COMPARATIVE STUDY OF CONFESSION WITH REGARDS TO NEPALI AND

INDIAN LAW OF EVIDENCE

2700 words

Priyanka Pokhrel
Table of Contents:

Chapter 1

1.1 Introduction

1.2 Methodologies

1.3 Limitation

1.4 Objective

1.5 Organization of the study

Chapter 2

Chapter 2

2.1 Confession; Statutory Provisions of India and Nepal

2.2 Evidentiary Value of Confession

Chapter 3

3.1 Analysis

3.2 Conclusion
Chapter 1

1.1 Introduction:

A confession is a statement, made by a person or by a group of persons, acknowledging some

personal fact that the person would ostensibly prefer to keep hidden. It is an admission of guilt in
regard to the offense that the accused is accused of committing. The word ‘confession’ has come
from the Latin word Confiteri1.An unqualified and total admission of guilt by the accused is
required for a confession because Con signifies completeness and fateri denotes speech. In other
words, confession can also be defined as the statement given by the accused person in regards to
the crime in question where he/she must have admitted all or some real relevant fact ; connected
with the crime under consideration.2

The term presumes that the speaker is providing information that he believes the other party is
not already aware of, and is frequently associated with an admission of a moral or legal wrong.
There are various distinct types of confessions that have significance beyond the social in
relation to  confessions of guilt. An acknowledgement of misconduct with legal consequences
defines a legal confession.  Confession is crucial in the pursuit of a criminal trial, which is built
on the foundation of truth and accuracy. It is an admission of guilt on the accused's part. A
confession can be made in a variety of ways, including through extrajudicial, judicial, and
retracted confessions. In order to rule out the possibility of smear evidence being offered in
court, courts must examine the admissibility of such confessions.

Different countries have their own set of governing Laws to avoid any wrongful conviction
which further act as a obstacle to abusive police interrogation. Some interrogation methods are
prohibited because they go against the defendant's free will or legal rights to due process.
Evidence Act of Nepal,2031 does not mention the ‘term’ Confession. Even in the Indian
Evidence Act, the term ‘confession’ is nowhere defined although as per general understanding in
the case of a criminal matter, an admission is presumed to be a confession.

1.2 Methodologies: The research is done through the doctrinal method of data collection.
Available books , research articles and the case laws were studied for the research.

1.3 Limitation: The research is only limited in doctrinal study. It studies only the matter of
Confession under the evidence Act of both the countries and case laws of both countries.

1.4 Objective;

 To compare the provision of confession under both jurisprudence.

 To analyze the law and practice of confession through case laws.
1
“Confess (v.)” (Etymology), https://www.etymonline.com/word/confess (last visited August 1, 2022).
2
Prakash K.C, Law of Evidence , Lex and Juris publication , 2nd edition .
1.5 Organization of the study:

 Chapter 1 contains Introduction, Methodologies, Limitation , Objective and organization

of the paper.
 Chapter 2 contains , National statutory provisions of the Confession on each States and
their evidentiary value in their national courts.
 Chapter 3 contains Analysis and Conclusion of the paper.

Chapter 2

2.1 Confession; Statutory Provisions

Nepali laws on Confession:

The evidence Act, 2031 B.S of Nepal mentions the provision regarding Confession in section 9
of the Act. But it does not explicitly mentions the words Confession anywhere in the Act. It is
mentioned in the section 9 as Facts expressed by the party.

Section 9 (1) mentions that ,Any fact expressed by the party to a case may be taken as evidence
against him/her.3

Section 9(2) mentions, Notwithstanding anything contained in sub-section (1),

(a) The fact expressed by the accused of a criminal case , in a place other than the court
regarding the charge made against him/her , may be taken as evidence when the court finds it as
following:

(1) At the time of expression , the accused was conscious and in a position to understand wha7t
he/she did or expressed.

(2) The fact was not expressed putting pressure o him /her with torture to him/her or with threat
to torture him/her or any other person or putting him/her in a condition to express the fact against
his/her will.

3
Praman Ain 2031, (Evidence Act 1974), Nepal s. 9(1)
(3) The public official , while conducting a process had not given any threat or promise in
relation to any charge , by which there was a possibility of expressing any untrue fact and he/she
had reasonably believed that such official had power and authority to implement the threat or the
promise. 4

Indian laws on Confession;

The Indian Evidence Act deals with confession from Section 24 to Section 30. Furthermore,
confession is dealt under Section 164, 281 and 463 of the Code of Criminal Procedure,
19735.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 Act6.

