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Abstract

KEY WORDS: - Confessional FIR, Judicial Confession, Extra-Judicial

Confession, Confession to Police, Evidentiary Confession, Threat,
Inducement.

Topic: - Relevant and Irrelevant Confession

A confession must either admits in terms the offence or at any rate

substantially all facts which constitute the offence. An admission of a
gravely incriminating fact, even a conclusively incriminating fact, even
a conclusively incriminating fact is not in itself a confession. Section
30 of the Indian Evidence Acts states that Confession made by one or
two more accuse jointly tried for the same offence can be taken into
consideration against the co-accused. Section 29 lays down that if a
confession is relevant, that is , if it is not excluded from being proved
by any other provision on Indian Evidence Act, it cannot be relevant if it
was taken from the accused by , i.e.; Giving him promise of secrecy,
or , by deceiving him, or when he was drunk, or Because it was made
clear in answer to question which he need not have answered, or
because no warning was given that he was not bound to say anything
and that whatever he will sate will be used against him. Section 24 lays
down that a confession which is the outcome of inducement, threat or
promise from a person in authority would not be relevant. Section 25
lays down that a confession to a police officer is irrelevant.

At last I want to conclude by saying that Change in Evidence Act is

necessary so as to invigorate the trust and faith of the people of India
in the judiciary that they will be provided imparted speedy justice to
the wrongs done to them by any person. After all Justice should not
only be done, but also be seen to be done.
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INTRODUCTION

The provisions of evidence relating to confession which was passed

way back in 1872 needs a serious revamp to come into terms with
backlog of criminal cases in India. The term confession is nowhere
defined in the Evidence Act. All the provisions relating to confession
occur under the heading of admission. The definition of admission is
applicable to confession also which is given under section 17 of the
Indian Evidence Act. Section 17 defines admission as a statement oral
or documentary which suggests any inference to any fact in issue or
relevant fact. 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 acid test which distinguishes a
confession from an admission is that where conviction can be based on
the statement alone, it is confession and where some supplementary
evidence is needed to authorize a conviction, and then it is an
admission. In Ram Singh v. State Ors. It was held that if the prosecution
relies on the statement as being true it is confession and if the
statement is relied on because it is false it is admission. In criminal
cases a statement by accused, not amounting to confession but giving
rise to inference that the accused might have committed the crime is
his admission. 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. The
confession of an accused may be classified into Voluntary and non-
voluntary confession. A confession to the police officer is the
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confession made by the accused while in the custody of police officer

and never relevant and can never be proved under Section 25 and 26.
Now as for extra judicial confession and confession made by the
accused to some magistrate to whom he had been sent by the police
for the purpose during the investigation, they are admissible only are
made voluntarily. The Scope and the parameters of Confession and
the confessional statements have travelled beyond the boundaries of
the traditional Sections 24, 25, 27 and Sections 161, 164, 167 in the
Indian Evidence Act, 1872 and the Code of Criminal Procedure Code,
1973 respectively. With the emergence of new scientific techniques like
Brain Fingerprinting, Brain Mapping, Narco- Analysis, Lie detectors, etc.
for tracing the exact information for purposes of corroboration of
information and admissibility as piece of evidence in the cases, a need
for bringing changes in the provisions of Procedural Codes. Further
Confession is a concept closely interrelated to the concerns of Part III
rights enshrined in the Constitution of India, under Article 20(3), 21 etc.
There are various case laws the Courts in India the importance of the
Voluntary Confessions, Prevention of Retraction from Confession,
avoiding duress and use of 3rd degree force by the police while the
accused is in custody. The importance of confessional statement by the
witnesses is reflected in the Supreme Courts concern to bring in
Witness Protection Mechanism for purposes of the criminal justice
system. Recent developments in the domain of Confession are many;
the famous Malimath Committee reflects the thoughtful concerns on
the same in the report on criminal reforms.
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CONFESSION: TRADITIONAL & STATUTORY DIMENSIONS

