Bombay High Court
Pakala Narayana Swami vs Emperor on 19 January, 1939
in their Lordships' view no statement that contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover 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 of itself a confession e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in article 22 of Stephen's "Digest of the Law of Evidence" which defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined, it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Indian Evidence Act, 1872 : and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused "suggesting the inference that he committed" the crime.
Supreme Court of India
Palvinder Kaur vs The State Of Punjab(Rup ... on 22 October, 1952
In order to establish the charge under section 201, Indian Penal Code, it is essential to prove that an offence has been committed-mere suspicion that it has been committed is not sufficient,that the accused knew or had reason to believe that such offence had been committed- and with the requisite-knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false.
The statement (of confession) read as a whole is of an exculpatory character. It does not suggest or prove the commission of any offence under the Indian Penal Code by any one. It not only exculpates her from the commission of an offence but also exculpates Mohinderpal. It states that the death of Jaspal was accidental. The statement does not amount to a confession and is thus inadmissible in evidence. It was observed by their Lordships of the Privy Council in Narayanaswami v. Emperor- that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. 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 of itself a confession. A statement that contains self-exculpatory matter 'cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.
Supreme Court of India
Nishi Kant Jha vs State Of Bihar on 2 December, 1968
The appellant who was a student of a school in Jhajha was charged with the murder of a fellow student of the same school and robbing him of the sum of Rs. 34 On October 12, 1961.
With regard to criminal cases, ,Taylor states: "In the proof of confessions--as in the case of admissions in civil causes-the whole of what the prisoner said on the subject at the time of making the confession should be taken together...But if, after the entire statement of the prisoner has been given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another. Even without such contradiction it is not to be supposed that all the parts of a confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing. If what he said in his own favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed by the jury; but they are not bound to give weight to it on that account, being at liberty to judge of it, like other evidence, by all the circumstances of the case."
In Roscoe's book on Criminal Evidence (16th Edition, page 52 . the statement of law is much to the same effect. Roscoe also cites a decision in Rex v. Clewes(x) where the confession of the prisoner charged with murder 'that he was present at the murder but that it was committed by another person and that he took no part in it, was left to be considered by the jury with a direction that the jury might, if they thought proper, believe one part of it (1) 4 Car. &.P,-221. and disbelieve another. According to Archbold's Criminal Pleading, Evidence and Practice (Thirty-sixth Edition, page423):
"In all cases the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without 'receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge .... It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say whether the facts asserted by the prisoner in his favour be true."
In this case the appellant's statement in'Ex. 6 on which reliance is placed to show that the appellant could not be guilty of the crime was found wholly unacceptable. His version of Lal Mohan Sharma's commission of the crime, his being prevented from getting down from the train at Jasidih, Lal Mohan apparently committing the crime forcing the appellant to be a witness to it and the latter's version of the manner in which he received the injury were unacceptable to the High Court and we see no reason to come to any different conclusion. The other incriminating circumstances already tabulated, considered along with the appellant's statement that he was present in the compartment when the murder was committed, that he, jumped from the train near the river, that he gave a different version as to how he had received his injury, his statement that he had lost his way to the village Roshan being unacceptable, all point conclusively to having-committed the murder. In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. . According to this statement, the' injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under s. 313 Cr. P.C. to the effect that he had recceived the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to affact the attention of Ram Kishore Pandey, P.W. 17 and asking him about the cause thereof. The bleeding was nora simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the postmortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the. exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to. the conclusion. that the appellant was the person responsible for the crime. The appeal therefore fails and the conviction and sentence are upheld.
Supreme Court of India
Champa Rani Mondal vs State Of W.B. on 16 September, 1998
Relying solely upon the alleged confessional statement of the appellant, the trial court convicted her for committing the murder of her brother-in-law and the High Court affirmed the conviction. In her statement she stated that when her brother-in-law tried to rape her and, for that purpose dragged her to the cot by putting cloth in her mouth, she gave two blows upon him with a katari as a result of which he fell down. She gave him another blow and then went out of the room and disclosed the entire incident to her relations. The statement so made by her cannot be said to be a confessional one as the circumstances in which she claimed to have caused the death of her brother-in-law would clearly exculpate her in view of Section 100 IPC. In other words the above statement of the appellant could not be entertained in evidence, much less pressed into service to make it the basis of conviction.
Supreme Court of India
Shabad Pulla Reddy & Ors vs State Of Andhra Pradesh on 20 August, 1997
On carefully going through the confessional statement we find tht A-26 confessed about a conspiracy to commit the murder of the deceased, but did not at all confess that he was a party to the murder. In other words, so far as the incident that took place in the night of July 11, 1981 in which the deceased met with his death, the statement made by A-26 before the Magistrate is exculpatory.
Supreme Court of India
Lokeman Shah And Anr vs State Of West Bengal on 11 April, 2001
But the test of discerning whether a statement recorded by judicial magistrate under Section 164 from an accused is confessional or non-confessional is not by dissecting the statement into different sentences and then to pick out some as not inculpative. The statement must be read as a whole and then only the court should decide whether it contains admissions of his incriminatory involvement in the offence. If the result of that test is positive then the statement is confessional, otherwise not.
