EVIDENTIARY VALUE OF

CONFESSION

LAW OF EVIDENCE – I
PROJECT

NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

SUBMITTED BY: ADHITYA SRINIVASAN

ROLL NO: 2008 B.A. LL. B 55

SUBMITTED TO: PROFESSOR SANJAY YADAV

 Evidentiary Value of Confession

TABLE OF CONTENTS

INTRODUCTION 3
OVERVIEW 3

HISTORICAL BASIS 3

LEGISLATIVE INTENT 3

DEFINING CONFESSION 4

STATUTORY FRAMEWORK RELATING TO THE LAW EVIDENCE 6

SECTION 24 6

SECTION 25 7

SECTION 26 9

SECTION 27 9

INCULPATORY AND EXCULPATORY STATEMENTS 11

CONFESSION UNDER THE REPEALED POTA, 2002 13

GENERAL 13

SECTION 32 13

CONCLUSION 15

BIBLIOGRAPHY 16

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 Evidentiary Value of Confession

INTRODUCTION

Overview
In the law of evidence, a confession is a statement by a suspect in crime which is adverse to
that person. Some authorities, such as Black's Law Dictionary, define a confession in more
narrow terms, e.g. as "a statement admitting or acknowledging all facts necessary for
conviction of a crime," which would be distinct from a mere admission of certain facts that, if
true, would still not, by themselves, satisfy all the elements of the offense.1

Historical Basis
This specific form of testimony, involving oneself, has been used as a form of proof in
judicial matters, since at least the Inquisition. The value of confessions, however, are
discussed, and law generally request cross-checking them with objective facts and others
forms of evidence (exhibits, testimonies from witnesses, etc.) in order to evaluate their truth
value. Confessions were first developed in the Roman Catholic Church under the Sacrament
of Penance, where the confession of a sin is considered to be enough to absolve oneself. This
aspect concerning moral guilt has been carried on in various legislative codes, in which a
criminal is considered worse if he does not confess to his crimes.2

Legislative Intent
The term “confession” is nowhere defined in the Evidence Act. All the provisions relating to
confessions occur under the heading of “admission”. This shows the legislative intent of not
distinguishing between an “admission” and a “confession”, so far as at least definition is
concerned. The definition of “admission” as given in Section 17 3 becomes applicable to
confession also. If a statement such as that defined under Section 17 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

1
"Confession (law)." Wikipedia, the Free Encyclopedia. Web. 04 Dec. 2010.
<http://en.wikipedia.org/wiki/Confession_(law)>.
2
Ibid.
3
Section 17 of the Indian Evidence Act, 1872 reads, “17. Admission defined - An admission is a statement,
oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by
any of the persons and under the circumstances hereinafter mentioned.”
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 Evidentiary Value of Confession

crime it will be called a “confession”4. Thus, in terms of the Act, 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.

Defining Confession
The definition of “confession” appearing in Stephen’s DIGEST OF THE LAW OF EVIDENCE is
more or less to the same effect:
“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.”

The Privy Council did not, however, accept this definition for the purposes of the Indian
Evidence Act. Considering the matter in Pakala Narayan Swami v. Emperor5, 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, for example, an
admission that the accused is the owner of and was in recent possession of the knife
or revolver which caused death with no explanation of any other man’s possession.
The definition is not contained in the Evidence Act 1872; and in that Act it would not
be consistent with the natural use of language to construe confession as a statement
by an accused suggesting the inference that he committed the crime.”

One practical effect of this difference between the definition of an admission and a
confession would be that a statement which may not amount to a confession may still be
relevant as an admission. In a case before the Supreme Court6, a person being prosecuted
under the Customs Act told the customs officers that he did not know that the goods loaded in
his truck were contraband, nor were they loaded on his instructions. The court held that the
statement was not a confession, but it did amount to an admission of an incriminating fact

4
Sahoo v. State of U.P., AIR 1966 S.C. 40.
5
AIR 1939 P.C. 47.
6
Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167.
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 Evidentiary Value of Confession

[namely, loading of contraband material] and was, therefore, relevant under Section 17. As an
admission it would not suffer from the handicap of being made to a police officer or a person
in authority. Acting on this, the Supreme Court held that entries in the diary of a person
mentioning the names of certain persons as the recipient of money were not relevant against
them but as between Jain Brothers they were relevant as admissions under Section 18 7 as the
statements of an agent who was authorised to make the payments.8

