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Published : July 11, 2013 | Author : shraddha7
Category : Criminal law | Total Views : 51011 | Rating :

shraddha chaudhri author of the article titled "Confession"


The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This section comes under the heading of Admission so it is clear that the confessions are merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the law of Evidence defines confession as “confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed
“ 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 conclusively incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores.
Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. When there is enough evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on the inculpatory part.

Admission and confession
Section 17 to 31 deals with admission generally and include Section 24 to 30 which deal with confession as distinguished from admission.

Confession Admission
1. Confession is a statement made by an accused person which is sought to be proved against him in criminal proceeding to establish the commission of an offence by him. 1. Admission usually relates to civil transaction and comprises all statements amounting to admission defined under section 17 and made by person mentioned under section 18, 19 and 20.
2. Confession if deliberately and voluntarily made may be accepted as conclusive of the matters confessed. 2. Admissions are not conclusive as to the matters admitted it may operate as an estoppel.
3. Confessions always go against the person making it 3. Admissions may be used on behalf of the person making it under the exception of section 21 of evidence act.
4.Confessions made by one or two or more accused jointly tried for the same offence can be taken into consideration against the co-accused (section 30) 4. Admission by one of the several defendants in suit is no evidence against other defendants.
5. confession is statement written or oral which is direct admission of suit. 5. admission is statement oral or written which gives inference about the liability of person making admission.

The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is confession and where some supplementary evidence is needed to authorize a conviction, then it is an admission as stated in Ram Singh v. State Another test is that if the prosecution relies on the statement as being true it is confession and if the statement is relied on because it is false it is admission. In criminal cases a statement by accused, not amounting to confession but giving rise to inference that the accused might have committed the crime is his admission.

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

Judicial confession- Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind.

Extra-judicial confessions- Are those which are made by the accused elsewhere than before a magistrate or in court. 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. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person which includes even judicial officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply.

Section 164 of the Criminal Procedure Code-
Difference between judicial and extra-judicial confession-

Judicial confession Extra-judicial confession
1. Judicial confessions are those which are made to a judicial magistrate under section 164 of Cr.P.C. or before the court during committal proceeding or during trial.
1. Extra-judicial confession are those which are made to any person other than those authorized by law to take confession. It may be made to any person or to police during investigation of an offence.
2. To prove judicial confession the person to whom judicial confession is made need not be called as witness. 2. Extra-judicial confession are proved by calling the person as witness before whom the extra-judicial confession is made.
3. Judicial confession can be relied as proof of guilt against the accused person if it appears to the court to be voluntary and true. 3. Extra-judicial confession alone cannot be relied it needs support of other supporting evidence.
4. A conviction may be based on judicial confession. 4. It is unsafe to base conviction on extra-judicial confession.

Voluntary and non-voluntary confession- the confession of an accused may be classified into Voluntary and non-voluntary confession. A confession to the police officer is the confession made by the accused while in the custody of a police officer and never relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the change against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be proved against the person making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of the confession which are made non-voluntarily.
Section 24 of Indian Evidence Act - confession 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 supporting that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used against the maker.

Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:
• That the statement in question is a confession,
• That such confession has been made by the accused,
• That it has been made to a person in authority,
• That the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority,
• Such inducement, threat or promise must have reference to the charge against the accused, and
• The inducement, threat or promise must in the opinion of the court be sufficient to give the accused ground, which would appear to him reasonable, for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

