Admissions.docx

RELEVANCY AND ADMISSIBILITY OF CONFESSION SUBMITTED TO:

SUBMITTED BY:

DR. SABINA SALIM

VIKAS DENIA

236/15 SECTION D B.COM LLB (HONS.) SEMESTER 7

THE LAW OF EVIDENCE TABLE OF CONTENTS

TABLE OF CASES ....................................................................................................................... 3 ADMISSION ............................................................................ ERROR! BOOKMARK NOT DEFINED. Introduction .......................................................................... Error! Bookmark not defined. Admissions ........................................................................... Error! Bookmark not defined. Different Kinds of Admissions ............................................ Error! Bookmark not defined. Classification Of Admissions ............................................... Error! Bookmark not defined. Effect Of Admissions ........................................................... Error! Bookmark not defined. Proof Of Admission ............................................................. Error! Bookmark not defined. Admission Can Be Disproved .............................................. Error! Bookmark not defined. Admission--Not Conclusive Proof ....................................... Error! Bookmark not defined. Who Can Make Admissions................................................. Error! Bookmark not defined. Admission By Third Parties ................................................. Error! Bookmark not defined. Conditions For Proof Of Admissions ................................... Error! Bookmark not defined. Exceptions ............................................................................ Error! Bookmark not defined. Admissions in civil cases when relevant. ............................. Error! Bookmark not defined. CONFESSIONS........................................................................ ERROR! BOOKMARK NOT DEFINED. Introduction .......................................................................... Error! Bookmark not defined. Utility of Confession ............................................................................................................ 13 Confessions Under Inducement, Threat Or Promise ............................................................ 15 Confession Made To A Police Officer ................................................................................. 18 Confessions Made In Police Custody................................................................................... 20 Discovery Of Fact Consequent To Statement Of Accused .................................................. 22 Confession made after removal of impression caused by inducement, threat or promise, relevant ................................................................................................................................. 24 Confessions Obtained By Promise Of Secrecy Etc. ............................................................. 25 Confession Of Co-Accused .................................................................................................. 26 Retracted Confession............................................................................................................ 29 ADMISSION AND CONFESSION DISTINGUISHED ....................................................................... 31 BIBLIOGRAPHY ........................................................................................................................ 33

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RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE TABLE OF CASES

S. NO.

CASE NAME

CITATION

1.

ABDULVAHAB ABDULMAJID SHAIKH V. STATE OF GUJARAT

(2007) 4 SCC 257 (261)

2. 3. 4.

AIR 1966 SC 119 AIR 1956 SC 217 AIR 1957 All 1(FB)

5.

AGHNOO NAGESIA V. STATE OF BIHAR AHER RAJA KHIMA V. STATE OF SAURASHTRA AJODHYA PRASAD BHARGAVA V. BHAWANI PRASAD GUPTHA ALOKE NATH DUTTA V. STATE OF W.B

6. 7. 8. 9. 10.

APPAVU V. NANJAPPA BHAGIRATH V. STATE OF M.P BHARAT SINGH V. BHAGIRATHI, C.B.L V. V.C. SHUKLA COOLE V. BRAHAM

ILR 25 Mad LJ 329 AIR 1959 MP 17. AIR 1966 SC 405 (1998) 3 SCC 410. (1848) 3 Exchequer 183

11. 12.

DUNDBAHADUR SINGH V. DURGA PRASAD SINGH GOVINDJI V. CHOTALAL

AIR 1953 Pat 346 (1900) 2 Bom LR 651 .

13. 14. 15. 16. 17. 18.

HIRACHAND KOTHARI V. STATE OF RAJASTHAN IBRAHIM HUSSAIN V. STATE,AIR IMPERATRIX V. PITAMBER JHA JAGDISH PRASAD V. SARWAN KUMAR K.S. SRINIVASAN V. UNION OF INDIA KARTAR SINGH V. PUNJAB

AIR 1985 SC 998 1969 Goa 68 (1877) 2 Bom 61 AIR 2003 P&H 3 AIR 1958 SC 419 1994 SCC (3) 569

19. 20. 21. 22. 23. 24.

MADIAH V. STATE MOHD. KHALID V. STATE OF W.B PAKALA NARAYAN SWAMI V. THE KING EMPEROR PAKKIRISAMY V. STATE OF TAMIL NADU PALVINDER KAUR V. STATE OF PUNJAB PRAVEEN KUMAR V. STATE OF KARNATAKA

1992 Cri LJ 502 (2002) 7 SCC 334 AIR 1939 PC 47. (1997) 8 SCC 158 AIR 1952 SC 354. (2003) 4 SCC 358.

25. 26. 27. 28. 29. 30.

PREMESHWAR V. STATE,1981 PYARE LAL BHARGUA V. STATE OF RAJ,AIR R. V. HARI SINGH SAHOO V. STATE OF U.P. SHRI SHAIL NAGESH PARE V. STATE OF MAHARASHTRA STATE (NCT OF DELHI) V. NAVJOT SANDHU

Bom CR 798 1963 SC 1094 12 Bom LR 899 AIR 1966 SC 40 (1985) 2 SCC 341 (2005) 11 SCC 600.

(2007) 12 SCC 230, 277

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RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE 31.

