CHAPTER-IV

CONFESSION AND ITS VARIOUS DIMENSIONS

What is confusion is not defined in the Indian Evidence act or under

any other Law. The definition gives under section 17 of the Act for admission,

becomes applicable to confession also. A close scrutiny of the sections 17 to

30 of the Act, discloses that the statement is the genus, admission is the

species and confession is the sub-species.1 The acid test which distinguishes a

confession from an admission is that when conviction can be based on a

statement alone, it is a Confession and where some supplementary evidence

is required to authorize a conviction, then it is admission.2

The law relating to confession is to be found generally in sections 24 to

30 of the Evidence Act and section 162 and 164 of code of Criminal

Procedure. Since Confession is species of Admission, it is dealt within

sections 24 to 30. These sections suggests the circumstances when a

confession3 made by a person can be used against him or against him against

some other person or just can not be used at all. What is the meaning to be

given to the word Confession, one has to start with the dictionary meaning

viz, as an acknowledgement of offence.4

A confession therefore is a voluntary admission of guilt of a criminal

offence5 in which the person charged with a crime acknowledges that he is

1 Sahoo v. State of U.P. AIR 1966 S.C. 42. 2 Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462. 3 The Indian Evidence Act 1872, Section 24, defines:

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 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 proceeding

against him. 4 Webster Dictionary. 5 43 Encyclopaedia of Evidence, 297.

A Confession is a comprehensive admission in express words which acknowledges the

declarants commission of a crime, See Whartons Criminal Evidence. 12 Edn. S. 336:

Mc Cormick on Evidence Chap. 12; Wigmore s. 821 Am. Jur. Ss. 477, 478.

96

guilty of committing that crime.6 In order to amount a confession it must be

a direct admission or acknowledgment of his guilt.7 Sir James Stephen in his

digest of the Law of Evidence defined confession:

As an admission made at the time by a person charged with the crime stating

or suggesting the inference that he committed a crime.8

Such a wide definition, however, was not accepted by justice straight9

and Justice Chandawarker.10 They gave a very narrower meaning to the

expression Confession holding that only a statement which was direct

acknowledgement of guilt should amount to confession and did not include

merely inculpatory admission which falls short of being admission of guilt.

The Blacks law dictionary11 lists the following definitions as

propounded by various courts in U.S.A.

1. A voluntary statement by a person charged with the commission of a

crime or misdemeanor communicated to another person wherein he

acknowledges himself to be guilty of the offence charged and discloses

the circumstances of the act or the share and participation he had in it.

2. A statement made by a defendant discussing his guilt of crime with

which he is charged and excluding possibility of a reasonable inference

to the contrary.

3. A voluntary statement made by one who is a defendant in criminal trial

at the time when he is not testifying in trial and by which he

acknowledges certain conduct of his own constituting the crime for

which he is on trial, a statement which if true, discloses the guilt of that

crime.

6 3, The New Encyclopaedia Britanica, 75. 7 Coraies W.F. 3 Encyclopaedia of the laws of England, (1972) 448 Also See State v.

Youssuf Dar, 1973 Cri. L.J. 955 (J.K.) 8 Art. 22. 9 R. v. Jagrup, 1885 I.L.R. 7. All 646. 10 K. v. Santya Bandhu, 1909 11 Bom. L.R. 633. 11 Blacks Law Dictionary, 6th ed. p. 296.

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In India the definition generally accepted by the courts was what had been

propounded by Stephen;12 A confession is an admission made any time by a

person charged with a crime stating or suggesting an inference that he

committed crime. Thus as per Stephens definition the commission of crime

may not be directly admitted by the accused but even if it can be inferred from

his statement, the statement would amount to a confession.

It may be noted here that in England even the recently passed Police

and Criminal Evidence Act., 1984 adopt the same broad approach. Section

82(1) of the Act defines a confession to include any statement wholly or partly

adverse to the person who made it whether made to a person in authority or

not and whether made in words or otherwise.

In India, however, Starjit, J. discarded the definition of Stephen. He

held that only statements which are direct acknowledgements of guilt should

be regarded as confessions and it cannot be construed as including a mere

inculpatory admission which falls short of being an admission of guilt.

Lord Atkin accepted the dictum of Straight. J. in Pakala Narayan

Swami v. Emperor,13 and held that:

no statement that contains self-exculpatory matter can

amount to a confession, if the exculpatory statement is of some

fact which if true would negative the offence alleged to

confessed. Moreover, a confession must either admit in terms

the offence or at any rate substantially all the facts which

constitute the offence. An admission of a gravely incriminating

fact even a conclusive incriminating fact is not of itself a

confession e.g. an admission that the accused is the owner of

12 Stpehen, J.F. : A Digest of the Law of Evidence 12th Ed. 21. 13 ILR 7 All. 646.

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and was in recent possession of the knife or revolver which

caused a death with no explanation of any other mans

possession.

The Privy Council in discarding Stephens definition further held that:

Some confusion appears to have been caused by the definition

of confession. Article 22 of Stephens Digest of the law of

Evidence, which defines a confession as an admission made at

any time by a person charged with a crime staling or suggesting

the inference that he committed that crime. If the surrounding

articles are examined, it will be apparent that the learned author

after the dealing with admissions generally in applying himself

to admissions in criminal cases, and for this purpose defines

confessions so as to cover all such admission in order to have a

general term for use in the three following articles, confession

secured by inducement made under a promise of secrecy. The

definition is not contained in the Evidence Act, 1872 and in that

Act, it would not be consistent with the nature use of language

to construe confession as a statement by an accused suggesting

the inference that he committed the crime.

The view propounded by Lord Atkin holds the field to this date. The

Supreme Court has cited the definition given by Lord Atkin in the famous case

of Palvinder Kaur v. State of Punjab.14 The view was also upheld in the case

of A Nagesia v. State of Bihar.15

In the light of the above considerations, it may be assumed that a

confession for purposes of law is a direct acknowledgement in clear terms by

14 AIR 1952 SC 354. 15 AIR 1966 SC 119.

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an accused person that he committed the offence for which he is arraigned

which would however, include an acknowledgement by him of incriminating

facts from which an irresistible inference of his guilt follows.

There had been some controversy on admissibility of a statement which

contains both inculpatory and exculpatory parts which is dealt with below.

4.1 Inculpatory and Exculpatory Statements

A self-exculpatory statement obviously cannot amount to a confession.

It has been held in Pati Soura v. State,16 that a statement that contains self-

inculpatory matter (case of self-defence) does not amount to confession if the

exculpatory part relates to some fact which if true would negative the offence

alleged to be confessed. The court is of view in Kanayalal Chamanlal v.

State of Gujrat,17 that a statement which when read as a whole is of an

exculpatory character and in which prisoner denies his guilt is not a confession

and cannot be used in evidence to prove his guilt.

A fully self-inculpatory statement admitting all ingredients of the

offence would on the other hand be a clear confession.

The difficulty arises only in case of statements which are partly self-

exculpatory and partly inculpatory.

Taking a clue form the decision in Palwi Narain Swamys case the

Supreme Court held in Hanumant Govind Nargendkar v. State of M.P.,18 that

an admission must be used as a whole or not at all. It is not open to the court to

split up and use an admission as to a fact in corroboration of the prosecution

case and to ignore an explanation given in the course of the same statement as

to an admitted fact. Similar was the view expressed by the Allahabad High

Court in the case of Emperor v. Balmukund.19

16 (1970)36 Cut. LT 774. 17 1970 Cr. L.J. 54 (Guj). 18 1952 SCR 1091. 19 ILR 1930 All 1011.

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The view was further endorsed by the Supreme Court in Palvinder

Kaur v. State of Punjab,20 as:

It is not open to the court to accept only the inculpatory part of the

statement of the accused and at the same time to reject the exculpatory part of

explanatory part as inherently false and incredible.

