EVIDENCE LAW

Project topic:

AIR 1995 SC 980 SHIVAPPA CASE ON CONFESSION

Submitted By
YOGANAND
Roll no. – 1986
2nd Year, 4th Semester, B.A.,LL.B.(Hons.)

Submitted to
DR. MEETA MOHINI
Faculty of EVIDENCE LAW

Chanakya National Law University, Patna

March , 2020

Page 1 of 17
 ACKNOWLEDGEMENT

It’s a fact that any research work prepared, compiled or formulated in isolation is inexplicable
to an extent. This research work, although prepared by me, is a culmination of efforts of a lot
of people.
Firstly, I would like to thank our teacher for the subject of EVIDENCE LAW , DR. MEETA
MOHINI for assisting me with her prudence in accomplishment of this work which relates to
EVIDENCE LAW would like to thank her for he valuable suggestions towards the making of
this project.
Thereafter, I would also like to express my gratitude towards our seniors who played a vital
role in the compilation of this project work.
I cannot ignore the contributions made by my classmates and friends towards the completion
of this project work. And I would also like to express my gratitude towards the library staff of
my college which assisted me in acquiring the sources necessary for the compilation of my
project.
Last, but not the least, I would like to thank the Almighty for obvious reasons.

-Yoganand

Page 2 of 17
 TABLE OF CONTENT

 ACKNOWLEDGMENT. … .. … . … … .. … … … .. … …2
 INTRODUCTION… .. … .. … . … .. … .. … … .. … .. … ..4
 FORMS OF CONFESSION… .. … .. … .. … … .. … .. … .5
 SECTION 24 OF INDIAN EVIDENCE ACT… .. … … .. . 6
 INGREDIENTS OF SECTION 24………………………….6
 EVIDENTIARY VALUE OF CONFESSION. … .. . … .. .. 9
 AIR 1995 SC 980 SHIVAPPA CASE ON CONFESSION .10
 CONFESSION TO POLICE… .. … .. … … … .. … .. … .. 14
 CONFESSION BY THE ACCUSED TO THE POLICE
WHILE IN CUSTODY NOT TO BE PROVED AGAINST
HIM. … . … .. … … … … .. … .. … . … .. … … .. … .. … . 15
 CONCLUSIONS … .. … .. … .. … .. … .. … .. … .. … .. … 16
 BIBLIOGRAPHY… .. … .. … .. … . … .. … .. … .. … .. … 17

Page 3 of 17
 INTRODUCTION

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 Ant time by a person charged with a crime
stating or suggesting the inference that he committed the crime.”

This definition was discarded by the Judicial Committee in Pakala Narayanaswami v.

The King Emperor1Emperor. 1Lord Atkin observed :

"....no statement that contains self-exculpatory matter can amount to confession, if the
exculpatory statement is of some fact which if true would negative the offence alleged
to be confessed.”

However in the case Nishi Kant Jha v State of Bihar 2the 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.

In Hanumant3 case also where an officer was prosecuted for forgery in tampering
with a tender document and , a letter , there was no choice , the confessional statement
being the only evidence on record. The letter in question was typed on a machine
which was purchased by the office much later than the date of the letter , which
showed that letter was deliberately antedated. The explanation of the officer was that
the machine was with them for trial before ultimate purchase. There being no other
evidence to contradict this explanation ,the court held that the statement should be
accepted or rejected as whole . so was true of the Balmukund4case.

But in case of Aghnoo Nagesia vs State Of Bihar5, the S.C. held that “ we cannot
divide the confession into various parts whether it contains both exculpatory
statement and inculpatory statstatment.