STATE OF U.P. V. DEOMAN UPADHYAYA,

AIR 1960 SC 1125

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RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE DEFINITIONS

What is confession is not defined in the Indian Evidence act or under any other Law. 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.1 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 with in sections 24 to 30. These sections suggest the circumstances when a confession3 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.4 A confession therefore is a “voluntary admission of guilt of a criminal offence”5 in which the person charged with a crime “acknowledges that he is guilty of committing that crime”.6 In order to amount a “confession” it must be a direct admission or acknowledgment of his guilt.7 Sir James Stephen in his “digest of the Law of Evidence” defined confession:

1

Sahoo v. State ofU.P. AIR 1966 S.C. 42. Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462. 3 The Indian Evidence Act 1872, Section 24, defines: “A confession made by an accused person is irrelevant in a criminal proceeding If the making ofthe confession appears to the court to have been caused by inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage, or avoid any evil of a temporal nature in reference to the proceeding against him.” 2

4

Webster Dictionary. 43 Encyclopaedia ofEvidence, 297. “A Confession is a comprehensive admission in express words which acknowledges the declarant’s commission ofa crime”, - See Wharton’s Criminal Evidence. 12 Edn. S. 336: Me Cormick on Evidence Chap. 12; Wigmore s. 821 Am. Jur. Ss. 477, 478. 6 3, The New Encyclopaedia Britanica, 75. 7 Coraies W.F. 3 Encyclopaedia of the laws of England, (1972) 448 Also See State v. YoussufDar, 1973 Cri. L.J. 955 (J.K.) 5

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THE LAW OF EVIDENCE “As an admission made at the time by a person charged with the crime stating or suggesting the inference that he committed a crime”.8 Such a wide definition, however, was not accepted by justice straight 9 and Justice Chandawarker.10 They gave a very narrower meaning to the expression ‘Confession’ holding that only a statement which was direct acknowledgement of guilt should amount, to confession and did not include merely inculpatory admission which falls short of being admission of guilt. The Black’s law dictionary11 lists the following definitions as propounded by various courts in U.S.A. 1. A voluntary statement by a person charged with the commission of a crime or misdemeanor communicated to another person wherein he acknowledges himself to be guilty of the offence charged and discloses the circumstances of the act or the share and participation he had in it. 2. A statement made by a defendant discussing his guilt of crime with which he is charged and excluding possibility of a reasonable inference to the contrary. 3. A voluntary statement made by one who is a defendant in criminal trial at the time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting the crime for which he is on trial, a statement which if true, discloses the guilt of that crime. In India the definition generally accepted by the courts was what had been propounded by Stephen;12 “A confession is an admission made any time by a person charged with a crime stating or suggesting an inference that he committed crime.” Thus as per Stephen’s definition the commission of crime may not be directly admitted by the accused but even if it can be inferred from his statement, the statement would amount to a confession. It may be noted here that in England even the recently passed Police and Criminal Evidence Act., 1984 adopt the same broad approach. Section 82(1) of the Act defines a confession to 8

Art. 22. R. v. Jagrup, 1885 I.L.R. 7. All 646. 10 K. v. Santya Bandhu, 1909 11 Bom. L.R. 633 11 Black’s Law Dictionary, 6th ed. p. 296. 12 Stpehen, J.F,: A Digest ofthe Law ofEvidence 12* Ed. 21. 9

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THE LAW OF EVIDENCE include any statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether made in words or otherwise. In India, however, Starjit, J. discarded the definition of Stephen. He held that only statements which are direct acknowledgements of guilt should be regarded as confessions and it cannot be construed as including a mere inculpatory admission which falls short of being an admission of guilt. Lord Atkin accepted the dictum of Straight. J. in Pakala Narayan Swami v. Emperor,13 and held that: “.......no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to confessed. Moreover, a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact even a conclusive incriminating fact is not of 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 a death with no explanation of any other man’s possession”. The Privy Council in discarding Stephen’s definition further held that: “Some confusion appears to have been caused by the definition of confession. Article 22 of Stephen’s Digest of the law of Evidence, which defines a confession as an admission made at any time by a person charged with a crime staling or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after the dealing with admissions generally in applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admission in order to have a general term for use in the three following articles, confession secured by inducement made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872 and in that Act, it would not be consistent with the nature use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime.

13

ILR7A11.646.

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THE LAW OF EVIDENCE The view propounded by Lord Atkin holds the field to this date. The Supreme Court has cited the definition given by Lord Atkin in the famous case of Palvinder Kaur v. Stats ofPunjab.14 The view was also upheld in the case of A Nagesia v. State ofBihar15 In the light of the above considerations, it may be assumed that a confession for purposes of law is a direct acknowledgement in clear terms by an accused person that he committed the offence for which he is arraigned which would however, include an acknowledgement by him of incriminating facts from which an irresistible inference of his guilt follows. There had been some controversy on admissibility of a statement which contains both inculpatory and exculpatory parts which is dealt with below Inculpatory and Exculpatory Statements A self-exculpatory state ment obviously cannot amount to a confession. It has been held in Pati Soura v. State16, that a statement that contains self inculpatory matter (case of selfdefence) does not amount to confession if the exculpatory part relates to some fact which if true would negative the offence alleged to be confessed”. The court is of view in Kanayalal Chamanlal v. State of Gujrat,17that a statement which when read as a whole is of an exculpatory character and in which prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. A folly self-inculpatory statement admitting all ingredients of the offence would on the other hand be a clear confession. The difficulty arises only in case of statements which are partly self-exculpatory and partly inculpatory. Taking a clue form the decision in Palwi Narain Swamy’s case the Supreme Court held in Hanumant Govind Nargendkar v. State of M.P.,18 that an admission must be used as a whole or not at all. It is not open to the court to split up and use an admission as to a fact in corroboration of the prosecution case and to ignore an explanation given in the course of the same statement as to an admitted fact. Similar was the view expressed by the Allahabad High Court in the case of Emperor v. Balmukund19 The view was further endorsed by the 14

AIR 1952 SC 354. AIR 1966 SC 119. 16 (1970)36 Cut. 17 1970 Cr. L.J. 54 (Guj). 18 1952 SCR 1091. 19 ILR 1930 All 1011. 15

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THE LAW OF EVIDENCE Supreme Court in Palvinder on Kaur v. State of Punjab20, as: “It is not open to the court to accept only the inculpatory part of the statement of the accused and at the same time to reject the exculpatory part of explanatory part as inherently false and incredible.” However, the Supreme Court found no fault in Nishikant Jha v. State of Bihar,21 with the High Court accepting the exculpatory part of the statement and rejecting the inculpatory part on the ground that it was not only inherently incredible, but was contradicted by other evidence in the case. Thus it was a matter of appreciation of evidence and not of admissibility of the statement. The statement if not hit by the provisions of Evidence Act should be admitted in evidence and both parts must be open to scrutiny of the court at the time of appreciation of evidence. This is now the settled law according to the judgment passed in Bhagwan Singh v. State of Haryana22 that it is permissible to believe a part of a confessional statement and to. disbelieve another and that is enough if the whole of the confession is tendered in evidence so that it may be open to the court to reject the exculpatory part and to take the inculpatory one into consideration if there is other evidence to prove its correctness.

