Analysis Of Various Aspect Of Law Relating To Confessions

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The Judicial confessions are those confessions which are made before the Magistrate or in the Court, in due course of legal proceeding. It is essential that they be made of free will of the party and with full knowledge of the nature and consequences of the confessions. Extra judicial confessions are those which are made by the party else where than before a Magistrate on in the Court. The confessions of such type may be express or implied. It includes the confession made to private individuals and to the officers of justice in private capacity such as constables, police officer. They are receivable in evidence after being proved like other facts.

An extra judicial confession if satisfactory proved to have been voluntarily made, may be the basis for a conviction even in the absence of corroboration.[2] There is no controversy that such confessions are receivable in evidence if they are voluntary. The Supreme Court held[3] that, “An extra judicial confession if voluntary can be relied upon by the court along with other evidence in convicting the accused. It will have to be proved like any other fact.

The value of evidence as to the confession just like any other evidence depends upon the veracity of witness of witness to whom it is made.”[4]Extra Judicial confession means admission of guilt to a private person or to a judicial official in a private capacity.

If it always a question of fact to be determined in each case if:[5]When he was drunk or because it was made in answer to which he need no have answered whatever may have been the form of those questions or because he was not warned that he was not bound to make such confessions and that evidence of it might be given against him.[6]Section 29 of Evidence Act covers the field of confession other than those dealt within its proceeding section. In others words it covers extra judicial confession.

Any other view as to the meaning of this section would lead to repugnancy between the proceeding sections and may in certain conditions of things lead to absurdity.[7]U/Sec. 164(3) of Cr. P.C. The directions are given to warn the accused that he is not bound to make a statement are not mandatory, but directory. The failure of the Magistrate to give the warning would not be sufficient to render the confession inadmissible. So section 29 of Evidence Act Section 164(3) of Cr. P.C. can be read together. In Rangappa vs. State[8] – It has been held that in context, this opening dense refers to a confession which has been dealt with in proceeding sections. It postulates that they are admissible under said section, such confessions deals section 29.

The Probative force of judicial and extra-judicial:- Logic may have its appropriate effect in case of the judicial admission when used as probation rather than as levamen probationis. When used as proof, the more deliberate and, as it is said, solemn nature of the circumstances under which the judicial admission is made may confer upon it a probative force not characteristic of the average extra-judicial admission.

The former having been made in solemn for, in a Court of justice constituting the foundation, or a part of the procedure, in causes pending, in which the rights of the parties are states, and by which the Courts are called upon to pass judgment, and upon which they must solemnly decree the rights, of the parties, are for those reasons entitled to greater consideration and weight than when casually or incautiously made, at a time and place, and under circumstances not calculated or intended to affect the rights or interests of others, and, perhaps, unmindful of all the facts and circumstances of the case – Chamberlayne’s Evidence, p. 1236. But the absence of denial in written statement of an allegation in the plaint may amount to an admission only for the purpose of that suit, and cannot have the effect of an admission capable of being proved under this section. Diali v. Lachman, 225 Ind. Cas. 329 : 48 P.L.R. 21 : A.I.R. 1946 Lah. 256.

The Evidentiary value extra-judicial admissions – If we analyze the verbal admissions it may be observed that they ought to be received with great caution, Manu v. Lang, 3A, & E, 702; Curtis v. Hunt, 1 C. & P. 180. The evidence, consisting as it does in the mere reception of oral statements, is subject to much imperfection and mistake; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. Greenleaf Evidence p, 200. “In a same way extended experience of jury trials, we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party, and especially where they purport to have been made during the pendency of the action or after the parties were in a state of controversy. It is not uncommon for different witnesses of the same conversation to give precisely opposite account of it; and in some instances it will appear that the witnesses depose to the statements of one party as coming from the other, and it is not very uncommon to find witnesses of the best intentions repeating the declarations of the party in his own favour as the fullest admissions of the utter falsity of his claim. When we reflect upon the inaccuracy of many witnesses, in their original comprehension of a conversation, their extreme liability to mingle subsequent facts and occurrences with the original transactions, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude there is no substantial reliance upon this class of testimony.

