Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Study Material

Law of Evidence- I

B.A.LL. B (HONS) V SEMESTER

Unit-3

ADMISSION AND CONFESSION

Admission and its kinds (Sec.17)

Section 17, Admission defined: An admission is a statement, oral or documentary or

contained in electronic form, which suggests any inference as to any fact in issue or relevant

fact, and which is made by any of the persons, and under the circumstances, hereinafter

mentioned.

Scope:

Section 17 defines the term “admission.” According to the definition an admission: (i) is a

statement, oral or documentary or contained in electronic form, (ii) which suggests any

inference as to any fact in issue or relevant fact, and (iii) which is made by any person under

the circumstances hereinafter mentioned. Such circumstances as “hereinafter mentioned” have

been mentioned in Sections 18 to 30.

Strictly speaking, the admission has been dealt with in Sections 17 to 23 and 31, whereas

Sections 24 to 30 are also admission, but it is used as confession. Under the English law the

term ‘admission’ is used in civil cases, whereas ‘confession’ is used in criminal cases. But, the

Indian Evidence Act has not made such types of distinction. A confession is a statement made

by an accused admitting his guilt. Thus, a confession is also an admission made by a person

charged with crime stating or suggesting the inference that he committed a crime.

In CBI v V .C. Shukla the Supreme Court has pointed out the difference between an admission

and a confession. “Only voluntary and direct acknowledgement of guilt is a confession, but, if

it falls short of actual admission of guilt, it may be used as evidence against the person who

made it or his authorized agent, as an admission under section 21.” Admissions so made may

not be taken as conclusive proof of matter admitted but are to be accepted as substantive

evidence of fact admitted.

Principle of Admissions:

The principle underlying the law of admission is that when a man makes statements, he makes

always in his favour except cases laid down in Section 21. By admission a person admits his

liability, because the statement of admission suggests an inference of liability. Stating the

reasons, the Madras High Courts expresses that “if a party’s admission falls short of the totality

of the requisite evidence needed for legal proof of a fact in issue, such an admission would be

only a truncated admission.” An admission therefore, binds its maker and not relates to a

question of law. Admissions are usually telling against the maker unless reasonably explained.

Admission is the best piece of evidence against the person making it. However, it is open to

the person making admission to show why admission is not to be acted upon.

Secondly, an admission is substantive evidence of the fact admitted whether the maker

approves it or not. The relevancy of admission depends on the statement made by the party

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

even though it may go against the maker. “Whatever a party says in evidence against

himself…………………………… What a party admits to be true may be presumed to be so.”

One basic principle is that the admission of facts is a proof against the party making it; but the

admission on the point of law is not binding on the maker. An admission on a point of law is

not admission of a ‘thing’ so as to make the matter of estoppels. And again, the admission of

law by a counsel is not binding on a court and the court is not precluded from deciding the

rights of the parties on a true view of the law.

As stated earlier the principles of admission have been stated in Sections 17 to 20 subject to

fulfilment of requirement of Section 21. It is law of substantive evidence propris vigore. An

admission is the best evidence and though not conclusive, shifts the onus on to the maker.

Weight to be attached to an admission made by a party is a matter different from its use as

admissible evidence.

Admissions are not conclusive proof of fact admitted. There must be unequivocal admission

on which a court can base its decision or that the correctness and reliability of such an

admission can be judged from other materials on record coupled with such admission. Where

admission was found to be involuntary and in the nature of explanation and no warning was

given required under section 164(2), Cr. P.C. the admission was held not admissible against

the maker or the co-accused.

If a person voluntarily admits any matter in issue before judicial or quasi-judicial proceeding

and such an admission is not retracted before being acted upon by the other side, it operates as

an estoppel against the person making it; such an admission by person unless explained

furnishes the best evidence. Vague statement in plaint, absence of signing on some blank papers

and misuse of papers for concocting sale deed cannot be taken as an admission of execution of

sale deed.

Defendant was seeking declaration as only legally married wife of the deceased. Clear

admission by defendant was that the plaintiff was also legally married wife of the deceased,

but no evidence was led by defendant to establish plea of divorce between plaintiff and

deceased. Under these circumstances the first appellate court accepted admission of the

defendant as substantive evidence in support of marriage between plaintiff and deceased.

Admissibility of Admissions

The admission is relevant on the following reasons.

1. “Admissions as waiver of proof:

An admission of a party is a statement of fact which dispenses or waives with the necessity of

proving the fact against him. It operates as a waiver of proof. “Admissions are admitted because

the conduct of a party to a proceeding, in respect of the matter in dispute, whether by acts,

speak or writing, which is clearly inconsistent with the truth of his contention, is a fact relevant

to the issue. An admission, therefore as an admission is not conclusive against the person

making it, but it may operate as an estoppel under section 115 of the Evidence Act. Under the

proviso to Section 58 the court may ask some other independent evidence to support the

admitted facts. The court is not bound to give judgment in accordance with admission.”

2. “Admissions as statement against interest:

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

It is natural for a man to make statement in his favour. An admission, being a statement against

the interest of the maker should be supposed to be true, for it is highly improbable that a person

will voluntarily make false statement against his own interest.”

3. “Admissions as evidence of contradictory statements:

Where there is contraction between the statements of the party and his case, the contradiction

is relevant. For example, A sues B upon a loan. The account book shows that the loan was

given to C. The statement in his Account Book contradicts his case against B.”

4. “Admissions as evidence of truth:

The statements made by the party about the facts of the case, whether they may go in his favour

or against his interest, should be relevant as representation or reflecting the truth as against

him. Whatever a party says in evidence against himself may be presumed to be so.”

Forms of Admissions:

There as two types of admissions viz.,

(1) Judicial, and

(2) Extra-judicial Admissions.

1. Judicial Admission:

The judicial or formal admission is addressed to the court and is the part of the proceeding. It

is made on the record in the file of the court. The judicial admission may be made by the party

in his pleading, or by stipulation, or by statement in open court. Admission in pleadings or

judicial admissions by themselves can be made the foundation of the rights of the parties.

A judicial admission has not been dealt with by the Evidence Act, they are subject matters of

the Civil Procedure Code and the Code of Criminal Procedure. The procedures have been laid

down in civil suits in Order 12, Rule 2; Order 8, Rules 3,4 and 5; Order 10, Rule 1; Order 11,

Rule 8; Order 12, Rule 4 and Order 14, Rule 3 of the Civil Procedure Code. In Code of Criminal

Procedure there are provisions, viz. Sections 143, 251(5), 255(2), 263(g) and 271.

Although the judicial admission has not been dealt with under the Act the Supreme Court has

given due weight age. In Bishwanath Prasad v Dwarka Prasad the court opined that

“admissions, if true and clear, are by far the best proof of the fact admitted.” Admissions as

defined in Sections 17 and 20 and fulfilling requirements of Section 21 are substantive

evidence, propio vigare.

2. Extra-judicial Admissions:

The extra-judicial or informal admission is statement of fact made by the party previously in

course of life or business which is inconsistent with the facts to be established at the trial. The

extrajudicial admissions are called evidential admissions. The Evidence Act only deals with

this sort of admission in Sections 17 to 23.

Admission by conduct:

Admissions by conduct are not included in this section. It has been dealt with under section 8

of this Act. But in some circumstances the conduct, active or passive, becomes evidence for an

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

admission. For example, a woman went to the school for registration of her child, but she did

not enter the name of the father and his profession. On asking she kept silence. Her silence may

mean that she does not know the name of the father or she is not interested to disclose it.

Whatever view is taken it may be an admission for illegitimacy of the child.

Silence as admission:

Silence may amount to admission as if there is no reply or denial. A party may admit the truth

of the matter.

Example:

In Bessela v Stern the girl said to the boy “you always promised to marry me and you did not

keep your words.” The boy did not deny the allegation, but he offered her some money. The

boy’s silence as to promise was held to be admission.

Evidentiary value of an admission:

According to Section 17 an admission is a statement, oral or documentary, which suggests any

inference as to any fact in issue or relevant fact and which is made to any person, and under

circumstances mentioned in Sections 18 to 31. Even though an admission plays a very

important part in judicial proceedings, it is only prima facie of proof.

The Supreme Court observed that admissions are very weak kind of evidence and the court

may reject them if it is not satisfied from other circumstances that they are untrue. It is to be

noted that admissions are not conclusive proof of matters admitted unless they operate as

estoppels. The value of admission depends upon the circumstances in which it made and to

whom it is made.

If one party to a suit or proceeding proves that the other party has admitted his case then the

work of the court becomes easier. But, in certain cases an admission is used in discrediting the

parties’ statement by showing that he has on other occasions made statements inconsistent with

the cases afterwards set up. In such cases the truth of admission is not relied upon. Section

153(3) deals with such use of admissions. The evidentiary value of admission depends upon

circumstances under which they are made.

