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CONFESSION
General Concept of Confession -
The term confession is not defined anywhere in Indian Evidence Act. But it is thought that an Admission in case of a
criminal matter is Confession. The same was stated by STEPHEN in his digest that that a confession is an admission
made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
However, Privy Council, in case of Pakala Narayan Swami Vs Emperor AIR 1939, did not accept this definition. In this case
Lord ATKIN observed that no statement that contains self-exculpatory matter can amount to a confession. Further, a
confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the
offence. An offence of a gravely incriminating fact, is not in itself a confession. For example, an admission that the
accused is the over of and was in recent possession of the knife or revolver which caused death with no explanation of
any other man's possession, is not a confession even though it strongly suggests that the accused has committed the
murder.

The decision by Privy Council in Pakala Narayan Swami Case was approved by SC in the case of Palvinder Kaur vs State of
Punjab, AIR 1952. In this case, Palvinder was on trial for murder of her husband along with another, who all the time
remained absconding. In her statement to the court, her husband was hobbyist photographer and used to keep handy
photo developing material which is quick poison. On this occasion, he was ill and she brought him some medicine and
the medicine was kept near the liquid developer and by mistake swallowed the liquid and died. She got afraid and with
the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially
showed innocence. Here, the lower courts sorted out the exculpatory part and convicted her on the inculpatory part.
However, SC rejected this approach and held that the rule regarding confession and admission is that they must either be
accepted or rejected as whole.

CLASSIFICATION OF CONFESSIONS
A confession may occur in any form. It may be made to the court itself, or to anybody outside the court. In this manner,
a confession may be divided into two categories - Judicial Confession and Extra-judicial Confession.

Judicial Confession - A judicial confession is a confession that is made in front of a magistrate or in a court. It may be
made in the course of a judicial proceeding.
Extra - Judicial Confession - An extra-judicial confession is a confession that is made by the party elsewhere than before
a magistrate or in a court. It is admissible in evidence under Section 21 and it is proved by the witnesses who had heard
the speaker's words constituting the confession.

CONFESSIONS WHEN NOT RELEVANT


[A.] SECTION 24 - CONFESSION CAUSED BY INDUCEMENT, THREAT, OR PROMISE FROM A PERSON IN AUTHORITY
- Confession made by an accused is irrelevant in a criminal proceeding if the making of the confession appears to
the court to have been caused by inducement, threat, or promise, made by any person in authority and that in the
view of the court such inducement, threat, or promise gives reasonable ground to the person that by making the
confession he would gain any advantage or avoid any evil of a temporary nature in reference to the proceedings
against him

The following conditions are necessary to attract the provisions of this section

1. The confession must have been made because of inducement, threat, or promise - A confession should be free and
voluntary. If it flows from fear or hope, it is inadmissible. In deciding whether a particular confession is because of
threat, inducement, or promise, the question has to be considered from the point of view of the accused as to how
the inducement, threat or promise would operate in his mind. For example, where the accused was told by the
magistrate, "tell me where the things are and I will be favorable to you", it was held to be inadmissible.
2. The inducement, threat, or promise, must be made by a person in authority - A person in authority is not merely a
police officer or a magistrate but every such person who can reasonably hold a sway over the investigation or trial.
Thus, government officials such as a senior military officer, police constable, warden, clerk of the court, all have
been held to be a person in authority. Even private persons such as the wife of the employer was also held to be a
person in authority.
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3. It should relate to the charge in question - This requirement is specifically stated in the section, which says that the
inducement must have "reference to the charge against the accused person". Thus, in the case of Empress Vs Mohan
Lal, 1881, the confession by a person who was threatened to be removed from his caste for life, was held to be
relevant because the threat did not have anything to do with the charge. The position in English law is not same. In
fact, J ATKINSON has said that this rule is illogical and unreasonable. For example, a daughter is accused of
shoplifting and later on her mother is also accused of the same offence. Now, if the mother is induced to confess
by saying that if she confesses to the charge, proceedings against her daughter will be dropped, this will most like
lead to an untrue confession. Yet, it would be valid under this section.
4. It should hold out some material, worldly, or temporal benefit or advantage - The inducement should be about some
tangible benefit. For example, a reference to spiritual benefit such as, taking an accused to a temple to confess does
not fall in this category but a promise to reduce the sentence would fall under it.

