CH APTER - 3

THE LAW OF CONFESSION IN INDIA

3.1 Introduction

Confession is an important provision of Indian law of evidence1 in criminal

proceeding and its truth can be proved in a particular case which is in issue. The
greatest cause for the denial of some confessional announcements is that when
confession is not intended and there is risk of the accused deceitfully involving
himself or other in a case. There are different rules in different countries overriding
the permissibility of confession. One is guaranteed through these guidelines that
wrongful conviction does not happen. They also obliged as a warning to offensive
questioning by the police and some questioning methods violates the liberty of
defendant or ritual right.2 The part of court in relative to confessional declaration is
also measured.

The false confession‟s problem is apparently concerned among a narrow

vulnerable population and mentally retarded. To prevent miscarriage of justice caused
by confession, prosecutor, judge etc. must prudently examine and appraise an
accused‟s post-admission description in contradiction of the acknowledged evidences
of the wrongdoing. The compulsory video or audio recording of law enforcement
agency interrogation would momentously decline the danger of maltreatment
produced by incorrect confession by producing the practice of psychologically
forcible questioning method.3

In the case of confession, the earlier statement is not mere statement but it has
a great evidentiary value. In other words, such acknowledgement can be the basis of
conviction, when the voluntariness of it is proved, so it has great importance in
evidence. Keeping in view, the complexities, emerging in modern times, which are
affecting the admiration of justice adversely, the existing provision of confession and

1
Indian Evidence Act, 1872 (Act 1 of 1872)
2
Ebrahem, Ojo Tagudeen, The Relevance of Confession in Criminal Law Proceeding, International
Journal of Humanities and social Science, Vol.3, NO.21, Special Issues 2013, Available at htpps://
www.ijhssnet.com(Visited on October 15,2015)
3
Richard A Leo, The Consequence of False Confession; Deprivation of Liberty and Miscarriage of
Justice in age of psychological Interrogation, 788 (Criminal Law Journal of University of
Sanciscoss, Vol.88, 1998)

45
their implementation therein may be exposed very explicitly and some fruitful
suggestions may be given to overcome these lacunas. This chapter deals with concept
of confession, its type, its relevancy or irrelevancy and evidentiary value. So, we shall
discuss all these aspects of confession.

3.2 The Concept of Confession and its Meaning-

The word confession conveys the meaning completeness, for this word comes
from a Latin word „Confiteri‟---con means completeness and fiteri means to speak.
So, confession must be wholly free from any outside influence in either way. This is
called the meaning of confession. The Black`s Law Dictionary4 tilts the subsequent
definition as promulgated by several Courts of U.S.A. that “A voluntary statement by
a person charged with commission of crime or misdemeanor communication to other
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”.5

The straight admission of culpability is a confession. However, confession as

an expression is nowhere demarcated in the Indian Law of evidence. As there is no
definition of the term „confession‟, we have to look for our guidance to the articulated
wisdom of judges and jurists. Stephan defines6 that “a confession as an admission
made at any time by a person charged with a crime stating or suggesting an inference
that he committed that crime. The definition was discarded by the Judicial Committee
in Pakala Narayana swami case”.7
According to Wigmore8, “confession is an acknowledgement in express words,
by the accused in a criminal case, of the truth of the guilty act charged or some
essential of it.” Phipson9 stated that “a statement which the prisoner had been
overheard muttering to himself, if otherwise than his sleep, is admissible against him,
if independently proved.” The sense of the expression confession as expounded by
Stephen in his Digest was commonly recognized by the Indian courts till the
pronouncement of the Privy Council in Pakala Narayan swami‟, case.10 In leading
case Privy Council laid down the exact view which was given by Straight J .in Queen-
4
Black`s Law Dictionary, Available at: https://en.wikipedia.org.in (Visited on September 9, 2019)
5
C.D. Field`s, Law on Admissions and Confessions, 3, (Delhi Law House, Delhi, Edn3 edn., 2017)
6
Stephen J.F., A Digest of Law of Evidence, Article 21[12 th Ed. 1946]
7
Pakala Narayana swami v. Emperor, A.I.R. 1939P.C.47.
8
WigmoreJ.H., A Treatise on The Anglo-American System of Evidence in Trials at Common Law,
Article821, Vol.III [3Rd Ed.1940
9
Phipson’s Law of Evidence, 262, (Sweet & Maxwell Ltd., U.K. 8th edn, 1978),
10
AIR 1939 PC 47,52