1. Confession made by inducement, threat or promise- a confession should be free and voluntary. “If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible.” The term inducement involves a threat of prosecution if the guilt is not confessed and a promise of forgiveness if it is so done. It is very difficult to lay down any hard and fast rule as to what constitutes inducement. It is for the judge to decide in every case. An inducement may be express or implied, it need not be made to the accused directly from the person in authority. Before a confession can be received as such, it must be shown that it was freely and voluntarily made. This means that the confession must not be obtained by any sort of threat or violence, not by any promise either direct or indirect, expressed or implied, however slight the hope or fear produced thereby, not by the exertion of an influence. The ground on which confessions made by the accused under promises of favour or threats of injury are excluded from evidence is not because any wrong is done to the accused in suing than but because he may be induced by pressure of hope or fear to confess the guilt without regard to their truth in order to obtain relief or avoid the threatened danger. Thus it is clear that if threat or promise from persons in authority is used in getting a confession it will not be taken into evidence. Every threat or inducement may not be sufficient to induce the accused to confess a guilt. The proper question before excluding a confession is whether the inducement held out to the prisoner was calculated to make his confession untrue one. The real enquiry is whether there had been any threat of such a nature that from fear of it the prisoner was likely to have told an untruth. If so, the confession should not be admitted.

In case of an ordinary confession there is no initial burden on the prosecution to prove that the confession sought to be proved is not obtained by inducement, threat, etc. It is the right of the accused to have the confession excluded and equally the duty of the court to exclude it even suo moto. It is idle to expect that an accused should produce definite proof about beating or pressure. But he must point out some evidence or circumstances on which a well-sounded conjecture at least, that there was beating or pressure may reasonably be based.

2. Inducement must have reference to the charge- the inducement must have reference to the charge against the accused person that is the charge of offence in the criminal courts and inferencing the mind of the accused with respect to the escape from the charge. The inducement must have reference to escape from the charge. Thus, it is necessary for the confession to be excluded from evidence that the accused should labour under influence that in reference to the charge in question his position would be better or worse according as he confesses or not. Inducements in reference to other offences or matters or offences committed by others will not affect the validity of the confession thus, where a person charged with murder, was made to confess to a Panchayat which threatened his removal from the caste for life, the confession was held to be relevant, for the threat had nothing to do with the charge.

The inducement need not be necessarily expressed. It may be implied from the conduct of the person in authority, from the declaration of the prisoner or the circumstances of the case. Similarly it need not be made to the prisoner directly; it is sufficient to have come to his knowledge provided it appears to have induced to confession.

3. Threat, inducement and promise from a person in authority- the threat, inducement and promise on account of which the accused admits the guilt must come from a person who has got some authority over the matter. To be clear the person giving different promises, threatening the accused or inducing him to make the confession must be a person in authority as stated in the Pyare Lal v. State of Rajasthan . If a friend of the accused induces him to make a confession or a relation if he makes him a promise that if he confesses he will get him released or even if he threatens him and the accused on that account admits his guilt this statement will not be excluded by Section 24 as the threat, inducement or promise do not emanate from a person in authority.

If the accused makes the confession thinking that by doing so the authorities would soften the attitude towards him the confession cannot be said to be non-voluntary.

The term “person in authority” within the meaning of Section 24 was held to be one who has authority to interfere in the matter charge against the accused. If this definition is to be accepted that term “ a person in authority” would mean only the police who are in charge of the investigation and the magistrate who is to try the case. This view appears to be too restrictive. It appears that a person in authority within the meaning of Section 24 should be one who by virtue of his position wields some kind of influence over the accused.

The question as to whether a person to whom a confession has been made is a person in authority would naturally depend on the circumstances of each case having regard to the status of the accused in relation to the person before whom the confession is made. A house surgeon is a person in authority in relation to nurse of the same hospital.

4. Sufficiency of the inducement, threat or promise- before a confession is excluded, inducement, threat or promise would in the opinion of the court be sufficient to give the accused person ground which would appear to the accused reasonable for supposing that by making the confession he would gain an advantage or avoid an evil of the nature contemplated in the section. Consequently the mentality of the accused has to be judged and not the person in authority. That being the case, not only the actual words, but words followed by acts or conduct on the part of the person in authority, which may be taken by the accused person as amounting to an inducement, threat or promise, will have to be taken into account. A perfectly innocent expression, coupled with acts or conduct on the part of the person in authority together with the surrounding circumstances may amount to inducement, threat or promise. It does not turn upon as to what may have been the precise words used but in each case whatever the words used may be it is for the judge to consider whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime or worse for him if he does not. The expression, “whatever you say will be used as evidence against you” will not exclude a confession. On the other hand “you better pay the money than go to jail”, “if you tell me where my goods are I will be favourable to you”, “I will get you released if you tell me the truth”, have been held to be sufficient to give the accused grounds for supposing that by making the confession he would gain an advantage or avoid an evil.

