CONFESSION UNDER INDIAN EVIDENCE ACT, 1872- A CRITIQUE

Shaheen Banoo1*

ABSTRACT

“A confession, if freely and voluntarily made, is evidence of the most satisfactory

character.”

-Eyre C. B.

Confession plays a pivotal role in the pursuit of a criminal trial, the foundation of which rests
on truth and accuracy. It is an acknowledgement of guilt by the accused. The truthfulness of
the confession runs in favour of the accused, as the logical fallout dictates that it flows from
the strongest sense of guilt, thus, must be given the highest credit. Hence, confession plays a
decisive role in the determination of the trail. A confession could take many forms viz.,
judicial confession, retracted, and an extra-judicial confession. Thus, it is indispensable for
the courts to examine the admissibility of such confession to rule out the possibility of smeary
evidence being presented in the court of law.

This essay attempts to analyse the evidentiary value of the confession made by the accused.
under the Indian Evidence Act, 1872. The conundrum about the extent of the statements made
before the police that can be operated against the accused to determine the conclusiveness of
confession made by the accused has been addressed withal.

Keywords: Confession, Evidentiary Value, Statements, Police, Indian Evidence Act, 1872

1
* Shaheen Banoo, 4th Year Student, B.A. LL.B.(Hons.), Symbiosis Law School, Pune, Symbiosis International
University.

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 INTRODUCTION

“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.”

– Justice Stephen (Digest of the Law of Evidence)2

Confession conspicuously adds impetus in the determination of criminal trials. It is not

explicitly defined under the Indian Evidence Act and appears under the heading of admission.
As per Lord Atkin, a confession must admit in terms the guilt or appreciably all the facts vis-
a-vis the offence.3 However, admission of a gravely incriminating fact is not, per se, a
confession.4

It is an uncontested fact that confession should be used as a corroborative piece of evidence,

thus, confession cannot be considered as the sole basis for a conviction.5 However, the court
has to deal with a unique set of problems coupled with confessional evidence. It is pertinent
to note that confessional statements have powerful probative value that could afford the
investigating wing an opportunity for fabrication and deploying unjust means to obtain
confessions resulting in the mistreatment of the subject.6

Confession: Meaning & Statutory Provisions

The Indian Evidence Act deals with confession from Section 24 to Section 30. Further,
confession is dealt under Section 164, 281 and 463 of the Code of Criminal Procedure,
1973.7 A confession is an admission or acknowledgment of the offence by the accused.
Section 24 of the Indian Evidence Act refers to the relevancy of a confession and it here that
the term confession appears for the first time in the Act. 8 Therefore, confession implies
acceptance of statements proving the guilt of the accused and it takes many forms viz.,
judicial confession, extra-judicial confession, formal and retracted confession et cetera.

2
Arya & Shivshankar, Study on Confession under Indian Evidence Act, 1872, INTERNATIONAL JOURNAL OF
PURE AND APPLIED MATHEMATICS ISSN: 1314-3395, Volume 120, No. 5, 2018.
3
Pakala Narayan vs. Emperor, (1939) 41 BOMLR 428.
4
Palvinder vs. State of Punjab, 1952 SCR 94.
5
Anushka, Confession, LAW TIMES JOURNAL, 2019.
6
Richard May, Admissibility of Confessions: Recent Development, JOURNAL OF CRIMINAL LAW: SAGE
JOURNALS, 1991.
7
Confession under Indian Evidence Act, (March 27, 2020),
http://www.legalservicesindia.com/article/1547/Confession-under-Indian-Evidence-Act.html.
8
Supra note 5.