46
Empress v. Jagrup11 and discarded the definition expounded by Stephen in his Digest
and which have been cited by courts generally in their decision with approval.
Straight J., in last stated that “a confession can include any statement which amount to
direct acknowledgement of guilt and not incriminating statement from which an
inference of guilt follows.” Lord Atkin in Pakala Narayan Swami laid down 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 be confessed. Moreover, a confession must either admit in terms the offence or any
rate substantially all the facts which constitute the offence. An admission of a gravely
incriminating face, even a conclusive incriminating fact is not of itself a confession,
e.g. an admission that the accused is owner and is in possession of knife or revolver
by which caused a death with no explanation of any other man`s possession”.
The Privy Council discarded the Stephen`s definition and decided12
that “some confusion appears to have been caused by the definition of confession.
Article 22 of Stephen`s Digest of Law of Evidence which defines a confession as an
admission made at any time by a person charged with a crime stating or suggesting
the inference that he committed the crime. If the surrounding article are examined, it
will be apparent that the learned author after dealing with admission generally in
applying himself to admission in criminal cases, and for this purpose defines
confession so as to cover all such admissions in order to have a general term for use in
the three-following article, confession secured by inducement, made under promise of
secrecy. The definition is not contained in the Indian law of Evidence of 1872, and in
that act, it would not consistent with the natural use of language to construe
confession as a statement by an accused „suggesting the inference that be committed
the crime”. The privy Council in Pakala Narayan Swami13 has defined the confession
that “a confession is a statement made by an accused which must either admit in terms
the offence or at any rate substantially all the facts which constitute the offence”.

Thereafter Supreme Court granted approval to the said definition in State of

U.P. v. Deoman Upadhyaya14 that “a confession as a statement made by a person
stating or suggesting the inference that he has committed a crime”. Now confession

11
All. 646,7, [1884]
12
Pakala Narayana Swami v. Emperor, AIR 1939 PC 47,52
13
Ibid
14
AIR 1960 SC 1125

47
includes the several parts and may disclose the authentic commission as well as all
relevant facts. The confession is direct acceptance of guilt by a suspect of
commission of the offence. In State v. Navjot Sindhu15 the Apex Court detected that
“confessions are considered highly reliable because no rational person would make an
admission against himself unless prompted by his conscience to tell the truth. If an
admission of an accused is to be used against him, the whole of it should be tendered
into evidence, and part of admission is exculpatory and part exculpatory, the
prosecution is not liberty to use in evidence the exculpatory part only. The confession
must be accepted as a whole and exculpatory part”.16 However, the Supreme Court
accepted the concept of English Law17 in Nishi Kant Jha v. State of Bihar18 pointed
out that the court can depend on a portion of the confessional declaration and decline
the respite. In the bright of above discussion, it might be assumed that a confession
for purpose of evidence in proceeding is a straight acceptance of commission of crime
by an accused person. Any word of admission of implicating fact confined in the
confessional announcement is portion of confession.19

3.3. Type of Confession

Confession are generally of two types as discussed by many a writer but we

shall study them under three headings for convenience of understanding which are
extra judicial, judicial and retracted confession.

3.3.1. Other Than Judicial Confession

Other than judicial confession is a declaration which is given to anybody

outside the court and it could be a straight admission of culpability or in the form of
repentance or in any other way voluntary confession made to private citizen and it is
admissible, but value be subject to the situations of individually specific case. These
are completed by the revelry in another place than beforehand a Judge or court of law.
Other than judicial confession can be accepted without corroboration, if other
evidence inspires confidence and voluntariness.20 It may be oral and documentary.