An erroneous admission on a point of law is not an admission of a thing so as to make the

admission a matter of estoppel and the court is not precluded from deciding the rights of the

parties on a true view of the law.

Admission by party to proceeding or his Agent (Sec.18)

Section 18, Admission by party to proceeding or his agent: Statements made by a party to

the proceeding, or by an agent to any such party, whom the Court regards, under the

circumstances of the case, as expressly or impliedly authorized by him to make them, are

admissions.

By suitor in representative character:

Statements made by parties to suits, suing or sued in a representative character, are not

admissions, unless they were made while the party making them held that character.

Statements made by:

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

(1) Party interested in subject-matter:

Persons who have any proprietary or pecuniary interest in the subject-matter of the

proceeding, and who make the statement in their character of persons so interested, or

(2) Person from whom interest derived:

Persons from whom the parties to the suit have derived their interest in the subject-matter of

the suit, are admissions, if they are made during the continuance of the interest of the persons

making the statements.

Principle and scope:

Persons by whom admissions must be made and whose admissions are relevant: Sections 18,

19 and 20 lay down a list of persons who can make admissions. Proceeding under this section

may be civil or criminal. But the general rule is that the statements are admissible against the

party only making them and not against any other person. When Sections 18, 19 and 20 are put

together it provide a long list of persons whose admissions also become relevant:

1. Parties to the proceeding (Section 18).

2. Agents authorized by such parties (Section 18).

3. Persons occupying representative character (Section 18).

4. Persons having pecuniary or proprietary interests [Section 18(1)].

5. Persons from whom the parties derived interest [Section 18(2)].

6. Persons whose position is in issue or is relevant to the issue (Section 19).

7. Persons expressly referred to by the party to the suit (Section 20).

1. Parties to the proceeding:

Parties to the proceeding include not only those who appear on the record, but also persons

who are not parties on the record, and they are interested in the subject matter of the suit. They

are considered by law as real parties in interest. It is the basic principle that all statements of

the party in a suit or proceedings are relevant. Defendant was seeking declaration as only

legally married wife of the deceased. She also admitted that plaintiff was also legally married

wife of the deceased. Admission of defendant was substantive evidence in support of marriage

between plaintiff and deceased. The list of properties allotted, as per partition, to the share of

each of the parties proved on behalf of the defendants was held admissible under Section 12 of

the Evidence Act. The written statements of a party in an earlier proceeding were held to be

relevant in the subsequent proceeding.

Where there are more than one plaintiff or defendant to a suit the statements of one plaintiff or

defendant should not bind co-plaintiffs or co-defendants. Admission by one of the co-owners

that the other co-owner had one-third share in the joint properties can be relied upon. The

Supreme Court opined that even if it is relevant due to concern pecuniary interest much weight

cannot be attached to against the co-parties.

The party is bound by his statement only to the extent of his own interests. An admission is

only best evidence against the party making it. Admission made by a witness cannot be

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

regarded as an admission made by the party who called him. Documents partake character of

disputed document cannot be treated as admission for purpose of decree order.

2. Agents authorized by the parties:

The statements of the agent are admissible against the principal according to law of agency or

which govern the statements of coparcener. The agent, of course, should have expressed or

implied authority to make such statement and the statements of the agent can bind the principal

only during the continuance of the agency. But, the fact of the agency must be proved before

the admission of agent can be received.

The agency must be proved before the admission of the agent. Where a station master of a

railway company while reporting loss of goods to the police and gave the name of a missing

porter as a suspect, it was held to be admission against the railway company. The admission

by a party or his agent in a proceeding is admissible under section 18 of the Evidence Act and

by Boards of decisions of the Apex Court and various High Courts it has now settled that the

facts admitted by a party in its pleading need not be proved.

The lawyer is appointed by the client to conduct his case and any statement as to the facts made

by him with full authority of the client is an admission against the client. In criminal cases there

is no provision for an admission by a council.

An admission by one partner made in a representative capacity is an evidence against the firm

provided it is made in the ordinary course of business, where several persons are jointly

interested in the subject matter of the suit an admission of any one of them is receivable not

against himself but against others whether they are suing or sued.

3. Persons occupying representative character:

The statements made by a person who sues or issued, in a representative character is relevant

if it was made during the time when he was holding such character. “This principle is grounded

on the fact that a statement against the interest of a person making it will not be made unless

truth compelled it.” The person’s occupied representative character includes trustees, receivers,

assignee of an insolvent’s estate, executors, administrators, guardian etc. In regard to ancestral

property admission by father would be admissible against the son, the former being the

representative interest.

4. Persons having pecuniary or proprietary interests:

Under section 18(1) the statements of persons who, though not parties to the proceeding, have

a pecuniary or proprietary interest in the subject matter, is relevant provided the statement is

made by him in the character of a person jointly interested. For example, when certain goods

were consigned for carriage, then both the consigner and consignee have interest in goods.

“The requirement of identity in legal interest persons is of fundamental importance.” In a suit

for declaration of title, the statement of the suitor’s father that the defendant was in possession

is admitted. Admission regarding partition of the joint family property made by one of the

beneficiaries to the property is admissible in proof of partition assented subsequently.

5. Persons from whom parties derived interest:

Under section 18(2) the statements of person from whom the parties to the suit derive their

interest in the subject matter of the suit are admissible. “It has to be shown that such statements

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

were made during the continuance of their interest in the subject matter of the suit. A person

of this kind is known as “predecessor in title.” No admission could be made after parting with

the interest.

Admission by persons expressly referred to by party to suit (Sec.20)

Section 20, Admissions by persons expressly referred to by party to suit: Statements made

by persons to whom a party to the suit has expressly referred for information in reference to a

matter in dispute are admissions.

Illustration:

The question is, whether a horse sold by A to B is sound.

A says to B— “Go and ask C. C knows all about it.” C’s statement is an admission.

Persons expressly referred to by the party to the suit

This section is another exception to the general rule. When a party refers to a third person for

some information for opinion on the matter in dispute, the statement of third person are

receivable as admission against the person referring. A reference may be made by a party to a

third person only for information about the subject-matter.

When compensation was paid in presence of the witness, the evidence of the said witness would

be admissible as information under this section. The reason is that when a party refers to

another person for a statement of his view the party approves of his utterances in anticipation

and adopts that as his own.

Where an agreement was arrived at between the counsel for parties that if the defendant was to

state on oath in a particular Gurdwara that the suit land was not of plaintiff and the defendant

had not executed any agreement in favour of plaintiff, the suit be dismissed and in pursuance

of the order of the court and on the basis of the agreement, the defendant did take oath and the

suit was dismissed, it was held that the compromise would be covered by Section 20 and the

plaintiff would be bound by the statement of the defendant.

Section 20 is referring to the statements of a referee who is also a third person to the suit or

proceeding. The statements made by a third person are also admissible and the rule is another

exception to the general rule laid down in Section 18 that the admissions by strangers to the

suit are not relevant.

The reason is that when a party refers to another person for a statement of his views, the party

approves of his utterance in anticipation and adopts that as his own. The principle is that a party

makes a reference to a third person for ‘information,’ any statement by that person about the

subject matter of the reference is admissible against the party making the reference. According

to the illustration, if the question is whether a horse sold by A to В is sound. A says to В—

“you go and ask С who knows about it.” The statement of С is an admission.

The word “information” in this section means a statement of fact and not decision of any kind

and the information must be related to the subject matter. Explaining the term “information,”

the Supreme Court held; “the word ‘information’ occurring in Section 20 is not to be

understood in the sense that the parties desired to know something which none of them had any

knowledge of where there is a dispute as regards a certain question and the court is in need of

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

information regarding the truth of that point, any statement that the reference may make is

nevertheless information within the meaning of Section 20.” The information need not be

specially within the knowledge of the person referred to.

In an eviction suit where person having power of attorney for tenant admits arrears of rent the

tenant subsequently cannot resile from such admission. Whereas a party may not be permitted

to resile from his admission at a subsequent stage of same proceeding, it is also trite that an

admission made company to law shall not be binding on the state.

Admission in civil cases, when relevant (Sec.23)

Section 23, Admissions in civil cases, when relevant: In civil cases no admission is relevant,

if it is made either upon an express condition that evidence of it is not to be given, or under

circumstances from which the Court can infer that the parties agreed together that evidence of

it should not be given.

Explanation:

Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from

giving evidence of any matter of which he may be compelled to give evidence under section

126.

Principle:

Section 23 is applicable only to civil cases and gives effect to the maxim, interest reiplicae ut

sit finis litium. It means that in the interest of the state there should be end of litigation. The

section expressly provides that in civil cases an admission is not relevant when it is made: (i)

upon an express condition that evidence of it is not to be given. It means that when a person

admits the liability upon express condition that evidence of such admission should not be given,

or (ii) under circumstances from which the court can infer that the litigating parties agreed

together that evidence of it should not be given.

