Confession of Accused under Section 24, 25 and 26

INTRODUCTION

The term ‘confession’ is nowhere defined in the Evidence Act. The word appears for the first in section 24 of the Act. The definition of the confession is given under section 17 becomes applicable to confession also. As the section comes under the heading of the admission it is clear that is merely one species of admission. 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.”

The definition of confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. A mixed-up statement which, even though contains some confessional statement, will lead to acquittal, is no confession.

In Pakala Narayan Swami v Emperor[1] 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”.

Extra Judicial Confession

A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession and when it is made to anybody outside the court, in that case it will be called extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P[2]. the accused who was charged with the murder of his daughter-in-law with whom he was always quarrelling was seen on the day of the murder going out of the house, saying words to the effect : “I have finished her and with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person. “An extra-judicial confession to afford a piece of reliable evidence must stand the test of reproduction of exact words, the reason and motive for confession and the person selected in whom confidence is resposed.”[3]

An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person which includes even judicial officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply.

Judicial Confession

 Judicial confession Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind. Extra-judicial confessions are those which are made by the accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. It may be a confession to a private person.

Retracted confession

The English meaning of retraction is ‘the action of drawing back something’ retraction confession is a type of confession which is previously voluntarily made by the confessor but afterwards it is revoked or retracted by the same confessor. Retracted confession can be utilised against the person who is confessing some retracted statements if it is substantiated by another independent and corroborative evidence.

In Pyare Lal v. State of Rajasthan[4]  the Supreme Court, in this case, lifted that a retracted confession has enough values to form any other legal grounds to establish any conviction only if the Court satisfies that it was true and was on someone’s own will. But the Court has to testify that the conviction cannot be solely be made on such confession until and unless they are corroborated.

Confession by co-accused: When there are more than one accused in a case and they are jointly prosecuted for the same offence, and when any of them confesses any statements against himself in such a way that he may be proved guilty of that offence then the court on such believes may prosecute other accused also who are jointly persecuted in the same offence.

Illustration- If three persons Aman, Vinod and Vijay are charged jointly for the same offence and they are prosecuted for the murder of Harsh. And during the judicial proceedings, Aman gives confessions that he along with Vinod and Vijay killed Harsh and if the statements of the Aman are recognised as true statements then the court may use the confession of Aman against all the accused and can prove the guilt of Vinod and Vijay also. Evidentiary value of different types of confessions

Inculpatory and Exculpatory Statements

Inculpatory means causing blame to be imputed to, to incriminate. For example, inculpatorystatement is a statement which attribute liability on the person making such statement. It incriminates or places guilt or responsibility on someone.

In the case of Palvinder Kaur v State of Punjab[5] the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case[6] 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.

However in the case Nishi Kant Jha v State of Bihar[7] 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.

In the case of State of Haryana v. Rajinder Singh[8], in a statement recorded by the magistrate, the accused did not admit the guilt in the terms and merely went on stating the fact of assault on the deceased by mistake. It was held that such statement could not be used against the accused as a confession. In another case of Shabad Pulla Reddy v. State of A.P.[9], where the accused confessed that he knew about the conspiracy to commit the murder in question but did not confess that he was a party to the crime, the Statement was held to be not relevant as a confession.

Voluntary and Non Voluntary Confession

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.

Section 24 of Indian Evidence Act – 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 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 supporting that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding against him.

To attract the provisions of section 24, the following facts must be established:

  • The confession must have been made by an accused person to a person in authority
  • It must appear to the court that the confession has been caused or obtained by the reason of any inducement, threat, or promise proceeding from a person in authority.
  • The inducement, threat, or promise must have a reference to the change against the accused person.
  • The inducement, etc must be such that it would appear to the court that the accused, in making the confession, believed or supposed that he would, by making it, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

When these conditions are present, the confession is said to be not free or voluntary and will not be receivable in evidence. It is necessary that the above conditions must cumulatively exist. A positive proof of the fact that there was any inducement, threat is not necessary. Anything from barest suspicion to be positive evidence would be enough to discard a confession. The question has to be considered from the point of view of the confessing accused as to how the inducement proceeding from a person in authority would operate on his mind.

Person in authority

The inducement, threat or promise should proceed from a person in authority, i.e., one who is engaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him viz. government officials, magistrates, their clerks, police constables, wardens and others in custody of the prisoners, prosecutors, and attorneys. A purely private person cannot be regarded as a person in authority, even if he is able to exert some influence upon the accused.

