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Law of Evidence

Project on

Legality of Voluntary and Involuntary Confession

SUBMITTED TO
Prof. Mr.C.R.SHRIRAM
SUBMITTED BY
M.VISHAL ANAND
BC0150033
B.ComLL.B(Hons)
 Table of Content

1. Introduction
2. Confession
3. Forms of Confession
4. Voluntary Confession
5. The Test of Admissibility of a Confession is its Voluntariness and its truth
6. Involuntary Confession
7. Some Faces of Involuntariness
8. Conclusion
9. Bibliography
Introduction

Confession is a statement made by an accused person which is sought to be proved against

him in criminal proceeding to establish the commission of an offence by him. Confession if
deliberately and voluntarily made may be accepted as conclusive of the matters confessed.
Confessions always go against the person making it. Confessions made by one or two or
more accused jointly tried for the same offence can be taken into consideration against the
co-accused (section 30). Confession is statement written or oral which is direct admission of
suit.

Confession is a species of Admission. Section 24 to 30 deals with Confession. Confession is

a statement made by an accused person admitting that he has committed an offence or all the
facts which constitute the offence. Confession is used only in Criminal proceedings.

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

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

 In Pakala Narayan Swami v Emperor1 Lord Atkin observed

“ A confession must either admit in terms the offence or at any rate substantially all
the facts which constitute the offence. An admission of a gravely incriminating fact,
even a conclusively incriminating fact is not in itself a confession”.
 In the case of Palvinder Kaur v State of Punjab2 the Supreme Court approved the
Privy Council decision in Pakala Narayan Swami case over two scores.
Firstly, that the definition if confession is that it must either admit the guilt in terms or
admit substantially all the facts which constitute the offence. Secondly, that a mixed
up statement which even though contains some confessional statement will still lead
to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter
which if true would negate the matter or offence, cannot amount to confession.
 In the case Nishi Kant Jha v State of Bihar3 the Supreme Court pointed out that
there was nothing wrong or relying on a part of the confessional statement and
rejecting the rest, and for this purpose, the Court drew support from English
authorities. When there is enough evidence to reject the exculpatory part of the
accused person’s statements, the Court may rely on the inculpatory part.

Forms of confession
A confession may occur in any form. It may be made to the court itself, or to anybody outside
the court. In this manner, a confession may be divided into two categories - Judicial
Confession and Extra-judicial Confession.

Judicial Confession -  A judicial confession is a confession that is made in front of a

1
. (1939) 66 IA 66, 81.
2
. AIR 1952 SC 354: 1953 Cri LJ 154.
3
. 1969 AIR 422, 1969 SCR (1)1033.
magistrate or in a court. It may be made in the course of a judicial proceeding.
Extra - Judicial Confession -  An extra-judicial confession is a confession that is made by
the party elsewhere than before a magistrate or in a court. It is admissible in evidence under
Section 21 and it is proved by the witnesses who had heard the speaker's words constituting
the confession.

A confession may even consist of conversation with oneself. For example, in case of Sahoo
vs State of UP, AIR 1966,4 an accused who was charged with murder of his daughter in law
with whom he was always quarreling was seen on the day of the murder going out of the
home saying words to the effect, "I have finished her and with her the daily quarrels.". The
statement was held to be a valid confession because it is not necessary for the relevance of a
confession that it should communicate to some other person.

Voluntary Confession

The word voluntary confession means a confession not caused by inducement, threat or
promise and does not mean a confession made willingly as all confession made I
consequence of inducement threat or promise are made ‘willingly’ in the later sense in the
case of Fatehchand v. Emperor.5 However whether a confessional statement was voluntarily
made or not is essentially a question of fact. In ascertaining the voluntary nature of the
statement different tests will have to be applied to different set off acts. In the very nature of
things, there can be no rigidity about them. What test is best applicable to a given set of facts
is for the judge of facts to decide. If the circumstances throw any doubt on the voluntary
character of a confession the confession must be rejected.

In criminal law, a confession is basically an admission of guilt that is made by the accused
party. A voluntary confession is a confession that is given out of a suspect’s own free will,
and has not been obtained by force, coercion, or intimidation. 

Depending on the state or jurisdiction, courts may use different standards for proving whether
a confession is voluntary or not. For example, some jurisdictions require that the
voluntariness of a confession be proven using a “preponderance of the evidence” standard.
This means that the evidence must show that the statement is more than likely voluntary. On

4
. 1966 AIR 40, 1965 SCR (3) 86.
5
. 26 Cr. LJ. 1313.
the other hand, some states and jurisdictions require a higher standard of proof, such as a
“beyond a reasonable doubt” standard. 