That is, where there is agreement between parties that the admission will not be proved in

evidence such admission will not be allowed and is not relevant. When such circumstances

happen, in law it is expressed as “without prejudice.” It means “the use of what I commit myself

to, if not accepted by you, is impermissible.” The letter written with regard to an action and

marked “without prejudice” was only privilege for the purpose of that action.

It is very often found that the litigating parties, by negotiations, want to settle their disputes

amicably, and the negotiations usually takes place out of the Court. “Very often for the purpose

of buying peace and settling disputes by a compromise people made so many settlements, if

such settlements are allowed to be proved in court,” it will become impossible for people to

reach any compromise. Section 23 provides protection for negotiation.

When one of the parties to the dispute writes to the other making an offer for settlement in

certain terms, he may stipulate that in case his offer is not accepted his letter is not to be used

against him as an admission of liability.” Such letter of communications made “without

prejudice” and is not accepted to be admissible as evidence. “Confidential overtures of

pacification and any other offers or propositions between litigating parties, expressly or

impliedly made without prejudice are excluded on grounds of public policy,” otherwise the

clever and ingenious man may frustrate the spint of law when he knows the weak points of the

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

case of his opponent. For example, if parties are to be prejudiced by efforts to compromise, it

will be impossible to attempt any amicable arrangement of differences. Admission or

statements which are proved to be wrong or mistaken are not binding on the party making it.

Lord Mansfield once observed that “all men must be permitted to buy peace without prejudice

to them should the offer not succeed, such offers being made to stop litigation without regard

to the question whether anything is due or not.” Thus, the letter marked “without prejudice”

protects subsequent and even previous letter in the same correspondence. The fact is that a

document is stated to have been written “without prejudice” will not exclude it.

Admission and Confession (Their distinctions)

All confessions are Admissions, but all Admissions are not Confessions… The Difference

between Admission and Confession are as follows:

No.

Admission

Confession

1)

If a statement is made by a party in civil

proceeding it will be called as admission

If a statement made by a party charged with crime, in

criminal proceeding, it is called as a confession

2)

The expression ‘Admission’ means

“voluntary acknowledgement of the

existence or truth of a particular fact”

The expression ‘Confession’ means “a statement made

by an accused admitting his guilt. If a person accused

of an offense (accused) makes a statement against

himself, it is called confession.

3)

An admission is genius

Confession is specie hence all confessions are

admissions but all admissions are not confessions.

4)

The Term Admission is applicable to a

statement, oral or in writing made by a party

on civil side.

Confession is the term for admission of guilt

made in the criminal side.

5)

An admission is not conclusive proof of the

matters admitted and is always rebuttable.

A confession, if voluntarily and free, may in the

discretion of the judge or magistrate, by itself be

accepted as conclusive proof of matters confessed and

is alone sufficient to warrant a conviction.

6)

An admission may be proved by or behalf of

the person making it.

But confession always goes against the person making

it.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

7)

An admission may be made by an agent in

course of business.

While an agent can never make the confession of

an offense against a co-defendant.

8)

Admission by one of the several defendants

in suit is not evidence against other

defendants.

Confession made by one or two or more accused

jointly tried for the same offense can be taken into

consideration against the co-accused.

Problem of non-admissibility of confession caused by Inducement, threat or Promise

(Sec.24)

Section 24, Confession caused by inducement, threat or promise, when irrelevant in

criminal proceeding: A confession made by an accused person is irrelevant in a criminal

proceeding, if the making of the confession appears to the Court to have been caused by any

inducement, threat or promise, having reference to the charge against the accused person,

proceeding from a person in authority and sufficient, in the opinion of the Court, to give the

accused person grounds, which would appear to him reasonable, for 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.

A confession is an admission by the accused. Section 17 defines admission as statements from

which an inference can be drawn. When any such statement is made by a person in criminal

cases which suggest an inference that the persons might have committed an offence is a

confession. This is an admission of an accused and is called confession. “A confession must

either admit in terms the offence or at any rate substantially all the fact which constitute the

offence.” The court must be satisfied that “the inducement, threat or promise if any, has been

fully proved. “Confessional statement is admissible in evidence. It is relevant fact. The court

may rely thereupon if it is voluntarily given. It may also form the basis of the conviction,

wherefore the court may have to satisfy itself in regard to voluntariness and truthfulness

thereof.”

The laws dealing with confession are contained in Sections 24 to 30 of the Evidence Act.

“Confessions are received in evidence in criminal cases upon the same principle on which

admissions are received in civil cases, namely, the presumption that a person will not make an

untrue statement against his own interest.” Thus, “confessions are merely species of

admission,” Law is clear that a confession cannot be used against an accused person unless the

court is satisfied that it is voluntary.

Definition:

The term “confession” has not been defined in the Evidence Act. As stated earlier an admission

by the accused is regarded as confession. Sir Stephen in his Digest of the Law of Evidence has

defined that “a confession is an admission made at any time by a person charged with crime

stating or suggesting the inference that he committed a crime.” Thus, the confession is an

acceptance of the guilt of the accused. According to Sir Stephen, any statement made by an

accused charged with offence at any time, even before the arrest, may be regarded as

confession.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

The Privy Council, on the other hand, defined the term, “a confession must either admit in

terms the offence, or at any rate substantially all the facts which constitute an offence.” A mere

declaration is not a confession unless it was made with an intention to confess. “An

incriminating statement which falls short of an absolute confession, but from which the

inference of guilt follows, is a confession within the meaning of this Act.” The confession,

thus, must be in relation to offence. Compelling of accused to be searched in the presence of

witnesses would not amount to confession.

In State of Haryana v Rajender Singh it was held that a confession must be true and voluntary.

Where the statement though recorded by a magistrate merely stated about the assault on the

deceased that it was a mistake and did not admit his guilt, it was not a confession that could be

used against its maker. The Supreme Court again stated that “the test of discerning whether a

statement recorded by a judicial magistrate under section 164, Cr. PC, is confessional is not (to

be known) 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 inculpatory involvement in the offence. If the result of

that test is positive then the statement is confessional, otherwise not.” Thus, the confessional

statements must be looked as a whole and it would not be right to take insulated portions of it,

and to consider whether any of them amounts to an admission of guilt or not. “It is true that the

confessional statement is found to be voluntary and free from pressure, it can be accepted. But

it all depends on the facts and circumstances of each case and no hard and fast rule can be laid

down in this connection whether a particular alleged confessional statement should be

accepted.”

In Palvinder Kaur v State of Punjab & Haryana the Supreme Court has also held that confession

and admission must either be admitted as a whole or rejected as a whole and the Court is not

competent to accept only the inculpatory part while rejecting the exculpatory part as inherently

incredible.

Essential conditions:

From the above discussions a statement of an accused will amount to a confession if it fulfils

the following conditions:

(1) The accused must admit that he had committed the crime.

(2) From the statements of the accused some positive inferences must be drawn about his

implication in the offence where the accused in so many words admits to have committed the

offence.

(3) If the exculpatory part of the statement given by the accused is inherently improbable it

may be rejected and inculpatory part may be admitted.

(4) The confession must be voluntary, true and trustworthy.

(5) The confession must not be prompted by inducement, threat or promise. A statement could

not be said to be result of any threat, coercion or inducement by police or any other person.

Rule of Admission of Confession:

It is well established rule that a confession must be accepted as a whole or rejected as a whole

and the court is not competent to accept only the inculpatory part while rejecting the

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

exculpatory part as inherently incredible. A statement which is partly guilt and partly innocent

cannot be regarded as confession. An exculpatory confession is a confession which contains

the element of either coercion, threat, promise, inducement or hope of advantage. A confession

which is self-exculpatory cannot amount confession. Before Palvinder Kaur case the Supreme

Court had the same view to follow the rule’ what was laid down by the Privy Council in Pakala

Narayana Swami v King Emperor.

But the Supreme Court made a significant departure from its earlier decisions and propounded

that “where the exculpatory part is inherently improbable but is contradicted by other evidence

the court can only accept inculpatory part. Overruling earlier decisions, the Supreme Court

observed that if the inculpatory part of a statement is supported by the circumstantial evidence

it should be accepted and the rest part of the statement be rejected as exculpatory which tends

to exculpate the accused. The statement of the accused giving suggestions that he had been

present when the offence was committed is admissions. Admission, however, incriminatory

but not by itself establishing the guilt of the maker of such admission would not amount to

confession. Where there is no other evidence to support exculpatory part of the statement “the

court must accept or reject the confession as a whole and cannot accept only the inculpatory

element while rejecting the exculpatory element as inherently incredible.” In Champarani

Mondal v State of W.B, the alleged confession read as a whole was exculpatory of the offence

of murder for which the appellant was charged. Such statement could not be the basis for the

conviction and she should be acquitted of the offence of murder.