1
AIR 1980 PC 40
2
1969 AIR 422, 1969 SCR (1)1033

Page 4 of 17
 FORMS OF CONFESSION

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
maybeproducedinevidenceifoverheardbyanother.Forexample,inSahoov.Stateof U.P3 the
accused who was charged with the murder of his daughter-in-law with whom he was always
quarrelling 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-
Judicial confessions are those which are made before a magistrate or in court in the due
course of legal proceedings.
Extra-judicial confessions- 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 relative 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. In case Rahim Beg.v. State of U.P 7 The supreme
court remarked that an extra –judical confession to afford a piece of reliable must stand the
test of reproduction of exact words , the reason and motive for confession and the person
selected in whom confidence id reposed.
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

3
1966 AIR 40, 1965 SCR(3) 86

Page 5 of 17
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

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 accusedinsuingthanbutbecausehemaybeinducedbypressureofhopeorfeartoconfess.

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 maker4.

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,
4
Indian evidence act

Page 6 of 17
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 theaccused,
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
proceeding 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.
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

Page 7 of 17
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 5 . 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 inauthority. 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.
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

5
1963 AIR 1094, 1963 SCR SUPL. (1) 689

Page 8 of 17
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.

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

Page 9 of 17
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

SHIVAPPA CASE AIR 1995 SC 980

FACTS AND JUDGEMENT OF THE CASE -:

In this case A case was filed against 6 person for murder.

The Judgment of the Court was delivered by DR A.S. ANAND, J.- This appeal, by special
leave, has been filed by Shivappa s/o Bundappa who was Accused 2 in the trial court and
Appellant 2 in the High Court and is directed against the order of the High Court of
Karnataka dated 21-9-1990 upholding his conviction and sentence for the offence
under Section 302 IPC6. The appellant along with Smt Sudha (A-1) and four others were tried
for various offences in connection with the murder of Suresh Singhi on 4-12-1986 at about
3.00 a.m.
2.According to the prosecution case Smt Sudha (A-1) was working as a nurse in the primary
health centre at Ullagaddi Khanapur. She was married to the deceased Suresh Singhi. The
deceased used to live at Belgaum but used to visit his wife, A-1, at Ullagaddi Khanapur,
where she was working, quite often. The appellant Shivappa was working as a health guide at
the primary health centre at Ullagaddi Khanapur. The husband of Sudha was addicted to
drinking and there used to be frequent quarrels between the couple. In order to raise money
for buying liquor, the deceased used to sell household articles, if he could not get cash from
his wife. The deceased also suspected his wife to be having illicit relations with Ramchanda
Hanamant Pujari (A-4) who was working as a basic health worker and with Dr Ashok
Madhukar (A-6), who was working as a Medical Officer at the primary health centre
Ullagaddi Khanapur at the relevant time. The deceased, after consuming liquor, shortly
before the day of occurrence went to the house of A-4 and accusing him of having illicit
relations with his wife (A-1) abused him. He thereafter went to the house of A-6 and abused
him also in the presence of some of his patients accusing him that he was having illicit
relations with his wife. On account of these accusations, the relations between the deceased,
A-1, A-4 and A-6 had become strained. These three accused along with the appellant, A-3
and A-5 used to meet and discuss the behaviour of the deceased. It is alleged that on 10-10-