However, the Supreme Court found no fault in Nishikant Jha v. State of

Bihar,21 with the High Court accepting the exculpatory part of the statement

and rejecting the inculpatory part on the ground that it was not only inherently

incredible, but was contradicted by other evidence in the case.

Thus it was a matter of appreciation of evidence and not of

admissibility of the statement. The statement if not hit by the provisions of

Evidence Act should be admitted in evidence and both parts must be open to

scrutiny of the court at the time of appreciation of evidence.

This is now the settled law according to the judgment passed in

Bhagwan Singh v. State of Haryana22 that it is permissible to believe a part of

a confessional statement and to disbelieve another and that is enough if the

whole of the confession is tendered in evidence so that it may be open to the

court to reject the exculpatory part and to take the inculpatory one into

consideration if there is other evidence to prove its correctness.

4.2 Difference Between Admission and Confession

Confession is a species of Admissions. All confessions are admissions

but the converse is not true. The underlying principle which governs a

confession and an admission is the same and that principle is that a statement

made by a person against his own interest might be true. The word confession

is also placed in juxtaposition with admission. Thus Section 17 to 31 deal with

20 1953 SCR 94. 21 1962 (2) SCR 1033. 22 AIR 1976 SC 1797.

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admissions generally though sections 24 to 30 deal with confessions as

distinguished from admissions.

The following differences between the two may be noted:

1. The broad distinction seems to be that a confession is a statement made

by an accused person which will be used against him in a criminal

proceeding to establish the commission of the offence by him while an

admission is a statement by a party to proceeding or by a person who

has an interest in the subject-matter of the proceeding whereby he

admits a fact in issue or relevant fact and such an admission will be

generally used in a civil proceeding.

2. A confession untainted by any legal disqualification may be accepted

as conclusive in itself of the matters confessed as conclusive in itself of

the matters confessed as held in Emperor v. Narayan,23 but an

admission is no conclusive proof of the matters admitted though it may

operate as an estoppel.24

3. A confession always goes against the person making it. An admission

may be sometimes proved by or on behalf of the person making the

admission under the provisions of Section 21 of the Evidence Act.

4. The confession of one accused tried along with some other accused

may be used against the others, if the requirements of section 30 of the

Evidence Act are satisfied but an admission of one of several

defendants is no evidence against another defendant.

5. An admission need not be voluntary to be admissible in evidence as is

the case with confessions.

23 (1907)32 Bom iii(FS). 24 See Section 31, Indian Evidence Act of 1872.

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6. There can be a relevant admission made by an agent or even a stranger

on behalf of a party but for a confession to be relevant. It must be made

by the accused himself. Holloway. J. has clarified the distinction in an

American case titled as State v. Guie.25

The distinction between a confession and an admission as applied in criminal

law is not a technical refinement but based upon the substantive difference of

the character of the evidence deduced from each. A confession is a direct

acknowledgement of guilt on the part of the accused and by the very force of

the definition excludes an admission, which of itself as applied in criminal law

is a statement by the accused, direct or implied of facts pertinent to the issue

and tending in connection with other facts to prove his guilt, but of itself is

insufficient to authorize a conviction.

The matter was also dealt within Ram v. State,26 and the court observed

as follows:

If the statement by itself is sufficient to prove the guilt of the accused,

it is a confession but that if, on the other hand, the statement falls short of it. It

amounts to an admission. The acid test which distinguishes a confession from

an admission is that where a confession can be based upon the statement alone

it is a confession and that where supplementary evidence is needed to

authorize a conviction then it is an admission.

4.3 Confessions : Plenary and Not Plenary

A Plenary confession is when a self-deserving statement is such as if

believed to be conclusive against the person making it, at least one the

physical facts of the matter to which it relates. In such cases the proof is in the

nature of direct evidence a confession Not Plenary is where the truth of the

25 56 Mont 485. 26 AIR 1959 All. 518.

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self-deserving statement is not absolutely inconsistent with the existence of a

state of facts different from that which it indicates but only gives rise to

presumptive inference of their truth and is therefore in the nature of

circumstantial evidence.

4.4 Two kinds of Confessions Judicial and Extra-Judicial

Confessions may be divided into two classes namely, Judicial and

Extra-judicial.

Judicial confessions are those which are made before the Magistrate in

due course of legal proceedings e.g. confessions recorded under Sections 164,

364 and 242 of the Code or Criminal Procedure. It is however, essential that

they be made or the free will of the party and with full knowledge of the nature

and consequences of the confessions.

Extra-Judicial confessions are those which are made by the party

elsewhere than before a Magistrate or in court. This term embracing not only

express confession of crime but all those admissions and acts of the accused

from which guilt may be implied.27

As held in the case Bhisheshwar Dhani Ram v. State,28 the Extra-

Judicial confessions embrace those made as well to private individuals as to

the officers of justice such as constable police officers etc. If voluntarily made

they are receivable in evidence after being proved like other facts. An extra-

judicial confession if satisfactorily provided to have been voluntarily made

may be the basis for a conviction even in the absence of corroboration.

However, the fact as to whether a conviction can be based purely on an extra-

judicial confession which does not get any corroboration is highly doubted has

been the subject matter of various different judicial opinions.

27 Taylor on Evidence 867. 28 (1963) ILJ 645.

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Though an extra-judicial confession to any ordinary person (other than

police officer can be proved, such a confession cannot be proved at all if made

to a Magistrate unless the provisions of Section 164 Cr. P.C. have been

complied with, this was held in Nazir Ahmed v. Emperor.29

Thus confessions whether judicial or extra-judicial must be voluntary

and genuine and besides, should have some corroboration to be relied upon

and to be the basis of a conviction. Therefore, the circumstances under which

the confession is made the manner in which it is made the person to whom it is

made are aspects to be borne in mind before acting on a confession,

particularly on a non-judicial confession. Two rules of caution are to be

followed as held by the Supreme Court in the case Wakil Nazek v. State of

Bihar,30 before such action namely:

(1) Whether the evidence of confession is reliable.

(2) Whether it finds corroboration.31

As regards an extra-judicial confession the Supreme Court observed in

Prabhakar Narayan Upadhyaya v. State of Maharashtra32 that:

It is true that the evidence of extra-judicial confession has to be

scrutinized carefully and received with great caution. In this

connection the court would have to consider whether it was

natural for the accused person to have confided in and confessed

to the person who is deposing to the confession. The

relationship of that person with the accused before the court is

most material and vital. Then against the court would have to

consider what has been confessed and whether the same is

29 (1936) PC 253. 30 1972 Cr. L.J. 566. 31 F.R. Mario Pires v. Dir of Enforcement, New Delhi 1982 Cr. L.J. 461 (Goa). 32 (1971)LXXIV Bom. L.J. 299.

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consistent with the facts about the incident as deposed to by the

other witnesses and discovered during the course of the police

investigation. The scrutiny has to be minute and great caution

has to be exercised. It is also to be considered whether the

person, deposing to the extra-judicial confession had any motive

or reason for falsely, involving the accused person. It is also to

be considered such person is otherwise a satisfactory witness. It

must also be borne in mind by the court considering the

evidence of such person whether there is any likelihood of such

person being himself concerned with the crime in question and

therefore, falsely implicating the accused; If after such careful

scrutiny, the evidence of extra-judicial confession is regarded as

acceptable and trustworthy. Such evidence cannot be considered

to be inferior in any way to the other pieces or evidence. Strict

proof undoubtedly has to be insisted upon but once such proof is

forthcoming the evidence of extra-judicial confession cannot be

characterized as a weak type of evidence.