In a bride burning case the confession was made before the village panchayat by a large number

of persons including the accused who among them had burned the bride was not mentioned.

Such confession was held to be not capable of being used against any person specifically. It

was not confession in any sense of the word.

Nature of Confession:

Confession may be either judicial or non-judicial.

(1) Judicial Confession:

Judicial confessions are those confessions which are made before the Court or to a magistrate

in due course of proceeding. Confessions by the accused to the Magistrate under section 164

of the Criminal Procedure Code, 1973 are judicial confessions. Recording of Confessional

statement under section 164 is to take during investigation, but before the commencement of

preliminary enquiry or trial. Under section 281, Cr. PC the examination of accused is made in

inquiries and trials. A judicial confession can be used against the maker of it and is in itself

sufficient to support his guilt. The confessional statement of one accused recorded under

section 164, Cr. PC by the magistrate would be admissible in evidence against the other accused

as both were jointly tried.

The victim, a minor girl was sleeping with her family in a waiting room of travel agency. Night

watchman of waiting room and a handy man of another bus were alleged to have committed

rape. Watchman made judicial confession as to involvement of both of them. Confession was

not retracted. Handy man, other accused, was unable to explain injuries on his face, his absence

from his bus for about an hour and stains on his undergarments lend sufficient corroboration to

judicial confession.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

2. Extra-judicial Confession:

Extra-judicial confessions are those which are made by the accused before magistrate outside

the court. An extra-judicial confession can be made to any person or any definite person. Such

type of confession coming from person who has no reason to state falsely. It has always been

the fundamental principle of the court that a prisoner’s confession outside the court is only

admissible if it is voluntary.

The extra-judicial confession made by the accused before the Ex-Pradhan of the village was

found reliable. An extra-judicial confession has been defined as “a free and voluntary

confession of guilt by a person accused of a crime in course of conversation with persons other

than judge or Magistrate seized of the charge against him. “A confession made by an accused

person is irrelevant in a criminal proceeding, if the making of the confession appears to the

court to have been caused by any inducement, threat or promise: (a) having reference to the

charge against the accused persons, (b) proceeding from a person in authority, and (c) sufficient

in the opinion of the court to give the accused persons 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 to the proceeding against him.” An acquittal on the ground that the accused

made extra-judicial confession before was held to be not proper.

The extra-judicial confession not trustworthy cannot be used for corroboration of any other

evidence. Where there is very possibility for the accused to have been physically and mentally

pressurized for giving judicial confession, such confession would not be sufficient to prove

guilt and involvement of the accused. Where the confessional statement is inconsistent with

medical evidence, the conviction of the accused is not proper. But, when one eye-witness who

was their neighbour deposed that she saw accused throttling the deceased, and another eye-

witness deposed that he saw the accused with blood stained knife and on enquiring, accused

made extra-judicial confession of murdering his wife. Chemical analysis report and post-

mortem report corroborated evidence of eye-witnesses, the conviction was held to be proper.

The evidence of extra-judicial confession is a weak piece of evidence, although in given

situations reliance can be placed therefore. Each case is required to be examined on its own

facts. A confession made by a large number of persons before the village Panchayat was held

to be more in the nature of a vague and general declaration. Such statement cannot be said to

be voluntary and so extra-judicial confession has to be excluded for bring them to charge. The

appellant allegedly assaulted his matter with burning wooden plank. Witnesses of extra-judicial

confession did not inspire confidence and their evidence was slippery. The conviction of

appellant merely on the basis of extrajudicial, confession compiled with recovery of weapon

of come at his instance was held not proper.

An extra-judicial confession was made by the accused in committing murder and immediately

revealed this fact to a stranger. It may be difficult to speculate as to what prompted the accused

to confess the commission of crime before the stranger. The unnatural conduct on part of the

accused will not necessarily shake the veracity of the witness’s testimony but it will put the

court on guard to get the assurance of truth in the prosecution case by corroborative evidence

including circumstantial factors.

Probative force of extra-judicial confession:

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Extra-judicial confession is very weak piece of evidence. It must be received with great care

and caution. If the extra-judicial confession is clear, convincing and trustworthy the court only

can rely upon it. It is not the usual practice, rather it is dangerous for the court to convict the

accused solely on the basis of extra-judicial confession when such type of confession is given

the courts require corroboration.

If the evidence of extra-judicial confession comes from the mouth of witnesses, which appear

to be unbiased, truthful, unambiguous and unmistakable that “the accused to be perpetrator of

the crime and nothing is omitted by the witness which may militate against it the extra-judicial

confession can be accepted and can be the basis of conviction. However, word by word

repetition of statement of case cannot be insisted upon to judge credibility of witnesses’

capacity.

There is no rigid canon of universal application for judging reliability of confessional

statement. Every inducement, threat or promise does not vitiate a confession. In appreciating

the extra-judicial confession, the court has to consider factors like: (i) to whom it is made, (ii)

the time and place of making it, (iii) the circumstances in which it was made and the court is

to look any circumstances. Evidentiary value of extra-judicial confession depends on

circumstances when such confession was made and the circumstances in which it was made,

have to be scrutinised.

In case of extra-judicial confession, the witness must tell the reason as to why he is interested

to repose his confidence. If the evidence of the extrajudicial confession does not inspire

confidence it is not accepted. On the other hand, a confessional statement cannot be rejected

simply because it was alleged by the accused such confessional statement was fabricated.

An extra-judicial confession to a magistrate is wholly excluded. The probative value of extra-

judicial confession depends upon the veracity of the witness to whom it was made. It can be

considered as substantive evidence if there are assuming circumstances and material.

As a matter of principle, the courts require corroboration in extra-judicial confession.

If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the

same can be relied upon and conviction can be founded thereon. In absence of corroboration

no reliance can be placed on the same, it being a week type of evidence to convict the accused.

Retracted confession:

A retracted confession is a statement made by an accused before the trial by which he admits

to have committed an offence, but he repudiates at the trial. During investigation by the police

officer the accused is willing to admit his guilt, and the accused may be sent to a Magistrate

for recording his statement. If the Magistrate is satisfied that the accused has admitted his guilt

to have committed the offence, he is to record the accused’ statement which may be proved at

the time of trial. During trial the accused on being asked may deny to have made such statement

to the Magistrate. If this happens the confession made by the accused to the Magistrate before

trial is called retracted confession. Retracted Confession made before the Magistrate, even if

voluntarily, requires corroboration.

Although the retracted confession is not safe for conviction unless it is corroborated by

trustworthy evidence, the conviction is not illegal if the retracted confession is believed to be

true and voluntary. If the court is of opinion that a retracted confession forms the basis of a

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

confession if it receives same general corroboration from an independent evidence. It is a rule

of prudence and practice that the court seeks assurance from other facts and circumstances to

corroborate retracted confession. The corroboration must not only be of general nature but must

also be in respect of material particulars.

The retracted confession by an accused cannot be the basis for convicting the co-accused

though it may be taken into consideration against co-accused also. The retracted confession is

weak link against accused and mere so against co-accused. Confession not retracted even at

the latter state of trial made under section 313, Cr. PC can fully be relied upon.

Recording confessional statements under section 164, Cr. PC:

Recording of confession has to be made in the manner prescribed by Sections 164 and 281, Cr.

PC. Such confession has to be made before a Magistrate in course of investigation or at any

time before commencement of the inquiry or trial. Before recording the accused’ confession it

is the duty of a Magistrate to put questions to the accused and to satisfy himself, that the

confession is voluntary. When the confessional statement is recorded in presence of police

officer it is in-admissible. If the confession is duly recorded, then it is relevant and admissible.

The provisions contained therein are required to be strictly complied with.

Confession under TADA:

When the confessional statement is recorded by the Police Officer not below the rank of S.P.

under section 15 of the TADA Act, 1987 it is admissible, but such confession, a like Section

24 of the Evidence Act, must be voluntary. The confessional statement against co accused,

taken as a rule of prudence, requires to be supported by corroborative evidence as well.

Scope of Section 24:

Although the substantive law of confession has been laid down in Sections 24 to 30 it is the

positive rule of criminal law that no confession is admissible unless it is voluntary. Sections

24, 25 and 26 have described the circumstances. If these are not considered to be voluntary

these are not admissible. A confession is voluntary if it has not been obtained from the accused

either by threat, promise, inducement or promise.