15
AIR 2005 SCC 600,11.
16
Palvinder Kaur v. State of Punjab AIR 1952 SC 354.
17
R. v. Storey,1968, 52Cr.App. R.334.
18
AIR 1959, SCR 1033
19
Parkash Dhanswal Khairnar v. State of Maharashtra, AIR 2002 SC 340
20
Harbhajan Kaur v. State, 2001 Cr LJ 2033 [J K]

48
Taylor said on Evidence21 that “extra judicial confessions are those which are made
by party elsewhere than before Magistrate or in court.” Two persons were found at
the house of the accused in which accused confessed his guilt in a paper which were
examined by Handwriting Expert with specimen writing of accused and it was held
extra judicial confession and conviction was held on this evidence.22

Involuntary acknowledgement made to private citizen is admissible, but of

negligible value depending upon the circumstance of each particular case. But if it is
caused by section 24, then it is totally irrelevant in criminal proceedings. A confession
made to private in police custody is irrelevant whether voluntarily or involuntarily.23
In famous Nanawati case24, a statement made by the accused Nanawati to the
Chowkidar of the building immediately after the shooting, was held to be other than
judicial confession and preserved as a direct part of evidence of the culpability of the
suspect. An extra judicial confession must be connected with self- incrimination and
must describe how he dedicated the offence.25 The suspect expressed confession to
wife, who neither disclosed it to anyone nor lodged an F.I.R. in that respect and the
Court laid down that the said other than judicial confession was not reliable.26

Macaulay has rightly described that “word may easily be misunderstood by an

honest man. they may easily be misconstrued by knave. What was spoken
metaphorically may be literally. What was spoken ludicrously may be apprehended
seriously. A particle a tense mood or an emphasis may make the whole differences
between guilt and innocence”.27 Accused made confession to his friend that he killed
his spouse and children, was found reliable and a conviction on that basis was held
proper.28 There are some illustrations or examples of extra- confession which are
following: -

(i) An extra judicial confession by a person who killed his wife after the alleged
incident, accused told his wife`s father and brother that he killed his wife by
strangulating her and confession was not caused by any coercion or promise.

21
C.D. Field‟s, Law of Admissions Confessions, 232,3 (Delhi Law House, Delhi, 3 rd. edn.2017)
22
State of Maharashtra v. Shivaji, 2018(1) RCR (Cr.) 796
23
Section 26, Indian Evidence Act ,1872 (1 of 1872)
24
Nanawati v. State of Maharashtra, AIR 1962, SC 605
25
M.A. Antony v. State of Kerala (2009) SCC 220
26
Keshav v. State of Maharashtra, 2007,13 SCC 284
27
Lord Macaulay, History of England, 583, Vol.1, Chapter 5 (Nabu Publisher, U.K. 2012)
28
State of Uttar Pardesh v. M. K. Anthony, AIR 1985 SC 48

49
 The court held that it possibly would be foundation of conviction.29

(ii) Other than judicial confession written by accused - an accused has written a
confessional statement after committing offence and later he rewrote a
confessional statement in court. It is admissible.

(iii) An extra judicial confession made to law enforcement agency - it has no worth
in the appreciations of law but there is one exception to this provision which is
contained in Section 27.30 Under English Law, confession given to law
enforcement agency is permissible in evidence and the court has to judge in
each case whether the confession is voluntary or a result of police deception or
suppression. “Law Commission of India” in its 48 th endorsed liberalization of
law to the effect that if confession is declared before a high police official, it
should be made relevant. But this recommendation was rejected by Indian
Parliament.

(iv) Recorded an extra judicial confession in a secret video tape- The Privy Council
laid down that “where the accused voluntarily agreed to demonstrate how he
committed a crime; a video recording of the reconstruction becomes admissible
in evidence as a confession provided that the defendant was given a proper
warning that he need not take part in the video recording and had agreed do so
voluntarily”.31

(v) An extra judicial Confession made to fellow prisoner- an accused denied for
making any confession to police and he was placed in a cell with other prisoner
who gained the confidence and trust of the accused in connivance with police
for obtaining admission of him and it was held that confessions and admissions
made to fellow-prisoner are admissible in evidence where it was made
voluntarily.

