Confession under the Indian Evidence Act

Confession means

Confession, in fact, is a statement by an accused suggesting that he committed the crime charged against him.  A statement must contain specific admission of guilt or all the facts which constitute the crime in order it to be considered as a confession.

A statement of an accused will amount to a confession if it satisfies the following conditions:-

• The accused must admit that he had committed the crime
• The statement must indicate his involvement in the crime
• It should not be made on inducement, threat or promise

Sir James Stephen says, “A confession is an admission made at any time by a person charged with a crime or suggesting an inference that he committed the crime”.  

Broadly speaking, self harming statements in criminal cases are called confessions and those in civil cases are called admissions.

Legal provisions governing confession

The Sections 24 to 30 of the Indian Evidence Act, 1872 (IEA), deal with the concept of confession.

The procedural aspects of confession are provided in Section 164, 281 and 463 of the Criminal Procedure Code, 1973 (CrPC).

Confession is admissible in evidence

An accused person of sound mind and mature age can make a confession in regard to his involvement in the crime. That statement can be admitted in evidence in a judicial proceeding.  Confession is received in evidence-based on the presumption that a person will not make an untrue statement against his own interest when it is self-harming.

A court has a duty to exclude false confessions which might be made in order to escape physical torture, save others from punishment or avoid vexation. In order to accept a confession in evidence, the exact words used by the accused must be established by cogent evidence.

Confession under threat inadmissible

A confession caused by inducement, threat or promise by a person of authority is inadmissible in evidence. If the making of the confession is based on well-grounded conjectures it will be excluded from evidence.

But confession made after the removal of such inducement, threat or promise is admissible (Section 28 of the IEA).

Confession before the police is inadmissible

Confession made to a police officer is normally inadmissible, except for recovery of facts relating to material objects, under Section 26 & 27 of the IEA.

A confession made in the presence of a Magistrate when the accused is in the custody of the Police Officer is admissible under Section 26 of the IEA.

Judicial confession

Judicial confession is the confession made to and recorded by a judicial magistrate under Section 164 of the CrPC or before the court during committal proceedings, or during the trial itself.

A confession recorded under the Customs Act, 1962 was also held by the Supreme Court to be admissible in evidence though the requirement of recording was different under the act ( Gulam Hussain v S Reynolds Suptd. Of Customs: AIR 2001 SC 2930).

The person who made confession need not be called to prove judicial confession. Judicial confession can be relied as proof of guilt against the accused if it is found to be true and made voluntarily. It can then form the basis of conviction.

Extra-Judicial confession

Extrajudicial confession is the one made before a police officer or any person other than a police officer.  

A confession made to a police officer or while he is in police custody is inadmissible. But other extra judicial confession made voluntarily can be relied upon by the court.  If it can be shown that the evidence of extra judicial confession is reliable, trustworthy and beyond reproach, conviction can be founded on it. If confession is made to a person who has no reason to state falsely it cannot be ignored.

An extra judicial confession is in the very nature of the things is a weak evidence (Makhan Singh v State of Punjab : AIR 1988 SC 1705). The acceptability of an extra judicial confession depends on the reliability of the evidence of the person to whom such confession is made.

Extra judicial confession is proved by calling as witness the person before whom the extra judicial confession is made. Extra judicial confession alone cannot be relied as a proof of guilt or conviction. It needs supporting evidence.

An extra judicial confession made by an accused to his wife cannot be taken into consideration as evidence because of the inadmissibility of communication between husband and wife under Section 122 of the IEA.

In order for any extra-judicial confession to form the basis of conviction of an accused the following principles (Sahadevan v State of TN: (2012) 6 SCC 403) must be borne in mind:-

• Extrajudicial confession is weak evidence and hence it is to be examined with great care and caution
• It should be made voluntary and must be truthful
• It should inspire confidence
• It gets greater credibility and evidentiary value when it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence
• If extra-judicial confession is the basis of conviction it should not suffer from any material discrepancies or inherent improbabilities
• Such a statement should be proved by any other fact as per law

A confession that is not voluntary is inadmissible. Similarly, a confession made to a police officer, except that regarding the recovery of material objects is also inadmissible. A confession made while in police custody is also inadmissible, except for recovery.

Confession must be accepted as a whole

A confession or admission must be accepted as a whole or rejected as a whole. The court is not competent to accept only the inculpatory part while rejecting the exculpatory part (State of TN v Kutty: AIR 2001 SC 2778).

Confession relating to the recovery of weapons

If a confession made to a police officer regarding the weapons or material objects by the accused is confirmed (by subsequent facts) through the discovery of those objects, then it becomes relevant and admissible in evidence.

What Section 27 of the IEA says is that if a statement of an accused to the police when he is in police custody leads to the discovery of facts relating to material objects relevant to the offence he is allegedly charged with, then the fact consequently discovered is admissible and relevant. Therefore such a statement subsequently confirmed by discovery of the objects, may be believed by the court.

Under this section, the information revealed by the confession statement which reveals the information is the cause of discovery and the fact unearthed is the consequence. The information and the fact should be connected with each other.

The Section 27 is a proviso by way of an exception to Section 25 and 26 of the IEA. This Section also qualifies Section 24 and cut down its operation. The Section is provided for based on the view that when a fact is discovered as a consequence of information given by the accused, then the information is admissible and relevant. The discovery does not prove the guilt of the accused but that needs to be proved by other means in order to convict the accused.