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.9 Where the
statements of the accused showed that he joined an assembly when it had already decided to
chase the victim and finish him and question was whether the statement amounted to a
confession, THOMAS, J., of the Supreme Court stated the law as follows10:
“The test of discerning whether a statement recorded by a judicial magistrate under
Section 164, Cr.P.C., is confessional, is not by dissecting the statement into different
sentences and then to pick out some as not inculpative. The statement must be read as
a whole and then only the court should decide whether it contains admissions of his
inculpatory involvement in the offence. If the result of that test is positive then the
statement is confessional, otherwise not. ”

7
Section 18 of the Indian Evidence Act, 1872, reads, “18. Admission by party to proceeding or his agent; by
suitor in representative character; by party interested in subject-matter; by person from whom interest
derived - Statements made by a party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are
admissions. By suitor in representative character - Statements made by parties to suits suing or sued in a
representative character, are not admissions, unless they were made while the party making them held that
character.
Statements made by -
(1) by party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject
matter of the proceeding and who make the statement in their character of persons so interested; or
(2) by person from whom interest derived; persons from whom the parties to the suit have derived their interest
in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the
persons making the statements.”
8
CBI v. V.C. Shukla (1998) 3 S.C.C. 410.
9
State of Haryana v. Rajinder Singh, (1996) 8 SCC 77.
10
Lokeman Shah v. State of West Bengal, AIR 2001 S.C. 1760 at 1763-1764.
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 Evidentiary Value of Confession

STATUTORY FRAMEWORK RELATING TO THE LAW OF

EVIDENCE

Section 24
Confession caused by inducement, threat or promise, when irrelevant in criminal
proceedings- “A confession made by an accused person is irrelevant in a criminal
proceeding, if the making of the confession appears to the Court to have been caused by any
inducement, threat or promise having reference to the charge against the accused person,
proceeding from a person in authority and sufficient, in the opinion of the Court, to give the
accused person grounds, which would appear to him reasonable, for supposing that by
making it he would gain any advantage or avoid any evil of temporal nature in reference to
proceeding against him”.

To attract the provisions of Sec 24, the following facts must be established
(a) The confession must have been made by an accused person in authority
(b) It must appear to the court that the confession has been caused by any reason of
inducement, threat or promise proceeding from a person in authority
(c) The inducement, threat or promise must have reference to the charge against the accused
person
(d) The inducement, etc. must be such that it would appear to the Court that the accused, in
making the confession, believed that he would by making it, gain any advantage or avoid any
evil of a temporal nature in reference to the proceedings against him.

In view of the recent trends of crime in Indian Society, this section needs a revamp. The
criminals in lieu of this section have gotten free. Also, this section should be reworded so as
to include inducement as an option to the accused to confess to the crime committed by him.
A provision should be made that if the person confesses to his crime then the inducement
given by a person in authority should fulfill that.

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 Evidentiary Value of Confession

The inducement should be made a legal one and an obligation to be fulfilled by the authority.
That would tempt the accused to confess the crime and would severely lessen the burden of
the courts.

As it is the concept of plea bargaining has been reinvigorated in the Indian Criminal System
with an amendment in the Criminal Procedural Code. With inducement as an option being
allowed in case of confessions, this with plea bargaining would help in clearing the
tremendous backlog of criminal cases which exist in our legal system.

Most of the criminals are forced to take up crime. If they are induced in a way in which their
families are promised work and food, they may be inclined to confess their crimes as it will
be an advantage to them and their family. Also this provision should include the option of
reduction of punishment if the accused confesses the crime or if the accused return back the
stolen goods. This would act as a tempting offer for the accused and more confessions would
take place as it would be advantageous for the criminals to confess.

This promise or inducement should be made a legal obligation for the person in authority. To
prevent abuse by the police officers of this provision, “person in authority” should not
include police officers. It should comprise of magistrates, civil servants, etc.

Even though confession because of inducement or promise should be made legal, care must
be taken to prevent torture of the prisoners by the police officers or persons in authority. No
confession should be allowed which is taken through threat and violence. Thus, this provision
should be amended in such a manner which would make confession due to a valid and legal
inducement or promise legal, but confession due to threat and violence illegal and irrelevant.

