S.29 of the Evidence Act overrides the requirements of S.164 of the Code of Criminal Procedure and whether a confession recorded without complying with the provisions of S.164 of the Code is admissible. Different high courts have expressed different views on this issue. Some have held that non-compliance with S.164 will make the evidence inadmissible, while others have held that it will not make it inadmissible.

However, the Privy Council has held[18] that a confession recorded by the magistrate without complying with requirements laid down under S.164 of the Code of Criminal Procedure would not be admissible. Even the Supreme Court[19] has followed the same decision in several cases.

But the Supreme Court has eventually set this controversy at rest in the Dagdu V. State of Maharashtra[20].

Facts: – Ten girls and a woman were murdered to extract blood. Accused persons confessed the crime. The Sub-Divisional Magistrate recorded their confessions without complying with the requirements of S.164 of the Criminal Procedure Code.

Supreme Court held that – Failure to comply with S.164 of the Criminal Procedure Code would not render the confession inadmissible in evidence. The Court observed that S.29 of the Evidence Act expressly provides such confession admissible.

4. Confession of co-accused[21] (S. 30): –

When more persons than one (Joint Offenders) are being tried jointly for the same offence, and the confession is made by one of such persons affecting himself, and some other of such persons (co-accused) is proved, the Court may take into consideration, such confession as against such other persons (co-accused) as well as against the person who makes such confession.

Explanation: – ‘Offence’ as used in this section includes the abetment of or attempt to commit the offence.

Under English Law, such a confession of co-accused is excluded. In India, however, S.30 of the Evidence Act makes it admissible. However, the confession of the co-accused is a very weak kind of evidence, and no conviction can be based solely on such a confession. Therefore, a statement under S.30 is not recognised as evidence under S.3 of the Evidence Act.

The words “Court may take into consideration” mentioned in S.30 indicate that it is not binding on the Court as a mandatory rule of evidence to consider the confession of co-accused. Still, it may be used in the corroboration of other evidence. Even the confession of the co-accused itself is not a piece of substantive evidence.

In Kashmir Singh V. State of Madhya Pradesh[22].

Supreme Court observed that – the confession of co-accused is not evidence, but if there is other evidence on which conviction can be based, such confession can be referred to as leading some assurance to the verdict.

V. Distinction between ‘Admission’ and ‘Confession’ –

Following are the distinctions between ‘Admission’ and ‘Confession’ –

1. Civil / Criminal: –

A confession is a statement made by an accused person which is sought to be proved against him in a criminal proceeding to establish the commission of an offence by him. While Admission is usually applied to civil transactions. But no such strict distinction can be maintained under Indian Law.

2. Genus / Species[23] :-

Under Indian Law, ‘confession’ falls under the heading ‘Admissions’, and Admission’ is more comprehensive; it includes ‘confession’. Thus, Admission is the genus of which ‘confession’ is the species.

3. Evidentiary Value: –

Deliberately and voluntarily, confession may be accepted as conclusive, whereas an Admission is not conclusive, though it may operate as an estoppel.

4. Against / Favorable: –

A confession always goes against the person making it, while an Admission may be used favourably on behalf of a person making it.

5. Confession of co-accused / Admission of the defendant: –

The confession of one or two or more accused jointly tried for the same offence can be used against the co-accused. However, an Admission by one of the several defendants in a suit is no evidence against another defendant.

6. Himself or through others: –

Confession always proceeds from a person who has committed an offence or is accused of an offence. However, under S.18, 19, and 20 of the Evidence Act, statements made by certain persons who are not parties to the suit are regarded as Admissions against parties.

7. Proves own statement: –

A confession is an admission of guilt about a crime and, therefore, necessarily runs against the interests of the accused. On the other hand, the term ‘admission’ refers to every statement, whether it runs in favour of or against the party making it. Under S.21, a person in certain exceptional cases is permitted to prove his own statement. *****

[1] गुन्हयाची कबुली/कबुली जबाब [स्वीकारोक्ति / इकबालिया बयान ]

[2] न्यायीक कबुली [ एक उचित स्वीकारोक्ति ]

[3] केलेली कबुली मागे घेणे/नाकारणे [प्रवेश की वापसी/अस्वीकृति की गई ]

[4] [AIR 1958 SC 66]

[5] न्यायिक कबुली व्यतिरिक्त गुन्हयाची कबुली देणे [न्यायिक संस्वीकृति के अलावा अन्य अपराध की स्वीकारोक्ति ]

[6] अधिका-याने आमिश दाखवून, भिती दाखवून अथवा वचन देवून मिळविलेली कबुली [किसी अधिकारी द्वारा लालच देकर, डराकर या वादा करके प्राप्त की गई स्वीकारोक्ति ]

[7] गुन्हयात स्वतः दोशी असल्याचे विधान [एक बयान कि वह खुद एक अपराध का दोषी है ]

[8] 4 ALL 198.

[9] कबुली जबाब की ज्याप्रमाणे घटनेचा/वस्तुचा षोध लागतो [स्वीकारोक्ति उत्तर कुंजी के रूप में घटना / वस्तु की जांच की जाती है ]

[10] AIR 1970 SC 1934

[11] 27 ची संविधानिकता [27 की संवैधानिकता ]

[12] Andhra Pradesh High Court – In Re Madugala Jeremiah

[AIR 1957 A.P.611)

Allahabad High Court in Amin V. State and the Bombay High Court.

[13] Mysore High Court in the case in Re Govinda. [AIR 1958 Myr 150]

[14] [AIR 1961 SC 1808]

[15] अमिष, भिती अथवा वचन काढून घेतल्यानंतर दिलेला कबुली जबाब [अमीश, भय या वचन वापस लेने के बाद दिया गया इकबालिया जवाब ]

[16] (1922)

[17] गुपिते ठेवण्याचे वचन देवून घेतलेला कबूली जबाब [गोपनीयता की प्रतिज्ञा ]

[18] In Nasir Ahmed V. King Emp. [AIR 1936 P(253)]

[19] In Shri.Bahadur Singh V. State of Vindhya Pradesh.

[20] [AIR 1977 SC 1579]

[21] सहआरोपीचा कबूली जबाब [सह आरोपी का कबूलनामा ]

[22] [AIR 1952 SC 159]

[23] सर्वसाधारण/विशिष्ठ [सामान्य/विशिष्ठ ]