Supreme Court of India
Sahoo vs State Of U.P on 16 February, 1965
If it was an extra-judicial confession, it would really partake the character of direct evidence rather than that of circumstantial evidence. It is argued that it is implicit in the concept of confession, whether it is extra-judicial or judicial, that it shall be communicated to another. It is said that one cannot confess to himself: he can only confess to another. This raises an interesting point, which fails to be decided on a consideration of the relevant provisions of the Evidence Act. Sections 24 to 30 of the Evidence Act deal with the admissibility of confessions by accused persons in criminal cases. But the expression "confession" is not defined. The Judicial Committee in Pakala Narayana v. R.(1) has defined the said expression thus:
"A confession is a statement made by an accused' which must either admit in terms the offence. or at any rate substantially all the facts which constitute the offence."
A scrutiny of the provisions of ss. 17 to 30 of the Evidence Act discloses, as one learned author puts it, that statement is a genus. admission is the species and confession is the sub-species. Shortly stated, a confession is a statement made by an accused admitting his guilt. What does the expression "statement" mean? The dictionary meaning of the word "statement" is "the act of stating, reciting or presenting verbally or on paper." The term "statement" therefore, includes both oral and written statements. Is it also a necessary ingredient of the term that it shall be communicated to another? The dictionary meaning of the term does not warrant any such extension; nor the reason of the rule underlying the doctrine of admission or confession demands it. Admissions and confessions are exceptions to the hearsay rule. The Evidence Act places them in the category of relevant evidence, presumably on the ground that, as they are declarations against the interest of the person making them, they are probably true. The probative value of an admission or a confession does not depend upon its communication to another, though, just like any other piece of evidence, it can be admitted in evidence only on proof. This proof in the case of oral admission or confession can be offered only by witnesses who heard the admission or confession, as the case may be. The following illustration pertaining to a written confession brings out the said idea: A kills B; enters in his diary that he had killed him, puts it in his drawer and absconds. When he places his act on record, he does not communicate to another; indeed, he does not have any intention of communicating it to a third party. Even so, at the trial the said statement of the accused can certainly be proved as a confession made by him. If that be so in the case of a statement in writing, there cannot be any difference in principle in the case of an oral statement. Both must stand on the same footing. This aspect of the doctrine of confession received some treatment from well known authors on evidence, like Taylor, Best and Phipson. In "A Treatise on the Law of Evidence" by Taylor, 11th Edn., Vol. I, the following statement appears at p. 596:
"What the accused has been overheard muttering to himself, or saying to his wife or to any other person in confidence, will be receivable in evidence."
In "The Principles of the Law of Evidence" by W.M. Best, 12th Edn., at p. 454, it is stated much to the same effect thus:
"Words addressed to others, and writing, are no doubt the most usual forms; but words uttered in soliloquy seem equally receivable." We also find the following passage in "Phipson on Evidence", 7th Edn., at p. 262: "A statement which the prisoner had been overheard muttering to himself,f, if otherwise than in his sleep, is admissible against him, if independently proved."
These passages establish that communication to another is not a necessary ingredient of the concept of "confession". In this context a decision of this Court in Bhogilal Chunilal Pandya v The State of Bombay(1) may usefully be referred to. There the question was whether a former statement made by a witness within the meaning of $. 157 of the Evidence Act should have been communicated to another before it could be used to corroborate the testimony of another witness. This Court, after considering the relevant provisions of the Evidence Act and the case-law on the subject came to the conclusion that the word "statement" used in s. 157 meant only "something that is stated" and the element of communication was not necessary before "something that is stated" became a statement under that section. If, as we have said, statement is the genus and confession is only a sub-species of that genus, we do not see any reason why the statement implied in the confession should be given a different meaning. We, therefore, hold that a statement, whether communicated or not, admitting guilt is a confession of guilt.
A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of emotion; a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime. The tone may be soft and low; the words may be confused; they may be capable of conflicting interpretations depending on witnesses, whether they are biased or honest, intelligent or ignorant, imaginative or prosaic, as the case may be. Generally they are mutterings of a confused mind. Before such evidence can be accepted, it must be established by cogent evidence what were the exact words used by the accused. Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. Further, in this case, as we have noticed earlier, P.W.s 11, 13 and 15 deposed that they clearly heard the accused say when he opened the door of the house and came out at 6'0'clock in the morning of the fateful day that he had "finished Sunderpatti, his daughter-in-law, and thereby finished the daily quarrels". We hold that this extra- judicial confession is relevant evidence: it certainly corroborates the circumstantial evidence adduced in the .case.
Supreme Court of India
Sahadevan & Anr vs State Of T.Nadu on 8 May, 2012
it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused.
The Principles
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law.
Supreme Court of India
Rahim Beg And Anr. vs State Of U.P. on 20 April, 1972
An extra judicial confession to stand the test of reliability , must stand the test of reproduction of exact words, the reason and motive of for confession and the person selected in whom confidence is reposed. IN this context Supreme court said : "So far as the confession of Mohd. Nasim Khan is concerned, we find that, according to the said witness, the two accused came to him at his house in Sakunpur on August 4, 1969 and told him about their having raped and killed the daughter of Ramjas by strangulating her as well as regarding the removal of her ornaments. Mohd. Nasim Khan belongs to another village. There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohd. Nasim Khan and blurt out a confession."