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.”

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 Evidentiary Value of Confession

The object of this rule is to prevent the extortion of confessions by police officers who in
order to gain credit by securing convictions go to the length of positive torture.

A series of conflicting suggestions as to the rational underlying this inflexible statutory bar
emerges from the decided cases:
(1) An objective and dispassionate attitude cannot be confidently expected from police
officers.
(2) The privilege against self incrimination has been thought to lie at the root of the principle.
(3) Importance has been attached to the discouragement of abuse of authority by the police
that could erode the fundamental rights of the citizen.

Section 25 is an inflexible and a very wide provision disallowing any confessional statement
made to a police officer.
This provision needs to be made a little flexible. Some confessions should be allowed to be
proved against a person accused of any offence which are made to a police officer. Where a
person is a proclaimed offender, confessions made by the accused to the police officer should
be allowed. The provision should be reworded in such a manner where the confessional
statements made by a proclaimed offender to a police officer should be made relevant but
these statements are to be made by the accused without any threat or violence.

Care must be taken to stop the torture by the police officers to extract confession but
confessions made by an accused who is a proclaimed offender to a police officer without
threat or violence being committed on the accused by the police officer should be made valid.

The rationale behind allowing confessions of a proclaimed offender is that, these criminals
already have a history of committing crimes and they should not enjoy the immunity given to
a common man that any confessional statement given to a police officer is not valid. These
are dangerous criminals who should not be allowed to go scot-free due to a provision of law
but be put behind bars and save the society from crimes.

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 Evidentiary Value of Confession

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.”

This section will come into play when the person in police custody is in conversation with
any person other than a police officer and confesses to his guilt. The section is based on the
same fear, namely, that the police would torture the accused and force him to confess, if not
to the police officer himself, at least to someone else.

This section should also be reworded as suggested in section 25 above. Confession by

accused while in police custody should be held valid in case the accused is a proclaimed
offender except unless the confession is made by the use of force or threat.

The rationale is the same i.e. in criminal cases, the public interest lies in prosecuting
criminals and not compromising with them. Thus, proclaimed offenders should not be
allowed to take advantage of the law. Section 26 which recognizes one exception that is, if
the accused confesses in the immediate presence of a Magistrate, the confession will be valid
should not be changed. It should be kept as it is.

Section 27
How much of information received from accused may be proved- “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 information (whether it amounts to
confession or not) as relates distinctly to the fact thereby discovered, may be proved.”

Section 27 is founded on the principle that if the confession of the accused is supported by a
discovery of a fact, it may be presumed to be true and not to have been extorted. The section
is quite apparently laid out as a proviso or an exception to the preceding section which deals
with confessions in police custody and other involuntary confessions. Thus it seems that the
intention of the legislature is that all objections to the validity of that part of the statement are

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 Evidentiary Value of Confession

washed off which leads to the discovery of an article connected with the crime. Whether such
a statement proceeds out of inducements, threats or torture are absolutely immaterial.

This provision is liable to abuse by the police officers. With a view to finish of cases, police
officers can subject the accused to torture and then plant evidence so as to proclaim the
accused as guilty. This provision should be amended. The discovery of fact as purported by
this section should be made in front of two witnesses so that there could be no planting of
evidence done. This should be included in substantive law, irrespective of the fact that it
exists in procedural law.

Also, the statement of the accused which has lead to the discovery of a relevant fact would be
invalid if it had been taken because of extortion, threat or torture. The accused should sign a
document stating whether any fact discovered is not due to extortion or threat. The accused
can be induced only if it is a valid and legal inducement.

After all these steps, the accused gives a statement which leads to the discovery of a relevant
fact, then the whole statement should be made relevant rather than only the statement which
lead to the discovery of the fact. The accused should, after making the statement and the
police discovering the relevant fact stated in the statement, again sign a document purporting
that he has made the signature and seen what has been discovered from his statement. A
District Judge/Metropolitan Judge should be present as in when the accused signs the
statement.

It should be made mandatory that all these provisions are read out to the accused as soon as
he is arrested. This would help knowing the accused of his rights and he wouldn’t be unaware
and act accordingly.