4.5 The Importance of Confessions in Criminal Trials Exception to the

Rule Against Hearsay

The general English rule that hearsay is no evidence has been enacted

in Section 60 of the Indian Evidence Act. The term hearsay is generally used

to indicate the evidence which does not derive its value from the credit given

to the witness himself but which rests also in part al the veracity and

competence of some other person.33 Hearsay evidence is considered

untrustworthy since the original maker of the statement is not before the court

as a witness. The time lag before the statement is repeated in the court may

33 Taylor on Evidence, 570.

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introduce distortions. Further the original declarant was not put on oath before

making the statement and he is not available in the court or cross-examination.

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

permitted to, on his own prayer. Thus a confession made by him before the

beginning of trial when sought to be proved by other witness can be said to be

hearsay.

Admissions and confessions from a special group within the exception

to be hearsay rule. The key factor that distinguishes them from other hearsay

evidence is that they are statements one or the parties to the proceeding. The

party is litigating in the court and is in a position to admit or deny that he had

made such a statement. He can also cross examine the witness proving the

admission or confession made by him.

Secondly, they also derive probative force from a ring of truth that

accompanies them. If a person makes a statement out of court, in his favour, it

may be of little value since there is always a tendency to say self serving

things. To treat this as evidence for himself would be to offer an inducement

create inducement to create evidence for himself and open the door to fraud.

But this objection ceases to have force when the statement is against his own

interest. In the natural course of human conduct a man is not likely to say

anything against his advantage or interest unless it were true.

The main thrust of the rule against hearsay being on the need and

prudence of affording an opportunity of cross examining the original maker of

the statement. He said rule can in fact not be invoked in case of confessions. A

confession is alleged to have been made by the accused who cannot cross

examine himself. Wigmore34 gives the following illustration to drive home the

point: If Jones had said out of court, The party opponent Smith borrowed his

34 Wigmore on Evidence, 1048.

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fifty dollars. Smith is entitled to an opportunity to cross-examine Jones upon

the assertion. But if it is Smith himself who said out of court, I borrowed fifty

dollars, certainly Smith cannot complain of lack of opportunity to cross

examine himself before this assertion is admitted against him.

As per Wigmore the basis of admissibility of confessions and

admissions is akin to that of previous contradictory statements made by a

party. The party is discredited when it appears that on some other occasion he

had made a statement inconsistent with and contrary to his present claim.

Whatever way it is seen a confession if proved to have been voluntarily

made is likely to be true being against the interest of its maker. Once it is

accepted as true nothing really remains in the trial and the person who has

made the confession is straightaway liable to be convicted and sentenced

saving a lot of valuable time money and labour.

A voluntary statement by a person charged with the commission of a

crime or misdemeanour communicated to another person, wherein he

acknowledges himself to be guilty of the offence charged and discloses the

circumstances of the act or the share and participation he had in it. In India, a

confession is an admission made any time by a person charged with a crime

stating or suggesting an inference that he committed crime. The commission of

crime may not be directly admitted by the accused but even if it can be

inferred from his statement, the statement would amount to a confession. Self-

exculpatory statement cannot amount to a confession. Self-inculpatory

statement admitting all ingredients of the offence would on the other hand be a

clear confession. All confessions are admissions but the converse is not true.

The principle which governs a confession and an admission is the same and

that principle is that a statement made by a person against his own interest

might be true.

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4.6 Critical Appraisal

No doubt that the confessional statement is in the interest of both

accused and the prosecution. On one hand it helps the court to take lenient

view towards accused and on the other hand it saves the public time. But in

order to save the public time the Constitutional rights of the accused should

not be violated. In other words an accused person should not be compelled to

make a self incriminatory statement and not to be compelled to be a witness

against himself. It means the confession should be voluntary. Involuntary

confessions should not be considered at all. Whether a statement is voluntary

confession or involuntary confession is to be decided first. A brief study about

the law relating to the history and development of confession is made in the

next chapter.

4.7 Law Relating to Exclusion of Involuntary Confessions

Section 24 to 30 of the Indian Evidence Act deal with admissibility of

confession made by an accused during the investigation of a criminal case

under certain circumstances. Section 24 enacts the general rule of

inadmissibility of involuntary confessions, recognized all over the world and

guaranteed under Article 20(3) of the Constitution of India. A confession made

under circumstances which would make it appear to the Court that such

confession was caused by any inducement, threat or promise from a person in

authority is irrelevant in a criminal proceeding. Offering such inducement,

threat or promise by police officers is prohibited under the Code of Criminal

Procedure.35 Section 25 and 26 go for beyond the constitutional protection and

debar and confession made by an accused person to a police officer or whilst

in police custody to anyone except in the immediate presence of a Magistrate

35 S. 163 Cr. P.C.

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from being given in evidence. Then Section 27 of the Evidence Act creates an

exception i.e. a confession or any other statement which is deposed to have led

to discovery of some facts is admissible in evidence to the extent of the law

actual part of the statement distinctly leading to the discovery. This exception

qualifies both Section 25 and 26 but not Section 24. Section 28 and 29 are

more or less clarificatory in nature. By virtue of Section 28, a confession made

after the removal of impression caused by inducement, threat or promise as

referred to in Section 24 is admissible. Section 29 clarifies that the mere fact

that a confession was made under promise of secrecy or by deceit for the

purpose of obtaining it or when the person making the confession was drunk

or that it was made in answer to questions which he was not bound to answer

do not make the same irrelevant under section 24. A confession of a co-

accused when found relevant and proved can be taken into consideration by

the court against the co-accused persons under the power conferred by Section

30.

For the purpose of the present study relating to Custodial confessions

i.e. confession made to the police or whilst in police custody, the provision of

Sections 24 to 27 may be examined in detail. This Chapter deals with the chief

provision containing the exclusionary clause i.e. Section 24 of the Evidence

Act.

4.8 Scope of Section 24

In Queen Empress v. Babu Lal,36 the Privy Council held that section 24

declares that confession caused by inducement, threat or promise are irrelevant

unless as Section 28 provides, they are made after the impression caused by

any such inducement, threat or promise has been fully removed.37 When the

36 ILR 6 All 509. 37 ILR 6 Sec. 509.

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legislature wished to make an exception to absolute rule in Section 24, it did

so by a separate Section viz. Section 28, which declares under what

circumstances a confession rendered irrelevant by Section 24 may become

relevant. A confession made under an inducement that has not been removed

within the meaning of Section 28 is not relevant as a confession under Section

24. The rule thus laid down is speaking strictly, a rue of relevancy, called forth

by the abstract principles of evidence and not positive prohibition necessitated

by exigencies. Section 24 of Evidence Act is a rule of exclusion because it

declares that a confession made by an accused person in certain circumstances

is irrelevant in a criminal proceeding.

In every case in which a confession is admitted in evidence. It is no

doubt open to the defence to object to the evidence of confession on the

ground that. It is excluded by Section 24 Evidence Act. But till such objection

is raised, there is no necessity for the court to pronounce any formal decision

on the question of relevancy of the confession. The actual admission of the

evidence during the trial is sufficient for the purpose. The section is clearly a

general provision and applies to confession made by a person whether in

police custody or not and whether it is made to a police officer or to others.38

It is, however, not possible to lay down as to what language is

sufficient to constitute an inducement. Much would depend upon the actual

words used and what impression they were likely to create on the mind of the

accused having regard to all the circumstances of a particular case. It is always

a question of fact depending upon the circumstances of each case whether

certain words have not had certain effect on the mind of the accused. The

Supreme Court observed in the case of Piare Lal Bhargav v. State of

Rajasthan,39 that :

38 Re Navnithmal, AIR 1939 Mad. 32. 39 AIR, 1963 SC 1094.

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The threat, inducement or promise must proceed from a person in authority

and it is a question of fact in each case whether the person concerned is a man

of authority or not. What is more important is that the mere existence of the

threat, inducement or promise is not enough but in the opinion of the court the

said threat inducement or promise should be sufficient to cause a reasonable

belief in the mind of the accused that by confession he would get an advantage

or avoid any evil of a temporal nature in reference to the proceedings against

him. While the opinion is that of the court, the criterion is the reasonable belief

of the accused.

