CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NYAYA NAGAR, MITHAPUR, PATNA, PIN:800001

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF THE COURSE TITLED

“LAW OF EVIDENCE”
ON

“HEREMBA BRAHMA CASE ON EXTRA-JUDICIAL CONFESSION”

SUBMITTED TO:
DR. MEETA MOHINI
VISITING FACULTY
CNLU, PATNA

SUBMITTED BY:
MUHAMMAD MAHATAB
ROLL NO. 1836
IVTH SEMESTER
B.B.A, LL.B.(Hons.)
SESSION: 2017-22
 Certificate

I do hereby submit that the following project work on “HEREMBA BRAHMA CASE ON
EXTRA-JUDICIAL CONFESSION” is a bona fide work produced by me under the able
guidance of Dr. Meeta Mohini, Visiting Faculty, Chanakya National Law University and
Faculty for Law of Evidence, and that no part of this work has been plagiarized without due
credits being given to the author(s) and appropriate citations being made.

Muhammad Mahatab
Roll No.1836
B.B.A, LL.B.(Hons.)
Class of 2017-22
 Acknowledgements

I would like to thank my faculty Dr. Meeta Mohini, whose assignment of such an interesting
and erudite topic made me work towards knowing the subject with a greater interest and
enthusiasm and moreover she guided me throughout the project. I owe the present
accomplishment of my project to my friends, who helped me immensely with sources of
research materials throughout the project and without whom I couldn’t have completed it in
the present way. I would also like to extend my gratitude to my parents and all those unseen
hands who helped me out at every stage of my project.
 Hypothesis

That extra-judicial confession not trustworthy cannot be used for corroboration of any other
evidence.

Research Methodology

The researcher has used doctrinal method of research to complete the project which involves
primary and secondary sources of literature and insights. He has mainly used secondary sources
to provide substance to the research analysis.
 Chapterisation

Introduction and Concept of Extra-Judicial Confession ..................................................... 6

Facts of the Heremba Brahma Case....................................................................................... 8

Rationale and Judgement laid down in the Heremba Brahma Case .................................. 9

Conclusion .............................................................................................................................. 11
 Introduction and Concept of Extra-Judicial Confession

The term confession is not defined anywhere in Indian Evidence Act, 1872 or under any other
law. The same has been rightly stated by Criminal 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. The definition gives under section 17 of the Act for admission, becomes
applicable to confession also. A close scrutiny of the sections 17 to 30 of the Act, discloses that
the statement is the genus, admission is the species and confession is the sub-species. However,
Privy Council, in case of Pakala Narayan Swami vs Emperor1, did not accept this definition.
In this case Lord Atkin observed that no statement that contains self-exculpatory matter can
amount to a confession. The acid test which distinguishes a confession from an admission is
that when conviction can be based on a statement alone, it is a “Confession and where some
supplementary evidence is required to authorize a conviction, then it is admission”.2 The law
relating to confession is to be found generally in sections 24 to 30 of the Evidence Act and
section 162 and 164 of code of Criminal Procedure. Since “Confession” is species of
“Admission”, it is dealt in sections 24 to 30. These sections suggest the circumstances when a
confession made by a person can be used against him or against him against some other person
or just cannot be used at all. What is the meaning to be given to the word “Confession”, one
has to start with the dictionary meaning viz, “as an acknowledgement of offence.”3
Extra-Judicial confessions are those which are made by the party elsewhere than before a
Magistrate or in court. It may even consist of conversation to oneself which may be produce
evidence if overheard by another. It is not necessary that the statements should have been
addressed to any definite individual. It may have taken place in the form of a prayer. It may be
a confession to a private person. An extra-judicial confession has been defined to mean “ a free
and voluntary confession of guilt by a person accused of a crime in the course of conversation
with persons other than judge or magistrate seized of the charge against himself. This term
embracing not only express confession of crime but all those admissions and acts of the accused
from which guilt may be implied.4As held in the case Bhisheshwar Dhani Ram v. State,5 the
Extra Judicial confessions embrace those made as well to private individuals as to the officers
of justice such as constable police officers etc. If voluntarily made they are receivable in
evidence after being proved like other facts. An extrajudicial confession if satisfactorily
provided to have been voluntarily made may be the basis for a conviction even in the absence
of corroboration. However, the fact as to whether a conviction can be based purely on an
extrajudicial confession which does not get any corroboration is highly doubted has been the
subject matter of various different judicial opinions. “Though an extra-judicial confession to
any ordinary person (other than police officer can be proved, such a confession cannot be
proved at all if made to a Magistrate unless the provisions of Section 164 Cr. P.C. have been
complied with,” this was held in Nazir Ahmed v. Emperor.6 Thus confessions whether judicial
or extra-judicial must be voluntary and genuine and besides, should have some corroboration