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However, it should be emphasized that confession is the subset of admission and they are not
one and the same; the former goes into criminal proceedings and the latter into civil
proceedings. Further, presumption as to confessional statements runs that an accused would
not admit untrue statements as it always go against the person making it, thus, confession is
regarded as the best form of evidence.9

Forms of Confession

(i) Judicial Confession: Meaning & Statutory Provisions

Judicial confessions as the name evince are the confession that is recorded in the presence of
a magistrate or made in the court as prescribed by the law. The evidentiary value of judicial
confession is governed by Section 80 of the Indian Evidence Act; whereby if the confession
is made in the presence of a magistrate or in the court recorded by the magistrate in the due
course of legal proceedings, then such confession shall be presumed to be true and genuine
confession upon which the accused can be duly tried.10

Under Section 164 of CrPC magistrate is empowered to record the confession of the accused
thereby establishing that recording of confessions is an exclusive domain of the judiciary and
the executive lacks authority to record confessions.11

(ii) Extra Judicial Confession: Meaning & Evidentiary Value

Confessions that are made by the accused elsewhere in the absence of a magistrate or in the
court is considered as an extra-judicial confession.12 A free and voluntary confession of guilt
when done during a conversation with any person other than a magistrate is termed as an
extra-judicial confession as against plea of guilty on an arrangement which is made before a
court by the person in a fit state of mind.13 Therefore, the extra-judicial confession lacks
evidentiary value as against judicial confession.

9
Supra note 1.
10
Diva Rai, Confessions under the Indian Evidence Act, IPLEADERS BLOG, (March 27, 2020)
https://blog.ipleaders.in/confessions-under-the-indian-evidence-act/#Judicial_confession.
11
Shaheen Banoo, Analysing Section 164 of CrPC vis-a-vis Smt Seema Devi vs. State of U.P. 2016, (March 27,
2020), https://www.juscholars.com/post/analysing-section-164-of-crpc-vis-a-vis-smt-seema-devi-vs-state-of-u-
p-2016.
12
Supra note 9.
13
Extra Judicial Confession, SCC ONLINE BLOG, (March 27, 2020),
https://www.scconline.com/blog/post/tag/extra-judicial-confession/

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 Relevancy and Admissibility of Judicial and Extra Judicial Confession

The relevancy and admissibility of judicial and extra-judicial confession are dealt under
Section 24 to section 27 of the Indian Evidence Act.14

As per Section 24 if the court is of the view that the confession has been made by
inducement, threat, or promise concerning the charge that the accused person faces to having
some advantage to escape evil of a temporal nature vis-a-vis proceedings against him at the
instance of a person in authority or sufficient, then such confession would be irrelevant in the
court of law.15

Therefore, the following circumstances are essential under Section 24:-

1. The confession must not be made out of inducement, threat or promise, etc.16
2. Confession should relate to a charge in question upon the accused.17
3. It must proceed on the instance of a person in authority or sufficient.18
4. Should provide sufficient temptation of escape from evils of temporal nature.19

Primarily it is regarded that judicial confession could be relied upon for a conviction whereas
it is not prudent to base conviction moving from extra-judicial confession as laid down in
Balwinder Singh vs. State of Punjab.20 The rationale behind this jurisprudence lies in the
rationale that extra-judicial confession requires support of other supporting evidence as held
in Pakkirisamy vs. State of TN.21

However, reliance can be placed on judicial confession as proof of guilt if the same is made
voluntarily and appears true to the court as held by the Supreme Court in Narayan Singh &
Ors vs. State Of M.P.22

14
Indian Evidence Act, 1872, Sections 24to 27.
15
Dr. M. Sarda, Extra Judicial Confession – Relevancy and Admissibility: A Study, (March 27, 2020),
http://ssrn.com/abstract=2758057.
16
State of Rajasthan vs. Raja Ram, AIR 2003 SC 360.
17
Aloke Nath Dutta vs. State of WB, (2007) 12 SCC 230.
18
S.K. Yusuf vs. State of WB, AIR 2011 SC 2283.
19
AIR 1996 SC 607.
20
Sahadevan vs. State of TN, AIR 2012 SC 2435.
21
AIR 1998 SC 107.
22
1985 AIR 1678.