It is necessary that all the conditions must exist cumulatively. Further, this section merely requires that if it "appears to
the court" that the confession was improperly obtained, it becomes inadmissible i.e. if the circumstances create a
probability in the mind of the court that the confession is improperly obtained, it may hold it inadmissible.

[B.] CONFESSIONS TO POLICE - It is presumed that police holds a position of great influence over the actions of the
accused and so there is a high probability that confessions obtained by the police are tainted with threat, or
inducement. Further, it is important to prevent the practice of oppression or torture by the police to extract the
confession. This principle is espoused by Sections 25 and 26, which are as follows

SECTION 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. This section is very broadly word. It strictly disallows
any confession made to the police officer as inadmissible no matter what the circumstances. In the case of Raja
Ram vs State of Bihar, AIR 1964, SC held that the term police-officer is not be interpreted strictly but must be given
a more comprehensive and popular meaning. However, these words are also not to be construed in so wide sense
as to include a person on whom only some powers exercised by the police are conferred. The test for determining
whether such a person is a police officer, is whether the powers are such as would tend to facilitate the obtaining
of confession by him from a suspect. Thus, a chowkidar, police patel, a village headman, an excise officer, are all
considered to be police officer.

SECTION 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 be made in the immediate
presence of a Magistrate, shall be proved as against such person. This section further tries to ensure that the
confession is not extracted due to the influence of the police. Any confession made while the maker is in custody
of the police is invalid unless it is made in the immediate presence of a magistrate. The presence of a magistrate is,
by a legal fiction, regarded as equivalent to removal of police influence and the statement is therefore considered
to be free from police influence.

Mere absence of the police officer from a room where confession is taken does not terminate his custody of the
accused. The word custody does not just mean formal custody but includes such state of affairs in which the accused
can be said to have come into the hands of a police officer or can be said to have been under some sort of
surveillance or restriction.

SECTION 27 PROVIDES ANOTHER EXCEPTION WHEN A CONFESSION MADE TO THE POLICE IS ADMISSIBLE. THIS
IS WHEN A CONFESSION LEADS TO THE DISCOVERY OF A FACT CONNECTED WITH THE CRIME. The discovery assures that
the confession is true and reliable even if it was extorted. In order to ensure the genuineness of recoveries, it has
become a practice to effect the recoveries in the presence of witnesses.

CONSTITUTIONALITY OF SECTION 27
Indian Evidence Act was written before the Constitution of India and ARTICLE 20(3) OF THE CONSTITUTION says that no
person shall be compelled to be a witness against himself. This article seemingly made Section 27 unconstitutional. SC
considered this issue in the case of Nisa Sree vs State of Orissa AIR 1954, and held that it is not violative of Article 20(3).
A confession may or may not lead to the discovery of an incriminating fact. If the discovered fact is non-incriminatory,
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there is no issue and if it is self-incriminatory, it is admissible if the information is given by the accused without any
threat.

Another case in which the constitutionality of Section 27 was challenged in the case of State of UP v. Deoman Upadhyaya
(AIR 1960 SC 1125), here the accused offered to hand over the gandasa which he said, he had thrown in the village tank
after murder, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took
out a gandasa, which, on examination by the Serologist, was found to be stained with human blood. SC observed,
Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made
by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the
information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore
declared provable in so far as it distinctly relates to the fact thereby discovered. Even though S. 27 is in the form of a
proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character.