Police interrogation constitutes a very important part of the existing

criminal justice system. Although evidencing law The Indian Evidence
Act, 1872 and Criminal Procedure Code 1973 do not cast much weight
on any statement coming out of an accused person while interrogated
by the police who in legal terms is not considered as admissible part of
evidence as per Section 251 of the Indian Evidence Act, 1872.
Nevertheless police personals are applying third degree method to
extract statement which may help the investigation. In India such
allegations are frequent that they torture accused under custody to
elicit confessional statement, though it is made to a magistrate and
that judicial officer has to maintain some civility and follow to set order
given under Cr.P.C. when recording confessional statement of any
individual2.

Interrogation by Police and Confessions

1 Section 25 reads as: Confession to police officer not to be proved. No
confession made to a police officer shall be proved as against a person accused
of any offence.

2 Section 161 reads as: Examination of witnesses by police. (1) Any police officer making
an investigation under this Chapter, or any police officer not below such ranks as the
State Government may, by general or Special order, prescribe in this behalf, acting on
the requisition of such officer may examine orally any person supposed to be acquainted
with the facts and circumstances of the case.
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The statements made to the police are not admitted for the purposes
of admissible pieces of evidence as can be traced from reading Section
1623 with Section 25 of the Indian Evidence Act. Statements to police
not are signed: Use of statements in evidence.

A plain reading of sections 61 and 167 of the Cr. P. C reveals that the
police investigation of the offence in the case of a person arrested
without warrant should be completed in the first instance within 24
hours under section 61 or if not then within 15 days under section 167.
Any police officer making an investigation may examine orally

The Importance of Confession in Criminal Trials

Exception to the Rule against Hearsay

The general English rule that hearsay is no evidence has been enacted
in Section 60 of the Indian Evidence Act. The term hearsay is
generally used to indicate the evidence which does not derive its value
from the credit given to the witness himself but which rest also in part
al the veracity and competence of some other person. 4 Hearsay
evidence is considered untrustworthy since the original maker of the
statement is not before the court as a witness. The time lag before the
statement is repeated in the court may introduce distortions. Further
(2) Such person shall be bound to answer truly all questions relating to such case put to
him by such officer, other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.

3 Section 162: Statements to police not to be signed: Use of statements in

evidence.No statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any record thereof, whether in a
police diary or otherwise, or any part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry or trial in respect of any
offence under investigation at the time when such statement was made.
(2) Nothing in this section shall be deemed to apply to any statement falling within
the provisions of clause(1) of section 32 of the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions of section 27 of that Act.

4 Taylor on Evidence,570.
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the original declarant was not put on oath before making the statement
and he is not available in the court or cross-examination.

An accused in a criminal trail does not appear as a witness unless he is

permitted to, on his prayer. Thus a confession made by him before the
beginning of trial when sought to be proved by other witness can be
said to be hearsay.

Admissions and confessions from a special group within the exception

to be hearsay rule. The key factor that distinguishes them from other
hearsay evidence is that they are statements one or the parties to the
proceeding. The party is litigating in the court and is in a position to
admit or deny that he had made such a statement. He can also cross
examine the witness proving the admission or confession made by him.
Secondly, they also derive probative force from a ring of truth that
accompanies them. If a person makes a statement out of court, in his
favor, it may be of little value since there is always a tendency to say
self serving things. To treat this as evidence for him would be to offer
an inducement creates inducement to create evidence for him and
open the door to fraud. But this objection ceases to have force when
the statement is against his own interest. In the natural course of
human conduct a man is not likely to say anything against his
advantage or interest unless it was true. The main thrust of the rule
against hearsay being on the need and prudence of affording an
opportunity of cross examining the original maker of the statement. He
said rule can in fact not be invoked in case of confessions. A confession
is alleged to have been made by the accused who cannot cross
examine himself.