Section 24 mentions that 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 2 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 a temporal nature in reference to the
proceedings against him7.

Section 25 mentions, Confession to police-officer not to be proved. –– No confession made to a

police-officer3 , shall be proved as against a person accused of any offence8.

Section 26 mentions 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 be made in the immediate presence of a Magistrate, shall be proved as against such person9.

Section 27 mentions, How much of information received from accused may be proved. ––
Provided that, when any fact is deposed to as discovered inconsequence of information received
from a person accused of any offence, in the custody of a police-officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.10

Section 28 mentions Confession made after removal of impression caused by inducement, threat
or promise, relevant. –– If such a confession as is referred to in section 24 is made after the

4
Parman Ain 2031, ( Evidence Act 1974), Nepal s.9(2)
5
Confession under Indian Evidence Act, (last visited August 6,2022),
http://www.legalservicesindia.com/article/1547/Confession-under-Indian-Evidence-Act.html
6
Anushka, Confession, LAW TIMES JOURNAL,2019
7
Indian Evidence Act 1872, India, s.24
8
Indian Evidence Act 1872, India, s.25
9
Indian Evidence Act 1872, India,s.26
10
Indian Evidence Act, 1872, India,s.27
impression caused by any such inducement, threat or promise has, in the opinion of the Court,
been fully removed, it is relevant.11

Section 29 mentions, Confession otherwise relevant not to become irrelevant because of promise
of secrecy, etc.–– If such a confession is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception practiced on
the accused person for the purpose of obtaining it, or when he was drunk, or because it was made
in answer to questions which he need not have answered, whatever may have been the form of
those questions, or because he was not warned that he was not bound to make such confession,
and that evidence of it might be given against him.12

Section 30 mentions; Consideration of proved confession affecting person making it and others
jointly under trial for same offence. –– When more persons than one are being tried jointly for
the same offence, and a confession made by one of such persons affecting himself and some
other of such persons is proved, the Court may take into consideration such confession as against
such other person as well as against the person who makes such confession.13

2.2 Evidentiary Value of Confession

It is important to understand that a confessional statement given by the accused in front of a

court is regarded as a reliable piece of evidence, and a conviction might proceed based on such a
confessional statement. It should be highlighted, however, that the same evidence may be used
against the suspect because it would be sufficient to support a conviction. Thus, the confession
given by an accused person is regarded as substantive evidence upon which conviction can
happen14.

Confessions however could be divided into 2 categories. That is Judicial Confession and Extra-
Judicial Confessions. The Judicial Confessions are those which are made before the court during
the judicial proceedings. Extra-Judicial Confessions are those which are made by the party
elsewhere than the court.

Judicial Confession;

So, the confession made before the court is judicial confession. Guilty plea is also a judicial
confession as court relies upon it unless the reasonable doubts.

 The Evidence Act of Nepal 2031, provides for confessions to be an essential part of the
evidence to convict the accused provided, however, that is obtained without the use of
torture or fear or undue influence15. Section 9(2)of Evidence Act 2031 Of Nepal provides

11
Indian Evidence Act 1872, India,s.28
12
Indian Evidence Act 1872,India,s.29
13
Indian Evidence Act 1872, India , s.30
14
John Getreu, Evidence: Admissibility of Confession, WILLIAM & MARY REVIEW OF VIRGINIA LAW, Volume 1
15
Supra note 2.
 relevancy of confession. Confession is relevant only if it is made by the accused
voluntarily without influenced by inducement, threat or promise.

But, in the case of Shekhbakshi V HMG, Supreme court stressed that confession cannot
be regarded as safe ground for the conviction unless and until it is corroborated by some
other evidence16.

 Section 80 of the Indian Evidence Act give the evidentiary value to the judicial
confession. It expresses that a confession made in the presence of magistrate or in the
court which is recorded by the magistrate as prescribed by the law then such confession
shall be presumed to be true and genuine confession and the accused can be tried with the
offence17.
Section 164 of The code of Criminal Procedure empowers magistrate to record
confession so it is not necessary that which magistrate recorded the confession unless he
is restricted to record the confession. Hence, for raising the presumption the identity of
the accused must be clear and proved in the confession to persecute him for the guilt of
the offence he committed.18
Under section 24 of Indian evidence act, following circumstances are essential :
1. The confession must be made be made out of inducement, threat or promise , etc.19
2. Confession should relate to a charge in question upon the accused.20
3. It must proceed on the instance of a person in authority or sufficient21
4. Should provide sufficient temptation of escape from evils of temporal nature22

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 V State of Punjab23. 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.P24.