A RETRACTED CONFESSION is one which is withdrawn or retracted later on by the person making it. Such a confession,
if proved to be voluntarily made, can be acted upon along with the other evidence in the case, and there is no legal
requirement that a retracted confession must be supported by independent reliable evidence corroborating it in
material particulars. The use to be made of such a confession is a matter of prudence rather than of law.

Three important rules regarding confessions which are retracted are:


1. A confession is not to be regarded as involuntary merely because it is retracted later on.
2. As against the maker of the confession, the retracted confession may form the basis of a conviction if it is believed
to be true and voluntarily made.
3. The confession of a co-accused cannot be treated as substantive evidence, and can be pressed into service only
when the Court is inclined to accept other evidence and feels the necessity of seeking an assurance in support of
its conclusions deductible from the said evidence.

In criminal cases, where the other evidence adduced against an accused person is wholly unsatisfactory, and the
prosecution seeks to rely on the retracted confession of a co-accused person, the presumption of innocence, which is
the basis of criminal jurisprudence, assists the accused person and compels the Court to render the verdict that the
charge is not proved. (Harichandra Kurmi v. State of Bihar (A.I.R. 1964 S. C. 1184)

The Supreme Court has observed that a retracted confession requires independent corroboration in material
particulars. It was further observed that hard and fast rules cannot be laid down regarding the necessity of corroboration
in the case of a retracted confession.

The rule of prudence requires corroboration by independent evidence, but it does not require that each and every
circumstance mentioned in the confession with regard to the participation of the accused in the crime must be
separately and independently corroborated; nor is it essential that corroboration must come from facts and
circumstances discovered after the confession was made.

In Pyare Lal v. State of Rajasthan (A.I.R. 1963 S.C. 1094), it was held by the Supreme Court that a retracted confession
may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it was also
held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is
only a rule of prudence.

It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances, such a conviction
can be made without further corroboration, for a Court may, in a particular case, be convinced of the absolute truth of
a confession and be prepared to act upon it without further corroboration. But it may be laid down as a general rule of
practice that it is unsafe to rely upon a confession, much less a retracted confession, unless the Court is satisfied that
the retracted confession is true and voluntarily made and has been corroborated in material particulars.

CONFESSIONS WHEN RELEVANT


The following three types of confession are relevant and admissible -
1. Section 27 - Confession leading to a discovery - Explained above.
2. Section 28 - Confessions made after removal of threat - If the confession is obtained after the impression caused by
threat, inducement, or promise is removed in the opinion of the court, then the confession is admissible.
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3. Section 29 - Confession made under promise, deception, etc. - If a confession is otherwise relevant, it does not
become irrelevant merely because it was made -
(a) under a promise of secrecy or
(b) in consequences of a deception practiced on the accused person for the purpose of obtaining it or
(c) while the accused was drunk or
(d) while answering the questions he need not have answered or
(e) when the accused was not warned that he was not bound to make such confession and that evidence of it
might be given against him.

The basis of this section is that any breach of confidence or of good faith or practice of any artifice does not invalidate
a confession. However, a confession obtained by mere trickery does not carry much weight. For example, in one case,
an accused was told that somebody saw him doing the crime and because of this the accused made a confession. The
court held the confession as inadmissible. In Rex vs Shaw, A was accused of a murder and B, a fellow prisoner, asked
him about how he did he do the murder. A said, "Will you be upon your oath not to mention what I tell you?", to which
B promised on his oath that he will not tell anybody. A then made a statement. It was held that it was not such an
inducement that would render the confession inadmissible.

A confession made even consist of conversation with oneself. For example, in case of Sahoo vs State of UP, AIR 1966, an
accused who was charged with 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 valid confession because it is not necessary for the relevance of a confession that it
should communicate to some other person.

The test of discerning whether a statement recorded by a judicial magistrate under Section 164 of CrPC, is confessional
or not is not to determine it by dissecting the statement into different sentences and then to pick out some as not
inculpative. The statement must be read as a whole and then only the court should decide whether it contains
admissions of his inculpatory involvement in the offence. If the result of that test is positive the statement is confessional
otherwise not.