The section, therefore, makes it clear that it is the duty of the court to

place itself in the position of the accused and to form an opinion as to the state

of his mind in the circumstances of a case.

Under Section 24 of the Evidence Act essential requirement, therefore,

is that such inducement, promise must proceed from a person in authority.

Thus in order to make a confession relevant under Section 24 of the Evidence

Act, it must be shown that it was made voluntarily by the person accused of an

offence. To base a conviction on such a confession the court must satisfy itself

that it was voluntary and true. The burden of proving the voluntary nature of

the confession lies on the prosecution; at any rate the onus, if on accused, is

very light. The word appears in the section indicates a lesser degree of

probability than the word proof as defined in Section 3 of the Act. Section

24 therefore does not require positive proof of improper inducement etc. to

justify its rejection. A well-grounded suspicion based on facts and surrounding

circumstances, is sufficient to exclude confessions from consideration.

4.9 Essential Ingredients of Section 24

Thus to attract the provision of this section the following facts have to

be established:

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(a) That the confession has been made by an accused person to a person in

authority.

(b) That it must appear to the court that the confession has been obtained

by reason of any inducement, threat or promise proceeding from a

person in authority.

(c) That the inducement, threat or promise must have reference to the

charge against the accused person.

(d) That inducement, threat or promise must in the opinion of the court, be

such that the accused in making the confession, believed or supposed

that by making it he would gain any advantage or avoid any evil of

temporal nature in reference to the proceedings against him.

4.10 Retracted Confession

In Mst. Bhagan v. State of Pepsu,40 the court held that a confession of a

crime by a person, who has perpetrated it, is usually the outcome of penitence

and remorse and in normal circumstances is the best evidence against the

maker. However, before arriving at any conclusion based on a retracted

confession, the court has to take into consideration not only the reasons for

making the confession or retracting it but also the attending facts and

circumstances surrounding the same. There is no legal rule that a retracted

confession cannot be acted upon unless the same corroborated materially. In

the case of Subramania Goudan v. State of Madras,41 the court said that where

the court has to decide whether the confession made by the accused in a

criminal case has been proved the law requires that the court must be satisfied

that the confession made was free and voluntary and that it was not brought

about by the influence of hope or fear. If the prosecution satisfies the court on

40 AIR 1955, Pepsu 33. 41 AIR 1958 SC 66.

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these points and it is held that the confession was a free and voluntary act of

the accused and that it was not induced by any hope or fear or coercion, then it

must be regarded as a genuine confession which may be made against the

accused at his trial. It is the purpose of arriving at the satisfaction regarding

voluntariness and while exploring reasons for retraction that the court relates it

with other evidence on record and seeks corroboration if possible. The rule of

prudence, however, does require that a retracted confession of one accused

does not become the sole basis of conviction of a co-accused.

4.11 Meaning of the Word Voluntary Confession

The word voluntary confession means a confession not caused by

inducement, threat or promise and does not mean a confession made willingly

as all confession made I consequence of inducement threat or promise are

made willingly in the later sense in the case of Fatehchand v. Emperor.42

However whether a confessional statement was voluntarily made or not

is essentially a question of fact. In ascertaining the voluntary nature of the

statement different tests will have to be applied to different set of facts. In the

very nature of things, there can be no rigidity about them. What test is best

applicable to a given set of facts is for the judge of facts to decide. If the

circumstances throw any doubt on the voluntary character of a confession the

confession must be rejected.

4.12 Involuntary Confessions

The court held in Amrat v. State of Bombay,43 that an involuntary

confession is one which is not the result of the free-will of the maker of it, so

where a confession is made as a result of the harassment and continuous

interrogation for several hours after the person is treated as an offender and

42 26 Cr. L.J. 1313. 43 IL 1960 Bom. 664.

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accused, such statement must be regarded as involuntary. However, a

confession caused by inducement to withhold criminal prosecution is not

involuntary) was held in Abrahim Varghese v. State of Kerala.44

No doubt, the principle is well-settled that a confession is admissible

provided it is free and voluntary but it does not mean that a mere bald

assertion by the accused that he was threatened or tortured or that inducement

was offered to him, can be accepted as true without anything more. In Nemraj

v. State of Ajmer,45 the court said that the suggestion must lie rejected when

there is no material what so ever to hold that the prisoner was threatened or

beaten and the story of tutoring is on the face of it incredible.

In Swarn Singh & Rattan Singh v. State of Punjab,46 the court was of

the view that as regards analyzing as to whether the contents of the confession

are true or not the court must carefully examine its contents and must then

compare them with the other prosecution evidence and apply to them the test

of probability.

4.13 The Test of Admissibility of a Confession is its Voluntariness and not

its Truth

A confession which is voluntary is admissible in evidence even if it is

false. On the contrary a confession which is not voluntary is not admissible,

howsoever true it may be, was held in Kasummodin v. Emperor,47 the

question whether a confession is voluntary is a question of fact so is the

question whether a confession is true. These two questions are entirely

separate from each other: one affects the admissibility: the other the value of

the confession. A confession that is voluntary is not necessarily true and

conversely a confession that is true may not be voluntary.48

44 ILR (1964)2 Ker. 312. 45 1954 Cr. L.J. 1313 46 1957 Cr. L.J. 1014. 47 35, Cr. L.J. 485. 48 35 Cr. L.J. 485.

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Thus, the law does not require the motive for a confession to be

elicited. The only requirement laid down by the law is that the confession

should be free from the blemishes of compulsion, inducement, threat or

promise. The court held in Suka & Misra v. State,49 that if the confession is not

tainted by any of these vitiating factors the court is entitled to presume that it

is voluntary. Adjudication as to voluntariness and as to truth is done at two

different stages in a trial. Once a confession is found to be voluntary, it can be

admitted in evidence. The stage of deciding the veracity or reliability of the

confession comes at the time of final disposal of the case when its weight is

determined in relation to other evidence available on record.

4.14 Some Faces of Involuntariness

Section 24 does not require the accused to prove that the confession

was actually made as a result of any express inducement, threat or promise

made by any person in authority. The inducement may be implied from the

conduct of the person in authority, the declaration of the prisoner or the

circumstances of the case nor need it be made directly to the prisoner. It is

sufficient it may reasonably be presumed to have come to this knowledge

provided or course. It appears to have induced the confession.50 As per

Wigmore51 when a prisoner is placed in such a situation that an untrue

confession guilt has become the more desirable of two alternatives between

which he is obliged to choose, a confession made by him becomes

untrustworthy.

As per Woodroffe,52 an inducement may take the form of a promise or

a threat, often the inducement involves both promise and threat a promise of

49 AIR 1957 Orissa, 71. 50 Phipson Ev. 7th Ed. 257 as cited in Monir as Evidence 11th Edn. 1995. 51 Wigmore on Evidence 824. 52 Woodroffe Evidence 9th Ed. p. 284.

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forgiveness if a disclosure is made and threat of prosecution if it is not. A

promise is always attached to the confession alternative and a threat to the

sentence-alterative. It may be laid down as a general rule that in order to

exclude a confession. The inducement, whether it assumes the shape of a

promise a threat or mere advice, must relate to the actual charge and be such as

is calculated to influence the prisoners mind with respect to his escape from

the charge.53

In Rattan Chand v. State of Bihar,54 the court held that a confession

made by the accused who was not questioned continuously at a stretch and tow

or three hours had lapsed after he was taken to the house of the Mukhiya was

held to be voluntary. On the other hand, a confession made as a result of

harassment and continuous interrogation for several hours of the person is

treated as an offender and accused was treated as involuntary.