6
AIR 1995 SC 980

Page 10 of 17
1985, the appellant along with A-4, A-5 and A-6 met in the Gotur Inspection Bungalow and
hatched a conspiracy to do away with the deceased by causing his murder. It was planned that
the murder would be committed during the night and the dead body would be thrown on
Poona-Bangalore Road to give it the complexion of an accident. It was also decided that A-1
would thereafter file a complaint with the police saying that her husband had died in a motor
accident and when the dead body would be brought for postmortem examination before the
Medical Officer, A-6, he would certify that the death had been caused by an accident. On 2-
12-1985, the appellant along with A-1, A-4 and A-5 worked out the plan for committing the
murder of the deceased. On 3-12-1985 the deceased came to visit his wife, A-1 at Ullagaddi
Khanapur. As per the plan in the early hours of the morning of 4-12-1985, A-3 went to the
house of A-1 and asked her to come for a delivery case. A-1 along with her husband
(deceased) and A-3 went towards Henchinal and on the way the appellant, along with A-4
and A-5 met them. A-4 informed A-1 and A-3 that the patient had already delivered the baby
and they could go back to their house. Thereupon, the appellant along with A- 1, A-3, A-4,
A-5 and the deceased proceeded towards Ullagaddi Khanapur. When they had reached near
the footpath leading from Henchinal cross to Ullagaddi Khanapur, the deceased was caught
hold of by A- 1 to A-5. A rope was tied round the neck of the deceased and his wife A-1
pulled the rope thereby causing the death of the deceased. As per the original plan, the dead
body was brought and laid on Poona-Bangalore Road, To lend authenticity to the story of an
accident, A-1 went to the house of PW 2, located nearby, to bring water telling him about the
accident of her husband. Thereafter, she prepared the complaint Exh.
P-52 and went to the police station at 7.15 a.m. and lodged the report with PW 18, the In-
charge of the police station. An FIR in crime Case No. 221/85 for the offence punishable
under Sections 279/304-A IPC and Section 89 of the Motor Vehicles Act was registered on
the basis of the said complaint. The dead body was sent for postmortem examination to A-6.
However, A-6 informed PW 18 that the case being a complicated one, the postmortem
examination may be got done through some other doctor. Consequently, a requisition was
made to the Medical Officer, Primary Health Centre, Daddi to get the postmortem of the dead
body conducted. The investigating officer during the course of investigation recorded the
statements of various witnesses. After the receipt of the postmortem report, which disclosed
that the death had not been caused as a result of injuries received in any road accident, the
viscera of the deceased was sent for chemical examination to Bangalore. After the receipt of
the postmortem report an offence under Section 302 IPC was registered. It was during further
investigation that A-1 volunteered to show the place where offence had been committed and
later on the appellant volunteered to show the place where the rope had been burnt. Both A-1
and the appellant also volunteered to make confessional statements. The investigating officer
PW 25 sent a request report to the Judicial Magistrate, 1st Class, Hukkeri to record the
confessional statements of A-1 and the appellant. The appellant was produced before the
Magistrate on 21-7- 1986 and the Magistrate adjourned the recording of the statement till 22-
7-1986, so that the appellant could reflect in the meantime. The appellant was remanded to
the sub-jail after the Magistrate had recorded preliminary statement of the appellant after
asking him various questions. The confessional statement of the appellant was thereafter
recorded by the Magistrate PW 17 on 22-7-1986. Six weeks later appellant retracted the same
by addressing a communication Ex. D-1 to the Magistrate.
3.The confessional statement of the appellant, recorded under Section 164 CrPC by PW 1'/ on
22-7-1986, was the only piece of evidence on which the trial court relied upon and convicted
the appellant. In the High Court, the submission made on behalf of the appellant that the
confessional statement recorded by PW 17 was neither voluntary nor true and trustworthy
was repelled. The High Court found that the confessional statement, even though retracted at
a later stage, was voluntary and true and held that the trial court had rightly relied upon the