Principle:

According to Section 24 the confession made by the accused is irrelevant on the following

grounds:

1. The confession is the result of inducement, threat or promise;

2. The inducement, threat or promise has come from a person in authority;

3. The inducement, threat or promise relates to the charge in question;

4. The inducement, threat or promise holds out some worldly benefit or advantage.

Thus, the Section 24 lays down the rule of exclusion of confession which is not voluntary.

1. Confession caused by inducement, threat or promise:

If a confession is not free and voluntary and is obtained by force or violence such confession

is not admissible. Where there is element of inducement, threat or promise in making

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

confession before person in authority, the confession should not be admitted. A confession can

only be admitted if it appears to the court that confession is voluntary. Any threat or promise

used by the person in authority in getting confession it will not be taken into evidence. A gentle

threat, slightest inducement or a very little hope of advantage may taint confession.

It is sufficient for excluding a confession that appears to have been result of an inducement,

even if it is not proved that the inducement reached the accused. When the accused has not

made any complaint that the confessional statement made by him was under pressure or

compulsion, such confessional statement must have been made voluntarily.

It is the duty of the court to judge the nature of confession whether it is voluntary or not. “The

inference of the non-voluntariness may be suggested by the confession itself or by the evidence

of the prosecution or by the evidence adduced by the accused person or by the surrounding

circumstances which the court is always bound to take into consideration.” If the circumstances

create a probability in the mind of the court that confession was improperly obtained it should

be rejected.

In deciding a particular confession made under section 24, “the question has to be considered

from the point of view of the confessing accused as to how the inducement or promise from

person in authority would operate in his mind.” The accused was in custody for a period of

three months and was not allowed to meet his family member. He stated that the recording

officer obtained his signature on some written papers was hold not voluntary. A confession

made by the accused because he thought it best that by doing so, he could have hoped to avoid

the discovery of his entire scheme of conspiracy to misappropriate the large amounts of assets

of Insurance Co., is not voluntary.

2. Person in authority:

Next disqualification of rejecting confessional statement is person in authority. A person

holding a special legal status has authority to influence the proceeding against the accused. “A

person in authority for the purpose of this section must be a person who stands in such

relationship to the accused as to imply some power of control or interference in regard to his

prosecution.” For example, the magistrate police officers, prosecutor, government officers,

doctors’ departmental heads etc. “A person in authority within the meaning of Section 24

should be one who by virtue of his position wields some kinds of influence over the accused.”

The father is not person in authority.

3. Inducement, threat or promise relates to charge:

The inducement, threat, promise etc. must be related to the charge in question. The person

against whom charge has been framed must have been forced to give confessional statement

by the person in authority. The inducement, threat or promise must have reference to the present

case no other cases. An accused was charged with murder and promise was made that if he

confesses the truth in the present case, he will get benefit in another case the promise is not

related to the present case, so the confession is valid.

4. Benefit or advantage Worldly or temporal nature:

The inducement, threat etc. would be sufficient to convince the mind of the accused that he

would get some advantage or avoid evil of temporal nature. Where a person charged with

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

murder was made to make confession to Panchayat which threatened his removal from caste

for life.

The confession was held to be valid. But mere inducement, threat or promise is not enough

unless it is in the opinion of the court that such inducement, threat or promise is sufficient to

cause reasonable belief in the mind of the accused and that by confession he would get

advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

Voluntary and involuntary confession:

It is very often called that all confessions are not the basis of conviction. If a confession is

involuntary it is irrelevant. “Under section 298, Cr. PC it is well settled that the determination

of all matters of fact on which admissibility of evidence depends is the province of the judge.

Questions relating to the admissibility of evidence are questions of law and must be determined

by the judge. It is, therefore, for the judge to decide whether an alleged confession was made

voluntarily.” A confession is, therefore, very important piece of evidence.

In Nirmal Mohan v State of Assam:

The Hon’ble High Court after noticing sequences of recording of confessional statements

concluded that it was made duly and voluntarily. Before a conviction can be a basis of

conviction the court has to come to conclusion that the confession was made voluntarily.” A

confession is involuntary when it is made to a police officer or confession given by the accused

when he was in police custody. In both cases the confessions are not relevant and cannot be

proved under sections 25 and 26 of the Evidence Act. In certain situation the extra-judicial

confession or confession made after seizure of documents from accuser’s premises are valid.

Inadmissibility of custodial confession (Sec.25)

Section 25, 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.

Scope:

Section 25 lays down that a confession made by a person to the police officer is inadmissible

and cannot be proved. The basic object of this section and Section 26 is to prevent practices of

torture by the police officers for the purpose of extracting confessions from the accused

persons. Although both sections seek to achieve same purpose they operate in different fields.

It is well known that the police officer to secure confession uses short cut methods even by

putting the arrested person into third degree so that the arrested person confesses. “The

principle upon which the rejection of confession made by an accused to a police-officer or

while in the custody of such officer (Section 26) is founded that a confession thus made or

obtained is untrustworthy.” This is the reasons for which no confession made to a police officer

shall be proved under section 25 as against person accused of an offence.

The policy behind Section 25 is to exclude all confessional statements made by the accused to

the police officer under in circumstances while he is in custody of the police except as is

provided in Section 27. Section 25 was enacted to put a stop to the extortion of confession. It

was, therefore, enacted to sub-serve a high purpose.

Alike Section 25 the Section 162 of the Code of Criminal Procedure, 1973 provides that no

statement made to a police officer investigating a case shall, if taken down in writing, be signed

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

by the person making it, nor shall such writing be used as evidence. Statement made to police

officer during investigation does not become admissible merely because he is dead.

Application:

This section does not exclude other statements of the accused made to the police officer except

the confessional statement. What is confession having since 1938 been held by the Judicial

Committee, that “to me a direct acknowledgement of guilt and not the admission of any

criminating fact however grave or conclusive.” The confession made while in custody is not to

be proved against accused unless it is made before a Magistrate.

A confession made before police party of the village, who is not a police officer under section

25 would be relevant. But the confession made to police officer during an illegal search and

seizure leading to recovery of incriminating articles cannot be excluded merely on the ground

that it was obtained under illegal order of remand to police custody.

A confessional statement made by the accused to the police officer during and after

investigation under section 162, Cr. PC is not admissible. But if the statement is treated as one

made by the accused to a police officer in the course of investigation, it is hit by Section 162,

Cr. PC. A confessional statement was held to be inadmissible if it was made to the police officer

after the start of investigation.

The First Information Report (FIR) is not a confession of the guilt. It is in sense admission by

the accused and is relevant. Appellant accused whose name was mentioned only in one out of

three dying declarations and motive ascribed against him also did not find place in FIR in

entitled to acquittal.

The confession made by an accused to an officer of custom is not a confession within the

meaning of Section 24 of the Evidence Act. This confessional statement made before custom

officers is admissible as such officers are not police officers for the purpose of Section 25 of

this Act. Any statement made before the authorities of the Narcotics Department under the

Narcotic Drugs and Psychotropic Substances Act 1985, is admission in evidence and is not hit

either by Section 25 of the Evidence Act or by Section 161, Cr. PC. Under section 15 of the

TADA Act, 1987 the confessional statement was regarded as substantive piece of evidence and

could be used against the accused under police custody.

Confession made before officer under the NDPS Act must be subject to closer scrutiny than a

confession made to private citizens or officials who do not have investigating power under the

Act.

Police Officer:

Apart from the definition mentioned in the Police Act, 1861 the Supreme Court has laid down

the test for determining whether a person is a police officer for purpose of this section, would

be whether the powers of a police officer which are conferred on him or which are exercisable

by him establish a direct or substantial relationship with the prohibition enacted by this section,

that is relating to the recording of confession.

The ‘Police Officer’ in Section 25 is wider than the term in Section 1 of the Police Act. “A

‘Police Officer’ means a officer other than a Magistrate whose duty is to prevent and detect

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

crime, the latter duty involving the duty of holding investigation; in other words, a person

holding powers for effective prevention and detection of crime to maintain law and order.”

Confession made to police officer:

Under section 25 any confession made to the police officer can only be excluded and not a

confession made for the police. If the confession made for police officer it is admissible. Hence,

a confession made to the police officer is not relevant. Admissions or statements of

incriminating facts, even a gravely incriminating fact, to the police not amounting to a

confession are not barred under this section. Even in a recent case the Supreme Court did not

agree to accept the argument in the matter of reception of confessional statement made to police

in evidence as applicable in advanced countries. The Privy Council held that silent video-

recording by police was inadmissible.

Confession in Civil suit:

Section 25 merely forbids the use of confession in criminal cases, but not in civil suit.

Admission made to a police officer may be accepted as an admission in civil proceedings under

sections 17, 18, 21 of the Evidence Act.