It must be borne in the mind that the advantage gained or the evil avoided must be of temporal nature therefore any inducement having reference to a future state of reward or punishment does not affect the admissibility of confession. A confession will not be excluded which has been obtained by the accused by moral or religious exhortation. The expression “you had better as good boys tell the truth”, “kneel down and tell me truth in the presence of the Almighty”, do not give out any temporal gain and so the confession derived on these confessions are not excluded by Section 24. Confession obtained on the allegation by the panches that if the accused does not confess he shall be excommunicated will not exclude the confession. It should be borne in the mind that the gain or evil must be in reference to the proceeding against him.

Evidentiary value of confession
Value of judicial confession- a case where there is no proof of corpus delicti must be distinguished from another where that is proved. In the absence of the corpus delicti a confession alone may not suffice to justify conviction.

A confessional statement made by the accused before a magistrate is a good evidence and accused be convicted on the basis of it. A confession can obviously be used against the maker of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held that the confession of an accused person is substantive evidence and a conviction can be based solely on a confession.
If it is found that the confession was made and was free, voluntary and genuine there would remain nothing to be done by the prosecution to secure conviction. If the court finds that it is true that the accused committed the crime it means that the accused is guilty and the court has to do nothing but to record conviction and sentence him. No question of corroboration arises in this case. Normally speaking it would not be quite safe as a matter of prudence if not of law to base a conviction for murder on the confession of the alleged murder by itself and without more. It would be extremely unsafe to do so when the confession is open to a good deal of criticism and has been taken in the jail without adequate reason and when the story of murder as given in the confession is somewhat hard to believe. This observation was made by the Supreme Court and therefore it cannot be said to be a good law in the case of judicial confession.

Now the settled law is that a conviction can be based on confession only if it is proved to be voluntary and true. If corroboration is needed it is enough that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is enough.

Value of extra-judicial confession- extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which support his statement should not be believed.

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial confession must be received with great case and caution. It can be relied upon only when it is clear, consistent and convincing. The court has to decide whether the person before whom the admission is said to have been made are trustworthy witnesses. The extra-judicial confession is open to the danger of mistake due to the misapprehension of the witness before whom the confession was made to the misuse of the words and the failure of the party to express his own meaning. This is also open to another sort of danger. There being no record and there being no sanction behind it is very easy for the prosecution to catch hold of any witness who may come and depose that the accused admitted his guilt in his presence on some particular time. Due to those reasons it is very dangerous for the courts to base conviction on the sole basis of extra-judicial confession. Usually and as a matter of caution courts require some material corroboration to an extra-judicial confession statement corroboration which connects the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the foundation of the conviction is the confession alleged to have been made by the accused there are three things which the prosecution must establish. First, that a confession was made, secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it is true. Such a confession must be proved by an independent or satisfactory evidence.

In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by her father and step-mother in the National park. The alleged extra-judicial confession was made by accused during detention in forest office. No mention of said confession in report given to police nor any witness present there mentioning about the same confession. This extra-judicial confession cannot be relied on.
Before relying on extra-judicial confession, it must be considered whether the confession was really made. It should also be considered as to why the accused reposed confidence in the witnesses stating about the confession. It was alleged that the accused made confession to a witness who was the widow of one of the conspirators and was helping her husband in making spears and other weapons. It was held that the confession was not reliable.