In India, the question of admissibility of a confession made by an

accused to police or to anyone whilst in police custody being admissible or not

will not arise, thanks to Section 25 and 26. However, a confession made to

persons other than police officers while the accused is in judicial custody have

been scrutinized by the courts. It has been held by the court in Aher Raja

Khima v. State of Saurashtra,55 that if the jail in which the accused has been

ordered to be kept before the confession is recorded was such that the, police

had access to and the accused said that the opportunity was fully utilized to

coerce and threaten him the confession could be presumed to be involuntary,

In such circumstances the accused will not be required to positively prove his

assertions.

53 Taylor on Evidence 879. 54 1959 SCR 1336. 55 1956 Cr. L.J. 426 & 1954 Cr. L.J. 2251.

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It was held in State of Bombay v. Kathi Kalu Ogdad,56 that compulsion

in the context of Article 20(3) of the Constitution must mean what in law is

called duress

Krishna Iyer. J. has cited in Nandini Satpati v. P.L. Dani,57 the

following definition of Duress as given in Javitts Dictionary of English Law,

Duress is where a man is compelled to do an act by injury,

beating or unlawful imprisonment (sometimes called duress in

strict sense) or by the threat of being killed, suffering some

grievous bodily harm or being unlawfully imprisoned

(sometimes called menace or duress per minas). Duress also

includes threatening, beating or imprisonment of the wife,

parent or child of a person

He further held that compulsion in this sense is a physical objective act

and not the stage of mind of the person making the statement except when the

mind has been so conditioned by some extraneous process as to render the

making of the statement involuntary and therefore extorted. It was emphasized

in the judgment that compelled testimony is not limited to physical torture or

coercion, but extends also to techniques of psychological interrogation which

can cause mental torture or mental compulsion in a person subjected to such

interrogation.

It was held in Yusuf Ali v. State of Maharashtra,58 that the act of tape

recording of the conversation between the complainant and the accused with

the knowledge of the complainant and without the knowledge of the accused

were held to be not violative of Article 20(3) of the Constitution. It was held in

56 AIR 1961 SC 1808. 57 AIR 1978 SC 1025. 58 AIR 1968 SC 147.

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Dr. R.M. Malkani v. State of Maharashtra,59 that though the police had

adopted the method of deception since the accused actually did not know

about the presence of the police, his statement cannot be called compelled

testimony.

4.15 Burden of Proof

The words if it appears to the court as used in Section 24 do at the

first instance, seem to favour a view that the burden of proving involuntariness

is on the accused. In relation to judicial confessions fields opinion is that it is

held to be voluntary unless contrary is shown.60 In this regard, he holds that

the Indian law differs from the law of England. However, appears to the

court does not by its terms, require positive proof by the accused. All that it

means is that voluntariness of the confession should not go entirely

unchallenged, Once it is pointed out to the court that the confession was

involuntary, with same cogent reasoning so as to make it quite probable that it

was indeed involuntary, the burden on the accused if any is discharged. As per

Woodrofee, it would be more correct to say that as under Section 3, prudence

is to determine whether a fact exists or not. The use of the word appears

while requiring proof, indicates that a lesser degree of such proof is required in

this than in other cases.61

When it does appear to the court that the confession has been caused by

inducement etc, the onus of proof immediately shifts to prosecution who will

now have to prove affirmatively to the satisfaction of the court that the

confession was voluntarily made. A failure to do so would certainly result in

ousting of the confession.

59 AIR 1973 SC 157. 60 Fields-Evidence, 6th Edn. p. 98. 61 Woodroffe, Evidence, 10th Edn. p. 370.

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4.16 Position in United Kingdom

It would be worthwhile to note that in the U.K. Under Section 76(2) of

the Police and Criminal Evidence Act, the condition of the inadmissibility of a

confession is qualified by the words: If it is represented to the court that the

confession was or may have been obtained by oppression etc. Thus the

initial burden to show a probability of involuntariness is on the accused, but

nothing beyond that in the U.K. the law on burden of proof has been well

settled and has remained unchanged since the test was laid down by Cave. J. as

follows: A simple test is it proved affirmatively62 that the confession was

free and voluntary. i.e. was it preceded by any inducement to make a statement

held out by a person in authority? If so and the inducement has not been

clearly removed before the statement was made evidence on the statement is

inadmissible.

Parke B. told the prosecutor. You are bound to satisfy me that the

confession which you seek to prove against the prisoner was not obtained form

him by improper means.63

It is humbly submitted that there is no reason in India to interpret

Section 24 of the Evidence Act otherwise. It is true that the scheme of the

Indian Evidence Act makes confessions prima facie relevant. The

circumstances in which the legislature wanted confessions not to be relevant

have been specifically provided for in Sections 24 to 27. In that sense it can be

argued that the onus to show that these circumstances exist would be on the

accused since the Circumstances are within his knowledge. So far the position

is the same in U.K. in as much as it has to be represented to the court that the

confession was taken under any of the vitiating circumstances. However, once

62 Emphasis supplied. 63 R. V. Warringham 1851 2 Den CC 447.

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it is done and some reasonable suspicion is made to arise in the mind of the

court it will be for the prosecution to prove the absence of such circumstances.

The dictum of R.V. Thompson has been adopted in India.64

In view of the above, it is clear that once some suspicion is made to

arise on the propriety of recording of the confession. The onus to prove

voluntariness is on the prosecution. There is no onus on the accused to prove

involuntariness.

4.17 Person in Authority

Under Section 24 of the Evidence Act a confession will become

irrelevant only if the inducement, threat or promise, which vitiates a

confession has proceeded from a person in authority. As to who is a person in

authority is neither defined in the Evidence Act nor any illustration of a person

in authority is given in it. In the absence of a statutory definition of the words,

the natural meaning of the word consistent with the spirit of the provision in

which those particular words occur is to be given to them. These words

person in authority occur in a provision which is intended to be a safeguard

to persons accused of committing crimes against their unjust conviction on the

strength of a tainted confession. So the construction of these words should be

done in such a manner as to allow the fullest and widest meaning to the terms.

A restricted meaning would operate to undo what the legislature intended to

do.

A strict meaning of the expression person in authority was given by

the Patna High Court in Santokhi Beldar v. King Emperor,65 held as follows:

There is no statutory definition of the words person in authority, but

it is well established that the words have reference to a person who has

64 Ashutosh v. R. 26 CWN 54. 65 AIR 1933 Patna 149.

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authority to interfere in the matter under enquiry. The reported cases on the

point show that generally speaking person in authority within the meaning

of Section 24 is one who is engaged in the apprehension, detention or

prosecution of the accused or one who is empowered to examine him.

This is the strict interpretation of the expression and if this

interpretation is adhered to it can include only Magistrate and Judges who are

empowered to punish offenders and the police and other officials of the

Government who are engaged in the apprehension, detention or prosecution of

the accused. It is difficult to advance any reason to uphold such a strict

interpretation. Thus in the court of Reg. v. Navroji Dadabhai,66 the court went

on to hold that the term should not be used in any restricted sense. Later on in the

case of R. v. Warringham,67

Chief Justice Sargent laid down the rule as follows:

The test would seem to be had the person any authority to interfere with

the matter and any concern or interest on it would appear to be sufficient to give

him that authority where Parke-B held that the wife of the prosecutor and one

concerned in the management of their business was a person in authority. A case

from the Calcutta High Court reiterates that in construing the expression person

in authority the test is to see whether the person has any power to interfere in the

matter or has any concern on interest in the matter. This s a comprehensive

construction that can be put on the term to give better effect to the provision. An

example may show to force of this interpretation. Take for instance that an owner

of a lost article says to the supposed thief tell me the truth or I will hand you up

to the police. Here the fear caused by the threat, may induce the person suspected

of the theft to make a clean breast of the offence and plead with the owner of the

lost article not to hand him over to the police. Here the owner of the lost article

though not a person invested with powers or apprehension etc. by the

66 (1872)2 B.H.C. 358. 67 2 D.C.C. 447.