The fact too, that in the final trial of open question of fact, both sides are largely supported by evidence of this character, in the majority of instances, must lead all cautious tries of fact greatly to distrust its reliability.” Vide Judge Redfield’s addendum to Section 200 of Greenleaf s Evidence, 12th Edn. Oral admission should have little weight, if it appears that the witness testifying to the admission is careless in his mode of testifying; that he does not accurately remember the statements; that he is willing to misconstrue them, or that the declarant was misinformed, or did not clearly express his own meaning. A fortiori, where the admission is that of one deceased, the caution should deepen into suspicion for reasons that are obvious and without corroboration is of little value.

Burr Jones Evidence, p. 295. In Kenney v. Murray, 170 Mo, 674 (Am.), the Court said: “Evidence of such declarations, it is true, is admissible, but it never amounts to direct proof of the facts claimed to have been admitted by those declarations; and it is sometimes doubted whether it ought to be received at all when introduced for the purpose of diverting a title created by deed.” “The intrinsic weakness of this class of evidence is further enhanced in any given case by the length of time that has intervened since the declarations were made and the case with which it can be manufactured, and the temptation to do so, when all those by whom it could be contradicted are in their graves,’ Fanning v, Doon, 139 Mo, 392 (Am.). Hence, it is obvious that the degree of weight to be given to admissions depends upon the circumstances under which they were made as shown by the testimony, as well upon the degree of accuracy and truthfulness with which they are related. Burr Jones, p. 295. But where the admission is deliberately made precisely identified, the evidence it affords is often; of the most satisfactory nature. Rigg v. Curgenven, 2 Wills 395. In such a case it is neither weak evidence, nor does it require corroboration. Commonwealth v. Galligan, 113 Mass, 202. On the other hand, when admissions are so proved, they may have great inherent force as evidence. Dreher v, Fitchburg, 22 Wis. 675. So, what a party to a litigation has admitted to be true may be presumed to be true and, until he rebuts it, the Court will take it as established. Gulam v. Mahomed, 65 Ind. Cas. 398 : A.I.R. 1922 Oudh 98. A statement in a document should, prima facie, be accepted as true as against the explanation unless it can be shown by independent evidence to be false. Irshad v. Mt. Kariman, 22 C.W.N. 530 : 28 C.L.J. 173 : 20 Bom. L.R. 790 (P.C.). An admission is the best evidence against the party making the same, and unless it is shown that it is untrue and is made under circumstances which does not make it binding on the party, must be presumed -to be true.

The weight of the admission increases with the knowledge and deliberation of the speaker of the solemnity of the occasion on which it is made Nanilal Das v, Nutbehari, 38 C.W.N. 861. Unless admissions are contractual or unless they constitute an estoppel they are not conclusive, but are open to rebuttal or explanation, or they may be controlled by higher evidence. Bur Jones, p. 296 in delivering the judgment of the Court, observed: “There is no doubt but that the express admission of a party to a suit, or admissions implied from his conduct, are evidence, and strong evidence against him, but, we think, he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case, the party is estopped from disputing their truth as against that person (and those claiming under him) and that transaction, but as to third parties he is not bound,’ cited with approval by Lord Atkinson in Chandra v. Chowdhury. In Newton v. Liddiard, 12 B. 926, Lord Denman approved and adopted this statement of the law, and Ex parte Morgan. The rebuttal will be in accordance with the circumstances of each particular case, but must be clearly established, and must show fully the reasons why such admissions should not be binding. The party confesses its untruth; he may show mistake or that the response which formed the admissions was made not in a serious but in a jocular manner; or that the admission was made in ignorance of the true state of the facts. Sidu v. Netai, 9 Ind, Cas. 806. So, an admission obtained by misrepresentation of fact is of no value, especially where the person making such admission is a female. Talok v. Jogannath, 117 P.W.R. 1911. Gratuitous admission can be withdrawn unless there is some obligation not to withdraw it.