Section 30 | WHEN CONFESSION OF AN ACCUSED CAN BE USED AGAINST A CO-ACCUSED


When more persons than one are being tried jointly for the 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 makes such confession. [Explanation"Offence" as used in this
section, includes the abetment of, or attempt to commit, the offence.]

Illustrations
a) A and B are jointly tied for the murder of C. It is proved that A said" B and I murdered C The court may consider
the effect of this confession as against B.
b) A is on his trial for the murder of C, There is evidence to show that C was murdered by A and B, and that B said"A
and I murdered C".
This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

PROBATIVE VALUE OF CONFESSION:


Though the presumption that a person will not make an untrue statement against his own interest is the basis of
receiving confessions as evidence, yet it must be noted that the evidential value of a confession is not very great. As
observed by Best, a confession may be false due to mental aberration, mistake of law, to escape physical or moral
torture, to escape ignominy of a stifling enquiry, due to vanity, peculiar relationship between sexes, to escape military
duty by getting as conviction, to save the life, fortune or reputation or suffering of a party whose interests are dear to
the prisoner, to endanger others by naming them as co-offenders, and so on.

Therefore, confessions may not always be true. They must be checked in the light of the whole of the evidence on the
record, in order to see if they carry conviction. It would be very dangerous to act on a confession put into the mouth of
the accused by a witness and uncorroborated from any other source. (White v. R., 1945, PC. 181)

Bose J. has observed, in Muthuswamy v. State of Madras, (A.I.R. 1954 S.C.47), that a confession should not be accepted,
merely because it contains a wealth of details. Unless the main features of the story are shown to be true, it is unsafe
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to regard mere wealth of uncorroborated details as a safeguard of truth. The Supreme Court has also observed that,
normally speaking, it would not be safe as a matter of prudence, if not of law, to base a conviction for murder on a
confession by itself.

In Sahoo v. State of U.P. (A.I.R. 1966 S.C. 40), it was held by the Supreme Court that there is a clear distinction between
the admissibility of evidence and the weight to be attached to it. A confessional soliloquy is a direct piece of evidence.
It may be an expression of conflict or emotion, or an argument to find excuse or justification for his act, or a conscious
effort to stifle a pricked conscience, or a penitent or remorseful act of exaggeration of his part in the crime.

A confession may consist of several parts, and may reveal not only the actual commission of the crime, but also the
motive, the preparation, the opportunity, the provocation, weapons used, the intention, concealment of the weapon
and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it.

It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part
discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts, suggests
the inference that the accused committed the crime, and though each part taken singly may not amount to a confession,
each of them being part of the confessional statement, partakes of the character of the confession.

If a statement contains an admission of an offence, not only that admission, but also every other admission of an
incriminating fact contained in the statement, is part of the confession. If proof of the confession is excluded by any
provision of law, the entire confessional statement, in all its parts, including the admissions of minor incriminating facts,
must also be excluded, unless proof of it is permitted by some other section. (A. Nagesia v. State of Bihar, A.I.R. 1965
S.C. 119)

Confessions and admissions must either be accepted as a whole or rejected as a whole, and the Court is not competent
to accept only the inculpatory part, while rejecting the exculpatory part as incredible (Palvinder Kaur v. State of Punjab,
A.I.R. 1962 S.C. 354), unless there is other evidence on record to show the falsity of the exculpatory part, and besides
the confession, there are other materials on the record establishing or indicating the guilt of the accused. Thus, the
inculpatory part by itself cannot form the sole basis for conviction, even if there are other materials on the record to
show the falsity of the exculpatory part. (Kamalashanker v. State of Gujarat, A.I.R. 1961 Guj. 312)

If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of
the evidence is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part
only. The accused is entitled to insist that the entire admission, including the exculpatory part, must be tendered in
evidence. (A. Nagesia v. State of Bihar, A.I.R. 1965 S.C. 119)