In State of U.P. V. M.K. Anthony. AIR 1985 S.C. 48 an extra judicial confession was made by the accused to his friend. The Court found that the statement was unambiguous and unmistakably conveyed that the accused was the perpetrator of the crime. The Court also found that the testimony of the friend was truthful, reliable and trustworthy. It was therefore held by this Court that the conviction of the accused on such extra judicial confession was proper and no corroboration was necessary. It was also held that much importance should not be given to minor discrepancies and technical errors.
Supreme Court of India
Vinayak Shivajirao Pol vs The State Of Maharashtra on 22 January, 1998
Before proceeding further it is necessary to set out the statement of extra judicial confession made by the appellant to the military authorities. It has been extracted in full in the judgment of the High Court as translated and placed before it. It reads as follows:
"1. Shipai No. 277/892, am giving in writing as to how I killed my wife as her behavior was not good and I myself had caught her with another man.
On 9th February in the afternoon at 4.00 p.m. I was on duty at Brigadier Saheb's Bungalow at Ghorpadi, Pune. From there I straightway came to bus stand and went to Satara by bus. While going I was carrying one steel box, one Kukari and one rug. High these luggage I reached home at a 2.00 a.m. on 10th. After reaching home, I went to the place where my mother , father and wife were sleeping. I woke up my wife. After that time my mother also woke up. My wife said, "come, I will prepare tea for you.
I told my mother that I am taking my wife and she should stay there only. Then, I came with my wife to the other home. After coming to the other home, I closed the outer door and also closed the inner door of the room. Then I pretended to sleep with my wife and pressed her neck.
I pressed the neck till she died.
After she was dead. I put her in the time box which I had taken with me and covered with rug. Then at 2.30 a.m. I can't to bus stop at the platu of Ghat Nagre which is 2-
1/2 miles away from our village.
Thus, in the morning at 5.30 a.m. I came to Nagare Fata by Bombay to Jat bus. At that spot within two minutes one truck came. I got into the Miraj Railway Station at 10.00 a.m. I boarded a train and got down at Koregaon. I went to Koregaon bus station in Bullock Cart. Then in the afternoon at 1.00 p.m. I went to Aundh Fata bus stop, which is 2 miles west of village Puregaon by bus. It was 3.30 in the afternoon.
At that time I waited there till night 9 p.m. and after the vehicular and human traffic was stopped, I started my work. Earlier I had inspected the wells in the area, Then I carried the box to a gulch (Nala). After reaching the nala, I took out the dead body from the box and severed the head and both the thumbs. Then I put the body only in a gunny bag and went to a well. At the well i put two big stones in the gunny bag and tied the mouth closed of the gunny bag and throw it in the well.
Then again I came back near the bed. I wrapped the head in a cloth and with that head went near other well. Then I tied two stones with that head and throw it in the well.
Then I tied the thumbs in a cloth and put them in pocket. I washed the box and in the well. At that time some truck came from Puregaon.
I came to Satara S.T. station at 10.30 p.m. at night in that truck.
Then I removed the kukri from the box and kept it in the cloth bag which was with me. I left the box there only and came to W.C. at the Station. In the W.C. I throw the thumbs and kukari and flushed it.
At Aundh Phata I burnt her clothes and mixed it in soil. And then at 11.00 p.m. I sat in the bus and got down at Pune on 11th at 1.00 a.m. Then I went for Guard. Then there was report. I told the Guard Commander that I had gone to my sister at Akurdi. Then on 14th at 12.00 noon I came to the Main Line.
I had given the same statement to Company Commander on 16th.
This entire statement is absolutely true.
Shipai Vinayak Shivaji Pal No. Sd/-
17/2/1983"
There is no ambiguity in the above statement. It shows that the appellant killed his wife. Both the Courts have found that the statement was made voluntarily by the appellant. The sequence of events shows that at the time when the appellant made a confession, neither he nor the military authorities had any knowledge of the recovery of the headless trunk of the appellant's wife. The military authorities were in no way biased or inimical to the appellant. Nothing is brought out in the evidence in respect of the military officers which may indicate that they had a motive for attributing an untruthful statement to the appellant. The statement has been proved by one of the officers to whom it was made. The said officer has been examined as PW 32. A perusal of the appellant that the statement was obtained from him on inducement and promise is not true. In such circumstances it is open to the Court to rest its conclusion on the basis of such statement and no corroboration is necessary.
In the present case apart from the statement of recovery there is a clinching circumstance against the appellant. That is, the head of the deceased wife was recovered from another well situated in the land of another person and the said recovery was made at the instance of the appellant. The said fact of the head being in another well was within the exclusive knowledge of the appellant and if he had not committed the murder he could not have shown the well in which the head was found. The High Court was therefore perfectly justified in relying upon the statement of confession and the recovery of the head at the instance of the appellant for holding that the appellant was guilty of murder.
Supreme Court of India
Sivakumar vs State By Inspector Of Police on 8 December, 2005
Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact.