The mere fact that certain admissions made in previous suits constituted a good defence to the suits in which they were made, cannot lead to the conclusion that they were untrue. Where in cross-examination a witness admits that a statement previously made by him relative to a certain fact is a false statement, he ought to be asked in re-examination by the prosecution or at any rate by the Court, why he made a statement which was false. The mere fact that the witness acknowledges the previous statement to be false is no justification for rejecting such previous statement, if on other grounds the Court is able to reach the conclusion that the statement is in substance true. An admission operates merely to shift the onus and raises only a rebuttable presumption. Admissions are of no evidential value once they are found untrue. A general statement by a witness that a number of persons admitted having committed a crime is valueless without some indication as to which of the persons made the admission in question and without some particulars of what was actually said. The admission of a wife in a divorce proceeding unsupported by corroborative proof should be received with utmost circumspection and caution. If a person admits a right, it is necessary implication that he also admits the legal consequences of that right. Where a guardian is appointed to minor for purposes of litigation in order to look after his interest, any admission made by minor against his own interest is waste paper. A statement made by a person in his own favour is inadmissible in evidence on his behalf. Title by law cannot pass by admission when the statute requires a deed.

A purchaser cannot be prejudiced by admission subsequently made to the debtor whose property has been sold. An admission by an attorney unless satisfactorily explained away, furnishes cogent evidence against the client. But an erroneous admission of the pleader of a party does not bind the parties.A previous admission cannot be taken in a later case unless it is legally proved on record. Admissions are always evidence against the party who makes them, but their evidential value varies very much in accordance with the circumstances, and a Court is quite at liberty to reject them if it is satisfied from other circumstances that they were untrue. The effect of acknowledgement of paternity validly made as establishing marriage between the parents of the acknowledged paternity may be a matter of substantive Mohammedan law; but the effect of an admission of marriage, as proof of such marriage, is a question merely of adjective law governed by the Indian Evidence Act. Its probative value must depend on the surrounding circumstances. Though the mere production of an account-book is not sufficient to charge a person with liability, still with regard to admission, i.e. entries, against the producer’s own pecuniary interest the law dispenses with all proof save that the book has been kept by or under the authority of the producer. Though the filling of a suit for arrears of rent after a decree for ejectment may amount to an admission recurrent as a piece of evidence under Section 17, it is no conclusive proof and where there is no institution to re-admit and the rent is not paid in the belief there has been a re-admission to the tenancy there is neither a re-admission to tenancy nor any estoppel. An admission is not an inconclusive unless it amounts to estoppel. It may be proved to be wrong but unless it is so proved it is a very strong piece of evidence against the maker thereof and is decisive of the matter though not conclusive. Ghasiram v. Omkar, 34 Cut. L.T. 328; A.I.R. 1968 Orissa 99.

The Judicial confession in Sec. 164 of the Criminal Procedure Code:-  The Judicial confession indicate confessions which are made on a magisterial investigation. Section 164 of the Criminal Procedure Code contains the provisions for recording confessions by Magistrates. The evidence of witness who are sent up by the police for the purpose of having their statements recorded under Section 164, Criminal Procedure Code, and who have been presumably in police custody until their production before the Magistrate, should not be recorded by such Magistrate, unless he has some assurance that their attendance and statements were voluntary. The provision of this section is imperative. The proper course for a Magistrate to presume when an accused person is brought under the above section of the Code before him is to ask him, if he wishes to make any statement or confession. If he says he does not, the Magistrate should write down the statement or confession (as the case may be) and ask the accused such questions as may be necessary to show clearly or ascertain clearly what his meaning is. The examination of the accused must not be made with a view to eliciting by constant questions, the truth of his mouth as though he were a witness. Before recording a confession the Magistrate should enquire how long the accused has been in custody.

The failure to do this, however, is no irregularity and does not invalidates or cast any doubt upon the genuineness and voluntary nature of the confession. A Magistrate should ask the prisoner, before recording as to the circumstances under which it was made. A Magistrate must not put any question to accused which tends to incriminate him, In re Rayappan, 2 Weir, 136. Section 164, Criminal Procedure Code, should be read together with Section 24, 25 and 29 of the Evidence Act. If so read we get the following rules : (1) that a confession shall not be made to a police-officer; (2) that if a person in police custody desires to make a confession, he must do so in the presence of a Magistrate; (3) that the Magistrate shall not record it unless he is upon enquiry form the person making it, satisfied that it is voluntary; (4) then when the Magistrates records it, he shall record it, he shall record it in the manner provided in Section 164, Criminal Procedure Code; (5) that only when so recorded the confession will become relevant and admissible in evidence. It is neither expressed nor implied in Section 164 that the statement of an accused person cannot be recorded unless it is a confession. The distinction made in the section is between statements that are the confession and statements that are not, and not between the persons by whom statements of either character are made, the object being to prescribe different modes of recording. It is discretional with a Magistrate to act under Section 164 and prepare a record. Great care and circumspection are necessary in recording confession under Section 164 of the Criminal Procedure Code. It is necessary to record the questions put to the accused to ascertain whether the confession was voluntary, to tell him that after his confession he will not have to go back to police custody, to warm him of the consequence which will ensue if he falsely implicate himself in the hope of release and to ask him whether the police or any other person has subjected him to any ill-treatment.