What the term “facts discovered” means

The term “fact discovered” in this section is not equivalent to the material object produced but it refers to the facts relating to the place from which the object is produced and the knowledge of the accused as to it. The information deposed by the accused must relate to the subsequently discovered facts.  The discovery of fact must be only after the accused makes the statement to the police. The discovery proves the knowledge of the accused in regard to the facts subsequently discovered.

When the information given by the accused is that he would produce a knife concealed in the roof of his house and if it leads to the discovery of the fact that a knife is concealed there in the place, then it is quite clear that the whereabouts relating to the knife was well within his knowledge. If the prosecution proves that the knife is used in the commission of the offence the fact discovered is relevant to the conviction.

Information as to discovery alone admissible

If the information provided by the accused included a statement that it was with which he stabbed A, then the words are inadmissible as they do not relate to the discovery of the knife. The information relating to the discovery alone can be admissible in evidence under this Section. Therefore when a relevant fact is discovered based on a statement by an accused to the police officer the distinct portion of statement related to the discovery alone is admissible.

When an accused makes a statement of a concealed article, the facts consequently discovered as to the whereabouts of the article and the concealed article, are within the knowledge of the accused.

When confession of the accused is in the form of a compound sentence the judge must divide it into its component parts and the part that leads to the discovery alone should be considered admissible under Section 27 of the IEA.

Compulsion to draw information unacceptable

A confession in regard to recovery of objects is not admissible if it is not voluntary and under compulsion.  If Police use compulsion to draw a statement of the accused it is an infringement of Article 20 (3) of the Indian Constitution.

In a confessional statement recorded under Section 27 it is not obligatory for the investigation officer to get the signature of the accused.

Accused must be in police custody

If the recovery of material objects is made when the accused is not in police custody it is inadmissible in evidence.

The term custody here does not refer to detention or confinement but it connotes to some restraint on his movement imposed by the police.

Doctrine of Confirmation

If a recovery of weapon allegedly used in crime was made but there was no evidence regarding disclosure statement made by the accused to the police officer before the recovery was made, then the recovery is inadmissible in evidence and is of no consequence at all.  

In a case in which an accused led the Investigation Officer to a place and pointed out the place where he had thrown away the Khukri and it was discovered from the place. But the court held that it was an improper recovery under Section 27 of the IEA as there was not prior recorded information.

A mere statement that the accused led the police and the witnesses to the place where he had concealed the recovered article is not indicative of the information given by the accused.

The basic doctrine behind Section 27 of the IEA is the Doctrine of Confirmation by subsequent events.

Confession of co-accused

A confession made by a co-accused may be taken into consideration against him and other co-accused (Section 30 of IEA) if the person confessing is one facing joint trial for the same offense and the confession is duly proved and that the confession must affect him and others under the trial.

The evidence of a co-accused needs some corroboration so as for the court to rely on it for conviction.

Retracted confession

When an accused retracts from his valid confession the court can convict him after inquiring into the value of the confession. When information leads to the discovery of material objects the statement remains valid for use in evidence even though the accused resiles from the statement later.

In a retracted confession, corroboration of some kind is, therefore, necessary to sustain a conviction. To use a retracted confession against co-accused very strong corroborative evidence is required.

Confession by an accomplice/approver

An accomplice is a person who consciously assisted in the commission of a crime. When an accomplice is given pardon by the Magistrate and so as to become a witness against his co-accused he is then called approver.

The purpose of this provision is to secure collection of fullest details relating to the crime which is not otherwise possible.

Confession by approver is not a substantive piece of evidence but it may be used to contradict or corroborate any item of evidence. It is not illegal to base a conviction on the sole testimony of an accomplice or approver. As he is a participant in the crime and he is presumed to be unworthy of credit his testimony should be corroborated for material particulars. Some additional evidence must be looked for to see whether the approver is speaking truth (Section 133 of the IEA).

Law protects accused from self-incrimination

Te Section 24 to 30 protects the accused against becoming the victim of the machination of others to self incriminate him in the crime.

The object of Section 25 of the IEA is to prevent the practice of torture by the police for the purpose of extracting confession from accused person. The police have the archaic practice of securing confession by hook or crook and the section purports to prevent it.

The mind of the accused before making a confession must be of perfect equanimity and must not have been operated upon by fear or hope or inducement. So making any confession under threat, promise or inducement makes the confession irrelevant.

Confession in the FIR inadmissible

If FIR lodged by the accused contains any confessional statement it is inadmissible in evidence. But the confessional part can be used against him as evidence of conduct under Section 8 of the IEA.

But a letter containing confession sent to a police officer by an accused was considered admissible as it was written not in the presence of the police officer.

Relevancy of a confession otherwise relevant

If a confession is otherwise relevant under any provision of law it will not become irrelevant merely because it is made under a promise of secrecy, or deception or when he is drunk. The section 29 of the IEA says if a confession is admissible by other sections, it cannot be treated irrelevant because of the reasons such as promise of secrecy, deception, and drunkenness, stated in the section.

Notes & References

1. For definition of confession please see Pakala Narain Swami v Emperor: AIR 1939 PC 47
2. When statement amounts to confession see Veer Ibrahim v State of Maharashtra : AIR 1976 SC 1167
3. Untrustworthy extra judicial confession cannot be used for corroboration. Heeramba Brahma v State of Assam :AIR 1982 SC 1595
4. To rely on retracted extra judicial confession it has to be corroborated by independent evidence. Shakhram Shankar Bansode v State of Maharashtra : AIR 1994 SC 1594
5. A statement under Section 27 must be split into its components and the inadmissible components must be rejected. Inayatullah v State of Maharashtra: AIR 1976 SC 483

NB: The author of this article, now with Thrissur Bar, can also be reached at rajankila@gmail.com