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 Evidentiary Value of Confession

It is fundamental to note that a confessional statement made before a magistrate by the

accused is considered as a piece of good evidence and conviction can proceed on the basis of
such a confessional statement. However, it is to be noted that the same could be used against
the accused for that would be sufficient to support the conviction. Thus, the confession given
by an accused person is regarded as substantive evidence upon which conviction can
happen.23

The jurisprudence with regards to the evidentiary value of conviction lays down that a
conviction could only proceed on confession when such a confession can be proved to be
made voluntarily and is entirely true; coupled with general corroboration to substantiate the
evidence.

Furthermore, extra-judicial confession is not regarded as a strong piece of evidence,

therefore, requires great caution from the courts as held in State of Karnataka v. A.B.Nag
Raj.24 It requires corroboration which connects the accused with the crime in question.
Additionally, it is not safe to base the conviction on a retracted confession if the same isn't
corroborated by trustworthy evidence. Practice and prudence dictate that retracted confession
shouldn't be made the basis of the conviction unless sufficiently corroborated.25

Statements of the Accused made before the Police

Section 25 of the Indian Evidence Act provides that statements made to a police officer
shall not be considered as a confession vis-a-vis proving of the confession against the person
accused as held in Dagdu v. State of Maharashtra.26 It restricts the court to establish the guilt
of the accused based on the confession made in police custody as laid down in V. Murugan
Ramasay.27

Therefore, Section 26 acts as the safety valve that protects the accused because such
confession is not admissible as evidence until provided to prove the guilt of the accused. It

23
John Getreu, Evidence: Admissibility of Confession, WILLIAM & MARY REVIEW OF VIRGINIA LAW, Volume 1
Issue 2.
24
(1994) ILLJ 851 SC.
25
Analysis Of Various Aspect Of Law Relating To Confessions, INTERNATIONAL JOURNAL OF LEGAL
DEVELOPMENTS AND ALLIED ISSUES, 2017.
26
A.I.R. 1977 S.C. 1579.
27
(1964) 64 C.N.L.R. 265 (P.C.).

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also provides that confessions made to the police officer could be admissible if it is duly
recorded in the immediate presence of a magistrate.28 However, if the statements are not
confessional and does not substantially admits all the facts of the offence, then such a
statement would be inadmissible if made to a policeman.

Therefore, the conundrum arises how far can the statements of the accused made before
the police can be used against the accused? Section 27 comes into play here which provides
that any fact which is discovered in consequence of information given by the accused to the
police officer provided that the discovered fact does not relate with the information provided
may be proved.29

In Pandu Rang Kallu Patil v. State of Maharashtra30 it was held that if the statement made
is distinctly related to the discovery of facts then Section 27 would apply notwithstanding
Section 25 and Section 26.31

SUGGESTIONS & CONCLUSION

The researcher is of the view that there must be adequate rules to ensure that admission of
confession as an evidence should only be permitted if it is accurate and reliable and the same
is not obtained by the mistreatment of the accused. Such measures are necessitated to
safeguard the rights of the accused to obtain reliable statements. Further, the researcher
opines that there exists a conundrum vis-a-vis presumption of the evidentiary value of extra-
judicial confession having a plethora of varying decisions by the court, thus a settled law on
the subject is the need of the hour.

Therefore, the researcher favours the view where jurisprudence dictates permission of
exclusion of confessions obtained by oppression as duly analysed above. The rationale
behind favouring this rule aligns with recognition of the rights of the accused to ensure zero
police brutality and torture to extract a confession by deploying inhumane & unfair means
which often gets unreported under the garb of exercise of authority.

28
Jiby J., Making Confessions in Police Custody Admissible as Evidence is a Terrible Idea, (March 28, 2020),
https://timesofindia.indiatimes.com/blogs/jibber-jabber/making-confessions-in-police-custody-admissible-as-
evidence-is-a-terrible-idea/.
29
Police Diaries and Statements Before the Police, (March 28, 2020), COURTRULEFILE_STQI6VXX.PDF,
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_STQI6VXX.PDF.
30
(2002) 2 SCC 490).
31
P Perera, Admissibility of Confessions in Criminal Proceedings, NATIONAL CRIMINAL JUSTICE REFERENCE
SERVICE, 1977.