No hard and fast rule can or should be laid down as to the procedure which should be adopted when an accused person is placed before a Magistrate for the recording of a confession under Section 164, Criminal Procedure Code, but it is not sufficient to put one comprehensive question as to the nature of the confession or to make a note at the commencement of the record of the confession that the accused has been warned not to confess through any fear or inducement and that the police of the thana have been removed from the Court. A Magistrate ought, by putting questions which occur to him, to make himself conscientiously satisfied that, the man is a free agent and the confession is voluntary and had not been procured by threats or inducements. Where a Magistrate asked a person who was charged with an offence. “What offence are you going to confess 1” Instead of ascertaining whether the accused wished to say anything at all, held that the Magistrate had not acted properly.

A Magistrate should ascertain whether a confessional statement was made voluntarily, at the beginning of the statement, and not at the end. Where after the prisoner had made a long confessional statement, ‘he was told by the Magistrate that if he stated all that he knew, he would then be examined as an approver and as a witness, held that the conduct of the Magistrate was highly improper. There is no provision for the admission in evidence of a confession made to a Magistrate unless it is recorded in the manner prescribed by law; and even if such confession may, under special circumstances be proved otherwise, where the confession of the accused is shown to have been made under the inducement, such fact deprives the evidence of its value. Where a Magistrate inadvertently omits to certify the voluntariness of a confession recorded by him under Section 164, Criminal Procedure Code, the defect may be cured by the evidence of the Magistrate, Ram Sanchi v. Emperor, 9 Ind. Case. 148: 12 Cr. LJ. 15. It is for the prosecution to establish the admissibility of a confession. It is duty of the Court to find out whether the confession is true or not. If it is not true the accused cannot be convicted upon it. Brahma v. Emperor, A.I.R, 1947 Oudh, 95 : 228 Ind. Cas. 21 : 48 Cr. LJ. 27.

The confessions carrying inculpatory and exculpatory statements:-

The definition attempted by the Privy Council has found favour with the Supreme Court. In its decision in Palvinder Kaur v. State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami v. Emperor, over two scores. Firstly, that the definition of confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence, and secondly, that a mixed up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession. Palvinder was trial for the murder of her husband along with another whom all the time remained absconding. The husband’s body was recovered from a well after it had already suffered about two month’s decomposition.

The post mortem could not even reveal whether death was due to poisoning or what. In her statement to the court the accused said that her husband , a hobbyist 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 off into the well. The statement thus consisted of partly guilty and partly innocent remarks. It was partly inculpatory in the sense that it confessed to something wrong and partly exculpatory in the sense that if accepted it would totally absolve her of any guilt. The lower courts sorted out the exculpatory part and acting on the inculpatory part announced her to be guilty of the murder of her husband by poisoning him. But the Supreme Court did not countenance this approach. The court thus accepted the inculpatory part of the statement and rejected the exculpatory part. In doing so it contravened the well-accepted rule regarding the use of confession and admission that they must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only inculpatory part, while rejecting exculpatory part as inherently incredible. Reference in this connection may be made to the observation of het Full Bench of the Allahabad High Court in Emperor v. Balmukand with which we fully concur. The confession there comprised of two elements: (a) an account of how the accused killed the woman and (b) an account of his reasons for doing so. The former elements being inculpator and the latter exculpatory, the question referred to the Full Bench was: Can the court if is of opinion that the inculpatory part commends itself, and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ?

The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. Similarly, in a case before the Rajasthan High Court, the accused said that he was in the room when his wife killed their children and then committed suicide, it was held that the court could not accept the part of the statement by which he confessed to be there and reject the rest. Under English law confession not rejected only because of exculpatory statements.