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Government, yet on account of the position he occupies as the owner or the stolen

property, has got some power to control the prosecution of the accused person

Thus he can either report the matter to the police for prosecution of the accused or

altogether drop the matter and condone the thief. This power for the time being on

the part of the person who is the owner of the stolen property gives to his

utterances addressed to the accused person an authoritative range which can

overcome the accused. If that is so it is obvious a confession made to such a

person under such a threat cannot be genuine for a court to act upon. The

managers of a private banking concern or other commercial institutions are to be

regarded as persons in authority on this principle only if any of their subordinates

make a confession of an offence committed in the banking concern or other

commercial institutions. Their authority comes only from the fact that they can

investigate in the first instance into the alleged offence committee by a person

employed under them and then hand over the culprit to the proper authorities. But

can a co-worker such as another clerk working along with the accused person

strike terror into the mind of accused. His influence, it may be submitted is not so

very paralyzing and hence he can scarcely be regarded as a person in authority.

What he can at best do is to calumniate the accused person and intimate to the

common superior the wrong done by him.

It can be seen from the above interpretation that an individual to be a

person in authority within the meaning of Section 24 of the Evidence Act must

stand in such a relation to the accused person as to imply some power of control

or interference with regard to his prosecution or any concern or interest in the

same. It has to be borne in mind that the concern or interest is not the common

concern or interest which every citizen may have in an offence which is notional

an attach on society at large but a concern or interest which is natural to a person

on account of his personal relation to the offence.

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Accordingly the expression person in authority in Section 24 should

be interpreted liberally If such a person is interpreted or is concerned with the

investigation of a case it would be sufficient to given him that authority.

4.18 Instances of Persons in Authority and Those not in Authority

The confession was made by a probationary nurse attached to the ward

to the House Surgeon of that hospital and ward and on whose recommendation

the confirmation of that nurse on her services depended. The court held in Mst.

Veeran Wali v. State68 that the confession is made to a person in authority

within the meaning of Section 24 of the Evidence Act and excluded the same

from its consideration.

Where the police was made one of the members of the party and had

not protested when the others offered the inducement to the accused, the

inducement could be said to have proceeded from him as well and it was

sufficient to give the reasonable ground to the accused to believe that by

making the confession he would be saved by all the persons concerned

including the police officer in reference to the proceedings against him. The

court held in Punja Mava v. State,69 that even when a doubt is cast as to the

voluntary nature of a confession. It must be discarded in considering the evidence

of the guilt of the accused under Section 24.

In the case of R. v. Moore,70

a maid servants confession of murder of her

child was held to be admissible though induced by her mistress. But the charges

against the maid-servant would have been one of the embezzlement or theft from

the employer the latter would clearly be in authority and any confession obtained

by some inducement, threat or promise employer as such, would have vitiated the

confession.

68 AIR 1960 MP 132. 69 AIR 1965 Gujarat 5. 70 (1852) 2 Den. 552.

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A confession made an accused to the Sales Tax Officer conducting

inspection, search and seizure of account books of the accused would be

inadmissible in evidence as the Sales Tax Officer with these powers was held to

be a person in authority in State of Orissa v. Bhouri Lal Aggarwal.71

Village Lambardars and Zaildars are part or investigation machinery. It is

their duty to report cognizable offences and also to conduct the investigation of

such offences. Their position is therefore, such that they would be considered as

persons in authority. Apart from this, the position of a Lambardar in village is

such as to appeal to a villager as a person who is able or likely to be able to

promise him a pardon.

The accused were in Jail custody confession was made by both of them

and was recorded by the Magistrate under the provisions of Section 164 of

Criminal Procedure Code. The second accused stated before the committing

Magistrate that he gave the statement implicating herself on account of threat

given by the first accused. The court held that both the accused were in Jail

when the alleged threat was given by the first accused and therefore the first

accused cannot in any manner be termed as a person in authority. The

confession would be admissible in evidence. All this was held in Aheibam

Ningal v. State,72 by the court.

The accused made a confession before the villagers including the

Countia of the village. The court held in Lok Nath Panda v. State,73 that

Countia as such after the abolition or the Countia System had no power to

examine the accused and therefore, was not a person in authority but merely an

ordinary citizen.

It is a question of fact in each case whether the person concerned is a

man of authority or not. But the test is whether the person is engaged in the

71 1962 Cr. L.J. 835. 72 AIR 1967, Manipur 11. 73 AIR 1967 Orr. 205.

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apprehension, detention or prosecution of the accused or empowered to

examine him or is interested or concerned with the investigation of the case.

4.19 Nature of Inducement, Threat or Promise

In the case of Emperor v. Panchkari Dutt,74 the court has to be satisfied

that the inducement, threat or promise is sufficient to afford reasonable hope of

advantage to the accused person. This is a matter of discretion for the judge like

the question whether a confession is or is not accused by inducement, threat or

promise. Further a duty is cast on the judge to see whether an accused person

placed as he was in a peculiar position would reasonably consider a particular

kind of inducement, threat or promise to be capable of giving him any advantage

or of averting for him an evil of a temporal nature in reference to the proceedings

against him, therefore, it would be necessary on the part of a judge dealing with a

confession falling under Section 24 of the Evidence Act to take into consideration

not only the words used by a person in authority but also his acts and conduct not

only the frame of mind of the accused his age, experience, intelligence and

character, but also the time, place and circumstances under which the accused was

face to face with the person who used the inducement, threat or promise. Then

only it would be possible to see whether the accused could be affected in the

manner contemplated in the section by the particular inducement threat or

promise therefore, it is enough if such inducement threat or promise would in the

opinion of the court be sufficient to give the accused person grounds which would

appear to the accused person not to the court reasonable grounds for supposing

that by making the confession he would gain an advantage or avoid an evil of the

nature contemplated in this section. It will be seen, therefore, that it is the

mentality of the accused which has to be judged rather than that or the person in

authority. That being so not merely, actual words but words accompanies by acts

74 AIR 1966 Cal 587.

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or conduct as well on the part of the person in authority, which may be construed

by the accused person. As he then is an amounting to an inducement threat or

promise, will have to be taken into account. A perfectly innocent expression

coupled with acts or conduct on the part of the person in authority together with

the surrounding circumstances may amount to inducement threat or promise. The

view was upheld in the case of Mst. Kisture v. State.75

The Supreme Court on the matter in Pyare Lal Bhargav v. State of

Rajasthan,76 observed as follows:

The threat, inducement or promise must proceed from a person

in authority and it is a question of fact in each case whether the

person concerned is a man of authority or not, what is more

important is that the mere existence of the threat, inducement or

promise is not enough, but in the opinion of the court the said

inducement, threat or promise shall be sufficient to cause a

reasonable belief in the mind of accused that by confession he

would get an advantage or avoid any evil of a temporal nature in

reference to the proceedings against him while the opinion is

that of the court, the criterion is the reasonable belief of the

accused. The section, therefore, makes it clear that it is the duty

of the court to place itself in the position of the accused and to

form an opinion as to the state of his mind in the circumstances

of a case.

It was said by the court in K. Gopalan v. State,77 that unless the

expectation under which the accused makes a confession is shown to have

been the result of any inducement, threat or promise as specified in Section 24

75 AIR 1967 Raj 98. 76 AIR 1963 SC 1094. 77 AIR 1954, Trav. Cochin 456.

127

a confession otherwise voluntary does not cease to be so simply because the

accused person on his own believes that to confess his guilt would be the only

way of saving himself. A person making a confession may be guided by any

consideration which according to him would benefit him.

4.20 To Gain any Advantage or to Avoid any Evil

It is not every threat, inducement or promise emanating from a person I

authority that is hit by Section 24 but it has to be such an inducement, threat or

promise which should lead the accused to suppose that by making it he would

gain any advantage or avoid any evil of a temporal nature in reference to the

proceedings against him.