20

1953 SCR 94. 1962 (2) SCR 1033. 22 AIR 1976 SC 1797. 21

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RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE INTRODUCTION

Confessions are sub-species of admissions made by an accused admitting that he committed an offence.1Sections 24 to 30 deal with confessions. Sections 24, 25 and 26 are the sections that bar certain confessions as they are considered as involuntary and not made out of free will. While Sections 27 and 28 are in the form of exceptions to one or the other preceding sections, Section 29 qualifies the admissibility of certain confessions. Section 30 deals with relevance of confession by the co-accused in a joint trial. Thus, there is no exclusive section in the Act under which confessions are declared relevant and they are relevant only as admissions under Section 17 read with Sections 18 and 21. "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."

-- Stephen

Under Stephen's definition, an admission amounts to a confession if the accused (a) states that he committed the crime or (b) suggests an inference that he committed the crime. A confession, like admission, is considered relevant because it is a self-harming statement and nobody would make a statement harming his interests unless it is true. Hence, "the confession statement should pass the twin tests of voluntariness and truthfulness." A confession is said to be voluntary when it is made without "fear of prejudice or hope of advantage." It is said, "voluntariness, being the warrant for veracity, was then regarded as the sine qua non of confessions". The very justification of admitting a confession is that it is made willingly and out of free consent and this rationale is destroyed if it is obtained by coercion or inducement. Sections 6 to 55 of the Act deal with the relevancy of facts. The word 'relevant' is defined in section 3 of the Act as "one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Act relating to relevancy of facts”. Relevancy can be logical as well as legal. A fact is said to be logically relevant to another wherein it bears such casual relation with the other as to render probable the existence or non-existence of the latter. All facts logically relevant are not, however, legally relevant. The Act exhaustively enumerates the kinds of casual connections which make a fact legally relevant to another. Hence relevancy under the Act is not a question of pure logic but of law, as no fact, however logically relevant is receivable in evidence PAGE 10 OF 33

RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE unless it is declared by the Act to be relevant. Whatever is legally relevant is logically relevant but not vice- versa. The statement of the accused: “I have kept in the field the knife with which I killed A’ is logically relevant but Section 27 of the Act provides that only so much part of the information as relates directly to the fact thereby discovered may be proved, i.e., is relevant and hence the latter portion of accused’s statement, viz., “with which I killed A” though logically relevant is not legally relevant. Before going into the relevancy of confession, let us distinguish between relevancy, admissibility and evidentiary value. Relevancy and admissibility are not interchangeable terms. A fact maybe legally relevant, yet its reception may be prohibited on the grounds of public policy, e.g., communications during marriage. Every relevant fact is therefore not necessarily admissible. Similarly, every admissible fact is not necessarily relevant within sections 6 to 55 of the Act. Even if a confession is relevant and admitted by the court, it is in the wisdom of the judge as to what weight shall be attached to it. So determination of evidentiary value is a question to be decided by the judge according to facts and circumstances of each case. The Supreme Court has also observed in Sahoo v. State of U.P. that there is a clear distinction between relevancy, admissibility and weight to be attached to a piece of evidence. Switching over to the relevancy, three questions arise for determination whenever a confession is tendered in evidence:i)

has it been proved that the accused made the statement attributed to him;

ii)

is the statement relevant; and

iii)

What is the evidentiary value of the statement?

Questions (ii) and (iii) do not arise if question is answered in negative; question (iii) does not arise if question (i) is answered in affirmative and question (ii) in negative. The relevancy of confessions is discussed in sections 21 and 24 to 30 of the Act. A close look reveals that these sections incorporate a set of rules of irrelevance (also termed as Exclusionary Rules). Stephen while drafting the Act placed the rules of Irrelevance under the chapter of relevancy. PAGE 11 OF 33

RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE Confessions, as a species of admissions are relevant under section 21of the Act against the maker of it unless hit by rules of irrelevance or Exclusionary Rules of sections 24, 25 or 26 of the Act or section 162 of the CrPC., 1973. Section 21 of the Act states that admissions are relevant and may be proved as against the person who makes them. Accordingly a statement made by an accused that he was present at the scene of the crime and he was accompanying the persons who committed the crime is relevant under section 21 as an admission. An oral confession by an accused person not being hit by any of the exclusionary rules, is an admission which is relevant under section 21. In Faddi v. State of M.P. it was held that an admission in F.I.R. is admissible under section 21. Any statement not amounting to a confession does not come within prohibition of Exclusionary Rules of sections 24, 25 and 26 and can be proved as an admission. If the relevancy of confession is excluded by any of the exclusionary rules, the entire confessional statement in all its parts including the admission of minor incriminating facts must also be excluded, unless it is made relevant by a rule of relevance or Inclusionary Rule.6Little substance and content will be left in sections 24,25 and .26 if proof of admission incriminating facts in a confessional statement is permitted. To say this is to say that if the confession is caused by inducement, threat or promise as contemplated by Section 24 of the Evidence Act, whole of confession is irrelevant. Proof of not only the admission of the offence but also the admission of every other incriminating fact

such as motive,

preparation and subsequent conduct is excluded by section 24. To give any other interpretation to it would be to rob the section of its practical utility and content. Extending the logic to sections 25 and 26 of the Evidence Act, would reveal that sections 25 and 26 not only ban proof of confession of an offence by the accused to a police officer but also admission contained in the confessional statement of all incriminating facts related to the offence. Rules of irrelevance in sections 24 to 26 are followed by a rule of relevance (also termed as Inclusionary Rule) under section 27, which is in the form of a proviso. Section 27 is one of the rule of relevance, which is in fact based on the doctrine of confirmation by subsequent facts. This rule states that whenever some facts are discovered in consequence of information given by the accused in police custody so much of such information as relates distinctly tothe facts discovered thereby may be proved. This rule partially lifts the PAGE 12 OF 33

RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE ban imposed by sections 25 and 26 in respect of so much of the information, whether it amounts to confession or not ,as relates distinctly to the facts discovered in consequence of information, if other conditions of section 27 are satisfied. UTILITY OF CONFESSION  Reliance on "confession" is based on the Latin maxims "Confession facta in judicio est plena probation" means "a confession is the absolute proof", and "habemus optimum testem, con-fitentem reum" which literally means: "we have the best witness, a confessing defendant"; in other words, confession of an accused is the best evidence against him.  "A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt."  A confession, if voluntary and truthfully made, is an "efficacious proof of guilt".  A confession that is true but involuntary is no better than a confession that is false but voluntary.  Confession cannot be deduced from mere silence or conduct like absconding by the accused. Such conduct, as was already seen, may be relevant under Section 8 .  An extra-judicial confession is in the nature of things a weak type of evidence, and the Court should apply two tests: Is it voluntary? And Is it true?  It was wholly unlikely that the accused would make extra judicial confession to a person whom he never knew, and much less to a person who is inimically disposed towards him.  Prudence and justice demand that a confession cannot be made the sole ground of conviction and that it requires to be corroborated by other evidence.  Each and every particular in the confession need not be corroborated by separate and independent evidence.

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THE LAW OF EVIDENCE ISSUES TO BE DECIDED

 Whether Confession caused by inducement, threat or promise is relevant in criminal proceeding?  Whether Confession made to a police officer by an accused can be proved against him at the criminal proceeding?  Whether Confession by accused while in custody of police can be proved against him in the criminal proceeding?  How much of information received from accused may be proved in the criminal proceeding?

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THE LAW OF EVIDENCE ANALYSIS  Issue No. 1- Whether Confession caused by inducement, threat or promise is relevant in criminal proceeding? It is submitted that such a confession by inducement, threat or promise is considered as irrelevant in criminal proceeding. The provision for the same is provided under Section 24 of the Indian Evidence Act, 1872. CONFESSIONS UNDER INDUCEMENT, THREAT OR PROMISE S. 24. of the Indian Evidence Act, 1872 provides thatConfession caused by inducement, threat or promise, when irrelevant in criminal proceeding: A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. According to the section, a confession by an accused is irrelevant, if it is caused by (1) inducement; (2) threat; or (3) promise. The inducement, threat, or promise should have (a) reference to the charge against the accused; (b) proceeded from a person in authority, and (c) sufficiently given the accused person reasonable grounds for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

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THE LAW OF EVIDENCE The principle therein is that confession must be voluntary. It must be the outcome of his own free will, inspired by the sound of his own conscience to speak nothing but the truth.23 The expression 'appears' connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the Court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer. Confessions leading to discovery of fact which is dealt with under Section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. This section is mainly intended to safeguard the interest of the accused, on the ground of public policy and for proper administration of justice. The Supreme Court in Aher Raja Khima v. State of Saurashtra, observed:

"It is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntary and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a confession, or any threat or coercion would at once invalidate it, if the fear was still operating on his mind at the time he makes the confession, and if it 'would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him'."24 Another suggested rationale for the rule was that it was intended thereby to restrain law enforcement agencies from oppressive behaviour. Under the latter part of the section, the court has to form an opinion that the inducement, threat or promise by the person in authority is sufficient to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature. The responsibility of the court would be great because the court must relegate itself to the position of the accused and see whether the inducement, threat or promise given to the accused would appear reasonable to make the accused feel that he would gain an advantage or avoid any evil of a temporal nature with 23 24

Mohd. Khalid v. State of W.B.,(2002) 7 SCC 334 AIR 1956 SC 217.

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THE LAW OF EVIDENCE reference to the charge against him.25 Thus, it can be seen that this section through its wording has given the fullest discretion to the court to reject the alleged confession if it entertains a suspicion. The usage of the word "appears" in the first part of the section indicates a lesser degree of probability than 'proof' as defined in Section 3. On the other hand the court is saddled with the delicate task of enquiring into the facts which were passing in the mind of the accused at the time of making the confession. 26 If it appears to the court, from the facts and circumstances of the case, that the confession is not voluntary but it is the result of inducement, threat or promise, it should be rejected. It is not easy for an accused to show positively that the confession is the result of inducement, threat or promise.27 The expression 'accused person' in Section 24 and the expression 'a person accused of any offence' in Section 25 have the same connotation and describe the person against whom evidence is sought to be led in a criminal proceeding. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.28 Section 24 refers not only to a person who is an accused at the time when he made a confession, but also to one who becomes an accused subsequently. The section refers to the status of the person, at the time when the confession is being considered by the court and when he is undoubtedly an accused person. It is well established law that in the process of proof of extra-judicial confession, the Court is to be satisfied that it is not the result of inducement, threat or promise. The extra-judicial confession possesses a high probative value as it emanates from the person, who commits crime, provided it is free from suspicion. While appreciating it the Court is to consider the relevant factors like:-(i)

to whom it is made;

(ii)

the time and place of making it;

(iii)

the circumstances, in which it was made;

and the Court is to look for any suspicious circumstance.