Confessional statement in TADA not to be used in Non-TADA Case:

Some offences under TADA Act were incorporated initially but later on the same were

dropped. The trial was also conducted for offences under I.P.C. and not under TADA Act. It

was held that the confessional statement made by the accused under the TADA Act cannot be

utilised by the prosecution in instant case as charges were framed only for offences under I.P.C.

Admissibility of custodial confession (Sec.26)

Section 26, Confession by accused while in custody of police not to be proved against him:

No confession made by any person whilst he is in the custody of a police officer, unless it be

made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation:

In this section “Magistrate” does not include the head of a village discharging magisterial

functions in the Presidency of Fort St. George or elsewhere, unless such headman is a

Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882

(10 of 1882).

Principle:

Section 26 is the extension of the principle laid down in Section 25. While Section 25 applies

to all confessions made to some police officers, this section includes confession made to “any

person” other than police officer, while in police custody. Under this section, it is provided that

no confession made by an accused to any person while in custody of a police officer shall be

proved against him unless it is made in the immediate presence of a Magistrate. Thus, the

section is intended to prevent of coercive method of extorting confession.

The section is based upon the same logic that the police in order to secure confession uses all

types of coercive methods, because the accused is put in constant fear and forced to confess.

“The reason is that a person in the custody of police is presumed to be under their influence

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

and it provides opportunities for offering inducement or extorting confession, but the presence

of a Magistrate is a safe guard and guarantees the confession.”

Police custody:

Police custody simply means police control implying restrictions and restrain imposed by

police officer. It commences from the time when one’s right to movement is restricted by the

police officer. It includes both physical control or temporary restriction imposed on a person.

An accused is under police control means he is to stay under direct or indirect police

surveillance.

Thus, a woman was left under the custody of a village chowkidar or when she was left to

Tonga-driver by the police; both are regarded to be police custody. In the second case

confession by the accused to Tonga-driver was held to be irrelevant. Therefore, the custody of

a police officer for the purpose of the Section 26 is not merely physical restriction, but it

includes any kind of police surveillance. To constitute custody of police, some sort of custody

is sufficient under section 26. “The crucial test is whether the accused is a free man when he

makes the confession or his movements are controlled by the police either by themselves or by

some other agency employed by them.

Immediate presence of a Magistrate: An exception:

As a general rule an accused made a confession to the police or while in police custody is not

relevant unless it has been made in the immediate presence of a magistrate.

The confession in presence of a magistrate by the accused is an exception to the general rule

laid down in Sections 24, 25 and 26. A confession by the accused in presence of a magistrate

is relevant only when it is done in accordance with rules laid down in Sections 164 and 364 of

the Code of Criminal Procedure, 1973. If the magistrate fails to observe procedures and

formalities of Sections 164 and 364, Cr. PC, even though the confession is made by the accused

in immediate presence of a magistrate, it is inadmissible.

When a magistrate who is not especially empowered to record confessions under Section 164,

Cr. PC. or who receives confession at a State when Section 164, Cr. PC. does not apply, is an

extra-judicial confession. A confession made while in custody is not to be proved against the

accused as the provisions of Sections 25 and 26 of the Evidence Act, do not permit it unless it

is made before a magistrate.

If the confession was not recorded by a competent magistrate the confession of a person in

police custody would not be relevant. Where the accused were in police custody and no

magistrate was present their admission of the accused is not an admission in evidence. It is said

by the Supreme Court that the strict rule under section 26 is not applicable to a departmental

enquiry against a government employee.

In case of oral statement, other than that required to be recorded, made in presence of a sub-

inspector and a constable who had taken the accused under arrest to a magistrate on leave, is

not admissible. “The question arose in some cases whether a confession made by an accused

before a magistrate not reduced to writing may be proved by oral evidence and it has generally

been answered in the affirmative. An oral confession which is not open to any exception under

sections 24, 25 and 26 is relevant fact as an admission under section 21 and may be proved

against the accused by the oral evidence of the magistrate.”

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Admissibility of information received from an accused person in custody (Sec.27)

Section 27, How much of information received from accused may be proved: Provided

that, when any fact is deposed to as discovered in consequence of information received from a

person accused of any offence, in the custody of a police officer, so much of such information,

whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered,

may be proved.

Scope:

There are two exceptions laid down in the Evidence Act so far, the admissibility of confession

made by an accused is concerned. First, exception relates to when confession is made by the

accused in immediate presence of a magistrate (Section 26) and the other has been mentioned

in Section 27 i.e. when the confession leads to discoveries of facts. The section permits the

proof of all kinds of information whether contained in a confession or not, and therefore goes

beyond the provisions of Sections 25 and 26.

Principle:

Section 27 lays down that during the period of investigation or during police custody any

information is given by the accused of an offence to the police officer that leads to discover

any fact, may be proved whether such information amounts to confession or not, and obtained

under inducement, threat or promise. Section 27 is by way of a proviso to Sections 25 and 26

and a statement even by way of confession made in police custody which distinctly relates to

the fact discovered is admissible in evidence against the accused.

Under sections 24, 25 and 26 a confession which is inadmissible would be admissible under

section 27 subject to discoveries of facts on the basis of information given by the accused.

Section 27 is by way of proviso to Sections 25 to 26 and a statement even by way of confession

made in police custody which is distinctly relates to the facto discovered in admissible in

evidence agreement the accused.

Example:

‘A’ was arrested by the police officer on a charge of murder. ‘A’ confessed to the police officer

that he had committed murder with a dagger what he had hidden in the neighbouring field. On

the basis of such information the police officer recovered the dagger from the field. The

statement regarding hiding of dagger to the police officer is relevant.

Under the section, excepting the confession relating to recoveries of facts no such guarantee or

assurance attaches to the rest of the statement which may be indirectly or remotely related to

the fact discovered. It arises by reason of fact that information given by the accused exhibited

knowledge or mental awareness of information as to its existence at particular place. Fact

discovered, therefore, has to be a combination of both the elements, that is, physical object and

mental condition.

Essential requirements of the section:

The following conditions are necessary for the application of the Section 27.

1. The fact must have been discovered in consequence of information received from the

accused.

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

2. The person giving information must be accused of an offence.

3. He must be in custody of a police officer.

4. That portion only of the information which relates distinctly to the fact discovered can be

proved.”

5. The discovery of fact must relate to the commission of crime in question.

6. Before the statements proved somebody must depose that some article was discovered in

consequence of the information received from the accused.

Constitutional validity of Section 27:

In State of U.P. v Deoman the validity of Section 27 of the Evidence Act was challenged on

the ground that it was offending Article 14 of the Constitution of India. In appeal the High

Court declared Section 27 to be unconstitutional as it created unjustifiable discrimination

between “persons in custody” and “persons out of custody.” Further appeal was made by the

State of U.P. against the judgment of the High Court in the Supreme Court. It was held by the

Supreme Court that the distinction between “persons in custody” and “persons out of custody”

had little practical significance. By majority decision the Section 27 was declared to be

constitutional and the conviction awarded by the Session judge was restored.

“The legal position therefore remains as inconsistent as ever in spite of the decision of the

Supreme Court viz., that while information given by a person in police custody leading to

discovery of a fact may be proved, such information, coming from a person not in custody is

not probable though both satisfy the same test of relevancy provided in Section 27, e.g. the

discovery of a fact.”— SARKAR.

Object of Section 27:

Basic object of the section is to provide evidence for admission and such evidence relates to

some sort of discovery of fact. It would appear that under Section 27 as it stands in order to

render evidence holding to discovery of on fact admissible, the information must come from

any accused in custody of the police. It is well settled that recovery of object is not discovery

of fact envisaged in the section. Recovery so made prusuant to discovery statement can be

relied upon to complete chain of events relating to crime.

However, where there is direct evidence by the eye-witness non-recovery of the offending car

said to have been used by the accused will be no ground to disbelieve otherwise the credit

worthy evidence of the prosecution witnesses.

Where the recovery of panchnama of the sticks, the alleged crime article, had no mention that

the sticks had any marks of blood, the evidence of recovery of the sticks cannot constitute

incriminating evidence against the accused. Evidence of recovery cannot be relied upon for

conviction “sofar as recovery of the sword as concerned, the same was not sent for any

examination by the Forensic Science Laboratory and the report if any was not exhibited and

even no question in that regard was put to the accused while he was examined under section

313 of the Code.”(Cr. P.C.). Non discovery of weapon sickle does not go to discreet the witness.

Discovery statement of the accused and recovery of revolver in pursuant thereto is an important

circumstance against the accused which can be taken into consideration. Unless the disclosure

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

statement is proved, the consequential recovery at the instance of the accused is not covered

within the framework of Section 27 of the Evidence Act. Where in a plan an unknown woman

was raped and her dead body was buried, disclosure statement of accused persons pointing out

the place of rape was not admissible.