In Piara Singh and Others v. State of Punjab [(1977) 4 SCC 452], this Court observed:
"The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and therefore refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence."
Yet again in State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] it was stated:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
Supreme Court of India
Vilas Pandurang Patil vs State Of Maharashtra on 6 May, 2004
We find that extra judicial confession which was claimed to be before PWs 5 and 6, was unjustifiably discarded by the Trial Court. The evidence of PW-6 (classmate) was discarded on the ground that he was not very close to the accused and not a person on whom the accused could repose confidence. It is brought on record that the accused and PW-6 were in fact at earlier point of time classmates and schoolmates. They also used to live close to each other. Obviously, it is not impossible that the accused could repose confidence on him. The extra judicial confession before PW-6 was clear, cogent and appears to have been made in the normal course without any pressure. The conduct of the accused after the incident and discovery of blood stained articles and the mangalsutra have been established by tendering cogent evidence. The presence of blood in the nail clippings of the accused was also a vital circumstance. As noted by this Court in Dayanidhi Bisoi v. State of Orissa (2003 (9) SCC 310), the presence of blood in the nail clipping may not be sufficient by itself to fasten guilt on the accused; but when it is considered with other evidence and found acceptable can provide additional weightage to the prosecution case. The Trial Court did not seem to consider objectively the evidence in the right perspective and had merely on surmises and conjectures, without proper application of mind directed acquittal.
Supreme Court of India
Kishan Lal vs State Of Rajasthan on 17 August, 1999
So far as the extra-judicial confession is concerned it is said that the same was made by the accused at Panchayat on two occasions. First Panchayat is alleged to have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The fathers testimony in cross- examination when confronted with his statement in Ex.D.2 (made by him during the enquiry made under Section 202 of the Code of Criminal Procedure) wherein he did not name any of the accused persons, he made the usual answer that the name might not have been recorded by mistake. But in the alleged second Panchayat, the names of large number of persons were referred to as to have confessed their guilt, including the appellant. It includes even the names of those who are not even accused. It is alleged that they sought for the pardon of the local leaders for this guilt. We find even in this alleged confession, there is no mention that the accused had burnt the deceased Smt. Sulochana. The alleged confession by large number of persons is more in a general and vague term. Before a confession is relied on it must be clear and unequivocal, whether it is in a judicial or in an extra judicial confession.
Supreme Court of India
C. K. Raveendkan vs State Of Kerala on 2 December, 1999
The extra-judicial confession as deposed by PW15 has not been relied upon by the learned Sessions Judge and High Court also came to the conclusion that it is difficult to rely upon the same, as the exact words or even the words as nearly as possible have not been reproduced by PW15. That apart, as has been stated earlier, even the evidence; of PW15 indicates that Raveendran and he went to arrack shop and consumed liquor, where-after Raveendran disclosed the entire incident and therefore, such statement cannot be said to be a voluntary and truthful one and on the other hand it is the outcome of the consumption of liquor, both by the witness as well as the accused, if at all he can be said to have made the statement. In this view of the matter, the so-called extra- judicial confession has to be excluded from the purview of consideration for bringing home the charge.
In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.
Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that there is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made.
While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that an extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The Court, further expressed the view that such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused.
In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
XXX XXX XXX
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.”
Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
“29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.]
Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :
“It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.”
in the case reported as AIR 1994 SC 1594, "Sakharam Shankar Bansode Vs. State of Maharashtra", it was observed by Hon'ble Supreme Court in Para-4 as under :-
"Unless we are satisfied that the extra judicial confession itself is true, voluntary and reliable we cannot proceed further to examine whether there is any other independent corroboration evidence."
Supreme Court of India
Chhittar vs State Of Rajasthan on 8 September, 1992
It is well settled that the retracted extra judicial confession is a very weak type of evidence and strong corroborating circumstances should be there. That apart, according to PW 11, the accused is alleged to have confessed that he hit the deceased on the head and other parts of the body. But the doctor did not find, as noted above, any fracture of the skull or any other internal injuries. Therefore, the version as per the extra judicial confession is inconsistent with the medical evidence. The extra judicial confession should be taken as a, whole and should not suffer from any infirmity even if it is to be acted upon. But in this case we find that the belated confession itself becomes doubtful in the light of the medical evidence apart from being the same retracted. We think it is highly unsafe to sustain the conviction.
OATH CANNOT BE ADMINISTERED TO THE ACCUSED IN RECORDING CONFESSION :
A full bench of Sikkim High Court, in State of Sikkim v Suren Rai Crl. A. No. 17 of 2016, answering a reference to it by the division bench, has held that administering oath to an accused while recording his confessional statement under Section 164 CrPC violates Article 20 (3) of the Constitution of India.
Baldeo Vs State of UP Decided On: 20.12.2012
Art. 20(3) – Administration of oath to accused in his confessional statement is violative of mandatory provisions of Art. 20(3) of Constitution and S. 281 of Cr.P.C. The learned Magistrate has committed gross illegality in administering oath to each accused before recording their confessional statement. Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.
In Mahabir Singh vs State Of Haryana on 26 July, 2001
An accused in a murder case barged into a courtroom on his own during the morning hours, exhibiting a knife and wanting the Magistrate to record his confession.