25

Pyare Lal Bhargua v. State of Raj,AIR 1963 SC 1094; Mst. Kistoori v. State of Rajasthan,AIR 1967 Raj 98; Satbir Singh v. State of Punjab,AIR 1977 SC 1294. 26 In re : Ahmad,AIR 1950 Mys 82. 27 R. v. Panchkouri,AIR 1925 Cal 587; Emperor v. Jamuna,AIR 1947 Pat 305; Raggha v. Emperor,AIR 1925 All 627(FB); R. v. Saw Min,AIR 1939 Rang 219. 28 State of U.P. v. Deoman Upadhyaya,AIR 1960 SC 1125; Punja Mava v. State of Gujarat,AIR 1965 Guj 5.

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THE LAW OF EVIDENCE Extra-judicial confession must be addressed to somebody and not the way one goes on shouting in the street that he/she had killed someone. Extra-judicial confession has to be tested after considering the credentials of the witnesses with whom the accused made extrajudicial confession. For accepting extra-judicial confession, the prosecution must bring on record reasons for the accused to go to the witnesses to confess the crime. If the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, a conviction can safely be founded on such evidence alone. CONFESSION MADE TO A POLICE OFFICER S. 25 . Confession to police officer not to be proved.--No confession made to a policeofficer, shall be proved as against a person accused of any offence. Police Officer It is evident from the judicial decisions that the term "police officer" is not given too narrow a meaning as to refer only to person of the rank of an "officer" but includes all members of the regular police force. Head Constable, a Police Patel and Chaukidar have been held to be "police officers". Even persons who do not belong to the police force but are clothed by law with the powers of the police are held to be "police officers" and attract the ban of Section 25. Scope Under this section, a confession made to a police officer is inadmissible in evidence except insofar as is provided by Section 27. The principle upon which the rejection of confession made by an accused to a police officer, or while in the custody of such officer (Section 26), is founded, is that a confession thus made or obtained is untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession.29 The object of this section and Section 26 is to prevent the practice of torture by the police for the purpose of extracting confessions from accused persons. Under this section no confession made to a police officer is admissible against the accused.

29

In re : Zahirabi,AIR 1966 Mys 199. Ibrahim Hussain v. State,AIR 1969 Goa 68.

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THE LAW OF EVIDENCE The Supreme Court in Aghnoo Nagesia v. State of Bihar30, held that a confession or admission is evidence against the maker of it unless its admissibility is excluded by some provision of law; that Section 25 does not exclude all statements by an accused to a police officer, but only confessions which are an admission in terms of the offence or at any rate substantially all the facts which constitute the offence. This section does not stand in the way of admitting the statement of an accused to a police officer, if such statement does not amount to a confession. Section 162, Cr PC, should be considered along with Section 25 of this Act while admitting any statement other than a confession, except as provided in Section 27 which provides that a statement leading to the discovery of a fact is admissible. Thus Section 25 protects the accused in respect of a confession made by him to a police officer, whereas Section 162, Cr PC, protects the accused if it is made during the course of investigation. Against a Person Accused of an Offence The wording of Section 25 raises an interesting question. Section 25 says: "No confession made to a police-officer, shall be proved as against a person accused of any offence" and it does not say: "No confession made to a police officer by a person accused of an offence shall be proved as against such a person". The question is: If 'A' makes a confession to the police officer, can it be used against 'B' who is an accused in another case? The answer is in the negative because Section 25, as it is worded, bars the confession made to a police officer not only against the maker but also "against a person accused of any offence". The reason is that it is a tainted confession and it is absolutely devoid of any credit in a Court of law. The Courts have laid down the following in the interpretation of the phrase "Against a Person Accused of an Offence":  A confession cannot be used "against" the accused but it can be used by the accused on his own behalf if a part of it helps him at the trial to prove, for instance, that he committed the murder under grave and sudden provocation etc.31  A confession made by one accused can be used by another accused when both are facing a joint trial under Section 223 of CrPC.32 As was seen above, when it was held 30 31

AIR 1966 SC 119. Madiah v. State , 1992 Cri LJ 502 at pp. 506, 507.

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THE LAW OF EVIDENCE that the accused who made the confession can himself use it in his own favour, there is no reason why a co-accused cannot use it similarly.  On the other hand, a confession made by an accused to the police officer cannot be used also against a co-accused as it is a tainted confession.33 CONFESSIONS MADE IN POLICE CUSTODY Section 26 states: S. 26 .Confession by accused while in custody of police not to be proved against him.--No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation.--In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882). Section 25 excludes confessions to police officers under any circumstances. This section excludes confessions to anyone else, while the person making it is in a position to be influenced by a police officer. The presence of the Magistrate secures the free and voluntary nature of the confession and the confessing person has an opportunity of making a statement uncontrolled by any fear of the police. Thus, this section is a further extension of the principle laid down in Section 25. Section 25 applies to all confessions made to police officers; this section applies to confessions made to persons other than police officers but made while in police custody. Custody The word 'custody' is not defined in the Act . But it implies that there must be some limitation upon the liberty of the citizen, either directly or indirectly caused by police, which may include arrest, detention, surveillance or any restraint on his movement. It does not

32 33

Imperatrix v. Pitamber Jha, (1877) 2 Bom 61. R. v. Hari Singh, 12 Bom LR 899.