Value of retracted confession- A retracted confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. After the commission of a serious offence some police officer makes investigation into the matter, examines witnesses and the accused. If in his opinion the accused is proved to have committed the offence, he submits a report to a magistrate having jurisdiction in the matter. The court takes evidence and examines the accused. If during the investigation, the accused on being examined by the police officer is willing to admit the guilt the police officer sends the accused to some magistrate for recording his statement. The magistrate after being satisfied that the accused admits in his statement to have committed the offence this recorded statement by the magistrate may be proved at the trial. When the trial begins the accused on being asked as to whether he committed the crime he may say that he did not commit the crime. The question may again be put to him as to whether he made statement before the magistrate during the investigation confessing the guilt. He may deny to have made the statement at all or he may say that he made that statement due to undue influence of the police. In this case the confession made by the accused to the magistrate before the trial begins is called retracted confession.

It is unsafe to base the convict5ion on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence not to rely on retracted confession unless corroborated. Courts have convicted persons on retracted confession when they have been of the opinion that the confession when it was made was voluntary or consistent and true but the real rule of law about the retracted confession is “ where the retracted confession is the sole evidence it can be of little value specially when made during the competition for a pardon which sometimes occurs where a number of persons are suspected of an offence,”. It very often happens that a number of persons are accused of murder or dacoity or of any other offence. The person in charge of the investigation falling on direct and independent evidence chooses some of the accused to admit the guilt on the promise of making him a witness in the case. Instances are not rare when a young man is made to admit some guilt due to pressure or fear.

It is really very strange for an accused to confess before the investigation authority that he has committed the murder. That statement if made without any pressure, fear or hope must be either due to the remorse or godly fear or it is so because the accused is as truthful as Harish Chandra and Yudhisthir. If this is so and if the statement was made because the winess was remorseful or because he made the confession due to fear of god or because he was truthful there is no reason as to why he resiles from that statement when he is put to trial. Due to this suspicion a retracted confession can always be suspected to have been extracted by pressure, undue influence, inducement or threat by some person in authority.

Proof of judicial confession- Under section 80 of Evidence Act a confession recorded by the magistrate according to law shall be presumed to be genuine. It is enough if the recorded judicial confession is filed before the court. It is not necessary to examine the magistrate who recorded it to prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession may be in writing or oral. In the case of a written confession the writing itself will be the best evidence but if it is not available or is lost the person before whom the confession was made be produced to depose that the accused made the statement before him. When the confession has not been recorded, person or persons before whom the accused made the statement should be produced before the court and they should prove the statement made by the accused.

Confession to police
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.

Reasons for exclusion of confession to police- another variety of confessions that are under the evidence act regarded as involuntary are those made to a personnel. Section 25 expressly declares that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have a committed. A confession so obtained would naturally be unreliable. It would not would be voluntary. Such a confession will be irrelevant whatever may be its form, direct, express, implied or inferred from conduct. The reasons for which this policy was adopted when the act was passed in 1872 are probably still valid.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, supreme court noted:
The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to “start” from a confession they should strive to “arrive” at it. Else, when they are busy on their short-route to success, good evidence may disappear due to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full and through investigation with a view to establish the case de hors the confession, later, being inadmissible for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.) at 268
Police authority itself, however, carefully controlled, carries a menace to those brought suddenly under its shadow and the law recognises and provides against the danger of such persons making incriminating confessions with the intention of placating authority and without regard to the truth of what they are saying.

Effect Of Police Presence
The mere presence of the policeman should not have this effect. Where the confession is being given to someone else and the policeman is only casually present and overhears it that will not destroy the voluntary nature of the confession. But where that person is a secret agent of the police deputed for the very purpose of receiving a confession, it will suffer from blemish of being a confession to police.
In a rather unusual case, the accused left a letter recording his confession near the dead body of his victim with the avowed object that it should be discovered by the police, the supreme court held the confession to be relevant. There was not even the shadow of a policeman when the letter was being written, and planted.

Exclusion Of Confessional Statements Only
This principle of exclusion applies only to statement which amount to a confession. If a statement falls short of a confession, that is, it doesn’t admit the guilt in terms or sustainability all the facts which constitute the offence, it will be admissible even if made to a policeman, for example, the statement of an accused to the police that he witnessed the murderer in question. The statement being not a confession was received in evidence against him, as showing his presence on the spot.