(vi) An extra-Confession given in attendance of news reporter - an extra-judicial

confession given to police in attendance of news reporter is not acceptable
because no confessions given in police safekeeping are permissible as per

29
Jainaryan v. State of Rajasthan, 2001 Cr LJ 4915.
30
Indian Evidence Act, 1872 (Act 1 of 1872)
31
Ratanlal and Dhiraj Lal, The Law of Evidence, 199, (Lexis Nexis, Gurgaon, 25 Th edn.,.2013)

50
 section 26.32 The Apex Court held that such a confession suffered from stigma
of being made in police custody.33

(vii) Other than judicial confession made to relative-the other than judicial
confession made to relative after 20 days but postponement in recording the
declaration was properly explained by investigating official in conviction was
whispered appropriate.34

(viii) An extra judicial confession made to social worker-an accused made confession
to a social worker and she was with police for two days in connection with some
other case, hence the court held to be surrounded by suspicious circumstances.35

(ix) Other than judicial confession made in confused state of mind to doctor-an
injured accused was admitted by police officer in hospital and he was
functioned upon and his confession was recorded by doctors. It was not a
voluntarily confession and it was recovered from his confusion. It was held not
relevant.36

(x) An extra judicial confession made to stock witness-The Supreme Court held in
Tarsem Kumar case37 that an extra judicial confession made to a stock witness
who was casually known to the accused, was held not acceptable. It was held
that accused made confession before stock witness in the police station is
inadmissible.38

 Extra Judicial Confession and its Evidentiary Value

Voluntary and true confessions are always acceptable and admissible in

evidence and if any circumstances cast doubt on its voluntariness of confession, must
be rejected. Lord Parker39 stated that “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 and in deciding whether an admission is voluntary or not, the court had
been at pain to hold that even the gentlest threat slight inducement will taint a

32
Id at 65 Indian Evidence Act, 1872 (Act 1 of 1872)
33
Ramchander v. State of Rajasthan, 2003 Cr LJ 2485.
34
Ram Khilari v. State of Rajasthan AIR 1999 SC 1002.
35
Balbinder Singh v. State of Punjab AIR 1996 SC 607.
36
Rajesh Timmanna v, State of Karnataka 1991 Cr LJ 1793.
37
Tarsem v Kumar. Delhi Administration 1995 Cr LJ 470; AIR 1994 SC 2585
38
Parasa Koteswararao v. Eede Sree Hari, 2017(2) JLJR 35(SC)
39
Reg. v. Smith, 1959, 2 Q, B,35 p 35.

51
confession. An extra judicial confession may or may not weak evidence and each case
should be examined on the basis of its own facts and circumstances”.40 Any
confession cannot be relied if it is found inconsistent with other material fact and
without any material proof extra judicial confession is not relevant.41

Other than judicial confession must be adjudicated in the circumstances of

each case.42 It must be judged on the nature of circumstances and credibility of the
witnesses who were examined.43 The Supreme Court laid down that voluntary and
true extra judicial could not be disbelieved.44 The Supreme Court has clearly decided
in Rajaram45 that “it is not presumed by the court from beginning that an extra
judicial confession is scrawny evidence. The court further held that other than judicial
confession, if intentionally and accurate and given in an appropriate state of
awareness can be accepted and made the basis of conviction of accused, but
confession will have to be proved like any other fact”. It was held that extra judicial
confession is not reliable because all other circumstances remained unproved.46

3.3.2 Judicial Confession

Judicial Confession are those statements which are given to Magistrate or in

the Court in sequence of any proceeding and it is important that it must be result of
free will and the unrestricted will of revelry with full information of significances of
confession.47 When, confession may be made to the court itself in the normal
progression of legal proceeding.48 “Under section 164 Cr.P.C.” confessions are
recorded by the judicial magistrate and it requires him to comply with following
conditions: -

(i) He should be given a statutory notice that there is no compulsion on accused is

to make a confession

(ii) The approval of the court is necessary that the confession is being given
voluntarily by accused.