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 Evidentiary Value of Confession

CONFESSIONS CARRYING INCULPATORY & EXCULPATORY STATMENTS

The Supreme Court, in its decision in Palvinder Kaur v. State of Punjab11 approved the Privy
Council decision in Pakala Narayan Swami v. Emperor12, over two scores. Firstly, that the
definition of confession 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.

Case:
Palvinder was on trial for the murder of her husband along with another whom all
the time remained absconding. The husband’s body was recovered from a well after it
had already suffered about two month’s decomposition. The post mortem could not
even reveal whether death was due to poisoning or what. In her statement to the court
the accused said that her husband, a hobbyist photographer, used to keep handy
photo developing material which is quick poison; that on the occasion he was ill and
she brought him some medicine; that the phial of medicine happened to be kept
nearby the liquid developer and the husband while going for the medicine by mistake
swallowed the developed and died; that she got afraid and with the help of the
absconding accused packed the body in a trunk and disposed it off into the well.

The statement thus consisted of partly guilty and partly innocent remarks. It was partly
inculpatory in the sense that it confessed to something wrong and partly exculpatory in the
sense that it confessed to something wrong and partly exculpatory in the sense that if
accepted it would totally absolve her of any guilt. The lower courts sorted out the exculpatory
part and acting on the inculpatory part announced her to be guilty of murder of her husband
by poisioning him. But the Supreme Court did not countenance this approach:
“The court thus accepted the inculpatory part of the statement and rejected the
exculpatory part. In doing so it contravened the well-accepted rule regarding the use
of confession and admission that they must either be accepted as a whole or rejected
as a whole and that the court is not competent to accept only inculpatory part, while
11
AIR 1952 SC 354.
12
Supra Note 3.
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 Evidentiary Value of Confession

rejecting exculpatory part as inherently incredible. Reference in this connection may

be made to the observation of the Full Bench of the Allahabad High Court in
Emperor v. Balmukand13 with which we fully concur. The confession there 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 the
latter exculpatory, the question referred to the Full Bench was: Can the Court if it is
of the opinion that the inculpatory part commands itself, and the exculpatory part is
inherently incredible, act upon the former and refuse to act upon the latter? The
answer to the reference was that where there is no other evidence to show
affirmatively that any portion of the exculpatory element in the confession is false, the
court must accept or reject the confession as a whole and cannot accept only the
inculpatory element while rejecting the exculpatory element as inherently
incredible.14”

13
ILR (1930) 52 All 1011. The decision of the Supreme Court in Hanumant v. State of M.P. AIR 1952 S.C. 343.
14
Followed in Bhagwan Singh v. State of Haryana, AIR 1976 S.C. 1797.
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 Evidentiary Value of Confession

CONFESSION UNDER THE REPEALED PREVENTION OF TERRORISM

ACT, 2002

General
The Prevention of Terrorist Activities Act (POTA) was an anti-terrorism legislation
enacted by the Parliament of India in 2002. The act replaced the Prevention of Terrorism
Ordinance (POTO) of 2001 and the Terrorist and Disruptive Activities (Prevention)
Act (TADA) (1985-95) and was supported by the governing National Democratic Alliance.
The act was repealed in 2004 by the United Progressive Alliance coalition. The bill was
defeated in the Rajya Sabha or the upper house by 113-98[1] but was passed in a joint session
as the Lok Sabha has more seats. It was the only the third time when a bill was passed by a
joint session of both houses of parliament. 15 The act provided the legal framework to
strengthen administrative rights to fight terrorism within the country of India and was to be
applied against any persons and acts covered by the provisions within the act. It was not
meant as a substitute for action under ordinary criminal laws.16

Section 32
32. Certain confessions made to police officers to be taken into consideration.-
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872),
but subject to the provisions of this section, a confession made by a person before a police
officer not lower in rank than a Superintendent of Police and recorded by such police officer
either in writing or on any mechanical or electronic device like cassettes, tapes or sound
tracks from out of which sound or images can be reproduced, shall be admissible in the trial
of such person for an offence under this Act or the rules made thereunder.
(2) A police officer shall, before recording any confession made by a person under sub-
section (1), explain to such person in writing that he is not bound to make a confession and
that if he does so, it may be used against him:
Provided that where such person prefers to remain silent, the police officer shall not compel
or induce him to make any confession.