The principle of English law is that:

The whole statement must be left to the jury who may attach different weight to different parts of it. The same rule applies in the case of confessions. This principle was established overruling earlier authorities in R. v. McGregor, and again in R. v. Storey, In the Me Gregor case, LORD PARKER, C.J. supported the better opinion when he said:

‘The better opinion seems to be that as in the case of all other evidence, the whole should be left to the jury to say whether the facts asserted by the prisoner in his favour are true.”

In R. v. Storey, a girl was prosecuted along with another for possessing a dangerous drug, which was recovered from her apartment. The other man was also in the apartment and her defence was that the whole contraband belonged to him. This was in fact no confession, but an explanation that she was not guilty. Even so the Court of Appeal held that the statement should go to the jury. “The fact that the cannabis was on the applicant’s bed in her flat was in itself some evidence of possession to go to the jury. Her unsworn explanation, although, if true, it would have been a complete answer to the charge, did not cancel out or nullify the evidence which was provided by the presence of cannabis.

It was ultimately for the jury to decide whether that explanation was or might be true. Thus, the principle has crystallized that a confessional statement should not be rejected merely because it also carries with it exculpatory statements. It should be for the jury to say what weight shall be given to several parts of the statement, for they may well believe that part which charges the prisoner, and reject that which tends to exculpate him.

The Supreme Court approach to English Law:

The Supreme Court of India also appears to have been influenced by this development. Its decision in Nishi Kant Jha v. State of Bihar, marks the turning point. The accused was charged with murdering his friend while traveling with him in a train. He was seen washing his clothes in a river flowing near the station where the murder was detected. The news spread to a nearby village and villagers arrested the accused. Blood-stained clothes, papers and a knife were recovered from him, and the blood on them agreed with the blood of the deceased.

He admitted washing blood­stained clothes, but explained the presence of blood by two contradictory statements. In one of them he tried to explain away the blood by saying that there was a struggle between two persons in the compartment one of whom killed the other and some blood spilled over him in the act of rescue. In the other version, he said that a herd boy had robbed and injured him. The High Court did not accept these explanations and confirmed the conviction for murder. The Supreme Court upheld the conviction and pointed out that there was nothing wrong in relying on a part of the statement and rejecting the rest, and for this purpose the court drew support from English authorities. The court did not mean to overrule Palvinder, Hanumant or Balmukund but distinguished the present case from them. Here there was enough evidence to reject the exculpatory part of the statement of the appellant.

The High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime. In the prosecution of Palvinder there was no other evidence of the circumstances surrounding her husband’s death except her own statement and, therefore, the court had no choice but to hold that the statement should be accepted or rejected as a whole, In Hanumant, also, where an officer was prosecuted for forgery in tampering with a tender document and a letter, there was no choice, the confessional statement being the only evidence on record. The letter in question was typed on a machine which was purchased by the office much later than the date of the letter, which shoed that the letter was deliberately antedated. The explanation of the officer was that the machine was with them for trial before ultimate purchase. There being no other evidence to contradict this explanation, the court held that the statement should be accepted or rejected as a whole. So was true of the Balmukund case. The explanation offered by the accused as to why he killed his wife was the only evidence on record of his guilt. But in Nishi Kant Jha’s case, the explanations were inconsistent in them and also with the other evidence on record, and were, therefore, so obviously false that there was no chance of justice being miscarried in discarding them. This approach has again been adopted by the Supreme Court in Keshoram v. State. The accused admitted that he had struck the deceased with a sharp weapon but that he had done so to defend himself and his farm labour whom the deceased was going to attach while they were working in his (accused’s) field.

The self-defence part of the admission turned out to be false as there was evidence to the effect that the deceased was attacked while he was working in his farm field. The court accordingly rejected that part of the confession by which the plea of self-defence was set up and acting upon the rest of it convicted the accused. Statement in the first information report which was furnished by an accused person was not allowed to be used against another accused person. The court said that such statements could not be used even against the maker unless he offers himself as a witness in which case a limited use could be made for contradicting or corroborating his testimony. Statements recorded during an inquiry under Section 108 of the Customs Act, 1962 or during confiscation proceedings are not confessions made by an accused person within the meaning of Section 24. Such a confessional statement although subsequently retracted, can be the sole basis of conviction if it is otherwise truthful and voluntary.