40
Shivkumar v. State (2006) SCC 714
41
Amar Nagnath Sabale v. State of Maharashtra, AIR 2017 86 (Bombay)
42
M. Munir, The Law of Evidence, 105, (Universal Law Publisher Delhi, 8 th edn., 2011,)
43
Kulwinder Singh v. State of Punjab, (2006) 12 SCC 538
44
Ram Singh v. Sonia, (2007) SCC 25.
45
State of Rajasthan v. Rajaram ,2003 RCR [ Criminal] SC 239.
46
Chakarai @ Chakaravarthi v. State represented by IG, 2019(1) RCR (Criminal) 909 (SC)
47
Taylor on Evidence, section 866
48
Section 164, Cr.P.C. 1973(2 of 1974)

52
(iii) Confession must be documented and signed in way on condition that in
section 281.

(iv) The magistrate should write a note at the base of confession why he confessed.

In a leading case Supreme Court laid down that the provision of section 164
Cr.P.C. are mere illustrative and these are not exhaustive.49 Where confessional
announcement of suspect could be documented only by Judicial Magistrate, the same
recorded by Executive Magistrate was not be admissible in evidence.50 Though the
witness was interrogated by the police the very next day after the occurrence and he
stated the version of incident given to him by the defendant, his declaration was
recorded under “section 164 Cr. P.C.” Only after gap of one month from the day of
incidence which was not allowed to be rejected as a belated version51. A confession is
required to be reduced to writing and oral evidence inadmissible, except to a limited
extent stated in section 80 of the Indian law of evidence. The Privy Council in Nazir
Ahmed52 case held that where the Magistrate does not act under section 164 and
nothing is presented in evidence as documented or asserting to be documented under
the section, oral evidence of the Magistrate is not permissible. Confession to
Magistrate may be divided into the following classes53 -

(i) Confession recorded by observance of all the formalities given by section 164
and 281 Cr.P.C. - Section 164 relates to a confession made to a magistrate „in
the progression of investigation‟ or at afterwards but earlier inauguration of the
inquiry or proceeding. Confession recorded later on submission of final report
under 173(2), is not admissible under this section.54 Nevertheless, a confession
may be made in the court of law of the committing magistrate or it may be
made even during a trial. Confession recorded under section 164 and 281 but
imperfectly without fulfillment of any of their provision and which are
remediable under section 463 Cr.P.C.

(ii) Oral Confession Given to a Magistrate- Verbalized confession given to a

magistrate may be evidenced under section 26 of Indian Law of Evidence,

49
Kutu Goola v. State,1981, Cr LJ 424.
50
State of Haryana v. Parmanand, 1995 Cr LJ 396 [Punjab and Haryana High Court Chandigarh]
51
State of A.P. v. Shaik Mazhar, AIR 2001 SC 2427
52
Nazir Ahmed v. Empoere ,63, IA ,372
53
MC Sarkar, Law of Evidence, 681, (Lexis Nexis, Gurgaon, 18 th edn., 2014)
54
S v. Ram Avatar, AIR 1955 A 138

53
 even though not recorded according to section 164 of Cr.P.C.55 A question
arose in some case whether an oral confession announced by a suspect before a
magistrate which was not concentrated to inscription may be evidenced by
verbal evidence, and it has generally been answered in the affirmative.56 An
oral confession which is not open to any exception under section 24, 25, 26 is a
relevant fact as an admission under section 21 and may be evidenced against
the accused by oral evidence of the magistrate.57 The section 91 of Indian law
of evidence is no obstacle to the admission of spoken evidence of a confession
given to a magistrate and he was not assured to record under section 164 and
281 Cr.P.C. The same weight cannot ordinarily attach to an oral confession as
to one recorded with all necessary precautions under section 164.58

(iii) Confession documented by judge but not as per section 164 Cr.P.C. - Section
26 of Indian law of evidence Act denies that it must be recorded in writing, but
the admissibility of confession under this section is dependent on whether it
was made in the instantaneous attendance of a judge. A petition filed by two
accused before a magistrate admitting commission of crime is admissible under
section 21 of Indian Evidence Act, although recorded in accordance with
section 164 and 281 of Cr.P.C. it must be voluntary to make it admissible and
mere presence of magistrate is not enough.