Therefore, inducement, threat or promise emanating from a person in

authority must reasonably have the effect of raising any hope or leading the

person making the statement to suppose that by making the statement he

would be gaining any advantage or avoiding any evil of a temporal nature in

reference to the proceedings against him.

A person summoned under section 171-A of the Sea Customs Act was

told that he must state what he knows and he must state that truthful, otherwise

he would be prosecuted under Section 193 of the Indian Penal Code for giving

false evidence.

Here, the person making the statement was only asked to tell the truth

and that if he does not tell the truth, he may be prosecuted under Section 193

of the Indian Penal Code for giving false evidence or if he does not answer a

question, may be prosecuted for causing interruption in the proceedings. The

curt held in Luxman Padma v. State,78 that in merely explaining the provisions

of Section 171-A. There was no threat given by the officers recording the

statement which could have raised any hope in the minds of the persons

78 AIR 1965 Bom.

128

making the statements or led them to suppose that they were going to gain any

advantage in reference to the proceedings against them relating to smuggling

of gold. Therefore, the statements recorded by these officers could not be held

inadmissible under the provisions of Section 24 of the Indian Evidence Act.

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

principles of Criminal Jurisprudence that an accused cannot be compelled to

give evidence against himself. This, along with Section 163(1) of the Code of

Criminal Procedure which prohibits police officers and other persons in

authority to offer any inducement, threat or promise as mentioned in this

provision give full effect to the guarantee against compelled self-incrimination

enshrined in Article 20(3) of the Constitution of India, the immediately

succeeding provisions which stretch the right too far are shrouded with

controversy. But so far as Section 24 is concerned, there are absolutely no

doubts as to its necessity to safeguard an important human right.

A case in which a confession is admitted in violence, is no doubt open

to the defence to object to the evidence of confession on the ground that it is

excluded by the Section 24 of Evidence Act. But such objection is raised, there

is no necessity for the court to pronounce any formal decision on the question

of relevancy of the confession. The actual admission of the evidence during

the trial is sufficient for the purpose. The section is clearly a general provision

and applies to confessions made by a person whether in police custody not and

whether it is made to be police officer or to others.

The law does not require the motive for a confession to be elicited. The

only requirement laid down by the law is that the confession should be free

from the blemishes of compulsion inducement, threat or promise. If the

confession is not tainted by any of these vitiating factors the court is entitled to

presume that it is voluntary. The stage of deciding the veracity or reliability of

129

the confession comes at the time of final disposal of the case when its weight

is determined in relation to the other evidence available on record.

4.21 Justification of Custodial Confession

The rule of total exclusion of custodial confession from evidence, as

enacted under Section 25 and 26 of the Evidence Act on the face of it, shows a

serious concern of legislature for protection against police brutality, of the

right of an accused person not to be compelled incriminate himself. The rule

carries the privilege against compelled self-incrimination quite for adding to it

the concept of deemed in voluntariness due to the custody of the police. In the

process, however, an important agency of the state entrusted inter-alia with the

job of maintaining law and order and of prevention and detection of crimes the

jobs essentially requiring public confidence and faith, gets stigmatized as

untrustworthy. A confession made by an accused to any third person before

he is apprehended by police is admissible in evidence and can be used to

convict the accused even if it is the sale link between him and the

circumstantial evidence, but not if it is made to a police officer or to anybody,

whilst he is in custody of the police except to the extent provided for in section

27 the prohibition is absolute.

Reasons for total exclusion appear to be historical more than anything

else.

Provisions akin to Sections 25 and 26 of the Evidence Act were first

enacted as Sections 147 and 148 of the Code of Criminal Procedure, 1861. In

England, this was the time when the rule originally laid down in that no credit

is to be given to a confession made out of compulsion had so firmly gained

ground that exclusion became the rule and admission, an exception was held in

R. v. Warick Eshall.79

79 1783 I Leach CC 263.

130

In R. v. Baldry,80 it was held that the position changed form excluding

confessions shown to be involuntary to that of excluding all confessions which

are not proved to be perfectly voluntary, after the ruling it was authoritatively

laid down that By the Law of England, in order to render a confession

admissible in evidence, it must be perfectly voluntary and there is no doubt

that any inducements in the nature of a promise or a threat held out by a person

in authority vitiates a confession.

The courts in U.K. started disbelieving almost all confession recorded

by the police. The idea of a presumption of involuntariness had been

originated though not directly put in words in any statute or judgments. During

the same time the privilege against self-incrimination was getting strengthened

and acquiring new dimensions in the U.S.A. also. It was held in Brain v. U.S.81

that the constitutional guarantee applied to pre-trial stages as well. The British

rulers in India were apparently influenced by the thinking in U.K. at that time.

Further the Indian police force was structured by the British in a way as to suit

perpetuation of the British rue in India. Police were provided with immense

powers to deal with deviations form the law by the Indians. Offences against

the State attracted very serious punishments. The senior officers of the police

were mostly British, who lived and worked for the continuance and supremacy

of the British rule. The lower rank officers were expected more than anything

else to be loyal and obedient to the seniors and hence, to the rulers. In contract

with the British police established by Sir Robert Peel in 1829, the Indian

Police was never encouraged by the British to be friendly to the public. They

were always projected as the representatives of the Governmental authority

over the public rather than as servants of the public, because it suited the

80 1852 2 Den. 430. 81 178 US 542 1897.

131

British rulers. A police Darogah was the person enjoying absolute powers

over the masses and did not hesitate in misusing them to harass and torture the

local inhabitants, employing short cut methods in investigation, in order to

prove his efficacy before the British bosses. The report of the Indian Law

Commission of 1855 observed:

The police in the Province of Bengal are armed with very

extensive powers. They are prohibited form inquiring into cases

of a petty nature but complaints in cases of more serious

offences are usually laid before the police Darogah, who is

authorized to examine the complaint to issue process of arrests

to summon witnesses to examine the accused and to forever the

case to the Magistrate or submit a report of his proceedings

according as the evidence may in his judgment warrant the one

or the other course. The evidence taken by the Parliamentary

Committees on Indian Affairs during the session of 1852 and

1853 and other papers which have been brought to our notice

abundantly show that the powers of the Police are often abused

for purposes of extortion and oppression and we have

considered whether the powers now exercised by the police

might not be greatly abridged.

And further that:

By the existing law the darogah or other police officer

presiding at any inquiry into a crime committed within his

division is required, upon apprehension of the accused to

question him fully regarding the whole of the circumstances of

the case and the persons concerned in the commission of the

crime and if any property may have been stolen or plundered,

132

the person in possession of such property or the place where it

has been deposited. In the event of the accused making free and

voluntary confession it is to be immediately written down.

The follow other provisions for preventing any species of compulsion

or maltreatment with a view to extort a confession or procure information. But

we are informed that in spite of this qualification confessions are frequently

extorted or fabricated. A police officer, on receiving intimation of the

occurrence of a dacoity or other offence of a serious character, failing to

discover the perpetrators of the offence, often endeavors to secure himself

against any charge or supine-ness or neglect by getting up a case against

parties whose circumstances or characters are such as the likely to obtain

credit for an accusation of the kind against them. This is not infrequently done

by extorting or fabricating false confession and when this step is once taken,

there is of course impunity for real offenders and a great encouragement to

crime. The darogah is henceforth committed to the direction he has given to

the case and it is his object to prevent a discovery of the truth, and the

apprehension of the guilty parties who as far as the police are concerned, are

now perfectly safe.

The Law Commission proposed a change by the adoption of a rule

prohibiting any examination whatever of any accused by the police the result

of which is to constitute a written document. This of course, will not prevent a

police officer from receiving any information which anyone may voluntarily

offer to him: but the police will not be permitted to put upon record any

statement made by a party accused of an offence.