The Court held that an accused person can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be in the course of an investigation under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII, it is not permissible for him to record the confession. If any person simply barges into the court and demands the Magistrate to record his confession as he has committed a cognizable offence, the course open to the Magistrate is to inform the police about it. The police in turn has to take the steps envisaged in Chapter XII of the Code.It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding recording of his confession is concerned in such case. Otherwise the court of a Magistrate is not a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory.
Supreme Court of India
Rabindra Kr. Pal @ Dara Singh vs Republic Of India on 21 January, 2011
The following principles emerge with regard to Section 164 Cr.P.C.:-
(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.
(Generally , exact words of the accused should be used . Or establish by cogent evidence as to what were the exact words by the accused.)
Supreme Court of India
Manoharan vs State By Inspector Of Police, ... on 7 November, 2019
It is not mandatory that a confession or statement under Section 164 of the Code of Criminal Procedure should necessarily be made in the presence of the advocate(s) except when such confessional statement is recorded with audio-video electronic means.
What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. The confession, in the present case, was not challenged during stage of framing of charge or over the course of examination of forty-seven prosecution witnesses, but instead only partly disputed through a letter written in secret just before petitioner's examination under Section 313 of the Code. It is thus evident that such retraction at the fag-end of the trial, was not natural but rather meticulously formulated, perhaps as a part of defence strategy (reliance for exclusion was based on Nishikant Jha v. State of Bihar)
Supreme Court of India
Mohan Lal & Anr vs Ajit Singh And Anr on 2 May, 1978
An attempt was made to argue that if the statement of the respondent is to be considered at all, it must be taken as a whole and that it is not permissible to act upon one portion of the statement which shows the presence of the respondent in the company of the deceased, and leave out those portions which are exculpatory. It will be enough to say that the matter has been examined by this Court in Nishi Kant Jha v. State of Bihar, and as the evidence on the record disproves the exculpatory part of the respondent's statement in the trial court, it is clearly permissible to accept that part of the statement which accords with the evidence on the record, and to act upon it.
Supreme Court of India
Keshoram Gora vs State Of Assam on 1 February, 1978
It was 'submitted by counsel for the appellant that it was not open to the court to take the inculpatory part into consideration and reject the exculpatory part. It is submitted that an admission can be taken either as a whole or not at all. It is well settled that where a confession or an admission is 'separable there can be no objection to taking one part into consideration which appears to be true and reject the other part which is false. In the case of Nishi Kant Jha v. State of Bihar(1) this Court observed as follows:
"In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime."
Supreme Court of India
Bhagwan Singh Rana vs The State Of Haryana on 30 April, 1976
An examination of Exs. PB and PC shows that the appellant admitted that he was working as Sub-Post Master at Sohna Adda Post Office on March 21, 1967 when a Sikh by (Navatej Singh, (P.W. 5) came to the post office and delivered a parcel under postal certificate. The appellant also admitted that the parcel was opened by Tej Ram in his presence, and that he (Tej Ram) took out a lady's wrist Watch (Ex. P 1) and from it and gave it to him. The appellant however stated that he had asked Tej Ram not to open the parcel but he opened it without his consent. The exculpatory part may therefore be not much consequence for the rest of the statement goes to establish beyond any doubt that the postal parcel was delivered to the appellant by Navtej Singh (P.W. 5) it was opened by the post office packer Tej Ram in the presence of the appellant, Tej Ram took out the watch (Ex. P 1) from the parcel and gave it to the appellant, who kept it with him. The appellant wrote out Ex. PC the next day in continuation of his statement Ex. PB and presented the watch (Ex. P1) to Inspector A.P. Bhatnagar, as aforesaid. He clearly stated in Ex. PC. that the watch was the same which Tej Ram has given to him by opening the parcel which was delivered at the Post Office on March 21, 1967. It may be that the appellant tried to show in Exs. PB and PC that the parcel was not opened by packer Tej Ram with his consent, but the fact nonetheless remains that the parcel was, according to the appellant's own admission, opened in his presence, in an unauthorised manner, the watch was removed from it and the appellant kept the watch with him for a period of more than two months without accounting for it. As has been stated, these admissions of the appellant have been corroborated by other satisfactory evidence on the record in material particulars. There is therefore no reason to doubt that the appellant committed the offence under Section 52 of the Post Office Act and has rightly been convicted and sentenced as aforesaid.
It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon.
in K.T.M.S. Mohd. & Anr. Vs. Union of India [(1992) 3 SCC 178]. Court therein made a distinction between the provisions of the FERA and the Income Tax Act, opining:
"31. Leave apart, even if the officers of the Enforcement intend to take action against the deponent of a statement on the basis of his inculpatory statement which has been subsequently repudiated, the officer concerned must take both the statements together, give a finding about the nature of the repudiation and then act upon the earlier inculpatory one. If on the other hand, the officer concerned bisect the two statements and make use of the inculpatory statement alone conveniently bypassing the other such a stand cannot be a legally permissible because admissibility, reliability and the evidentiary value of the statement of the inculpatory statement depend on the bench mark of the provisions of the Evidence Act and the general criminal law."