Statements During Investigation And Before Accusation
A confessional statement made by a person to the police even before he is accused of any offence is equally irrelevant. The section clearly says that such a statement cannot be proved against any person accused of any offence. This means that even if the accusation is subsequent to the statement, the statement cannot be proved.

Confessional Fir
Only that part of a confessional First Information Report is admissible which does not amount to a confession or which comes under the scope of section 27. The non confessional part of the FIR can be used as evidence against the accused as showing his conduct under section 8.

Statement Not Amounting To Confession
A statement which does not amount to confession is not hit by the bar of section. A statement in the course of investigation was that the design was carried out according to the plan. The statement did not refer to the persons who were involved in the murder, nor did the maker of the statement refer to himself. This was held to be not a confessional statement. Hence, not hit by section 25 . The statement of inspector(crimes) that the accused accepted before him that he got the counterfeit currency notes from a stranger but the accused denying to have so stated, was not admissible in evidence.

Use Of Confessional Statement By Accused
Though the statements to police made by the confessing accused cannot be used in evidence against him, he can himself rely on those statements in his defence. The statement of the accused in FIR that he killed his wife giving her a fatal blow when some tangible proof of her indiscretion was available was not usable against him to establish his guilt. But once his guilt was established through other evidence, he was permitted to rely upon his statement so as to show that he was acting under grave and sudden provocation. There is nothing in Evidence Act which precludes an accused person from relying upon his own confessional statements for his own purposes.

Special Legislation
A special legislation may change the system of excluding police confessions. For example, under the Territorists and Disruptive Activities(prevention) Act, 1987, (S15) confessional statements were not excluded from evidence on grounds that the persons making them were in police custody. The court said in another case that section 15 was an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision was that a confession recorded under S.15 of TADA was a substantive piece of evidence and could be used against a co-accused also.
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 is made in the immediate presence of a Magistrate, shall be proved as against such person.
Object- The object of section 26 of the Evidence Act is to prevent the abuse of their powers by the police, and hence confessions made by accused persons while in custody of police cannot be proved against them unless made in presence of a magistrate. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused persons through any undue influence being received in evidence against him.

Confession Of An Accused In Polilice Custody To Any One Else-
Section 26 provides that a confession which is made in custody of a police officer cannot be proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to Pradhan who was accompanied by Police (enquiry) Officer. The only interference which could be drawn from the circumstance of the case, is that the confession was made at the time when the accused was in the custody of police and it could not be proved against the accused. It could not be believed that, when a police officer has seen the accused with deceased at last occasion, he will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and 26, the Police Officer has left the accused in the custody of village head man (pradhan).
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate and to take extra-judicial confession under section 164 of Cr.P.C which has got more probable value and it gives an opportunity to make the required warning, that this confession will be used against the accused and after this warning he records the confession. Under section 26, no confession made by an accused to any person while in custody of a police officer shall be proved against him.