The outline of Confession:

A confession may occur in any form. It may be made to the court itself, when it will be known as judicial confession or to anybody outside the court, in which case it is called an extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P. The accused that was charged with the murder of his daughter-in-law with whom he was always quarreling was seen on the day of the murder going out of the home, saying words to the effect: “I have finished her and with her the daily quarrels.”The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person.

The voluntary nature of Extra-judicial confession:

“It has always been the fundamental principle of the courts that a prisoner’s confession outside the court is only admissible if it is voluntary. In deciding whether an admission is voluntary the court had been at pain to hold that even the most gentle threats or slight inducements will taint a confession.”Recognizing the value of an extra-judicial confession, the Supreme Court remarked: The learned Sessions judge regarded the extra-judicial confession to be very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. In the instant case, the extra-judicial confession was proved by an independent witness (Sarpanch) who was a responsible officer and who bore no animus against the appellants.

There was hardly any justification, for the session’s judge to disbelieve the evidence of the Sarpnach particularly when the confession was corroborated by the recovery of an empty cartridge from the place of occurrence. In still another case the Supreme Court remarked that 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. There was no evidence of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. Acting upon this principle the Supreme Court rejected the evidence of confession by accused to another under-trial. Similarly, where the confession sought to be proved was supposed to have been made to a witness for the purpose of seeking his help to save the accused from harassment, but it was not shown how the witness was in a position to help him; the confession was described to be unreliable.

An accused of murder and robbery confessed before the village Administrative Officer. His statement in recording it and then submitting it to police was found to be reliable. The statement of the accused in the trial court than the was innocent did not have the effect of retracting the confession or destroying its evidentiary value. The confession was corroborated by several other circumstances such as recovery of jewellery and other valuable stolen in connection with the killing. The accused was also absconding immediately after the incident. An extra-judicial confession is, in the very nature of things a weak piece of evidence. There should be no difficulty in rejecting it if it lacks in probability. A confession which was cited in evidence was made by the accused persons to the Sarpanch of some other village. It was held that in the absence of any reasons to show why and how the accused had reposed such a confidence in that Sarpanch as to confess their guilt before him, the confession was held to be improbable. A confession made by a large number of persons before the village Panchayat was held to be more in the nature of a vague and general declaration.

It could not come within the definition of confession which requires specific admission of guilt. No reliance could be placed upon such a confession. A confession made by a person at an arrack shop after consuming some liquor to another person who, being otherwise stranger, dropped there by chance at that very time was held to be not reliable. Where the prosecution witness to whom a confession as supposed to have been made was produced before the magistrate after a gap of one month for recording the confession made to him, the Supreme Court ruled that the confession had lost its reliability because of .the gap. Where no reason was shown why the accused persons went to the witness and one of them told him of their crime, ‘the confession was held to be not believable. Neither the witness was much known to the accused for confiding in him, nor was he an influential person to be of any help. In recognition of this principle, the Evidence Act indicates in sections 24 to 27 to circumstances in which a confession is not voluntary and, therefore, not relevant.

The confessions to police in England:

English law does not discredit confessions to police as a rule. If the judge feels confident that there was no oppression and the statement was free, fair and voluntary, he may admit it. A 24 years old State nurse of previous good character was jointly charged with three others for possessions of cannabis resin and knowingly permitting it to be smoked at their residence. She was arrested in the noon and detained in a cell, which was exceptionally cold and was kept there till late evening. She was all alone in the cell, was not told what the time was, nor served any refreshment till 7.15 p.m. when a policeman gave her a cup of tea. During this period she was subjected to two spells of strenuous interview by the police and excise staff. The court held that despite the lack of impropriety on the part of the police, all the above circumstances combined to sap the defendant’s free will in such a way that her admissions were obtained oppressively and also in breach of judge’s rules as to provision of refreshments.

The confession in custody of police:

No confession is made to anybody while the person making it is in police custody is provable. 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 upon 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 some one else. The confessions made to a police officer or to anyone else while the accused is in police custody, are not different in kind and quality. Both are likely to suffer from the blemish of not being free and voluntary. “The policy objectives underlying the limitation are clear. It is manifest to every one’s experience that from the moment a person feels himself in custody on a criminal charge, his mental condition undergoes a very remarkable change and he naturally becomes much more accessible to every influence that addresses itself to either his hopes or fears.