(iv) Confession made to magistrate during trial-During trial, accused can plead
guilty but in middle, when accused wants to make confession but no
establishment in Cr.P.C. has been made for reordering the confession. The
Supreme Court is also not following the proper practice to record such
confession in middle, because it will attract pre-bargaining. Confession during
trial to magistrate, when charge is framed, accused was asked whether you
plead guilty or not. Accused pleads guilty and then this confession can be
recorded. In middle confession can be made and recorded but it is not a healthy
practice and formalities of section 164 of Cr.P.C. are not necessary.

55
Itwari v. R., AIR 1933 O 432
56
MC Sarkar, Law of Evidence, 729, (Lexis Nexis, Goagaon, 18th edn., 2014)
57
Nazir Ahmed v. R, AIR 1936 PC 253
58
Karam v. R., 16L 454.

54
 Evidentiary Value

The best and most conclusive evidence is a confession because no one will
make an incorrect announcement against his personal interest. A voluntary and true
confession is a strong proof of guilt and it may be basis of conviction.

3.3.3 Retracted- Confession

“A retracted confession is a statement made by an accused person before trial

begins by which he admits to have committed the offence, but he repudiates it at
trial”.59 If retracted confession is found true and voluntary, it may be the basis of
conviction60 and such a confession without a general corroboration from independent
evidence shall not be base of conviction.61 Sir Straight J62 has rightly observed that
“the retracted confession is an endless source of anxiety and difficulty to those who
have to see that justice is properly administered…I have said , and repent now , it is
incredible that the extraordinary large number of confession , which come before us in
the criminal cases disposed of by this court , either in appeal or revision, should have
been voluntarily and freely made in every instance as represented …the retraction
follows almost invariably as a matter of course”.

Justice Cave has also commented on retracted confession in Thompson case63

as said “…I would add that of my part I always suspect these confessions which are
supposed to be the off spring of renitence and remorse and which nevertheless are
repudiated by prisoner at trial. It is remark cable that it is of very rare o occurrence for
evidence of a confession to be given when the proof of the prisoner‟s guilt is
otherwise clear , and satisfactory , but when it is not clear and satisfactory , the
prisoner , the prisoner is not infrequently alleged to have been seized with a desire ,
born of penitence and remorse, to supplemental with a desire, born of penitence and
remorse, to supplement it with a confession- a desire which vanishes as soon as he
appears in a court of justice”.

The court64 decided that a conviction founded on retracted confession is valid,

if it supported discovery of smuggled articles from different places of concealment. In
59
Batuk Lal, Law of Evidence,125 (Central Law Agency, Allahabad,16th edn., 2006,)
60
State of Tamil Nadu v. Kutty AIR 2001 SC 2778
61
Piyare Lal v. State of Rajasthan, AIR 1963 SC 1094
62
M C Sarkar, Sarkar law of Evidence, 670, (Lexis Nexis Noida, 18 TH ,2014)
63
R. v. Thompson, 1893, 2, QB 12,18, also see, Diction v. R. AIR 1942 P 90, 93.
64
State v. Madhukar Keshav Maity, AIR 1980 SC 1224

55
Sankar65 case, it was laid down that conviction on the foundation of withdrawn
confession was not held proper when the statement was inconsistent with the medical
evidence. It was held that a judicial confession was withdrawn by suspect, was not
considered a ground for presuming that it was stained.66

Police Official arrested the accused and he expressed his willingness to make
confession, he was produced before the DCP who told that there was no legal
compulsion on accused to give a confession and then all formalities have been
complied with and these facts were incorporated in the confessional statement. The
suspect in examination under section 31367, barely stated that he had not any
confession and it was decided that the acknowledgement of suspect was voluntarily
truthful, the conviction of accused was proper.68

The rules regarding a retracted confession are69:-

(i) That it is not a ground to consider an involuntary confession because it

is retracted.70

(ii) The true and voluntarily withdrawn confession may form foundation of
conviction.71