Validity of information whereby “discovered” may be proved:

Discovery of facts, however important, does not render admissible that the accused informed

in connection with discovery. ‘So much of the information’ which distinctly relate to the facts

thereby discovered is admissible. The section seems to be leased on the view that if a fact is

actually discovered in consequence of information given, some guarantee is afforded. Thereby

that the information was true and accordingly can be safely allowed to be given in evidence.

However, since discovery of fact as a result of information from the accused is not admissible

under its relevancy is established by other evidence “showing the connection between the fact

discovered and the offence charged with the accused”. Articles discovered by another house

owner on the information provided by the accused were held to be discovered at the instance

of the accused.

Therefore, the extent of information admitted should be consistent with understandability.

What was admissible in evidence is only that part which would come within the purview of

Section 27 of the Evidence Act and not the rest. Mere statement that the accused led the police

and the witnesses to the place where he had concealed the articles is not indicative of the

information given.

The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by

subsequent event. In criminal conspiracy and murder case the investigation was able to locate

STD booth from where the accused talked with others. This was discovered at instance of

known accused persons. It was held that the evidence of witness clearly proved recoveries and

discovers.

Confession by co-accused (Sec.30),

Retracted confession and its evidentiary value

Section 30, Consideration of proved confession affecting person making it and others

jointly under trial for same offence: When more persons than one are being tried jointly for

the same offence, and a confession made by one of such persons affecting himself and some

other of such persons is proved, the Court may take into consideration such confession as

against such other person as well as against the person who’ makes such confession.

Explanation:

“Offence,” as used in this section, includes the abetment of, or attempt to commit the offence.

Illustrations:

(a) A and В are jointly tried for the murder of C. It is proved that A said— “B and I murdered

C.” The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that С was murdered by A

and B, and that В said— “A and I murdered C.”

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

This statement may not be taken into consideration by the Court against A, as В is not being

jointly tried.

Scope:

This section is an exception to the general rule that a confession of an accused is inadmissible

against other accused persons who are jointly tried. It makes a departure from the common law

of England. Section 30 lays down when there is more than one accused who are jointly tried

for the same offence and a confession made by one of them at the trial, the court may take into

consideration the confession against all accused [(Illustration (a)]. If the statement of the

accused does not amount to a confession it is not admissible against co-accused. Because, a

confession of an accused especially when it is self-exculpatory, cannot be used against a co-

accused, when the confessing accused was not facing any trial. “The principle on which the

confession of one accused is allowed to be used against co-accused is that self- implications

are supported to provide some guarantee of the truth of accusation made against the other.” It

is also not necessary that the confession of the co accused must be made to a magistrate.

Principle:

The principle that a confession by one accused may be taken into consideration against co-

accused is founded on: (i) more than one accused are jointly tried, (ii) they are tried for the

same offence, (iii) confession should have been made by one of them, and (iv) the confession

should be legally proved. “On the whole, the section has not been looked upon with favour by

the judges who have to administer the law, and it has been laid down in an uninterrupted series

of cases that a confession by an accused is not to be treated as “evidence” (in the sense used in

Section 3) against his co-accused, but it may only be taken into consideration (i.e. an element

in the consideration of all facts in the case) along with other evidence and that a conviction

based solely on such confession send unless substantially corroborated by independent

evidence”—SARKAR.

Confession of co-accused:

The Privy Council once observed that “a confession of a co-accused is obviously evidence of

a very weak type. It does not come within the definition of ‘evidence’ contained in Section 3.

It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested

by cross-examination.” It again observed that “the confession is only one element in the

consideration of all the facts proved in the case. It can be put into the scale and weighed with

the other evidence.”

The Supreme Court accepted the views of the Privy Council and observed that the confession

of an accused against the co-accused is not evidence in the ordinary sense of the term. If the

co-accused escapes from custody and the charge itself were framed as proclaimed offender, the

confession of the co- accused cannot be made use.

Although the principles laid down in Section 30 is not very sound policy of the law “seems to

rest on the recognition of the palpable fact that such a confession cannot fail to make an

impression on the Judge’s mind, which it was therefore to control limits than to ignore

altogether.”

In Prakash Dhawal Khairnar v State of Maharastra it was held that confessional statement of

one accused recorded under section 164, Cr. PC by a magistrate would be admissible against

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

the other accused as both were jointly tried. If the confession is not recorded by the magistrate

under section 164, Cr. PC it may be used under section 30 of the Evidence Act if they are not

regulated by Section 24 of this Act.

In TADA case the Section 15 of the TADA requires joint trial of the accused, but there is a

point of difference; while under section 30 of the Evidence Act the confession of an accused

may be taken into consideration against co-accused under section 15 of the TADA, the

confession is admissible against the co-accused and is the substantive evidence against the co-

accused.

The principle of admissibility of confession under Section 15 of TADA has to be distinguished

from the provisions of Cr. PC. and Sections 24 to 30 of the Evidence Act. The provision of

Section 15 of the TADA is mandatory in nature and Section 30 of the Evidence Act is

discretionary in nature and the print of admissibility of confession against co-accused when

jointly tried. The confession recorded by the police officer under section 32(1) of the

Prevention of Terrorism Act, 2002 cannot be taken into consideration under section 30 against

the co-accused.

Rule to be observed:

“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 the consideration and see that if it is believed,

conviction should safely be used 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.

However, 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 that without the aid of the confession would not be prepared

to accept it.

The confession of a co-accused is not so substantive evidence, it can be pressed in service only

when the court is inclined to accept the other evidence and feels the necessity of seeking for an

assurance in support of his conclusion deducible from the other evidence.” A statement of an

accused would be admissible against a co-accused only under Section 30 of the Evidence Act.

Such a statement of the co-accused is required to be corroborated by adduction of independent

evidence. A confession of a co-accused can be treated as substantive evidence and can be

pressed into service only when the Court is inclined to accept other evidence and sees the

necessity of seeking for an assurance in support of the conclusion deducible therefore.

Recently the Supreme Court has observed that the confession of a co-accused can be used only

for corroborative purposes but not as a substantive evidence. The confession cannot be held to

be used only to corroborate other substantive evidence produced by the prosecution. A

confession intended to be used against a co-accused stand on lower level than an accomplice

evidence, because the latter is at least tested by cross-examination while the former is not.

It was also held by the Supreme Court that the Section 30 permits the taking into consideration

of the confession of an assessed against co-accused subject to conditions laid down in the

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

section. Where the statement of the accused does not contain anything incriminating the

accused, it cannot be used against a co accused. Thus, the confession of co-accused cannot be

substantive evidence against other accused. “It is per is not evidence.”

Co-accused being jointly tried:

A confession by an accused may be taken into consideration provided other co-accused are

jointly tried for the same offence. To make a joint trial legal, the accusation must be a real one

and not merely an excuse for a joinder of charges which otherwise cannot be joined. “Same

offence” means identical offence and not an offence of the same kind. Where an accused who

was jointly tried but died before the judgment, it was held that the confession was admissible

against his co-accused and could be used only for corroborating the other evidence on the

record and not as substantive evidence. The stress in section so is pre-requisite of joint trial for

the same offence.

Confession of co-accused and testimony of accomplice:

The confession of co-accused under section 30 does not have higher probative value than that

of the testimony of an accomplice in the court of law. The confession of co-accused alone is

not legally sufficient to uphold a conviction.

RETRACTED CONFESSION AND ITS EVIDENTIARY VALUE

A confession is substantive evidence against its maker, if it has been duly recorded and suffers

from no legal infirmity, it would suffice to convict the accused who made the confession,

though as a matter of prudence, the Court usually expects at least some corroboration before

acting upon it. But before acting upon a confession, the Court must be satisfied that it

is voluntary and true. Voluntariness depends upon whether there was any threat, inducement

or promise. The truth is to be judged in the context of the entire prosecution case i.e. whether

it fits into the proved facts and does not run counter to them. If these two conditions are

satisfied, it becomes the most reliable piece of evidence against the maker.

Of Retracted Confessions

Retraction may be defined as the act of recanting.[3] To recant means to withdraw or renounce

prior statements formally.[4] A retracted confession is one which is withdrawn or retracted

later on by the person making it.

Retraction of statements is something that happens in most criminal cases. The reason behind

the same may be the inadequate police protection or the ill-developed mechanism for witness

protection or the inherent securities of the witnesses or the accused under the influence of the

status of the opposing party as happens in almost all the high-profile cases.