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THE LAW OF EVIDENCE necessarily mean custody after formal arrest; it is sufficient if there is some form of police surveillances, or restriction by the police on the movements of the person concerned. Unless it be made in the immediate presence of a Magistrate The words "unless it be made in the immediate presence of a Magistrate" engraft an exception to the bar under Section 26 and they carry the literal meaning that mere physical presence of a Magistrate is sufficient to make the confession made in police custody admissible under Section 26. The Courts had also held that even an oral confession made to or in the presence of a Magistrate was admissible under Section 26 .34 The reason is obvious that the Indian Evidence Act was enacted in 1872 whereas the CrPC was made much later in 1898. Naturally, there are references to the Evidence Act in CrPC35 but not vice versa. As it stands even now, after more than 100 years of coming into force of CrPC and after many amendments to the Evidence Act, Section 26 is not amended to state that the confession must be recorded by the Magistrate as per the procedure laid down in Section 164 of CrPC .36 That was the reason that the Law Commission of India proposed in its 69th Report of 1977 that Section 26 be amended to bring it in line with Section 164 of CrPC as follows: “No confession made by any person whilst he is in the custody of a police officer, shall be proved as against such person unless it is recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973.”37 Magistrate should follow the procedure laid down in Section 164 so as to exclude the oral admissions and to ensure that the confession is voluntary by administering the warnings prescribed under Section 164 to the accused who is already under police custody. In the light of many decisions of the Supreme Court, it is now settled law that the Magistrate in whose presence the confession is made must record it in accordance with the procedure laid down in Section 164 of CrPC and also that, as held in Kartar Singh v. Punjab ,38 "he shall record the confession in the manner provided in Section 281 for recording the examination of the accused person. It shall not only be signed by the Magistrate, but also by the accused himself." "A confession duly recorded with the prescribed certificate appended to it may be 34

Sarkar's Law of Evidence, 14th edn., M.C. Sarkar et al., eds. Vol.1 For instance Section 162(2) and Section 163(1) . 36 19 In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid v. Maharashtra, 2012 STPL (Web) 464 SC 37 69th Report, p. 206, para. 11.15. 38 1994 SCC (3) 569 35

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THE LAW OF EVIDENCE presumed to be voluntary".39 Thus, where the accused in police custody made the confession in the presence of the Magistrate who recorded the confession but not in the manner prescribed by Section 164, it was held that the statement was not admissible under Section 26 .40 DISCOVERY OF FACT CONSEQUENT TO STATEMENT OF ACCUSED Section 27 says: S. 27 . How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, 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. This section is founded on the principle that if the confession of the accused is supported by the discovery of a fact, the confession may be presumed to be true, and not to have been extracted. It comes into operation only:  if and when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody; and  if the information relates distinctly to the fact discovered. The object of this section is to admit evidence which is relevant to the matter under inquiry, namely, the guilt of the accused, and not to admit evidence which is not relevant to that matter. The discovery of a material object is of no relevancy to the question whether the accused is guilty of the offence charged against him, unless it is connected with the offence. It is, therefore, the connection of the thing discovered which renders its discovery a relevant fact. The connection between the offence and the thing discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of the connection by the statement itself.41

39

Mohammed Ajmal Mohammad Amir Kasab @ Abumujahid v. Maharashtra, 2012 STPL (Web) 464 SC, it was held: "If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed..." 40 Mahesh v. State , 2010 Cri LJ 203 (Madras HC) : Tandra Devi v. Andhra Pradesh, 2001 Cr LJ 4048 (AP) . 41 Puran Singh v. King-Emperor,(1946) 25 Pat 279

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THE LAW OF EVIDENCE Section 27 is to be pressed into service only to make admissible a statement to police, which is otherwise inadmissible leading to certain discovery relating to the offence. Under this section: 1. there must be information; 2. it does not matter whether the information amounts to confession or not; 3. that person must be in the custody of a police officer; 4. in consequence of the information a fact must be deposed to as discovered; 5. in such a case so much of the information as relates distinctly to the fact thereby discovered may be proved.

Conditions Necessary for Operation Of 1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. 2. The fact must have been discovered 3. The discovery must have been in consequence of some information received from the accused and not by accused's own act. 4. The persons giving the information must be accused of any offence 5. He must be in the custody of a police officer. 6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to

7. Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

Recovery need not be made immediately after statement is made.—

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THE LAW OF EVIDENCE There is no restriction that recovery should be made immediately after the statement is made. So long as recovery/discovery is pursuant to statement made by accused the said statement would be admissible in view of Section 27. 42

Conflict between Section 27 Indian Evidence Act and Section 162 CrPC Section 27 is an exception to Sections 24, 25 and 26 and permits proof of a confession if it leads to the discovery of fact even if the confession was made to a police officer or in police custody. On the other hand, Section 162 CrPC bars "any use" of the confession made to police during the investigation of a case. One of the uses is the use of the confession by the accused and in his own favour under Section 25 . The other use of the confession is by the prosecution where it leads to the discovery of fact under Section 27 of Indian Evidence Act. "There was a conflict of opinion amongst the various High Courts in regard to the admissibility of a statement made to the police which led to the discovery of the incriminating article", Section 162 was amended in 1941 to "resolve" the issue by providing that "Nothing in this section shall be deemed to apply to any statement failing within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act." This amendment removed the ban of Section 162 on the "use" by the prosecution of the statement of the accused that led to the discovery of some fact. CONFESSION MADE AFTER REMOVAL OF IMPRESSION CAUSED BY INDUCEMENT, THREAT OR PROMISE, RELEVANT S. 28. If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. This section expressly forms an exception to the law provided by s. 24 and its proper position in the Act should have been immediately after it. if it is proved to the complete satisfaction of the judge that the impression created by the original inducement or promise or threat has been

42

Praveen Kumar v. State of Karnataka, 2003 (4) Crimes 358 (SC) : 2003 (Supp-2) JT 431 : (2003) 4 SCC 358.

