The term “confession” is nowhere defined in the Evidence Act. All provisions relating to confessions occur under the heading of “admission”. If a statement is made by a party to a Civil proceeding it will be called an “admission” and if it is made by a party charged with a crime it will be called a “confession”. A confession is a statement made by a person charged with a crime suggesting an inference as to any facts in issue or as to relevant facts. The inference that the statement should suggest should be that he is guilty of the crime.
Stephen defined “Confession” as: A 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.
A confession is a direct acknowledgment of guilt, on the part of the accused, and by the very force of the definition excluded an admission which of itself as applied in Criminal Law, is statement by the accused direct or implied, of facts pertinent to the issue, and tending in connection with a proof of other facts to prove his guilt but of itself is insufficient to authorise a conviction.
The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession and where some supplementary evidence is needed to authorise a conviction, then it is an admission. An other 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.
Only voluntary and direct acknowledgment of guilt is confession. In a statement recorded by the Magistrate, the accused did not admit his guilt in terms and merely went on stating the fact of assault on the deceased by mistake. The Supreme Court held that such statement could not be used against the accused as a Confession. A statement which may not amount to a confession may still be relevant as an admission.
The definition attempted by the Privy Council has found favour with the Supreme Court in Pakala Narayan Swami v. Emperor over two scores. Firstly, that the definition is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence, and secondly, that a mixed up statement which, even though contains some confessional statement, will still lead to acquittal, is no confession.
The confession comprised of two elements :
(a) an account of how the accused killed the woman and
(b) an account of his reasons for doing so.
The former elements being inculpatory and latter exculpatory. In Aghnoo Nagesia v. State of Bihar when a statement in FIR given by an accused contains incriminating materials and it is difficult to sift the exculpatory portion therefrom, the whole of it must be excluded from evidence.
Forms of Confession
A confession may occur in any form. It may be made to the court itself, when it will be known as judicial confession or to anybody outside the court, in which case it is called an extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another.
Judicial confessions are those which are made before a magistrate or in court in the due course of legal proceedings. A is accused of having killed G. He may, before the trial begins confess the guilt before some magistratae who may record it in accordance with the provisions of Section 164, Cr.P.C. At the committal proceedings before the magistrate or at the trial before Session Judge, A may confess his guilt. All these are Judicial confessions. A judicial confession has been defined to mean “plea or guilty on arrangement (before a tribunal) if made freely by a person in a fit state of mind.”
Extra Judicial Confession
Extra Judicial confessions are those which are made by the accused elsewhere than before a magistrate or in court. An ‘extra Judicial Confession’ can be made to any person or to a body of persons. 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. 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.”
An unambiguous extra judicial confession has got value of high probability because this type of confession is made by that person who had committed the crime and it will be taken into consideration if it is free from doubt and its untruthfulness is free from any doubt. But for confession made about charge in question the court has to satisfy itself that the confession voluntary and the confessions should not have been caused by inducement, threat or promise of the confession should not have been taken under the circumstances which came under perview of Sec.25 or 26.
Before accepting the extra judicial confession, it should be seen that it is not made under unfair or colleteral notions. For this the court has to enquire all the relevant facts, such as to whom the confession was made, the time and place of making confession and the phraseology used by the accused.
Section 24. 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 th 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 m aking it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him.
Principle underlying Section 24
The ground upon which confessions are received in evidence is the presumption that no person will voluntarily make a statement which is against his interest unless it be true. But the force of the confession depends upon its voluntary character. There is always a danger that the accused may be led to incriminate himself falsely.
Voluntary and non-voluntary confession
The confession of an accused may be classified as voluntary and non-voluntary. A confession to the police officer is the confession made by the accused while in 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 charge 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 supposing that by making ti 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.
Confession irrelevant– If a confession comes within the four corners of Section 24 it is irrelevant and cannot be used against the maker.
The ingredients of Section 24— To attract the prohibition enacted in Section 24 the following facts must be established :
(1)That the statement in question is a confession,
(2)that such confession has been made by the accused,
(3)that it has been made to a person in authority,
(4)that the confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority,
(5)such inducement, threat or promise must have reference to the charge againt the accused, and
(6)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 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.
(A)Confession caused by inducement, threat or promise — The term of 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. Before a confession can be received as such, it must be shown that it was freely and voluntarily made. Thus it is clear that if threat or promise from a person in authority is used in getting a confession it will not be taken into evidence.
(B)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. 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.
(C)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. Mere exhortation to speak the truth in name of God cannot in itself amount to an inducement.