Page 11 of 17
same. Consequently, the conviction and sentence of the appellant for the offence
under Section 302 IPC was upheld. Hence this appeal.
4. We have heard learned counsel for the parties.
5. The only piece of evidence relied upon against the appellant is the confessional statement
recorded by PW 17 on 22-7-1986. A confession, if voluntary and truthfully made is an
"efficacious proof of guilt". It is an important piece of evidence and therefore it would be
necessary to examine whether or not the confession made by the appellant was voluntary,
true and trustworthy. The statutory provisions dealing with the recording of confessions and
statements by the Metropolitan Magistrate and Judicial Magistrates are contained in Section
164 CrPC and the rules framed by the High Court containing guidelines for recording of
confessions. Unless the Court is satisfied that the confession is voluntary in nature, it cannot
be acted upon and no further enquiry as to whether it is true and trustworthy need be made.
6.From the plain language of Section 164 CrPC and the rules and guidelines framed by the
High Court regarding the recording of confessional statements of an accused under Section
164 CrPC, it is manifest that the said provisions emphasis an inquiry by the Magistrate to
ascertain the voluntary nature of the confession. This inquiry appears to be the most
significant and an important part of the duty of the Magistrate recording the confessional
statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such
questions from which he could ascertain the voluntary nature of the confession detracts so
materially from the evidentiary value of the confession of an accused that it would not be safe
to act upon the same. Full and adequate compliance not merely in form but in essence with
the provisions of Section 164 CrPC and the rules framed by the High Court is imperative and
its non- compliance goes to the root of the Magistrate's jurisdiction to record the confession
and renders the confession unworthy of credence. Before proceeding to record the
confessional statement, a searching enquiry must be made from the accused as to the custody
from which he was produced and the treatment he had been receiving in such custody in
order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding
from a source interested in the prosecution still lurking in the mind of an accused. In case the
Magistrate discovers on such enquiry that there is ground for such supposition he should give
the accused sufficient time for reflection before he is asked to make his statement and should
assure himself that during the time of reflection, he is completely out of police influence. An
accused should particularly be asked the reason why he wants to make a statement which
would surely go against his self- interest in course of the trial, even if he contrives
subsequently to retract the confession. Besides administering the caution, warning
specifically provided for in the first part of sub-section (2) of Section 164 namely, that the
accused is not bound to make a statement and that if he makes one it may be used against him
as evidence in relation to his complicity in the offence at the trial, that is to follow, he should
also, in plain language, be assured of protection from any sort of apprehended torture or
pressure from such extraneous agents as the police or the like in case he declines to make a
statement and be given the assurance that even if he declined to make the confession, he shall
not be remanded to police custody.
7.The Magistrate who is entrusted with the duty of recording confession of an accused
coming from police custody or jail custody must appreciate his function in that behalf as one
of a judicial officer and he must apply his judicial mind to ascertain and satisfy his
conscience that the statement the accused makes is not on account of any extraneous
influence on him. That indeed is the essence of a 'voluntary' statement within the meaning of
the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance
of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the
voluntary character of the statement, he should also make and leave such material on the
record in proof of the compliance with the imperative requirements of the statutory

Page 12 of 17
provisions, as would satisfy the court that sits in judgment in the case, that the confessional
statement was made by the accused voluntarily and the statutory provisions were strictly
complied with.
8.From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we
find that though he had administered the caution to the appellant that he was not bound to
make a statement and that if he did make a statement that may be used against him as
evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the
confession was being recorded by him in that capacity nor made any enquiry to find out
whether he had been influenced by anyone to make the confession. PW 17 stated during his
deposition in court: "I have not stated to the accused that I am a Magistrate" and further
admitted: "I have not asked the accused as to whether the police have induced them
(Chithavani) to give the statement." The Magistrate, PW 17 also admitted that "at the time of
recording the statement of the accused no police or police officials were in the open court. I
cannot tell as to whether the police or police officials were present in the vicinity of the
court'.'. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his
deposition recorded in court it is further revealed that the Magistrate did, not lend any
assurance to the appellant that he would not be sent back to the police custody in case he did
not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25
admitted that the sub-jail, the office of the Circle Police Inspector and the police station are
situated in the same premises. No contemporaneous record has been placed on the record to
show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on
21-7-1986 and that the was out of the zone of influence by the police keeping in view the
location of the sub- jail and the police station. The prosecution did not lead any evidence to
show that any jail authority actually produced the appellant on 22-7-1986 before the
Magistrate. That apart, neither on 21-7-1986 nor on 22-7- 1986 did the Munsif Magistrate,
PW 17 question the appellant as, to why he wanted to make the confession or as to what had
prompted him to make the confession. It appears to us quite obvious that the Munsif
Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of
-the confessional statement. The, failure of the Magistrate to make a real endeavour to
ascertain the voluntary character of the confession, impels us to hold that the evidence on the
record does not establish that the confessional statement of the appellant recorded
under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to
ascertain the voluntary nature of the confession has left much to be desired and has detracted
materially from the evidentiary value of the confessional statement. It would, thus, neither be
prudent nor safe to act upon the confessional statement of the appellant. Under these
circumstances, the confessional statement was required to be ruled out of consideration to
determine the guilt of the appellant. Both the trial court and the High Court, which convicted
the appellant only on the basis of the so-called confessional statement of the appellant, fell in
complete error in placing reliance upon that statement and convicting the appellant on the
basis thereof. Since, the confessional statement of the appellant is the only piece of evidence
relied upon by the prosecution to connect the appellant with the crime, his conviction cannot
be sustained.
9.This appeal, consequently, succeeds and is allowed. The conviction and sentence of the
appellant are set aside. The appellant is directed to be released from custody forthwith unless
required in any other case.