Police Custody
The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-cuff him or tie his waist with a rope and may take him with him. Again a police officer may not even touch a person but may keep such a control over him that the person so controlled cannot go any way he likes. His movement is in the control of the police officer. A police officer comes to A and asks him to follow to the police station as he is wanted in connection with a dacoity case. A follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act, is no mere physical custody.” A person may be in custody of a police officer though the other may not be physically in possession of the person of the accused making the confession. There must be two things in order to constitute custody. Firstly, there must be some control imposed upon the movement of the confessioner, he may not be at liberty to go any way he likes, secondly, such control must be imposed by some police officer indirectly. The crucial test is whether at the time when a person makes a confession he is a free man or hid movements are controlled by the police by themselves or through some other agency employed by them for the purpose of securing such confession. The word ‘custody’ in this the following section does not mean formal cutody 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 some sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tonga by a police constable. In the absence of constable, the accused confessed to the tanga-driver that he committed the crime. The confession was held to be in police custody as the accused was in the custody of constable and it made no difference of his temporary absence. Where a woman, charged with the murder of her husband, was taken into the custody of the police, a friend of the woman also accompanied her. The policeman left the woman with her friend and went away to procure a fresh horse. The woman confessed her guilt to her friend while the policeman was away. The confession would not be admissible against the accused as the prisoner should be regarded in custody of the police in spite of the fact that he was absent for a short time. But where the accused is not arrested nor is he under supervision and is merely invited to explain certain circumstances, it would be going further that the section warrants to exclude the statement that he makes on the grounds that he is deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for treatment and from the moment of her admission to the hospital till her discharge from there, the police personnel were neither present in the room wherein the accused was kept for treatment or even in the vicinity of the hospital nor they frequently visited the hospital, it could not be said that the accused’s movements were restricted or she was kept in some sort of direct or indirect police surveillance and she was in police custody for the purpose of section 26 of the Evidence Act.

Section 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.

Principle- this section of the act is founded on the principle that if the confession of the accused is supported by the discovery of a fact then it 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.

This section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.
In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that section 27 of evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26, which imposed a complete ban on admissibility of any confession made by accused either to police or at any one while in police custody. Nonetheless the ban would be lifted if the statement is distinctly related to discovery of facts. The object of making provision in section 27 was to permit a certain portion of statement made by an accused to Police Officer admissible in evidence whether or not such statement is confessional or non confessional.

Scope- section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24 lays down that if a confession appears to have been caused by threat, promise or inducement from some man in authority it will be irrelevant and cannot be proved against the confessioner. Section 25 excludes a confession made to a police officer. Section 26 lays down that if a person while in custody of a policeman, confesses his guilt to any other person not being a Magistrate, his settlement will not be proved against him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was discovered in consequence of the information given by the accused of an offence in custody of the police officer, so much of the information as relates to the facts discovered by that information, may be proved irrespective of the facts discovered by that information, may be proved irrespective of the facts whether that information amounts to confession or not.

Requirements Under The Section- the conditions necessary for the application of section 27 are:
1. The fact must have been discovered in the consequence of the information received from the accused.

2. The person giving the information must be accused of an offence.

3. He must be in custody of a police officer.

4. That portion only of the information which relates distinctly to the fact discovered can be proved. The rest is inadmissible.

5. Before the statement is proved, somebody must depose that articles were discovered in consequence of the information received from the accused. In the example given above, before the statement of the accused could be proved, somebody, such a sub-inspector, must depose that in consequence of the given information given by the accused, some facts were discovered.

6. The fact discovered must be a relevant fact, that is, to say it must relate to the commission of the crime in question.

In Suresh Chandra Bahri v. State of Bihar, it is the discovery and the seizure of articles used in wrapping the dead body and the pieces of Sari belonging to the deceased was made at the instance of one accused. Articles recovered were neither visible nor accessible to the people but were hidden under the ground. No public witness was examined by the prosecution in this behalf. However, the evidence of Investigation Officer did not suffer from any doubt or infirmity. Articles discovered were duly identified by the witness. It was held that in these circumstances, failure of Investigating Officer to record the disclosure of statement was not fatal

In State of Maharashtra v. Bharat Ehagan Lal Raghani, it was held by Supreme Court that, the fact that seized weapons were displayed by police in press conference was not a ground to disbelieve the factum of recovery.

Section 28- Confession Made After Removal Of Impression Caused By Inducement, Threat Or Promise, Relevant:
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.
Confession After Removal Of Threat Or Promise- under section 24 we have seen that if the opinion of a court a confession seems to have been caused by any inducement, threat or promise having reference to the charge and proceeding from a person in authority, it is irrelevant and cannot be proved even against a person making the confession,

Section 28 provides that if there is inducement, threat or promise given to the accused in order to obtain confession of guilt from him but the confession is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court been fully removed, the confession will be relevant becomes pre and voluntary.