In general, a confession is found to be voluntary if it is “reflects deliberateness of choice” and

is the product of a “free and unconstrained will.” Again, this definition is subject to
modification by the jurisdiction. The determination of voluntariness depends largely on the
facts presented in the case.

Section 24 - Confession caused by inducement, threat, or promise from a person in

authority - Confession made by an accused is irrelevant in a criminal proceeding if the
making of the confession appears to the court to have been caused by inducement, threat, or
promise, made by any person in authority and that in the view of the court such inducement,
threat, or promise gives reasonable ground to the person that by making the confession he
would gain any advantage or avoid any evil of a temporary nature in reference to the
proceedings against him.
The following conditions are necessary to attract the provisions of this section - 

1. The confession must have been made because of inducement, threat, or promise -  A
confession should be free and voluntary. If it flows from fear or hope, it is
inadmissible. In deciding whether a particular confession is because of threat,
inducement, or promise, the question has to be considered from the point of view of
the accused as to how the inducement, threat or promise would operate in his mind.
For example, where the accused was told by the magistrate, "tell me where the things
are and I will be favourable to you", it was held to be inadmissible. 

2. The inducement, threat, or promise, must be made by a person in authority - A person

in authority is not merely a police officer or a magistrate but every such person who
can reasonably hold a sway over the investigation or trial. Thus, government officials
such as a senior military officer, police constable, warden, clerk of the court, all have
been held to be a person in authority. Even private persons such as the wife of the
employer was also held to be a person in authority.

3. It should relate to the charge in question - This requirement is specifically stated in

the section, which says that the inducement must have "reference to the charge against
the accused person". Thus, in the case of Empress vs Mohan Lal, 1881,6 the
6
. (1882)ILR4ALL46.
 confession by a person who was threatened to be removed from his caste for life, was
held to be relevant because the threat did not have anything to do with the charge. The
position in English law is not same. In fact, J ATKINSON has said that this rule is
illogical and unreasonable. For example, a daughter is accused of shoplifting and later
on her mother is also accused of the same offence. Now, if the mother is induced to
confess by saying that if she confesses to the charge, proceedings against her daughter
will be dropped, this will most like lead to an untrue confession. Yet, it would be
valid under this section. 

4. It should hold out some material, worldly, or temporal benefit or advantage - The
inducement should be about some tangible benefit. For example, a reference to
spiritual benefit such as, taking an accused to a temple to confess does not fall in this
category but a promise to reduce the sentence would fall under it.

It is necessary that all the conditions must exist cumulatively. Further, this section merely
requires that if it "appears to the court" that the confession was improperly obtained, it
becomes inadmissible i.e. if the circumstances create a probability in the mind of the court
that the confession is improperly obtained, it may hold it inadmissible.

The Test of Admissibility of a Confession is its Voluntariness and not its Truth

“A confession which is voluntary is admissible in evidence even if it is false. On the contrary

a confession which is not voluntary is not admissible, howsoever true it may be,” was held in
Kasummodin v. Emperor,7 the question whether a confession is voluntary is a question of fact
so is the question whether a confession is true. These two questions are entirely separate from
each other: one affects the admissibility: the other the value of the confession. A confession
that is voluntary is not necessarily true and conversely a confession that is true may not be
voluntary.

Thus, the law does not require the motive for a confession to be elicited. The only
requirement laid down by the law is that the confession should be free from the blemishes of
compulsion, inducement, threat or promise. The court held in Suka & Misra v. State, 8 that if
the confession is not tainted by any of these vitiating factors the court is entitled to presume
that it is voluntary. Adjudication as to voluntariness and as to truth is done at two different
stages in a trial. Once a confession is found to be voluntary, it can be admitted in evidence.
7
. 35, Cr. L.J. 485.
8
. AIR 1957 Orissa, 71.
The stage of deciding the veracity or reliability of the confession comes at the time of final
disposal of the case when its weight is determined in relation to other evidence, available on
record.

Involuntary Confession

The court held in Amrat v. State of Bombay,9 that an involuntary confession is one which is
not the result of the free-will of the maker of it, so where a confession is made as a result of
the harassment and continuous interrogation for several hours after the person is treated as an
offender and accused, such statement must be regarded as involuntary. However, a
confession caused by inducement to withhold criminal prosecution is not involuntary was
held in Abrahim Varghese v. State of Kerala. 10 No doubt, the principle is well-settled that a
confession is admissible provided it is free and voluntary but it does not mean that a mere
bald assertion by the accused that he was threatened or tortured or that inducement was
offered to him, can be accepted as true without anything more. In Nemraj v. State of Ajmer,
11
the court said that the suggestion must lie rejected when there is no material what so ever to
hold that the prisoner was threatened or beaten and the story of tutoring is on the face of it
incredible. In Swam Singh & Rattan Singh v. State of Punjab, 12 the court was of the view that
as regards analyzing as to whether the contents of the confession are true or not the court
must carefully examine its contents and must then compare them with the other prosecution
evidence and apply to them the test of probability.