Page 13 of 17
 CONFESSION TO POLICE

Section 25- confession to the 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-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 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 7, 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.

Section 25 of the Indian Evidence Act reads as follows:

25. Confession to police officer not to be proved.—No confession made to a police officer1,
shall be proved as against a person accused of any offence.
Arguments in favor of Respondent:
The contention raised by the respondent was that. 25protects only those portions of the
statement which disclose the killings by the appellant and the rest of the statement is not
protected by s. 25.

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
7
AIR 1977 SC 1579

Page 14 of 17
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.

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.

Page 15 of 17
 CONCLUSION
We are the citizens of that prestigious country where a huge importance is given to the human
values. That country is India where it is mandatory to follow principles of natural justice only
for the welfare of people. The main ideology of India is to leave hundred guilty persons but
not to detain any innocent person. Because according to our constitution it is right of every
person to lead a dignified life. So no one can put restriction upon this right. So to detain any
innocent person is unconstitutional as well as against human rights. It is also necessary to
punish guilty persons if we want to reduce crime. And to punish someone it is necessary to
establish the guilt of a person and to prove guilt it is necessary to have some kind of
legislation. India is so lucky because here we have Indian Evidence Act. With the help of
Indian Evidence Act we can prove the guilt of a person. But sometimes a confession is made
by accused person which reduces the burden of judiciary to prove his guilt. But it is necessary
to see whether the confession is voluntarily or not. Because if it is voluntarily then their is no
need to think about it. But if it is involuntarily then we cannot convict the innocent person. It
might be possible that the confession had been made by accused due to some inducement,
threat and promise. So it is necessary to analysis whether the confession is voluntarily made
or not. That was why the confessions under sections 24, 25, 26 are inadmissible. Section 25
and 26 deals with confession made before police officer or made before any person under
police custody. The main purpose behind this is to protect the accused from the torture of the
police. 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.

Page 16 of 17
 BIBLIOGRAPHY

 DR. AVATAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (CENTRAL

LAW PUBLICATIONS, ALLAHABAD,2011)
 A.N. SAHA, SUPREME COURT ON CRIMINAL LAW (Ashoka Law House, New
Delhi,2011)
 DR.JUSTICE AR LAKSHMANAN, CRIMINAL MAJOR ACTS (Universal Law
Publishing, New Delhi, 1stEdition,2012)
 RATANLAL RANCHODDAS AND DHIRAJLAL KESHAVLAL THAKORE,
THE LAW OF EVIDENCE (Wadhwa and Company, Nagpur, 21stEdition, 2004)
 S.S. SARKAR AND RAJIV RAHEJA AND SANJIV RAHEJA, SUPREME
COURT CRIMINAL REFERENCER (Capital Law House, New Delhi,2008)

WEBSITES:-

 www.manupatra.com
 www.indiankanoon.org

Page 17 of 17