16
Shekhbakshi v HMG,NKP (2026),P.105
17
Indian Evidence Act 1872,India,s.80
18
The Code of Criminal Procedure,1973,India,s.164
19
State of Rajasthan vs. Raja Ram, AIR 2003 SC 360
20
Aloke Nath Dutta vs. State of WB, (2007) 12 SCC 230.
21
S.K. Yusuf vs. State of WB, AIR 2011 SC 2283.
22
AIR 1996 SC 607
23
Sahadevan vs. State of TN, AIR 2012 SC 2435
24
1985 AIR 1678
Extra-Judicial Confession: Confession made by the accused before somebody outside the
court. Such a person may be the police , person in authority , friends , neighbors , or others.25

In Nepali Practice, the prosecution has paid little attention to this point and are infrequent
instances in which such persons like friends or neighbors produced in the court to give evidence
against the accused.26

Generally, In Nepal court accepts confession made before police if it believes that it is made
voluntarily. In the case of Mohar Ali V. HMG , as if confession before the police is supported by
postmortem report, the confession is taken as an evidence.27 However if the court finds proof of
torture , against the accused, it has always rejected the confession to be taken as an evidence. In
the case of Sagir Miyan V. HMG as, if the claim of the party that he was tortured in police in the
process of obtaining confession is admissible as evidence28

In the case of HMG VS. Jimidar Kurmi, Supreme Court of Nepal observed that if the accused has
confessed his/her guilt before the police voluntarily without exhibiting any resistance , it may be
taken as Evidence29 however in the case of Shekhbakshi V HMG, Supreme court stressed that
confession cannot be regarded as safe ground for the conviction unless and until it is
corroborated by some other evidence30.

Indian evidence Act , 1872 section 25 provides that “No statements made to a Police Officer
shall be considered as a confession for the purpose of proving that confession against that person
who is accused to the case”. 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 Ramasay31

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 also provides that
confessions made to the police officer could be admissible if it is duly recorded in the immediate
presence of a magistrate.32

25
Supra notes 2
26
Supra note 2
27
Mohar Ali v.HMG,NKP(2038),p.9
28
Sagir Miyan v. HMG , NKP ( 2030),P.251
29
His Majesty Government v. Jimidar Kurmi, NKP 2027 (1970), volume 12,Decision no. 536
30
Shekhbakshi v HMG,NKP (2026),P.105
31
(1964) 64 C.N.L.R. 265 (P.C.)
32
Jiby J., Making Confessions in Police Custody Admissible as Evidence is a Terrible Idea, (last visted at August 6,,
2022)
https://timesofindia.indiatimes.com/blogs/jibber-jabber/making-confessions-in-police-custody-admissible-as-
evidence-is-a-terrible-idea/
Chapter 3

3.1 Analysis:

Different countries have their own set of governing Laws on evidence. Laws in both India and
Nepal adhere to the same Common legal system. However, the provisions of confession under
each nation's evidence law are noticeably varied. The Evidence Act of Nepal 2031 neither
mentions the word ‘Confession’ nor tries to define confession intrinsically in the Act. Rather
mentions the concept of confession as , “ Fact expressed by the parties” in Section 9 of the
Evidence Act 2031. On the other hand, Indian Evidence Act 1874 does mentions the term
Confession on it’s Law yet does not defines it thus falls under the chapter ‘ admission’. It is
known that confessional statement given by the accused in front of a court is regarded as a
reliable piece of evidence, and a conviction might proceed based on such a confessional
statement. However , the evidentiary value of such confession differs as per the type of the
confession. Generally , Nepali Court accepts the confession made before the police if it
believes it is made voluntarily. Nevertheless , if it finds proof of torture , against the accused ,
it has always rejected the confession to be taken in Evidence. Nonetheless, In India a
confession made before the police is inadmissible at all the cost. But does accepts the judicial
confession, so confession has been recorded as the appropriate authority and satisfied two
major criteria as prescribed in the case of Shankara v. State of Rajasthan33. Which are
Confession should be perfectly voluntary and It should be true and trustworthy.

3.2 Conclusion:

To conclude, Nepal and Indian laws on confession are substantially different. But both countries
has shown a lot of sensitivity on the ground of voluntariness of the confession and had protected
the accused from the repression and torture to confess in the court or other authorized institution.
So both countries despite of having it’s own governing laws on confession , both countries
equally believe in the principle of voluntariness and trustworthiness in confession.

33
Shankara vs. State of Rajasthan, AIR 1957 Raj 148