It must be borne in mind that there must be strong and cogent evidence that the influence of the inducement has really ceased. A female servant was suspected of stealing money. Her mistress on Monday told her that she would forgive her if she told the truth. On Tuesday she was taken before a Magistrate and as no one grave any evidence against her she was left off. On Wednesday she was again arrested. The superintendent of Police went with her mistress into Bridewell and told her in presence of her of her mistress that “she was not bound to say anything unless she liked and that if she had anything to say, her mistress would hear her.” He did not tell her that of she made a statement it might be given in evidence against her. The prisoner then made a statement it might be given in evidence against herm the prisoner then made a statement confessing the guilt. It was held that this evidence was not admissible in evidence as the promise of the mistress must be considered as still operating on the prisoner’s mind at the time of the statement. Had the mistress not been present on the spot it might have been otherwise.

Impression produced by promise or threat may be removed
• By lapse of time, or
• By an intervening caution giving by some person of superior authority to the person holding out the inducement, where a prisoner confessed some months after the promise and after the warning his confession was received.

Section 29-Confession Otherwise Relevant Not To Become Irrelevant Because Of Promise Of Secrecu, Etc.:
In 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 deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those questions, because he was not warned that he was not bound to make such confession, and that evidence if it might be given against him.

CONFESSION ON PROMISE OF SECRECY, ETC- section 29 lays down that if a confession is relevant, that is, if it is not excluded from being proved by any other provision on Indian Evidence Act, it cannot be relevant if it was taken from the accused by:
1. Giving him promise of secrecy, or
2. By deceiving him, or
3. When he was drunk, or
4. Because it was made clear in answer to question which he need not have answered, or because no warning was given that he was not bound to say anything and that whatever he will state will be used against him.

Section 24 lays down that a confession which is the outcome of inducement, threat or promise from a person in authority would not be relevant. Section 25 lays down that a confession to a police officer is irrelevant. Section 26 excludes the statement of an accused in a police custody to any person other than a Magistrate. Section 29 lays down that if a confession is not excluded by Sections 24, 25 or 29 it will not be excluded on the ground of promise of secrecy or of deception or of being drunk, or of being made in answer to question or without warning that it will be used against him in evidence.
Section 29 assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provision, viz, section 24 to 26 and it then proceeds to the invalidate or negative other positive objections or bars that may be raised against the admissibility.

Generally when a man is under intoxication he confesses the guilt. If confessional statement is made by some accused person while he was drunk, it will be admissible if he had not become quite senseless for the very reason that it has not been obtained by inducement or threat now was it made while he was in custody of a police officer.

When a statement is made voluntarily without inducement, threat or promise from a man in authority; and when it is not made to a police officer, it is admissible notwithstanding the fact that the person who took the confessional statement did not warn the accused that he was bound to make the statement and if he did so, it may be used in evidence against him and upon that he may be convicted.

Want Of Warning: a voluntary confession is admissible, though it does not appear that the prisoner was warned, and even though it appears on the contrary that he was not so warned.

Section 30- Consideration Of Proved Confession Affecting Person Making It And Others Jointly Under Trial For The Same Offence-
When more persons than one are being tried jointly for the same offence and a confession made by one such persons affecting himself and some other such 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.

Principle Underlying: when more persons than one are jointly tried for the same offence, the confession made by one of them, if admissible in evidence, should be taken into consideration against all the accused, and not against the person who alone made it. It appears to be very strange that the confession of one person is to be taken into consideration against another. Where the confession of one accused is proved at the trial, the other accused persons have no other opportunity to cross examine him. It is opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross examine the person making the statement. This section is an exception to the rule that the confession of one person is entirely admissible against the other.