EVIDENTIARY VALUE OF CONFESSION

 Value of judicial confession- a case where there is no proof of corpus delicti must be distinguished from another where that is proved. In the absence of the corpus delicti a confession alone may not suffice to justify conviction. A confessional statement made by the accused before a magistrate is a good evidence and accused be convicted on the basis of it. A confession can obviously be used against the maker of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held that the confession of an accused person is substantive evidence and a conviction can be based solely on a confession. If it is found that the confession was made and was free, voluntary and genuine there would remain nothing to be done by the prosecution to secure conviction. If the court finds that it is true that the accused committed the crime it means that the accused is guilty and the court has to do nothing but to record conviction and sentence him. No question of corroboration arises in this case. Normally speaking it would not be quite safe as a matter of prudence if not of law to base a conviction for murder on the confession of the alleged murder by itself and without more. It would be extremely unsafe to do so when the confession is open to a good deal of criticism and has been taken in the jail without adequate reason and when the story of murder as given in the confession is somewhat hard to believe. This observation was made by the Supreme Court and therefore it cannot be said to be a good law in the case of judicial confession. Now the settled law is that a conviction can be based on confession only if it is proved to be voluntary and true. If corroboration is needed it is enough that the general trend of the confession is substantiated by some evidence which would tally with the contents of the confession. General corroboration is enough. Value of extra-judicial confession- extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which support his statement should not be believed. In State of Karnataka v. A.B.Nag Raj[10] there was allegation that the deceased girl was killed by her father and step-mother in the National park. The alleged extra-judicial confession was made by accused during detention in forest office. No mention of said confession in report given to police nor any witness present there mentioning about the same confession. This extra-judicial confession cannot be relied on.

CONFESSION TO POLICE OFFICER NOT TO BE PROVED (SECTION 25)

Under section 25, “ No confession made to a Police officer can be proved as against an accused”. The main purpose behind this section is that it prevents the accused person for being tortured by the police officials.[11] The system regarding this in England is different to India as the confession there in front of police officer is relevant if the judge feels that there is no oppression, inducement or threat and the statement is free and fair.

The principle behind it is to avoid the danger of admitting a false confession. A police officer on receiving information of the occurrence of a dacoity of other offence of a serious character, failing to discover the real culprits often implicate an innocent person lest they be accused of neglect. The police often put the person to severe torture and make him to confess guilt without having committed it and when such steps are taken there is impunity for real offender and encouragement to crime. A police officer is generally armed with large powers and is capable of exciting terror and extort false and involuntary confession. The section makes no distinction between a confession made before investigation and a confession made after investigation.

PERSON ACCUSED OF ANY OFFENCE

This expression used in the section means the person against whom evidence is sought to be led in criminal proceeding, whether or not he was charged when he made the statement. “A murder is committed in a locality. The sub-inspector investigates. During investigation B makes a confession to the police that it is he murdered. Later on he is arrested and charged. Though the confession was made by B to the police officer when he was not an accused, his confession will be inadmissible at the trial because at the time of proving the case in the court he was an accused.

Confession in Police custody

Under sec 26, “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.” The 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 forced him to confess, if not to the police officer himself, at least to someone else. Thus the confession is likely to suffer from the blemish of not being free and voluntary.

The word custody does not mean formal custody, it means police control even if be exercised in a home, in an open place or in the course of a journey and not necessarily in the walls of a prison (actual arrest). The immediate presence of police officers is not necessary, so long as the accused persons are aware that the place where they are detained is really accessible to the police. A temporary absence of the policeman makes no difference.

The following confessions are, thus, held to be irrelevant:

  1. EMPEROR V JAGIA[12]

A woman arrested for the murder of a young boy was left in the custody of villagers while the CHOWKIDAR (watchman) who arrested her left for the police station and she confessed in his absence.

While the accused being carried on the tonga was left alone by the policeman in the custody of the tonga-driver and he told of his criminality to the tonga driver.

  • Where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor.
  • A confession made to a person, while in police custody, overheard by a police officer.
  • A confession to fellow-prisoners, while in jail.

However, if the confession was made when the accused was nowhere near the precincts of a police station or during the surveillance of the police, such confession held not to be hit by sec 26. The accused made his confession to two persons of the locality. Later, his confession was reduced to writing inside the police station on the accused being brought there. The Supreme Court said that such extra judicial confession was not hit by sec 26. (STATE OF A.P V. GANGULA SATYA MURTHY[14]

Immediate presence of a magistrate- Section 26 recognizes one exception. If the accused confesses while in police custody but in the immediate presence of a magistrate, the confession will be Valid. The presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable. The Magistrate must be present in the same room where the confession is being recorded. A confession made while the accused is in judicial custody or lockup will be relevant, even if policemen are guarding the accused.

The mere fact that the accused, after having made a confession before a police officer, subsequently says before a Magistrate that, “I told the police officer that I murdered B” does not render the statement admissible.

BIBLIOGRAPHY

Bare Act:-

The Indian Evidence Act, 1872

Books:-

Principles of The law of Evidence, Dr. Avtar Singh, Central Law Publications

Law of Evidence, Dr. Ashok K. Jain, Ascent Publications

Law Guide for Judicial services exams, Dr. A.K Jain, Vol III

Articles:-

A STUDY ONA STUDY ON CONFESSION UNDER INDIAN EVIDENCE ACT, 1872, Shivashankar.B.S, Arya R, International Journal of Pure and Applied Mathematics Volume 120 No. 5

Websites:-


[1] (1939) ILR 18 PAT 234

[2]1996 AIR 40,  1965 SCR (3) 86

[3]Rahim Beg v. State of U.P. AIR 1973 SC 343

[4] AIR 1963 SC  1094

[5] AIR 1952 SC 354

[6] AIR 1939 PC 47

[7] (1959) SCR 1033

[8] 1996 CrLJ 1875

[9] AIR 1997 SC 3087

[10]

[11] Queen Empress v Babu Lal 1884 ILR 6 ALL 509

[12] AIR 1938 Pat 308

[13] ILR (1895) 20 Bom 165

[14] (1997) 1 SCC 272)

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