15
"Prevention of Terrorist Activities Act." Wikipedia, the Free Encyclopedia. Web. 05 Dec. 2010.
<http://en.wikipedia.org/wiki/Prevention_of_Terrorist_Activities_Act
16
Ibid.
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 Evidentiary Value of Confession

(3) The confession shall be recorded in an atmosphere free from threat or inducement and
shall be in the same language in which the person makes it.
(4) The person from whom a confession has been recorded under sub-section (1), shall be
produced before the Court of a Chief Metropolitan Magistrate or the Court of a Chief Judicial
Magistrate along with the original statement of confession, written or recorded on mechanical
or electronic device within forty-eight hours.
(5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the
statement, if any, made by the person so produced and get his signature or thumb impression
and if there is any complaint of torture, such person shall be directed to be produced for
medical examination before a Medical Officer not lower in rank than an Assistant Civil
Surgeon and thereafter, he shall be sent to judicial custody.

In People’s Union for Civil Liberties and Anr. v Union of India,17 the Hon’ble Supreme Court
observed as follows:
“In the context of terrorism the need for making such a provision so as to/enable Police
officers to record the confession was explained and upheld by this Court in Kartar
Singh's case. We need not go into that question at this stage. If the recording of confession
by police is found to be necessary by Parliament and if it is in tune with the scheme of law,
then an additional safeguard under Section 32(4) and (5) is a fortiori legal. In our
considered opinion the provision that requires producing such a person before the
Magistrate is an additional safeguard. It gives that person an opportunity to rethink over his
confession. Moreover, the Magistrate's responsibility to record the statement and the enquiry
about the torture and provision for subsequent medical treatment makes the provision safer,
it will deter the police officers from obtaining a confession from an accused by subjecting
him to torture.”

17
(2004) 9 SCC 580.
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 Evidentiary Value of Confession

CONCLUSION

During the course of this project, a detailed effort was made to study the various provisions
relating to confession and their value in trial as a piece of evidence. Towards this, a study was
made into sections 24, 25, 26 & 27. Additionally, a perusal was made of section 32 of the
now repealed Prevention of Terrorism Act, 2002 which made confessions to police officers
admissible as evidence.

The concept of confession which existed since time immemorial needs serious help. The
provisions of evidence relating to confession which was passed way back in 1872 needs a
serious revamp to come into terms with backlog of criminal cases in India. The Evidence Act
1872 needs to be changed considerably specially in case of confessions so as to increase the
expediency of the criminal trials as to bring back the faith of the judiciary by expedient
disposing of Criminal Cases.

The Hon’ble Supreme Court itself upheld the POTA legislation notwithstanding that civil
society proclaimed it to be a draconian legislation. In truth it was merely a betterment of the
then existing TADA, 1987. The reasoning applied by the Court in defence of POTA was that
POTA was a very special legislation that was necessary to fend off terrorism in the country
and to protect national security. Under such circumstances, it was important the rules of
evidence be moulded to accommodate a differentiated confession.

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. In view 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”.

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BIBLIOGRAPHY

Books

 Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, Y. V. Chandrachud, V. R.

Manohar; RATANLAL & DHIRAJLAL'S THE LAW OF EVIDENCE (Act I of 1872), 19th Ed.,
Wadhwa and Co., 1997

 BATUK LAL’S LAW OF EVIDENCE IN INDIA, 4th Ed., Orient Publishing Co., 1999

 Avatar Singh, PRINCIPLES OF THE LAW OF EVIDENCE, Central Law Publications,

Allahabad, Rep. 2008

 PSA PILLAI’S CRIMINAL LAW, Lexis Nexis Butterworths Nagpur, 10th Ed. 2008

Websites

 www.manupatra.com

 www.indiankanoon.com

 www.indlaw.com

 www.legalserviceindia.com

 http://www.scribd.com/doc/3936103/The-law-of-Confession

Others

"Confession (law)." Wikipedia, the Free Encyclopedia. Web. 04 Dec. 2010.

<http://en.wikipedia.org/wiki/Confession_(law)>.

"Prevention of Terrorist Activities Act." Wikipedia, the Free Encyclopedia. Web. 05 Dec. 2010.
<http://en.wikipedia.org/wiki/Prevention_of_Terrorist_Activities_Act

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