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THE LAW OF EVIDENCE wholly removed, eg by lapse of time or by a duly administered caution from a superior authority or by any other circumstance, a confession subsequently made becomes admissible. This section therefore lays down the condition under which a confession rendered irrelevant by s. 24 may become relevant under s. 28. The removal or termination of the inducement must be clearly established by the prosecution and the judge must be of the clear opinion that no trace of the original inducement or threat lingered. It is presumed to have continued till the contrary is shown. In HALSBURY'S LAWS OF ENGLAND 4th Edn., Vol 11, p. 234, para 412 it is stated: "A statement otherwise admissible may not be received if it is influenced by an inducement made to obtain a previous statement; thus, if the threat or promise under which the first statement was made, still persists when the second is made, the second statement will be inadmissible. Only where the time which elapses between the making of the two statements, the circumstances and the giving of any caution are such that it can be said that the original threat or inducement has been dissipated will the second statement be admitted as being voluntary. "The word 'fully' in Section 28 is significant: it means 'thoroughly', 'completely', 'entirely', so as not to leave any trace of the impression created by torture or fear; for, confession forced from the mind by the flattery of hope or by torture or fear comes in so questionable a shape that no credit can be given to it. A free and voluntary confession is presumed to flow from the strongest sense of guilt and therefore, it is admitted as proof of the crime."43 CONFESSIONS OBTAINED BY PROMISE OF SECRECY ETC. S. 29 . Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc. If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not

43

Bhagirath v. State of M.P AIR 1959 MP 17.

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THE LAW OF EVIDENCE warned that he was not bound to make such confession, and that evidence of it might be given against him. Under this section a relevant confession does not become irrelevant merely because it was made under: 1. a promise of secrecy, or 2. in consequence of a deception or artifice practised on the accused, or 3. when he was drunk, or 4. because it was elicited in answer to a question, or 5. because no warning was given that he was not bound to say anything and that whatever he might say would be used as evidence against him.

If such a confession is otherwise relevant According to the majority of judicial pronouncements and the opinions of the learned commentators, "such a confession" means a confession that is not declared inadmissible under any of the previous sections. Sections 24, 25 and 26 are the sections that bar admissibility of certain confessions. So, Section 29 refers to confessions that I. II. III.

are not made under the inducement, threat promise, as under Section 24, are not made to a police officer as under Section 25 or made in police custody but are recorded by a Magistrate under Section 164 CrPC.

So, if a confession is not barred by Sections 24, 25 and 26, the confession is "otherwise relevant" within the meaning of the opening words of Section 29 CONFESSION OF CO-ACCUSED S. 30 . Consideration of proved confession affecting person making it and others jointly under trial for same offence. 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

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THE LAW OF EVIDENCE persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation. --"Offence" as used in this section, includes the abetment of, or attempt to commit, the offence. ILLUSTRATION A and B are jointly tried 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.

Object The object of this section is that where an accused person unreservedly confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself, because the admission of his own guilt operates as a sort of sanction, which, to some extent, takes the place of the sanction of an oath and so affords some guarantee that the whole statement is a true one. When a person admits his guilt to the fullest extent, and exposes himself to the pains and penalties provided therefor, there is a guarantee for his truth. But this is a very weak guarantee. For a confession may be true so far as its maker is concerned but may be false and conducted through malice so far as it affects others. This section is an exception to the rule that the confession of one person is entirely inadmissible against another. The policy of the law in allowing a confession by one accused to be considered against another who is being jointly tried for the same offence, seems to rest on the recognition of the palpable fact that such a confession cannot fail to make an impression on the Judge's mind, which it was therefore better to control within limits than to ignore altogether.44

Ingredients/Conditions Before a statement of one of the accused persons can be taken into consideration against the other accused under Section 30 of the Act, the following ingredients/conditions must exist/be fulfilled : -44

Gaganmull, In re : (1924) 20 LW 202, 205 : AIR 1924 Mad 805

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THE LAW OF EVIDENCE I. II.

there must be joint trial for the same offence; it must be a confession;

III.

the confession of guilt must affect himself and others, i.e., implicate the maker substantially to the same extent as the other accused;

IV.

the confession of guilt must be duly proved.

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

The Court May Take into Consideration Such Confession The expression "the Court may take into consideration such confession" is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as piece of corroborative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or judicial confession and least of all on the basis of retracted confession.45 The section provides that the court may take the confession into consideration and thereby make it evidence on which the court may act, but it does not say that the confession is tantamount to proof. There must clearly be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction.65 The confession of a co-accused is on an even lower footing than the evidence of an accomplice and a conviction based on such a confession alone is bad in law. This section provides that such a confession is to be an element in the consideration of all the facts of the case, but it does not do away with the necessity for other evidence. It is the duty of the Judge, when there is no other evidence than the confession of a co-accused, to direct the jury accordingly and tell them to acquit the accused; and his omission to do so is a misdirection which will vitiate a conviction. S. 31.

45

Aloke Nath Dutta v. State of W.B., (2007) 12 SCC 230, 277

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THE LAW OF EVIDENCE Admissions not conclusive proof but may estop. Admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions hereinafter contained. This section declares that admissions are not conclusive proof of the matters admitted, but that they may operate as estoppels. 'Admission' is defined in Section 17. Unless admissions are contractual or unless they constitute an estoppel, they are not conclusive, but are open to rebuttal or explanation. Admissions, whether written or oral, which do not operate by way of estoppel, constitute a kind of evidence, which may be rebutted, against their makers and those claiming under them, as between them and others. A mere admission is conclusive only where it has been acted on by the party to whom it was made. An estoppel, i.e., a representation acted on by the other party, by creating a substantive right, does oblige the estopped party to make good his representation, in other words, it is conclusive. The maker of the admission would be precluded from going back on it and speaking the truth on the principle of estoppel if the person to whom it is made has act ed on its faith. For the application of the doctrine of estoppel mainly three conditions have to be fulfilled, firstly , there must be a representation either oral or written by a person to another person. Secondly , the other person must have acted upon the said representation taking the admissions as true. Thirdly , he should suffer some prejudice by believing the representation or must have act ed in detriment to his interest by reason of the representation. RETRACTED CONFESSION When a person, having once recorded a confession which is relevant, goes back upon it, saying either that he never confessed or that he wrongly confessed, that is called a retracted confession.46 In principle, it seems that retraction should make no difference. It should not weaken the value of the confession if it is otherwise relevant and worthy of trust. The Supreme Court has stated that a retracted confession may form the basis of a conviction if it receives some general corroboration from other independent evidence.47 But if the court finds that the confession as originally recorded was voluntary, it should be acted upon. The only difference that retraction should make is that the court will have to be sure that the confession was really voluntary. 46 47

Pakkirisamy v. State of Tamil Nadu, (1997) 8 SCC 158. Shri Shail Nagesh Pare v. State of Maharashtra, (1985) 2 SCC 341.