The meaning of police custody

The Police custody means police control even if it 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. All circumstances in which the accused remains in the custody of the police while inquiries are made by them have been considered to fall within the purview of the statutory bar. The courts have declined to recognize in this context any distinction between lawful and unlawful police custody. Moreover, the concept of police custody does not necessarily connote the immediate presence of police officers, so long as the accused persons are aware that the place where they are detained is really accessible to the police.”

Thus, where a woman arrested for the murder of a young boy was left in the custody of villagers while the chowkidar (watchman) who arrested her left for the police-station she confessed in his absence, while the accused being carried on a tonga was left along by the policeman in the custody of the tonga-drive and he told of his criminality to the tonga-driver and where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor, a confession to the village Pradhan accompanying the police officer after the accused is in effective police control, he is in police custody and temporary absence of the policeman makes no difference. The legality of the custody is also immaterial. If there is “custody” in fact the confession will be vitiated even if the accused was illegally detained. An accused made his confession to two persons of the locality. Subsequently, the confession was reduced to writing inside the police station on the accused being brought there. The Supreme Court said that such extra-judicial confession was not hit by section 26. Explaining the concept of custody, the court said:

“Such custody need not necessarily be post-arrest custody. The word “custody” used in Section 26 is to be understood in a pragmatic sense. If any accused is within the less of surveillance of the police during which his movements are restricted, then it can be regarded as custodial surveillance for the purposes of the section. If he makes any confession during that period to any person be he not a police officer, such confession would be held within the banned contours outlines in section 26.”

The implication of this aspect to the fact of case the court said that the confession was not made while the accused was anywhere nears the precincts of a police station or during the surveillance of the police. The mere fact that the confession spoken to those witnesses was later put in black and white is no reason to cover it with the wrapper of inadmissibility. Self incriminating statement made by party when his mind is not in natural state ought to be received as evidence. His state of mind should be taken into consideration by the jury as an informative circumstance. Thus a confession made by a prison then drunk has been received by a party in state of total intoxication are void.

It is otherwise where intoxication is partial and not sufficient to prevent his being of aware of what he is doing. A person has been hand to say while talking in his sleep seems not be legal evidence against him. But these subjects have some exception:

  1. Deception: The confession obtained by deception if otherwise admissible does not make it irrelevant. Where a prisoner in jails on charge of felony asked the turnkey of the jail, to put the letter into the post for him. After promising to do so, the prisoner gave him a letter and the turnkey instead of putting the letter into the post, gave it to be prosecutor. It was held that the contents of the letter were admissible in evidence against the prisoner.[9]Where a confession has been obtained by artifice deception but without any use of promise or threats is admissible where the confession is obtained from an person by false representation made to deception practiced upon him, it will not be inadmissible evidence.[10]A confession is not excluded because of any illegality in the method of obtaining it or in the speaker’s situation at the time of making it. The general principle is the illegality of the source of evidence is no bar to its receptor.

It is not for any such reason that confessions are rejected. So the exclusion of confession is not due to principle of public faith on private pledge of secrecy. It follows that the use of trick or fraud does not itself exclude confessions induced by means of it. In a case it was held that the rules of evidence contained in section 24 to 29 are based on certain rules of procedure adopted in English jurisprudence.

According to the rule Sec. 29 does not cover confessions recording by Magistrate U/S 164 Cr. P.C.[11]Section 29 says that if a confession is otherwise relevant, it does not become irrelevant because the accused was not warmed that he was not bound to make such a confession.

If any of the reasons mentioned in Section 24 to 28, the confession is inadmissible than there is no question of applying the provision of section 29 at all section 29 proceeds to invalidate or negate possible objections other than mentioned in section 24 to 28 to that may raise against it admissibility. The principles of testimonials not trustworthy are being the foundation of exclusions. The confessions should taken into account unless their case was such that the accused was induced to untruly confess. Briefly was that inducement of such nature that there was risk of false confession.