Holding in categorical terms that Section 24 of the Indian Evidence Act shall apply, it was held:
"But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu (immediately). At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated."
In Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement Directorate & Anr. [(2007) 8 SCC 254], this Court held:
"15. Apart therefrom the High Court was bound to take into consideration the factum of retraction of the confession by the appellant. It is now a well- settled principle of law that a confession of a co- accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible therefrom. [See Haricharan Kurmi etc. v. State of Bihar AIR 1964 SC 1184; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SCC 832; and Prakash Kumar v. State of Gujarat (2007) 4 SCC 266].
16. We may, however, notice that recently in Francis Stanly @ Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvanthapuram (2006) 13 SCC 210, this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the court must seek corroboration of the purported confession from independent sources."
Vinod Solanki Vs. Union of India and Ors. 2009(233)ELT157(S.C.) , In the case the Supreme Court of India has opined:
1.that confessional statement of Appellant was acceptable in evidence.
2.Appellant had not brought out anything to displace his confessional statement to prove its untruthfulness or involuntary nature.
3.The burden was on person retracting confessional statement to lead some evidence as to why confessional statement could be rejected. No evidence on that count was led.
4.Furthermore, mere retraction of confession could not be sufficient to make confessional statement irrelevant for purpose of proceeding in a criminal case or a quasi criminal case.
Therefore, mere retraction of confession shall not be sufficient to make confessional statement irrelevant for purpose of proceeding in a criminal case.
Supreme Court of India
Hem Raj vs The State Of Ajmer(And Connected ... on 17 March, 1954
The contention that confession cannot be corroborated by the use of materials already in the possession of the police is devoid of force. A confession made and recorded even during a trial can be corroborated by the evidence already recorded. It may be made and recorded in the court of committing magistrate, and material already in the possession of the police may be used for purpose of corroboration.
the general proposition of law that confession would not ordinarily be considered the basis for a conviction. We must, however, at this stage, notice that this is one of those rare cases where an appellant had stuck to his own confessional statements. He did not make any attempt to retract. He even did not state that it was not truthful or involuntary.
It is well settled that statements under Section 313 of the Code of Criminal Procedure, cannot form the sole basis of conviction; but the effect thereof may be considered in the light of other evidences brought on record.
In Aloke Nath Dutta & Ors. vs. State of West Bengal [2006 (13) SCALE 467], this Court noticed the law in regard to the effect of a confessional statement of the accused in the following terms :
"Sections 24 to 30 deal with confession. Section 24 speaks of the effect of a confession made by an accused through inducement, threat or promise proceeding from a 'person in authority'. Whereas section 25 and section 26 deal with situations where such 'person in authority' is police. It is an institutionalized presumption against confession extracted by police or in police custody. In that frame of reference, Section 24 is the genus and sections 25 and 26 are its species. In other words, section 25 and section 26 are simple corollaries flowing out of the axiomatic and generalized proposition (confession caused by inducement where inducement proceeds from a person in authority, is bad in law) contained in section 24. They are directed towards assessing the value of a confession made to a police officer or in police custody.
The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act.
Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should some time, in our opinion, be more intrusive than what is required in law. [See Babubhai Udesinh Parmar v. State of Gujarat 2006 (12) SCALE 385].
In a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police.
Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture."
It was further opined :
"In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature."
In State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru [(2005) 11 SS 600], this Court stated :
"As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarised in Bharat v. State of U.P. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus: (SCC p. 953, para 7) "Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true"
We may also notice that in Sidharth & Ors. vs. State of Bihar [(2005) 12 SCC 545], this Court opined :
"The confession made by the appellant Arnit Das is voluntary and is fully corroborated by the above items of evidence. The Sessions Judge was perfectly justified in relying on the confession made by the appellant Arnit Das."
In a case where sufficient materials are brought on records to lend assurance to the Court in regard to the truthfulness of the confession made, which is corroborated by several independent circumstances lending assurance thereto, even a retracted confession may be acted upon.
Indisputably, Section 30 of the Indian Evidence Act, 1872, in a situation of the present nature, can be taken aid of. The courts below did take into consideration the confessional effect of the statements made by the appellant No.1 as against the appellant No.2 for arriving at an opinion that by reason thereof involvement of both of them amply stand proved.
The expression 'the court may take into consideration such confession' is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative evidence. In absence of any substantive evidence, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra judicial confession or a judicial confession and least of all on the basis of retracted confession.
The question has been considered in State of M.P. through CBI & Ors. vs. Paltan Mallah & Ors. [(2005) 3 SCC 169], stating :
".....Under Section 30 of the Evidence Act, the extra- judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession.."
"It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh v. State of M.P. held that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
In Ram Parkash vs. The State of Punjab [1959 SCR 1219], it was held :
"That a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of s. 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. The amount of credibility to be attached to a retracted confession would depend upon the circumstances of each particular case."
Supreme Court of India
Haroon Haji Abdulla vs State Of Maharashtra on 14 December, 1967
"The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused. Not a, single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co- accused. An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of s. 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of s. 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co-accused without corroboration."In this connection the question of retraction must also be considered. A retracted confession must be looked upon with greater concern unless the, reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from some one in authority. A retracted confession is a weak link against the maker and more so against a co-accused.