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THE LAW OF EVIDENCE Rules as to Use of Retracted Confession With regard to retracted confession the rules that appear to have obtained judicial recognition and are spread over a large number of cases are:(1) A confession is not to be regarded as involuntary or unlawfully induced merely because it has been retracted at the trial. [In arriving at a conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it, but all the circumstances of the case]. (2) (a) As against the maker, a retracted confession may form the basis of conviction, if believed to be true and voluntarily made. (b) But the better point of view is that a retracted confession must be regarded with suspicion and as a rule of practice and prudence it is unsafe to base a conviction on retracted confession alone without independent corroboration. The use of such a confession is a matter of prudence rather than of law. (3) As against a co-accused, although a retracted confession may be taken into consideration, the rule is now firmly established that its value against a co-accused is practically nil and that it cannot form the basis of a conviction without substantial and independence corroboration both as to the crime and the criminal. (4) Far more corroboration would be demanded than the testimony of an accomplice on oath. Merely because the confession was retracted, it need not be taken as a confession made under pressure. The state of mind of the accused at the time of making the confession is the relevant factor. All confessions are invariably retracted at a later stage, therefore, the retraction by itself is not a ground to discard the confession by holding that it was not voluntarily made.48

48

Abdulvahab Abdulmajid Shaikh v. State of Gujarat, (2007) 4 SCC 257 (261) : 2007 CrLJ 3405

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THE LAW OF EVIDENCE ADMISSION AND CONFESSION DISTINGUISHED There are many common features between an admission and a confession. All the provisions relating to them are given under the heading of "admission” and that speaks of the legislative intention of treating them as one and the same at least to a certain extent. In both, there is the acknowledgment of the existence of a fact in issue in the case which may in circumstances be accepted by the courts as a proof of the truth and accordingly acted upon. The court have also been using the expression in reference to both kinds of proceedings. In the first place, since the provisions relating to confessions occur under the heading "admission," it follows that the word "admission” is more comprehensive and includes a confession also. A confession is only a species of admission. Thus every confession is an admission also but term "confession" does not include all kinds of admission. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.49 Secondly, though the definition of admission given in S. 17 should equally apply to confessions also because the term "confession" is nowhere independently defined, yet it has been held by the Privy Council in Pakala Narayan Swami v. The King Emperor,50 and as affirmed by the Supreme Court in Palvinder Kaur v. State of Punjab,51 that a confession must go further and admit the guilt in terms or substantially the facts from which guilt follows, and not merely acknowledge a fact suggesting an inference as to a fact in issue or a relevant fact. Thirdly, a confession is the admission of guilt in reference to a crime and, therefore, invariably runs against the interest of the accused. The term 'admission', on the other hand, refers to every statement whether it runs in favour of or against the party making it, and that is why S. 21 permits a person, in certain exceptional cases, to prove his own statements. For example, if a captain is sued for negligently casting away the ship and he produces a diary written by himself in the course of the voyage showing that the ship was not taken out of its course. The statement is in his favour and even so he is permitted by S, 21 to prove It provided only that if he were dead the statement would have been relevant under S. 32 in a suit between third persons. Thus, the purport of the Act seems to be that any statement 49

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. AIR 1939 PC 47. 51 AIR 1952 SC 354. 50

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THE LAW OF EVIDENCE suggesting an inference as to a fact in issue or a relevant fact whether the inference is in favour of the person making the statement or against him, is relevant as in admission, but a confession should necessarily be of inculpatory nature. Fourthly, the conditions of relevancy are different. An admission made to any person whatsoever is relevant whether he be a policeman or a person in authority or whether it was the result of an inducement or a promise. But in the case of a confession the law steadfastly adheres to the principle that the confession must be free and voluntary. Fifthly, an admission made under a promise of secrecy is not relevant, but by virtue of the provisions of S. 29 a confession is provable even if it was obtained under a promise of secrecy. Sixthly, by virtue of the provision in S. 30 the confession of an accused person is relevant against all his co-accused who are being tried with him for the same offence. In the case of admissions, statements of a co-plaintiff or those of a co-defendant are no evidence against the others. The Supreme Court highlighted this distinction in C.B.l v. V.C. Shukla52 saying that a statement by a party to a proceeding amounting to an admission can be proved only against him and not against others who are being jointly tried with him unless it amounts to a confession also.4 Next, a confession always proceeds from a person who has committed an offence or Is accused of any crime, but in reference to admissions sections 18, 19 and 20 regard the statements of certain persons, who are not parties to the case, as admissions against the parties. Lastly, the effect of an admission is that it does not constitute a conclusive

52

(1998) 3 SCC 410.

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RELEVANCY AND ADMISSIBILITY OF CONFESSION

THE LAW OF EVIDENCE BIBLIOGRAPHY

 Dr. Avtar Singh, Principles of The law of Evidence (23rd ed. 2018) Central Law Publications.  Batuk Lal, The Law of Evidence, (21st ed. 2016) Central Law Agency.  K D Gaur, The Indian Evidence Act, (17th ed. 2016), Universal Law Publications.  Ratanlal & Dhirajlal’s the Law of Evidence, (26th ed. 2017) Lexis Nexis.  Justice U.L. Bhat, Lectures on the Indian Evidence Act (13th ed. 2016) Universal Law Publications.

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