An admission of guilt by a criminal suspect that would not have been offered in the absence
of coercion, inducement, or deceit.

An admission, especially by an individual who has been accused of a crime, that is not freely
offered but rather is precipitated by a threat, fear, torture, or a promise. The criminal justice
system relies on confessions by defendants to help prove guilt at trial or to induce a guilty
plea.

A confession induced by the police or other law enforcement officers’ use of coercion, deceit,
promises, or psychological pressure.

9
. IL 1960 Bom. 664.
10
. ILR (1964)2 Ker. 312.
11
. 1954 Cr. LJ. 1313.
12
. 1957 Cr. LJ. 1014.
Involuntary confessions cannot be admitted into court as evidence. Therefore, if a confession
was obtained by intimidating, threatening, or using violent force against a witness, it will be
excluded from trial. Also, if an involuntary confession has been used in court, a judge may
sometimes choose to reverse a conviction if it was based on the coerced statement. However,
an involuntary confession will not automatically render an entire conviction void. The
conviction may still stand if it is supported by independent evidence, such as eyewitness
testimony confirming the defendant’s acts. 

Confessions to Police - It is presumed that police holds a position of great influence over the
actions of the accused and so there is a high probability that confessions obtained by the
police are tainted with threat, or inducement. Further, it is important to prevent the practice of
oppression or torture by the police to extract the confession.

Section 25 – confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence.

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

If confessions to police were allowed to be proved in evidence, the police would torture the
accused and thus force him to confess to a crime which he might not have a committed. A
confession so obtained would naturally be unreliable. It would not 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,13 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
13
. A.I.R. 1977 S.C.1579.
flagging of zeal for a full and through investigation with a view to establish the case de hors
the confession, later, being inadmissible for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay,14

Police authority itself, however, carefully controlled, carries a menace to those brought
suddenly under its shadow and the law recognises and provides against the danger of such
persons making incriminating confessions with the intention of placating authority and
without regard to the truth of what they are saying.

Some Faces of Involuntariness

Section 24 does not require the accused to prove that the confession was actually made as a
result of any express inducement, threat or promise made by any person in authority. The
inducement maybe implied from the conduct of the person in authority, the declaration of the
prisoner or the circumstances of the case nor need it be made directly to the prisoner. It is
sufficient it may reasonably be presumed to have come to this knowledge provided or course.
It appears to have induced the confession. As per Wigmore when a prisoner is placed in such
a situation that an untrue confession guilt has become the more desirable of two alternatives
between which he is obliged to choose, a confession made by him becomes untrustworthy.

As per Woodroffe, an inducement may take the form of a promise or a threat, often the
inducement involves both promise and threat- a promise of forgiveness if a disclosure is
made and threat of prosecution if it is not. A promise is always attached to the confession
alternative and a threat to the sentence-alterative. It may be laid down as a general rule that in
order to exclude a confession. The inducement, whether it assumes the shape of a promise a
threat or mere advice, must relate to the actual charge and be such as is calculated to,
influence the prisoner’s mind with respect to his escape from the charge.

In Rattan Chand v. State of Bihar,15 the court held that a confession made by the accused who
was not questioned continuously at a stretch and two or three hours had lapsed after he was
taken to the house of the Mukhiya was held to be voluntary. On the other hand, a confession
made as a result of harassment and continuous interrogation for several hours of the person is
treated as an offender and accused was treated as involuntary.
14
. (1964) 64 C.N.L.R. 265(P.C.)at268.
15
. 1959 SCR 1336.
In India, the question of admissibility of a confession made, by an accused to police or to
anyone whilst in police custody being admissible or not will not arise, thanks to Section 25
and 26. However, a confession made to persons other than police officers while the accused
is in judicial custody have been scrutinized by the courts. It has been held by the court in
Aher Raja Khima v. State of Saurashtra,16 that if the jail in which the accused has been
ordered to be kept before the confession is recorded was such that the, police had access to
and the accused said that the opportunity was fully utilized to coerce and threaten him the
confession could be presumed to be involuntary, In such circumstances the accused will not
be required to positively prove his assertions.

Conclusion

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
wrong done to them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its
statement of objects and reasons mentions that the disposal of criminal trials in the courts
takes considerable time and that in many cases trial do not commence for as long as 3 to 5
years after the accused was remitted to judicial custody. In lieu of this, it is pertinent that
provisions of Criminal Law be changed so as to reduce the time needed for a common person
to get justice. After all “Justice should not only be done, but also be seen to be done”.

16
. 1956 Cr. L.J. 426 & 1954 Cr. L.J. 2251.