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 BIBLIOGRAPHY

BOOKS

1. DR. V. KRISHNAMACHARI, LAW OF EVIDENCE, NARENDRA GODIA AND COMPANY,

HYDERABAD, 7TH ED., (2014).
2. R. V. KELKAR, CRIMINAL PROCEDURE, EASTERN BOOK COMPANY, (5th ed. 2014).
3. RATANLAL & DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS,
(22nd ed. 2017).

JOURNAL

1. Analysis Of Various Aspect Of Law Relating To Confessions, INTERNATIONAL

JOURNAL OF LEGAL DEVELOPMENTS AND ALLIED ISSUES, 2017.
2. Appreciation of Evidence in Criminal Cases, Title NO.37(AS PER WORKSHOP LIST
3. Arya & Shivshankar, Study on Confession under Indian Evidence Act, 1872,
INTERNATIONAL JOURNAL OF PURE AND APPLIED MATHEMATICS ISSN: 1314-3395,
Volume 120, No. 5, 2018.
4. John Getreu, Evidence: Admissibility of Confession, WILLIAM & MARY REVIEW OF

VIRGINIA LAW, Volume 1 Issue 2.

5. P Perera, Admissibility of Confessions in Criminal Proceedings, NATIONAL CRIMINAL
JUSTICE REFERENCE SERVICE, 1977.
6. Richard May, Admissibility of Confessions: Recent Development, JOURNAL OF

CRIMINAL LAW: SAGE JOURNALS, 1991.

CASES

1. Aloke Nath Dutta vs. State of WB, (2007) 12 SCC 230.

2. Anushka, Confession, LAW TIMES JOURNAL, 2019.
3. Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579.
4. Narayan Singh & Ors vs. State Of M.P, 1985 AIR 1678.
5. Palvinder vs. State of Punjab, 1952 SCR 94.
6. Pandu Rang Kallu Patil v. State of Maharashtra, ((2002) 2 SCC 490).
7. S.K. Yusuf vs. State of WB, AIR 2011 SC 2283.
8. Sahadevan vs. State of TN, AIR 2012 SC 2435.
9. State of Rajasthan vs. Raja Ram, AIR 2003 SC 360.

Electronic copy available at: https://ssrn.com/abstract=3669253

 10. V. Murugan Ramasay, (1964) 64 C.N.L.R. 265 (P.C.).

INTERNET DOCUMENTS

1. Diva Rai, Confessions under the Indian Evidence Act, IPLEADERS BLOG, (March 27,
2020) https://blog.ipleaders.in/confessions-under-the-indian-evidence-
act/#Judicial_confession.
2. Dr. M. Sarda, Extra Judicial Confession – Relevancy and Admissibility: A Study,
(March 27, 2020), http://ssrn.com/abstract=2758057.
3. Extra Judicial Confession, SCC ONLINE BLOG, (March 27, 2020),
https://www.scconline.com/blog/post/tag/extra-judicial-confession/
4. Shaheen Banoo, Analysing Section 164 of CrPC vis-a-vis Smt Seema Devi vs. State of
U.P. 2016, (March 27, 2020), https://www.juscholars.com/post/analysing-section-
164-of-crpc-vis-a-vis-smt-seema-devi-vs-state-of-u-p-2016.
5. Jiby J., Making Confessions in Police Custody Admissible as Evidence is a Terrible
Idea, (March 28, 2020), https://timesofindia.indiatimes.com/blogs/jibber-
jabber/making-confessions-in-police-custody-admissible-as-evidence-is-a-terrible-
idea/.
6. Police Diaries and Statements Before the Police, (March 28, 2020),
COURTRULEFILE_STQI6VXX.PDF,
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_STQI6V
XX.PDF.

LEGISLATIONS

1. The Code of Criminal Procedure, 1973.

2. The Evidence Act, 1872.
3. The Indian Penal Code, 1860.

ONLINE DATABASES

1. Manupatra
2. SCC Online
3. Hein Online
4. Google Scholoar

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