Calcutta High Court (Appellete Side)
Gopal Sarkar vs State Of West Bengal on 20 December, 2019
In Kashmira Singh Vs. State of M.P., the Supreme Court held retracted confession of an accused is not substantive evidence against a co-accused and can only lend assurance to corroborate other evidence on record against the latter. The Court held:-
"10. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to 2 AIR 1952 SC 159 sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."3 Applying the aforesaid ratio to the facts of the case, one may at best use the confession of Khaledur as corroborative evidence provided the other evidence on record, if believed, is sufficient to sustain a conviction. Intrinsic quality of the evidence of P.W. 11 with regard to presence of appellant at the time of discussion over drinks amongst other accused persons about a school in Ranaghat is poor. On a comprehensive reading of the entire evidence of P.W. 11, it cannot be said with certainty that the appellant was present when such discussion took place even if it is accepted that he supplied meat to them while they were drinking. P.W. 11 is also not sure with regard to the presence of Khaledur at the spot. P.W. 12 does not appear to have witnessed such incident on the day of marriage at all. The aforesaid evidence on record, even if believed, is not sufficient to come to a conclusive finding that the appellant entered into an agreement with other accused persons to commit dacoity in the convent. Although other accused persons may have enjoyed the hospitality of the appellant immediately prior to the incident, it cannot be said that there was a meeting of minds between the appellant and other accused persons to plan the said dacoity. As the substantive evidence on record is too flimsy and unconvincing, conviction of the appellant cannot be founded on the retracted confession of a co-accused. Accordingly, I am of the opinion that the appellant was not a party Ibid para 10 to the conspiracy to commit dacoity at the convent and his conviction under section 120B IPC is liable to set aside.
SECTION 24 :-
Supreme Court of India
Pyare Lal Bhargava vs State Of Rajasthan on 22 October, 1962
The first question turns upon the interpretation of the provisions' of s. 24 of the Evidence Act and its application to the facts found in this case. Section 24 of the Evidence Act lays down that a confession caused by inducement, threat or promise is irrelevant in criminal proceedings under certain circumstances. Under that section a confession would be irrelevant if the following conditions were satisfied: (1) it should appear to the court to have been caused by any inducement, threat or promise; (2) the said threat, inducement or promise must have reference to the charge against the accused person; (3) it shall proceed from a personal authority; and (4) the court shall be of the opinion that the said inducement, threat or promise is sufficient to give the accused person grounds which would appear to him reasonable in supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The crucial word in the first ingredient is the expression " appears". The appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof. Section 3 of the Evidence Act says:
"A fact is said to be 'proved' when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the test of proof is that there is such a high degree of probability that a prudent man would act on the assumption that the thing is true. But under s. 24 of the Evidence Act such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards ,of proof has been designedly accepted by the Legislature with a. view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence. It is not possible or advisable to lay down an, inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily.
The threat, inducement or promise must proceed from a person in authority and it is a question of fact in each case whether the person concerned is a man of authority or not. What is more important is that the mere existence of the threat, inducement or promise is not enough, but in the opinion of the court the said threat, inducement or promise shall be sufficient to cause a reasonable belief in the mind of accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him: while the opinion is that of the court, the criterion is the reasonable belief of the accused. The section, therefore, makes it clear that it is the duty of the court to place itself in the position of the accused and to form an opinion as to the state of his mind in the circumstances of a case.
A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.
Supreme Court of India
Satbir Singh & Anr. Etc. Etc vs State Of Punjab on 14 March, 1977
Mr. Kapur also himself "enquired from M.P. Singh and Shiv Narain accused about the matter on 19th July, 1970 telling them that now that the case has been registered they should state the truth". In deciding whether a particular confession attracts the frown of section 24 of the Evidence Act, the question has ,to be considered from the point of view Of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind.It is true that Mr. Kapur, in his evidence, denied having held out: to the accused any inducement, threat or promise. We, however, find. that on July 1-7, 1970, the police gave a go by to the encounter story and the present case was registered against the accused. Two days after, on July 19, 1970, Mr. Kapur having already failed to get any confessional statement from the accused through other agency, took upon himself to question accused Shiv Narain and Harbhajan Singh separately and this time he succeeded in securing confessional statements. When the two accused were questioned. separately after several abortive attempts to secure confessions, can it be said that there' was no inducement, threat or promise of some kind proceeding from. Mr. Kapur to have made any impact on their minds 'resulting in the confessions ? Mr. Kapur having stated to the accused on July 19, 1970, that "now that the case has been registered they should state the truth", it is difficult to hold that by this statement he would not generate in the minds of the accused some hope and assurance that if' they told the "truth" they would receive his "support" which he had earlier' conveyed to them through D.S.P. Handa. It is true that in the course of cross-examination Mr. Kapur stated that he had told the accused that if they had done anything wrong they would go to jail. But having regard to the effect of the totality of the evidence of this witness, we are unable to hold that the confessions made by the accused before Mr. Kapur on July 19, 1970, were free from the taint of infirmity within the mischief of section 24 of the Evidence Act.' We are, therefore, clearly of opinion that the extra-judicial confessions by the two accused, Shiv Narain and Harbha- jan Singh, have to be completely excluded from consideration being hit by section 24 of the Evidence Act. Similarly not much can be made of abscondence of certain accused when other material evidence connecting the accused with the crime has failed in this case.