RELEVANT CONFESSION

Section 27 provides for a confession as to when be it relevant and also

provides for an exception when a confession made to the police is
admissible. There is when a confession leads to the discovery of the
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fact connected with the crime. The discovery assures that the
confession is true and reliable even if it was extorted. In order to
ensure the genuineness of recoveries; it has become a practice to
recover such evidence in the presence of witnesses. The Indian
Evidence Act was written before the constitution of India and Article 20
(3) of the constitution says that no person shall compel to be a witness
against himself. This article seemingly made section 27 of the Indian
Evidence Act unconstitutional. Supreme Court considered this issue in
the of Nisa Stree v. State of Orissa 5, and held that it is not violative
of Article 20(3). The court established that a confession may or may
not lead to the discovery of an incriminating fact. If the discovered fact
is non incriminatory, there is no issue and if it is self-incriminatory, it is
admissible if the information is given by the accused without any
threat.

Section 29 of this Act that says that a relevant confession does not
become irrelevant merely because it was made under a promise of a
secrecy or in consequences of a deception practiced on the accused
person for the purpose of obtaining or while the accused was drunk or
while answering the questions he need not have answered or when the
accused was not warned that he was not bound to make such
confession and that evidence of it might be given against him.

Scope of Section 24 of IEA:-

5 AIR 1954 SC 279

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In Queen Empress v. Babu Lal,6 the Privy Council held that section
24 declares that confession caused by inducement, threat or promise
are irrelevant unless as Section 28 provides, they are made after the
impression caused by any such inducement, threat or promise has
been fully removed.7 When the legislature wished to make an exception
to absolute rule in Section 24, it did so by a separate Section viz.
Section 28, which declares under what circumstances a confession
rendered irrelevant by Section 24 may become relevant. A confession
made under an inducement that has not been removed within the
meaning of Section 28 is not relevant as a confession under Section 24.
The rule thus laid down is speaking strictly, a rue of relevancy, called
forth by the abstract principles of evidence and not positive prohibition
necessitated by exigencies. Section 24 of Evidence Act is a rule of
exclusion because it declares that a confession made by an accused
person in certain circumstances is Burden of Proof. The words if it
appears to the court as used in Section 24 do at the first instance,
seem to favor a view that the burden of proving involuntariness is on
the accused. In relation to judicial confessions fields opinion is that it is
held to be voluntary unless contrary is shown. 8 In this regard, he holds
that the Indian law differs from the law of England. However, appears
to the court does not by its terms; require positive proof by the
accused. All that it means is that voluntariness of the confession should
not go entirely unchallenged, Once it is pointed out to the court that
the confession was involuntary, with same cogent reasoning so as to
make it quite probable that it was indeed involuntary, the burden on
the accused if any is discharged. As per Wood rofee, it would be more
correct to say that as under Section 3, prudence is to determine

6 ILR 6 All 509.

7 ILR 6 Sec. 509.

8 Fields-Evidence, 6th Edn. p. 98.

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whether a fact exists or not. The use of the word appears while
requiring proof indicates that a lesser degree of such proof is required
in this than in other cases.9

Nature of Inducement, Threat or Promise:-

In the case of Emperor v. Panchkari Dutt,10 the court has to be

satisfied that the inducement, threat or promise is sufficient to afford
reasonable hope of advantage to the accused person. This is a matter
of discretion for the judge like the question whether a confession is or
is not accused by inducement, threat or promise. Further a duty is cast
on the judge to see whether an accused person placed as he was in a
peculiar position would reasonably consider a particular kind of
inducement, threat or promise to be capable of giving him any
advantage or of averting for him an evil of a temporal nature in
reference to the proceedings against him, therefore, it would be
necessary on the part of a judge dealing with a confession falling under
Section 24 of the Evidence Act to take into consideration not only the
words used by a person in authority but also his acts and conduct not
only the frame of mind of the accused his age, experience, intelligence
and character, but also the time, place and circumstances under which
the accused was face to face with the person who used the
inducement, threat or promise. Then only it would be possible to see
whether the accused could be affected in the manner contemplated in
the section by the particular inducement threat or promise therefore, it
is enough if such inducement threat or promise would in the opinion of
the court be sufficient to give the accused person grounds which would
appear to the accused person not to the court reasonable grounds for
supposing that by making the confession he would gain an advantage
or avoid an evil of the nature contemplated in this section.