1
(1939) 41 BOMLR 428.
2
Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462.
3
Webster Dictionary.
4
Taylor on Evidence 867.
5
(1963) ILJ 645.
6
(1936) PC 253.
to be relied upon and to be the basis of a conviction. Therefore, the circumstances under which
the confession is made the manner in which it is made the person to whom it is made are aspects
to be borne in mind before acting on a confession, particularly on a non-judicial confession.
Two rules of caution are to be followed as held by the Supreme Court in the case Wakil Nazek
v. State of Bihar,7 before such action namely:
(1) Whether the evidence of confession is reliable.
(2) Whether it finds corroboration.
As regards an extra-judicial confession the Supreme Court observed in Prabhakar Narayan
Upadhyaya v. State of Maharashtra8 that: “It is true that the evidence of extra-judicial
confession has to be scrutinized carefully and received with great caution. In this connection
the court would have to consider whether it was natural for the accused person to have confided
in and confessed to the person who is deposing to the confession. The relationship of that
person with the accused before the court is most material and vital. Then against the court
would have to consider what has been confessed and whether the same is consistent with the
facts about the incident as deposed to by the other witnesses and discovered during the course
of the police investigation. The scrutiny has to be minute and great caution has to be exercised.
It is also to be considered whether the person, deposing to the extra-judicial confession had any
motive or reason for falsely, involving the accused person. It is also to be considered such
person is otherwise a satisfactory witness. It must also be borne in mind by the court
considering the evidence of such person whether there is any likelihood of such person being
himself concerned with the crime in question and therefore, falsely implicating the accused; If
after such careful scrutiny, the evidence of extra-judicial confession is regarded as acceptable
and trustworthy. Such evidence cannot be considered to be inferior in any way to the other
pieces or evidence. Strict proof undoubtedly has to be insisted upon but once such proof is
forthcoming the evidence of extra-judicial confession cannot be characterized as a weak type
of evidence.

7
1972 Cr. LJ. 566.
8
(1971)LXXIV Bom. LJ. 299.
 Facts of the Heremba Brahma Case

The case of Heramba Brahma And Anr. vs State Of Assam9 is a landmark judgement pertaining
to the appreciation of the extra judicial confessions by the courts and the circumstances when
they might be relevant. The case was presided over by a dual bench of Justice D Desai and
Justice R Misra. Here, the prosecution’s case was that the deceased Santosh Kumar Brahma, a
former student of Sapatgram Amalgamated Academy accompanied by Dilip Kumar Brahma
visited Sapatgram on June 3, 1972 to meet his friend Dharmeswar who was staying in the
hostel. On an invitation by Dharmeswar, all of them visited a theatre at the time of second show
and returned to the room of Dharmeswar in the hostel at night. Santosh Kumar and Dilip Kumar
slept on the bed of Dharmeswar who shifted to another for accommodating his friends. Some
time during the night led by Amar Singh Brahma (accused), several boys came to the room
where deceased Santosh Kumar was sleeping, opened the door, called out Santosh Kumar and
Amar Singh Brahma(accused) told him why he had assaulted them previously and that Santosh
Kumar would be beaten. All the boys in the room assaulted Santosh Kumar. Dilip Kumar,
companion of Santosh Kumar tried to intervene, but on being threatened, he moved away.
Santosh Kumar attempted to escape by running towards the house of the Head Master Shri
Panchanan Medhi crying out for help. Shri Panchanan Medhi, Head Master of the Academy
woke up from, his sleep and emerging from his house, he saw two persons running away
towards the boarding and Santosh Kumar lying injured. He rushed to the dispensary to bring
medical help and simultaneously told Shri Sujit Kumar Bose, Assistant Head Master of the
school to summon the police.
In the meantime, Santosh Kumar succumbed to his injuries. Sujit Kumar Bose, the Assistant
Head Master gave information at the Police Station and an offence was registered. Autopsy
was performed on the dead body of Santosh Kumar by Dr. D.N. Sharma. He did not find any
external in-jury, but on internal examination, he found fracture of nasal bone, a linear fracture
of frontal bone and internal haemorrhage. In the course of investigation, accused persons
including the two appellants were arrested and ultimately sent for trial, with the result as set
out herein above. Dr. D.N. Sharma, the Medical Officer carried out the autopsy. Two points
are worth noticing in his evidence. He stated that he did not find any external injury. Two
internal injuries were: fracture of nasal bone and linear fracture of frontal bone accompanied
by internal haemorrhage. In the cross-examination, he stated that both the injuries were possible
by fall, but not by one single fall looking to the seat of injuries. The seat of injury resulting in
fracture of nasal bone is on the front side and the one which resulted in linear fracture of the
frontal bone was, according to him, on the lateral side. He was of the opinion that depending
upon how the victim fell, both the injuries may be caused by two separate falls.