  1. The Promise of Secrecy: The confession will not become inadmissible obtained from the accused by a promise of secrecy. The accused made their confession to a commissioned officer of the regiment who stated to the accused that he had already obtained information from another person. He promised of secrecy if they told him truth. It was held that the alleged deceptions inducement were covered by the provision of section 29.[12] It does not make a confession inadmissible though a confession is thus created in mind of prisoner and he is thrown of his guard.
  2. Drunkenness : Confession made in state of intoxication are governed by general principle of testimonial capacity that is capacity of observation, capacity of recollection, capacity of intelligence and truthful narration etc, Therefore are usually admissible. It is only where intoxication is produced by a person desirous of obtaining a confession that its trust worthless becomes really doubtful. So to of the confessions during sleep or hypnotic influence.

A confession must be judged with reference to the time of its utterance. The mere fact of intoxication at the time does not itself exclude the confession.

  1. Want of caution: A voluntary confession is inadmissible though it does not appear that he was no so warned. In some cases section 164 is not complied with the confession admissible. In other words, a confession otherwise admissible does not become inadmissible merely because the accused was not bound to make confession.

It the irregularity appears to the court that whether confession was voluntary or not the court would not hesitate to reject the confession as being inadmissible on the ground that it is not voluntary.[13]Section 164(2) was not a mandatory but directory only.[14] The Rajasthan High Court held that although in view of specific provision of section 29.[15] The more absence of warning U/S 164(2)[16] would not make the confession recorded inadmissible.[17] The court has to satisfied that the accused knew that he was not bound to make the confession.[18]

  1. Cross-examination: The mere fact that a statement had been elicited by a question of fact did not make irrelevant whether such statement is material otherwise. The confession is elicited by questions put by a person in authority, is admissible in evidence. It being impossible to discover. The facts of crime without putting question. If the questions we properly put after due warning the prisoners: answer were held to be admissible in evidence.[19] There was no settled practice with respect to the admissibility of confessions made by persons in response to questions put to them while in custody.[20]In a case before Calcutta High Court, it was held that mere fact that a statement had been elicited by a question did not become it irrelevant as a confession though; the fact that it was so elicited might be material to the question, whether such statement was voluntary.[21] In India, the law expressly provides for the examination of the accused persons by courts.[22]

Conclusion: It is a well settled law that if once police custody has commenced, the mere fact that for a temporary period the police discretely withdraw from the scene and left the accused in charge of some other person will not render the confession of the accused before that person admissible. Once an accused is arrested by a police officer and is in his custody, the mere fact that for some purpose or other the police officer happens to be temporarily absent and during this temporary absence leaves the accused in charge of a private individual does not terminate his custody, the accused shall be deemed to be still in police custody. The test, therefore, is whether at the time when the person makes an extra judicial confession, he is a free man or his movements are 141 R. v. Vahala (7 Bombay H.C. 56). Sec. 161 controlled by the police either by themselves or through some other agency employed by them for the purpose of security of such a confession. With the above study it seems that the relevance of the statement of the accused is an important fact in conviction of the accused. But there are various factors involved in the relevance of the statement of the accused.



[1] Shiv Raman and Nidhi Sharma, Assistant Professsor, Amity law School, Amity University Haryana. Email- [email protected] & [email protected]

[2]      Bisheshar Dhani Ram vs. State 1963 ILJ 645.

[3]      Mulk Raj vs. State of U.R AIR 1959 SC 502.

[4]      Mulk Raj vs. State of U.P. AIR 1959 SC 502.

[5]      State of Orisssa vs. Machindra Majhi AIR 1964, Orissa 100.

[6]      Daskanda vs. State 1976 Cr. L.J. 2010.

[7]      Section 29 of Indian Evidence Act.

[8]      Cr. P.C. 1973.

[9]      Emperor vs. Mohd. Baksh Karim 8 Bom. L.R. 507.

[10]     R. vs Derrington (1826) 2 C & P 418.

[11]     Wigmor’s Law of Evidence.

[12]     1954 Bombay 285.

[13]     Cr. P.C 1973

[14]     Cr. P.C. 1973

[15]     Evidence Act 1872.

[16]     Cr. P.C. 1973.

[17]     Dhula vs. State AIR 1957 Raja 141.

[18]     State of Orrisa vs. Jayadhar 1975 Cul L.R. 433.

[19]     R. vs. Miller 18 Cov. C.C. 54.

[20]     Ibrahim vs. R. 1914 P.C. 155.

[21]     Barindra vs. R. 1909 37 Cal. 467.

[22]     Cr. P.C. Sec. 313.

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