9 Woodroffe, Evidence, 10th Edn. p. 370.

10 AIR 1966 Cal 587

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Thus, Section 24 of the Evidence Act enacts one of the cardinal

principles of Criminal Jurisprudence that an accused cannot be
compelled to give evidence against him. This, along with Section
163(1) of the Code of Criminal Procedure which prohibits police officers
and other persons in authority to offer any inducement, threat or
promise as mentioned in this provision give full effect to the guarantee
against compelled self-incrimination enshrined in Article 20(3) of the
Constitution of India, the immediately succeeding provisions which
stretch the right too far are shrouded with controversy. But so far as
Section 24 is concerned, there are absolutely no doubts as to its
necessity to safeguard an important human right. A case, in which a
confession is admitted in violence, is no doubt open to the defense to
object to the evidence of confession on the ground that it is excluded
by the Section 24 of Evidence Act. But such objection is raised; there is
no necessity for the court to pronounce any formal decision on the
question of relevancy of the confession. The actual admission of the
evidence during the trial is sufficient for the purpose.

Critical Appraisal

Now it is settled law that the confession made under threat, promise is
not admissible evidence, hence cannot taken into consideration for the
conviction of the accused. Further the confession made in the police
custody or in the presence of the police officer is also not relevant. In
other words the custodial confession is not relevant piece of evidence,
hence not admissible. But not the question arises what amounts to
custodial confession and what is the scope of custodial confession.

Custodial Confessions

Unlike U.K. and U.S.A. Indian legislatures have created a total bar to
admissibility of custodial confessions in evidence. I.e. confessions
made by an accused person to police or to anyone, whilst in police
custody. These are governed by Sections 25 and 26 of the Evidence
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Act. The total exclusion rule has been justified on the basis of
unreliability of the police for according to rights of the accused during
interrogation.

Police Officer Meaning and Scope:-

There is no definite definition of the expression Police Officer in any

of our statutes, as used in Section 25 of the Evidence Act. Therefore,
the first requisite is to know what is meant by the term Police.
According to the definition of the word Police in the Police Act (V of
1861) all those persons who are enrolled under that Act are included
within that term. These include inferior police officers and superior
police officers. Therefore, the expression police-officer in Section 25
is a nomenclature to denote all those who are in the police force. 11 The
expression Police-officer is also freely used in the Criminal Procedure
Code including all ranks of the police with powers assigned to all and
sundry as defined in different sections of that code. Therefore, one
thing is clear that the term police officer includes all personnel of the
regularly constituted police force starting from a constable to the
highest rank i.e. a Director-General.

Confessions in Police Custody

Section 26 carries the theory of deemed involuntariness due to

presence of police still further and bars any confessions made by the
accused to anybody except in the presence of a Magistrate. The
presence of a Magistrate is supposed to negative the influence of
police custody on the mind of the accused and to serve as a safeguard
for him to feely exercise his option to make a confession or not except
when made in presence of a Magistrate, a confession made by an
accused whilst he is in police custody to any person be it a fellow
prisoner, a doctor or a visitor is inadmissible in evidence. 12 Mehmood J.

11 R. v. Macdonald, 10 B.L.R. App. 2

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has observed in Q. v. Babu Lal,13that Section 25 and 26 lay down two

clear and definite rules. In Section 25 the criteria for excluding a
confession is the answer to the question. To whom was the confession
made?, if the answer is that it was made to a police officer, the
confession is absolutely excluded from evidence. On the other hand the
criterion adopted in Section 26 is the answer to the question. Under
what circumstances was the confession made? If the answer is that it
was made whilst the accused was in custody of a police officer the law
lays clown that such confession shall be excluded from evidence unless
it was made in the immediate presence of a Magistrate.