Supreme Court of India
Selvi & Ors vs State Of Karnataka & Anr on 5 May, 2010
In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi's case, (1978) 1 SCC 248. Hence, we must examine the `right against self-incrimination' in respect of its relationship with the multiple dimensions of `personal liberty' under Article 21, which include guarantees such as the `right to fair trial' and `substantive due process'. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency.
Patna High Court
Emperor vs Akhileshwari Prasad on 3 March, 1925
There is a good deal to be said in favour of this contention: if a person, who is suspected of an offence, is examined (i.e., asked questions) by a person in direct authority over him and if it is only in consequence of an inducement by way of benefit (e.g., if you confess you shall go free) or a threat (e.g., if you do not tell the truth--or if you do not own up--you will be severely punished) that the person under suspicion makes self-incriminating statements such are, broadly speaking, not receivable in evidence because they are not in law regarded as strictly' of a voluntary nature but as having been perhaps induced in the one case by a false hope and in the other by fear. On the other hand a merely moral exhortation to tell the truth is in no way objectionable.
Supreme Court of India
Veera Ibrahim vs State Of Maharashtra on 18 March, 1976
To attract the prohibition enacted in s. 24, Evidence Act, these facts must be established:
(i) that the statement in question is a confession;
(ii) that such confession has been made by an accused person;
(iii)that it has been made to a person in authority;
(iv) that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority;
(v) such inducement, threat or promise, must have reference to the charge against the accused person;
(vi) the inducement, threat or promise must in the opinion of the Court be sufficient 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 him.
In the present case, facts (i), (iv) and (vi) have not been established. Firstly, the statement in question is not a "confession' within the contemplation of s. 24. It is now well-settled that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, howsoever grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged, cannot amount to a confession (see Pakala Narayana v. R.; Plavinder Kaur v. State of Punjab; Om Prakash v. State.
A perusal of the statement Ex. I made by the appellant before the Inspector of Customs would show that it contained exculpatory matter. Therein, the deponent claimed that he was not aware that the packages which were loaded in the truck were contraband goods, and alleged that the goods were not loaded under his instructions. The deponent claimed to be an innocent traveller in the truck when he said: "I did not ask Mullaji (driver) what goods were being loaded in his lorry... Mullaji was only my friend and I was not aware of any of his mala fide activities".
Moreover, the incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute any offence. To bring home an offence under s. 135 of the Customs Act, in addition to the facts admitted in Ex. I, it had to be established further that these goods were contraband goods.
For these reasons, it could be said beyond doubt, that the statement Ex. 1 was not a "confession" within the meaning of s. 24, Evidence Act.
Secondly, it has not been shown that the Customs officer-though a person in authority-had offered any inducement or held out any threat or promise to the appellant.
Christopher Soares, the Inspector of (Customs (P. W. 4) testified that no threats, coercion or inducements were used and that the statement Ex. 1 was made by the appellant, voluntarily.
While it may be conceded that a person summoned by an officer of Customs to make a statement under s. 108 of the Customs Act, is under compulsion of law to state the truth, the compulsion there under, assuming it amounts to a threat, does not proceed "from a person in authority" within the contemplation of s. 24, but emanates from law.
Thirdly, the mere fact that the Inspector of Customs had, before recording the statement, warned the deponent of the possibility of his prosecution for perjury in case he did not make the statement truthfully, cannot be construed as a threat held out by the officer which could have reasonably caused the person making the statement to suppose that he would by making that statement, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him for smuggling.
In view of what has been said above, we have no hesitation in holding that the statement Ex. 1, was not barred under s. 24, Evidence Act. The statement Ex. P-1 was clearly admissible under s. 21, Evidence Act as an admission of incriminating facts. The circumstances established unmistakably and irresistibly pointed to the conclusion that the appellant was knowingly concerned in a fraudulent attempt at evasion, if not, fraudulent evasion, of duty chargeable on those contraband goods.
in State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600], commonly known as the `Parliament Attack case.' Therein also this Court held:
"We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions'-which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession.
While Sections 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'appears' connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer.
In Assistant Collector of Central Excise, Rajamundry vs. Duncan Agro Industries Ltd. & ors. [(2000) 7 SCC 53], this Court opined that an authority under the Act while recording a statement need not follow the safeguards provided in Section 164 of the Code of Criminal Procedure, 1973. Therein also, it was held:
"The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinized by the court in the same manner as confession made by an accused person to any non- police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings."
Bombay High Court
Mr. Vilas Raghunath Kurhade vs The State Of Maharashtra on 8 February, 2011
Following this decision it was necessary for the prosecution to prove the extra judicial confession by some other evidence and its reliance only on the basis of the purported communication made by accused No.1 to his wife P.W.3-Mangal could not be taken into consideration as evidence in view of Section 122 of the Evidence Act.
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