(D)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 (and not the court) reasonable for supposing that by making the confession he would gain an advantage or avoid an evil of the nature of contemplated in the section. Consequently the mentality of the accused has to be judged and not that of the person in authority.
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.
The principle upon which the rejection of confession made by an accused to a police officer or while in the custody of such officer is found 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. The police officer in order to secure conviction in a case very often puts the person so arrested to severe torture and makes him to confess a guilt without having committed it and when such steps are taken there is impunity for the real offender and great encouragement to crime. Section 25 lays down that no confession made to a police officer shall be proved as against person accused of an offence.
It must be borne in mind that Section 25 of the Evidence Act excludes only confessions. All statements that do not amount to confessions are not excluded by Section 25 of the Evidence Act and can be brought on record and proved against any accused.
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 custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
The object of Section 26 of the Evidence Act is to prevent the abuse of their power 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 Magistrate.
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.
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. This section 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.
Section 26 and 27 compared
Though the section is in the form of a proviso to Sec.26, these two sections do not deal with evidence of the same character. Section 26 bans confession to police altogether, but S. 27 lets in a statement which leads to a crucial discovery whether it amounts to confession or not. Under Section 26 a confession made in the presence of a Magistrate is wholly provable, whereas Section 27 permits only the part of the statement which leads to the discovery of fact. The scope of the section was explained by the Privy Council in Pulukari Kotaya v. Emperor.
A number of accused persons were prosecuted for rioting and murder. Some of them were sentenced to death and some to transportation for life. They appealed to the Privy Council on grounds, among others, that the statements of some of them were admitted in violation of Section 26 and 27. The statement of one of them was : “About 14 days ago I, Kottaya, and people of my party lay in waitfor Sivayya and others…. We all beat Sivayya and Subayya to death. Ramayya who was in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and my stick in the rick of my village. I will show if you come. We did all this at the instance of Pulukuri Kottya”. Another accused said : “I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place”. The relevant articles were produced from their respective places of hiding.
The High Court admitted the whole of the above statement. High Court held that unless the whole of the statement is admitted, it would be difficult to connect the articles produced with the offence, the only connecting link being the confession statement.
The Privy Council pointed out that the case was wrongly decided. The result of the decision was to read in Section 27 something which is not there and admit in evidence a confession barred by Section 26.
Explaining the relationship between Section 26 and 27 and the bar imposed by Section 26, their Lordship said : That ban was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, the ban will lose its effect. On normal principles of construction their Lordships think that the proviso to Section 26 added by Section 27, should not be held to nullify the substance of the section. In their Lordship’s view it is fallacious to treat the “fact discovered” as equivalent to the object produced; the fact discovered embraces the place from which the object is produced ant the knowledge of accused as to this, and the information given must relate distinctly to this fact. Information as to the past use of the object produced is not related to its discovery. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knief. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is concealed in the house of the informant to his knowledge, and if the knief is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words are added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knief in the house of the informant.
Explaining the scope of the section in general terms, their Lordships observed : “Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be 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. Normally the section is brought into operation when a person in police custody produces from some place of concealment some object, such as, a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.”
Referring to the facts of the case their Lordship held that the whole of statement except the passage, “I hid it(a spear) and my stick in the rick in the village. I will show if you come” is inadmissible. Referring to the statement of the other accused, that “I stabbed Sivayya with a spear. I hid the spear in a yard of my village. I will show you the place,” their Lordships held that the first sentence must be omitted.
In Bodh Raj v. State of J & K. it was held that only the information that definitely relates to the facts discovered is admissible. But the information should not be truncated in such manner as to make it insensible. The information must be recorded. Where it is not recorded, the exact information must be adduced through evidence.
In State of Karnataka v. David Razario, it was held that the articles proved to have been stolen by the accused were of very small value, articles of higher value remained untouched in the house of the deceased, whether this could be exculpatory circumstance in a charge of murder with robbery, or whether such evidence could be sole basis of conviction, question left unanswered.
In Pandurang Kalu Patil v. State of Maharashtra, it was held that where the accused disclosed : “I have kept the firearm concerned behind the old house under a heap of wood”. The same was recovered from the place. The court said that the fact discovered was not the gun but the fact that the accused had concealed it at the place from where it was found according to his disclosure.
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 because it 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.
Section 29 lays down that if a confession is relevant, that is if it is not excluded from being proved by any other provisions of Indian Evidence Act, it cannot be irrelevant 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 be used against him.
Section 29 lays down that if a confession is not excluded by section 24.25 or 29 it will not be excluded on the ground of the promise of secrecy or of deception or of being drunk, or for being made in answer to question or without that it will be used against him in evidence.