CONTEMPORARY FORM OF CONFESSIONAL EVIDENCES

Nacro Analysis Tests

Brain Mapping Tests

Confession in Media Trail

Coming out of the traditional shell of Evidence under section 24-29 of

the Indian Evidence Act, Section 161-167 of the Code for Criminal
Procedure. Although narco-analysis test are yet to be accepted as
evidence in the court of law, they can help investigators crack the
worst of cases. Its called sodium pentothal. Used traditionally in
operating theatres across the world, an adequate dose of the
barbiturate helps induce general anesthesia before surgery and is so
potent that it takes less than a minute to bring about the onset of
unconsciousness in a person. When administered in a lower dose,
however, the drug doesnt knock one off, but nevertheless generates a
state of stupor. Its a trance-like phase, experts say, where a persons
inhibitions are lowered to the extent of making him spill facts that

12 Narayan Swami v. Emperor AIR 1939 PC 47

13 6A 509 (FB).
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would otherwise have been suppressed by his conscious self. Thats

when medical science gives way to forensics.

The use of this technique of Narco Analysis test was abated in

popularly known Stamp Paper Scam where the prime Abu Karim Telgi,
was administered truth serum during a narco-analysis test, under the
effect of which truth as regards to the case was extracted out of him.
Recently, in February, 2007, the notorious master-servant duo accused
in the Nithari killings was subjected to the same analysis they also
underwent another test called brain mapping, by Noida Police
personnel.

The Indian Judiciary has admitted the results of these tests 14; however,
experts say they cant even be referred to in a court of law.
Nonetheless, they were conducted to aid investigators in cracking the
cases. The legal experts opine that If a person accused of murder
reveals during such a test that he has hidden his weapon in a particular
place, it may help the police in tracking down the weapon. While the
court may not recognize the test, it may consider the weapon, if found,
as evidence, it means that the information as obtained from the
subjects under the effect of the Truth Serum shall further be utilized for
the purposes of corroboration of the other available evidences or say
for the purposes of collection of evidences15.

It seems that the narco-analysis and brain mapping are better

alternatives to older processes such as the polygraph, commonly
known as the lie detector. While the polygraph was used on people in
full control of their consciousness, nacro-analysis and brain mapping
are tests targeted at the subconscious human mind and impulses in the
human brain, respectively Brain mapping, on the other hand, works on

14 Nithati killings main accused Moninder Singh Kohli and Stamp Paper scam
kingpin Abdul Karim Telgi.

15 As per the mandate of section 27 of the Indian Evidence Act, 1872 .

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the principle of providing a person with external stimuli such as

pictures or sound clips and then scanning the brain for corresponding
responses. In the Nithari case, for example, the accused were shown
pictures of the missing children during brain mapping. If the accused
had seen the children before, their brains would respond to those
pictures with familiarity, and those impulses would be recorded by the
receptors.

Technically, it all sounds fine. But questions still abound about the
dependability of these processes. Often the Hardened criminals may
not respond to narco-analysis as easily as first-time offenders, a person
with a criminal bent of mind may remain silent even under the effect of
the truth serum. But the legal fact which remains unabated is that a
nacro-analysis test is not an established method of investigation.

Critically speaking, nacro-tests are only a more refined way of getting

people to confess than older confession techniques such as third
degree torture. And either way, we are left with an inefficient
investigative agency that cant follow up a case on its own abilities and
has to depend on what the accused tell it and this makes such new
revolutionary techniques redundant for purposes of evidential records
before the courts.

Another aspects of these tests which has drawn flak is their self-
incriminating nature, which comes in direct conflict with the
constitutional right of Indian citizens as guaranteed by Article 20 of the
Indian Constitution. No person accused of any offence shall be
compelled to be a witness against himself,

In that light, it technically becomes mandatory for investigative

authorities to obtain the written permission of an accused before
conducting such tests on him or her. This is where several human
rights lawyers smell a rat. In many a cases where such investigation is
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conducted the investigators often go ahead with these analyses

without the written consent of the accused to undergo such a test.