It should be noted here that the Act makes no distinction whatsoever between a retracted

confession and an unretracted confession and both are equally admissible and may be taken

into consideration against the accused though it may be that less weight would be attached to

a retracted confession.[5]

Right to Retract Confessions

Retraction of a confession is very common since it is often procured through non-validating

means An extraordinarily large number of confessions, in criminal cases, culminate in

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

retractions, as a matter of course.[6] In India, retractions are as plentiful as confessions.[7] This

goes to show that most confessions do no proceed from a feeling of penitence and remorse as

they should, but that they have their source in the inducement, threat, torture, hope or any other

non-validating cause.[8] Thus, to retract from a confession is the right of the confessor and all

the accused have invariably adopted that right.[9]

Concept of Retraction flows from the Constitutional Right against Self-Incrimination

Article 20(3) of the Constitution of India, 1950 guarantees protection against the compulsion

to be a witness against oneself. The application of this provision extends to statements made

during police interrogations.[10] This means that no person can be forced to make a confession,

against his will. Thus, the test of relevancy of a confession is whether it is voluntary or

not.[11] Since there is a danger that the confessor may implicate himself against his will, the law

regarding the same is so strict that a confession that is not voluntary is rejected even if it is

true.[12] Sections 24 to 30 of the Evidence Act have been legislated to take care of this

constitutional right by excluding from evidence all self-incriminating statements that have not

been made voluntarily.[13] A right to retract is important because a retraction puts the court on

enquiry as to the voluntary character of the confession.[14] Moreover, to withdraw from what

has been said previously is to be interpreted as an extension of civil liberty.[15]

Retraction must be affected, especially when the Confession is Involuntary

When a confession has been retracted, the court has a duty to evaluate the evidence concerning

the confession by looking at all aspects.[16] The first test that the court is required to apply with

regard the same is to ascertain whether the confession was voluntary or not.[17] Satisfaction of

this test is a sine qua non for admissibility of the confession in evidence.[18] The word

‘voluntary’ used in respect of a confession refers to a confession that is not caused by

inducement, threat or promise.[19] If it appears to the court that a confession has been procured

using any inducement, then it would be rendered irrelevant.[20] A well-grounded suspicion

based on the circumstances of the case may exclude a confession[21] since the use of the word

‘appears’ in Section 24 suggests a lesser degree of probability than ‘proof’ defined in Section

3 of the Evidence Act.[22] It is idle to expect the accused to ‘prove’ the inducement for in most

cases such proof cannot be available.[23] In light of the same, anything from the barest suspicion

to positive evidence is considered sufficient for discarding a confession.[24]

Evidentiary value of Retracted Confessions

status of retracted confessions under the Act

The Act makes no distinction whatsoever between a retracted confession and an unretracted

confession and both are equally admissible and may be taken into consideration against the

accused though it may be that less weight would be attached to a retracted confession.[25]

Particulars of a retracted confession

As the confession is required to be clear, specific and unambiguous, its retraction should also

not be ambiguous, vague or imaginary. The person alleging retraction of confession or his

earlier inculpatory statement must satisfy the court that that he had withdrawn from his

statement at the earliest possible time [26] and without any afterthought or advice and must

give reasons for the same.[27]

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

Weight attached to a retracted confession

The weight to be attached to a retracted confession must depend on the circumstances under

which the confession was given, and the circumstances under which it was retracted including

the reasons given for retraction.[28]

Importance of corroboration

It is only as a matter of prudence and caution which has sanctioned itself into a rule of law that

retracted confession cannot be made the sole basis of conviction unless it is corroborated. It is

not necessary that each and every circumstance mentioned in the confession is separately and

independently corroborated. It would be sufficient if the general trend of the confession is

substantiated by some evidence which would tally with what is contained in the confession

[29] i.e. corroborated in general particulars.

It is also a general rule that it is unsafe to base the conviction of the accused upon his retracted

confession even when it is held to be true and voluntary unless it is corroborated in material

particulars by independent evidence.[30]

Value of retracted confession against Co-accused and Accomplice

Where more persons than one is being tried jointly for the same offence, a confession made by

any one of his co-accused can be taken into consideration by the court not only against the

maker but also against his co-accused. The Act nowhere provides that if a confession is

retracted, it cannot be taken into consideration against the co-accused or the confession

accused.[31] A retracted confession can be considered against but it cannot be the basis for

conviction of co-accused.[32]

However, the standard of corroboration is quite different in such cases. In the case where the

resided statement is being used against the confessing accused, general corroboration is

sufficient whereas in cases of co-accused or an accomplice, corroboration in material

particulars in necessary.[33]

It should be noted that it has been held that a retracted confession can be taken into

consideration to indicate the prima facie involvement of others.[34]

Comparison with English Law

It is submitted that the Law in England differs from that in India to the extent that an accused

person can be convicted on his own confession, even when it is retracted if the Court is satisfied

with its truth. In India, there is a further requirement of corroborative evidence to support it.[35]

In conclusion, it is submitted that retraction is a very important principle of the Law of

Evidence. It has a strong practical foundation. Furthermore, to give a gist of this article, the

following principles constitute the law relating to retracted confessions:

1. It is not illegal to base a conviction upon the uncorroborated confession of an accused

person, provided that the court is satisfied that the confession was voluntary and true in

fact.

2. From the viewpoint of legality, the fact that a confession has been retracted is

immaterial,

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

3. A confession is not regarded as involuntary merely because it has been retracted.

4. Before using the retracted confession, it must be proved to be true and voluntary.

5. In cases of co-accused, the confession must be corroborated by material particulars.

6. A person has a general right of retraction which flows from the principle against self-

incrimination.

[3] P Ramanatha Aiyar, Advanced Law Lexicon, 4122 (3rd Edition, Volume IV, Wadhwa and

Co, Nagpur, 2005)

[4] P Ramanatha Aiyar, Advanced Law Lexicon, 3977 (3rd Edition, Volume IV, Wadhwa and

Co, Nagpur, 2005)

[5] Re: Kodur Thimma Reddi and Ors, AIR 1957 AP 758

[6] Queen Empress v. Babulal, (1884) ILR 6 All 509

[7] R v. Thompson, [1893] 2 QB 12

[8] R v. Thompson, [1893] 2 QB 12; The Deputy Legal Remembrancer v. Karuna

Baistobi (1895) ILR 22 Cal 164; Dikson Mali v. Emperor, AIR 1942 Pat 90

[9] State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778; Rajen Boro v.

State of Assam, 2003 (2) GLT 632

[10] Nandini Satpathy v. P L Dani, AIR 1978 SC 1025

[11] Kalawati v. The State of Himachal Pradesh, AIR 1953 SC 131

[12] Emperor v. Bhagi Vedu, (1906) 8 BomLR 697; Emperor v. Panchkari Dutt, (1925) ILR

52 Cal 67; In Re: Tadipamula Satyanarayana, AIR 1959 AP 419

[13] Ram Lalwani v. The State, 1981 CriLJ 97 (Del)

[14] Emperor v. Krishna Babaji, (1933) 35 BomLR 728

[15] Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230

[16] State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778; Rajen Boro v.

State of Assam, 2003 (2) GLT 632

[17] Shankaria v. State of Rajasthan, AIR 1978 SC 1248

[18] Id.

[19] Shanker Rao Chitnavis v. Ganpat Rao Pande, AIR 1925 All 606

[20] The Indian Evidence Act 1872, §24

[21] Emperor v. Panchkari Dutt, (1925) ILR 52 Cal 67

[22] Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094

[23] Vishnu v. Achut, AIR 1925 All 627; Bhukhin v. Emperor, AIR 1948 Nag 344

Prof. Javaid Talib

Prof. Md. Ashraf

Dept. of Law, AMU

SFA

[24] Emperor v. Panchkari Dutt, (1925) ILR 52 Cal 67

[25] Re: Kodur Thimma Reddi and Ors, AIR 1957 AP 758

[26] Taj Mohammad Khan v. State of Karnataka, 1998 CrLJ 2312 (Kant)

[27] Subramania Goundan v. The State of Madras, AIR 1958 SC 66

[28] Bhuboni Sahu v. The King, AIR 1949 PC 257

[29] State of Uttar Pradesh v. Boota Singh & Ors, AIR 1978 SC 1770

[30] Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094

[31] Ram Prakash v. The State of Punjab, AIR 1959 SC 1

[32] Shrishail Nageshi Pare v. State of Maharashtra, (1985) 2 SCC 341

[33] Subramania Goundan v. The State of Madras, AIR 1958 SC 66

[34] Mohan Wahi v. State, 1982 CrLJ 2040 (Del)

[35] Yap Sow Keong & Anor v Public Prosecutor, [1947] MLJ 90

Suggested Readings:

1. Indian Evidence Act, 1872 (Relevant Statutory Provisions)

2. Monir: Law of Evidence

3. Batuk Lal: Law of Evidence

4. Ratan Lal & Dhiraj Lal: Law of Evidence

5. Avtar Singh: Principles of Law of Evidence

6. Tandon: Indian Evidence Act

7. R. Dayal: Indian Evidence Act

8. Dr. Satish Chandra: Indian Evidence Act