This was the background of Sections 146 to 150 of the Code of

Criminal Procedure, 1861. By the time of incorporation of these provisions in

the Indian Evidence Act the prohibition of recording a statement of the

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accused was dropped and the limitation that remained was the bar to their

proof in criminal trials.

Thus, in short, the total exclusion rule was adopted in India for two

reasons namely:

i) This was the thinking in U.K. also at that time and

ii) The police in India were found untrustworthy.

4.22 Continuance of the Rule

The first of the two reasons of the rule being (adopted in India, no

longer exists in U.K. shed the approach of near total exclusion in the

beginning or 20th Century. In King v. Best,82 a strict exclusionary rule was

decisively rejected. Confessions recorded in violations of the Judges Rules

were often not admitted in evidence, but a discretion was still left with the

courts. Judges Rules did not as such have a rule of law, The discretionary

power of the courts was emphasized and it was laid down that while

considering admission or a confession made to the police, the court have to

consider the particular circumstances in which the particular suspect was

placed. It was held in DPP v. Pinglen.83 Then by virtue of the Police and

Criminal Act, 1984, confessions have been made admissible in evidence,

subject to satisfying the age old test of voluntariness.

Now coming to the second reason, it is generally accepted that police

have shown no reason in the last hundred years for the opinion about their

brutality. Oppression and alienation from the public to undergo any change.

The reforms undertaken after the report of the first Police Commission

appointed in 1860 failed to achieve any positive results towards improving the

image of the police. This was chiefly because not much attention was paid to

82 1909 I KB 692 (CCA) 83 1976 I AC 760.

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this aspect. The Act of 186184 created a uniform and homogeneous police

system in India. But the nature and the basic procedures of work were not

drastically changed. The Indians were employed only in inferior posts and

could at the most reach the lower rank officers who used short cut methods of

torture and of exerting confessions, due to mounting pressures from their

superiors demanding quick results. Promotion or demotion of these officers

was dependent upon their ability to carry out investigation work.85 In 1902, a

Police Commission appointed under the Chairmanship of A.H.L. Fraser, in its

report described the Indian police as tyrannical and observed at in police there

was general absence of any attention to the necessity of keeping the temper

being civil and respectful to the public avoiding brutality or unnecessary

harshness and seeking by all legitimate means to make their performance of

duty as little distasteful to the people as possible.86 The Commission felt that

unqualified policemen recruited from a very low stratum of the society were

entrusted with too much power and authority which was one of the causes of

police oppression.

Then with the independence of the country the police came to be

looked as an instrument of governmental authority alien to the masses. The

laurels they had won for their loyalty to their former masters turned into

stigmas their services to a Government that was alien now alienated them an

their past modes and mores hung heavily with them as they sought fresh

adjustments with the people in the change context.87

84 The Police Act 1861. 85 Madan J.C. Indian Police, 1980, Uppal Publishing House. 86 Report of the Indian Police Commission 1902-3. 87 Pandey A.K. Development Administration and the Local Police, 1987, Mittal

Publications.

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The Supreme Court observed in Raghuvir Singh v. State of Haryana,88

that, We are deeply disturbed by recurrence of police torture resulting in a

terrible sense of scare in the minds of common citizens that their lives and

liberty are under a new peril when the guardians of the law gore human rights

to death The Supreme Court expressed its concern stating that the police

believed more in fists than wits, or torture more than culture. They believe in

Kishore Singh Ravinder Dev & others v. State of Rajasthan.89 They believe all

is well with the police the cities are always in the wrong. Nothing is more

cowardly and unconsciousable than a person in police custody being beaten up

and nothing inflicts a deeper wound on our Constitutional culture than a state

official running berserk regardless of human rights. Article 21 with its

profound concern for life and limits, will become dysfunctional unless the

agencies of the law in police and prison establishment have sympathy for the

humanized creed of the Article. The State of V.P. v. Ram Sugan Yadav,90 is

another case of police torture resulting in death, the Supreme Court, observed

that, Handmaids of law and order should not use their position for oppressing

innocent citizens who look to them for protection. The Supreme Court had to

suggest amendments in the Law of Evidence to incorporate a presumption that

injuries caused to a person while in police custody were caused by the

concerned police officers.

Thus, the fact of harassment and brutality by the police remains.

However, it cannot be argued today that the brutality is practiced as widely

and to the same extent as it used to be when the provisions of the Evidence Act

were enacted. The writer has not gone in detail through the administrative

reforms undertaken since independence as the same would require a detailed

88 1980 Cr. L.J. 801 (SC). 89 1981 1 SCC 503. 90 AIR 1985 SC 416.

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independent study. But common experience in Delhi shows that the traditional

torture rooms ill the police stations no longer exist. The accused persons and

witnesses are mostly interrogated in an open hall, usually accessible and

visible to any person entering the police station. The voice of the Duty Officer

on telephone is somewhat courteous beginning with Namaksar Some

policemen can even be seen helping elderly people cross the road or helping a

driver push-start his car in case of a breakdown. Further, today, cases of police

torture get easily highlight by the press and are likely to result in action against

erring officials. The police station is not the limit of reach of todays citizen,

like it used to be before independence. The superior officers of the police and

the courts are more easily accessible than they were at that time. The courts in

particular are more alive to the requirements of ensuring protection of rights of

the accused when he is handed over to police custody and of hearing his

grievances when he is produced before them. Even otherwise the very fact that

the whole of the police force was considered to be brutal and inhuman shows

that the reasons therefore were not individual. All individual members of a

force just cannot be alike. One easily identifiable reason was lack of training

and encouragement to the members of lower ranks of the police on whom the

entire responsibility of carrying out investigation lay. The only thing expected

of them was to show quick results as a mark of loyalty to their European

superiors. The superior officers did not come in contact with the public and the

lower rank officers were never oriented towards getting assimilated with the

masses. This was the position before independence. This system was therefore

thrust upon a policeman who have no option but to carryon the traditions. Can

individual policeman be said to be responsible for this? When individuals

accept the system since they have to work within it they are held to be

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untrustworthy and are looked down upon by the legislators the Government

and the judiciary alike pushing them further deep into the vicious circle.

Shailendra Mishra describes the phenomenon as growth of a subculture

which includes brutality. The subculture is strengthened by alienation

cynicism low esteem in society a degree of parian feeling conflicting demands

made of policemen inconsistent judgement of their work; all forcing them into

a corner their backs to the wall. He points out that people except policeman to

beat up and torture goondas and when this is not done charge of corruption and

briery are hurled. During the course of handling agitations policemen suffer

injuries but at the end of it all while cases against toady elements who had

burnt buses destroyed private and public property and assaulted and hurt

policemen are withdrawn a mounting demand is made for a judicial inquiry

against police brutality. No appreciation is shown for the day and night work

rendered by them on occasions of natural calamities religious festivals fairs

and public gatherings. The diurnal condemnation of all and every policeman

the manifest presumption that they are all corrupt and inefficient the summary

dismissal of any presentation of their difficulties reinforce police cynicism.

It is submitted that the existence of provisions of the Evidence Act and

the Criminal Procedure Code which have the effect of indiscriminate

condemnation of all policemen is by itself a major reason for the cynicism

referred to by Shailendra Mishra while they are expected if perform important

functions of the state, they are looked down upon by every wing of the state

and also by the public whose security and safety is their main job. There is

therefore little wonder that whenever they have a chance they try to salvage

their self respect by being aggressive and rude. This is by no means meant to

justify the rudeness and brutality of the police. There can be no disputing the

proposition that police brutality and corruption are the most deplorable blots

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on the face of this largest democracy of the world and have to be completely

weeded out before we call ourselves civilized and cultured. The point sought

to be made here is that branding all policemen as untrustworthy only adds to

the problem by further lowering the morale of the policemen and thus, inviting

more reaction. It is on the other hand much more likely that if faith is reposed

in them, they shall respond in a more responsible manner. Once their self-

respect is restored, the g