In Kashmira Singh v. State of MP , the accused Kashmira who was an Assistant Food Procurement Inspector, his services along with the another food inspector were terminated on a report of the food officer when they were getting the rice polished in a rice mill. Kashmira was heard twice saying that he would teach a lesson to the food officer. After a few months the son of the food officer was found missing and his body was found in a well. Kashmira, Gurudayal brother of Kashmira, Prithipal son of Gurudayal and one Gurubachan, a rickshaw puller in this case were tried of conspiracy and killing the child. The prosecution story was that Prirthipal led the child, when he was playing near the Gurudwara, for some distance and then the child was taken on the cycle by Kashmira to a house where he was murdered. According to the judgment of the SC Guruibachan was not a rickshaw puller by profession and the rickshaw was hired only for that night for the disposal of the body of the deceased.

Hence before the confession of one accused may be taken into consideration against others, it has to be shown that:
1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the confessioner and the others.

This change in the Evidence Act is necessary so as to invigorate the trust and faith of the people of India in the Judiciary that they will be provided imparted speedy justice to the wrongs done to them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its statement of objects and reasons mentions that the disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody. In lieu of this, it is pertinent that provisions of Criminal Law be changed so as to reduce the time needed for a common person to get justice. After all “Justice should not only be done, but also be seen to be done”.
[1] A.I.R. 1939 P.C. 47
[2] A.I.R. 1952 S.C. 354
[3] 1959 S.C.R. 1033
[4] A.I.R. 1959 Alld. 518
[5] A.I.R. 1966 S.C. 40
[6] CAVE J, in R v. Thompson, (1893) 2 Q.B. 12
[7] Empress v. Mohan Lal (1881) I.L.R. 4 All. 46
[8] A.I.R. 1963 SC 1094
[9] R.K. Dalmia v. Delhi Administration A.I.R. 1962 SC 1821
[10] Motilal v. Kailash Narain A.I.R. 1960 MP 132
[11] Viranwally v. State, A.I.E 1961 JK
[12] Emperoe v. Panchkauri A.I.R 1925 Cal 587
[13] In re Karumari China Mallayya A.I.R. 1948 Mad 324
[14] Birey Singh v. State 1951 All
[15] State v. Balchand A.I.R. 1960 Raj 101
[16] Madi Ganga v. State of Orissa 1981 Cr LJ 628 SC
[17] Ram Singh v. State of U.P. A.I.R. 1967 SC 152
[18] A.I.R. 2003 SC 666
[19] Kanan v. State of Kerala A.I.R. 1979 SC 1127
[20] Kashmira Singh v. State of M.P. A.I.R. 1952 SC 159
[21] Emperor v. Har Piari, A.I.R. 1926 All, 737.
[22] Sita Ram v. State (1966) Supp. S.C.R. 265
[23] Queen-Empress v. lagrup, I.L.R (1885) 7 All. 646
[24] Ramesh Chandra Mehta v. State of West Bengal, A.I.R 1970 S.C. 940
[25] Rajan Johnsonbhai v. State of Gujarat, 1997 Cr. L.J. 3702 (Guj.)
[26] In Re: Adham, 1992 Cr. L.J. 2012 (Mad.)
[27] Madaiah v. State, 1992 Cr. L.J. 502 (Karn)
[28] Lal Singh v. State of Gujarat A.I.R 2001 S.C. 746
[29] S.N. Dube v. N.B. Bhoir A.I.R. 2000 S.C. 776
[30] AIR 1990 SC 2140
[31] Mst. Maharani v. Emperor, AIR 1948 All.7
[32] ILR(1985)20 Bom 165.
[33] Ram Singh v. Sonia, AIR 2007 SC 1218 at p. 1224.
[34] AIR 2002 SC 739
[35] Md. Inayatullah v. State of Maharashtra, AIR 1976 SC 483
[36] AIR 1994 SC 2420
[37] AIR 2002 SC 1409
[38] Rangapa Hanamppa v. State, AIR 1954 Bom. 285.
[39] AIR 1952 SC 159

The  author can be reached at: shraddha7@legalserviceindia.com

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Article Comments

Posted by Harmandeep kaur on March 06, 2016
Helpful to great extent....

Posted by kuldeep on December 28, 2015
nice excellently written relevant topic, congratulations !!!

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