9
AIR 1982 SC 1595
 Rationale and Judgement laid down in the Heremba
Brahma Case

The examination of the evidence of witness Bistiram Basumatari was postponed by the Hon’ble
Court because, his evidence would reflect upon bona fides of investigation. Witness Bistiram
was examined to prove an extra judicial confession by accused(s) to him. This is how his
evidence in examination-in-chief has been recorded:
“I know Heramba Brahma (appellant 1) and Amar Singh (appellant 2). They were with me in
Hujat. They told me that they had assaulted Amiya's son. Amar Singh, Heramba and Inder
(accused 1 since acquitted) told me that they had assaulted Amiya's son.”
As regards to the credibility of the witness, this witness Bistiram was arrested for having
committed an offence of dacoity and while he was in jail, according to him, the aforementioned
three accused including the present appellants were, possibly with him in jail, when this
dubious extra judicial confession is alleged to have been made to him. This extra judicial
confession is vague and ambiguous because it is not clear whether each one spoke separately
and what were the words used by each of the accused. Witness speaks of an extra judicial
confession by three accused persons having simultaneously made and when reproduced in his
language, it makes no sense. It is dangerous to rely upon such extra judicial confession even if
the witness's credentials are not in question. The primary question in contention was what
language was used by each accused, in what words confession was made and whether each
used the same language? Evidence of the witness does not reproduce the words used by each
accused. It is the witness's ipse dixit that is being deposed to. If one examines the credibility of
the witness, he is an undertrial prisoner awaiting trial for dacoity. The court failed to see how
these young boys should confide in this person suspected of dacoity. But, the most
objectionable part of this concocted evidence is as to how the Investigating Officer came to
know that the three accused persons made an extra judicial confession to another undertrial in
jail. What led the investigating officer of the present case to question an undertrial? Or did the
witness of his own accord approach the investigating officer? Was this witness trying to please
the Investigating Officer by approaching him that he would speak about the confession? Was
there any quid pro quo? These were the multitude of questions that the court searched for in
vain.
The Supreme Court expressed astonishment over how the High Court accepted the evidence of
this extra judicial confession without examining the credentials of witness Bistiram; without
ascertaining the words used; without referring to the decision of this Court to be presently
mentioned wherein it is succinctly stated that extra judicial confession to afford a piece of
reliable evidence must pass the test of reproduction of exact words, the reason or motive for
confession and person selected in whom confidence is reposed. In Rahim Beg and Anr. v. State
of U.P.10 this Court while examining the evidence as to extra judicial confession made by two
accused to witness Mohmed Nasim Khan observed that:

10
AIR 1973 SC 343
“There was no history of previous association between the witness and the two accused as may
justify the inference that the accused could repose confidence in him. In the circumstances, it
seems highly improbable that the two accused would go to Mohmed Nasim Khan and blurt out
a confession.”
So saying, the Court rejected the evidence as to extra judicial confession. Position in this case
is more deplorable. If the High Court had examined the decision of this Court, there would
have been no difficulty in rejecting the, evidence of extra judicial confession. It fails to pass all
the tests. We reject, this evidence of extra judicial confession, as unworthy of belief. We,
therefore, find it difficult to subscribe to the reasoning of the High Court that the evidence of
Dilip Kumar against the present appellants is corroborated by the evidence in the form of extra
judicial confession.
The evidence herein discussed is all the evidence against the present appellants. Evidence given
by witness Dilip Kumar revealed error in identification of the appellants and the High Court
was not inclined to act upon it without corroboration. In this background, corroboration to the
evidence of Dilip Kumar as was done by the High Court, for the reasons herein mentioned was
not available. Therefore, the evidence of Dilip Kumar remained uncorroborated which itself
for the reason herein stated is not sufficient to bring home the charge. Thus, due to loss of
credibility of their star witness, the prosecution lost the case.
 Conclusion
The case of Heremba Brahma served as a landmark case concerning the admissibility of extra
judicial evidence. The principles laid down in this case were further upheld by the State Of
H.P. vs Surinder Mohan And Ors11, Aloke Nath Dutta & Ors vs State Of West Bengal 12, etc.
The principle that extra judicial confession from an untrustworthy and not a credible source is
unreliable, and hence cannot be used for corroboration of evidence has since been an
indispensable part of the Law of Evidence in the country.

11
2003 CriLJ 4223.
12
(2007) 12 SCC 230.