Further it often so happens that the investigating teams conducting

these tests leak the results to the media, only a mislead the public
about the investigative process, which further violates the rights of the
accused as under the Constitution of India.

BRAIN FINGERPRINTINGemerging technique to extract

confessions

Farewell Brain Fingerprinting16

CONCLUSION

On a concluding note it would be apt to state that the importance of

confession can never be undermined or the purpose of criminal trial.
Confession under the Criminal Procedure Code, 1973 has many
facets to it. It has a key value in the criminal Justice system, and
therefore the sanctity of the authenticity of confessionary
statements be maintained and the constant process of evolvement
of new forms and mechanisms of the existing Procedural laws and
the entire evidential jurisprudence in the country. In India, the
importance and the sacrosanct of the confession is all the more
important for the reason that the law enforcing agency is the same
as the investigating agency is both vested in the police. So at times

16 Farewell Brain Fingering works as follows. Words or pictures relevant to a

crime are flashed on a computer screen, along with other, irrelevant words or
pictures. Electrical brain responses are measured non-invasively through a
patented headband equipped with sensors. Dr. Farwell has discovered that a
specific brain-waive response called a MERMER (memory and encoding related
multifaceted electroencephalographic response) is elicited when the brain
processes noteworthy information it recognizes. Thus, when details of the crime
that only the perpetrator would know are presented, a MERMER is emitted by the
brain of a perpetrator, but not by the brain of an innocent suspect. In Farwell
Brain Fingerprinting, a computer analyzes the brain response to detect the
MERMER, and thus determines scientifically whether or not the specific crime-
relevant information is stored in the brain of the suspect.
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the over enthusiasm and the anxiety of the police agency is

reflected in their infliction of forceful means and resorting to the use
of third degree violence for the purpose of the retracting and
bringing out the confession out of the accused persons in custody or
the ones taken on police remand.

BIBLIOGRAPHY

Books:

1. Lal, B Law of Evidence (Central Law Agency, Edition 20 th ,

Allahabad)
2. Monir, M The Law of Evidence (Universal Law publishing,
Edition 9th , New Delhi)
3. Dr. Krishnamachari V. Law of Evidence(S. Gogia & Company,
Edition 7th , Hyderabad)
4. Vepa P. Sarthi; Law of Evidence; (5th edition; 2002), Eastern Book
Company
5. Dr. V Nageswara Rao; The Indian Evidence Act A Critical
Commentary Covering Emerging Issues and International
Developments; 2nd Edition; Publisher Lexis Nexis; ISBN:- 978-93-
5143-399-6.
6. Dr. Shakeel Ahmed Khan; Ratanlal & Dhirajlal The Law of
Evidence; 24th edition 2016; Publisher Lexis Nexis; ISBN:- 978-93-
5143-676-8
17 | P a g e

7. M.C. Sarkar, SC Sarkar and Prabhas C Sarkar; Sarkar,s law of

evidence, 15th edition, 199 Vol. I; Wadhwa and Co, Nagpur.

Articles

1. Lawnotes (2007), Evidence Act Retrieved on 17 th March 2015,

from http://lawnotes.blogspot.in/2007/01/evidence-act.html.
2. Legal Services India (2013), Confession under Indian Evidence
Act Retrieved on 17th March 2016, from
http://www.legalservicesindia.com/article/confession-under-
indian-evidence-act.html.
3. Hanumant (2012) Confession Retrieved on 17 th March 2016,
from http://hanumant.com/LOE-Unit4-Confession.html.
4. Lectlaw (2013) Admissions Retrieved on 18 th March 2016 from
http://www.lectlaw.com/a159.htm
5. Police Link (2011) Distinguish between Confession and
Admission Retrived on 20th March from
http://policelink.com/distinguishing-between-admissions-and-
confessions