(iii) It is the rule of prudence and caution that the use of withdrawn
confession against co-accused requires independent corroboration
evidence.72

(iv) Retracted confession must not be ambiguous, vague or imaginary.73

(v) Both general story of alleged crime and connection of the accused with
it should be confirmed.74

(vi) The confession was a withdrawn one it could be represented upon only
if significantly verified by autonomous evidence.75 And it does not

65
Sankar v. State of T.N. ,(1994) 4 SCC 478
66
State of Tamil Nadu v. Kutty AIR 2001 SC 2778
67
Code of Criminal Procedure, 1973 (Act 2 of 1974)
68
Abdul Majid Shaikh v. State of Gujrat, AIR 2007 SC 257‟ CRLJ 3405
69
Ratanlat and Dhirajlal, The Law of Evidence, 238 (Lexis Nexis Gurugram Haryana, 25 edn., 2013)
70
Phatik Chandra Gagoi v. State of Assam, 1998, Cr.LJ.24
71
Shrishail Nageshi Pare v. State of Maharatra, AIR 1984 SC 866
72
Vinayak v. State of Maharatra, AIR 1984 SC 1793
73
Taj Md. Khan v. State, 1998 CrLJ 2312
74
Emperor v. Bhagwandas Baser, (1940) 42 Bombay LR 1938
75
State of UP v Bota Singh, AIR 1978 SC 1770

56
 consider that each and every material fact must be verified but a
general corroboration of important fact is essential which is stated in
its.

(vii) it was held that “it would be sufficient if the general trend of
confession is substantiated by some evidence which would tally with
what is contained confession”.76

(viii) The value of retracted confession would be subject to the surroundings

of respectively specific case.77

(ix) The withdrawn confession cannot be used to support the indication to

backing the evidence of other accomplices.78

All the acknowledgements are invariably retracted at later stage; therefore, the
withdrawal by itself is not a ground to reject the acknowledgement by considering
that it was made unwillingly.79 The Supreme Court80 held that “retracted confession
cannot be acted upon unless corroborated in martial particulars and the corroboration
of material particulars does not imply that there should be meticulous examination of
entire material particulars but broad corroboration of conformity is enough.” The
properly and legally recorded confession does not lose its value because retracted
from it as wisdom dawned on him later.81 In Public Prosecutor v. Mustari Bin Suri82,
the Court held that One can be convicted on basis of withdrawn acknowledgement, if
the court is contented of truth of the confession. It is responsibility of court to appraise
the evidence relating to the confession by watching at every aspect. There is retracted
confession of two accused and the proper approach is considering apiece confession
as an entire and routine it against the maker if the court have unhesitating assumption
that it is voluntarily and accurate.83 The Act does not make any difference between
withdrawn and unwithdrawn confession and both are in the same way acceptable and
it is used in contradiction of accused but its value will be different. It was held in

76
Piyare Lal v. State of Rajasthan, AIR.1963 SC 1094
77
Ramparkashv. State of Punjab, 1959 SCR 1219
78
Hussain Umar v. Dalipsinghji, AIR 1970 SC45
79
Abdulvahab Abdulmajid Shaikh v. State of Gujarat, (2007) 4 SCC 257
80
P. Pegu v. State of Assam AIR 20004 SC 4197
81
Valiyaveetil Ashraf v. State, 1994 Cri LJ 555,563
82
1989, Malayan LJ 77[ Singapore HC] S
83
Balbir v. State, AIR 1957 SC 216

57
Sarwan Singh84 case that “it is a matter of rule that a conviction can be grounded on
withdrawn confession but it is settled rule of practice, prudence, and caution that it
may be corroborated with particular evidence”.

“A retracted confession must be looked upon with greater concern unless the
reason for having made it in the first instance are on the face of them false. once the
confession is proved satisfactory any admission made therein must be satisfactorily
withdrawn or the making of explained as having proceeded from fear, duress, promise
or the like from someone in authority. A retracted confession is a weak link against
the maker and more so against the co-accused” as per Justice Hidayatulla in Haroon
Haji case.85

The value to be devoted to retracted confession must be subject to all the

circumstances which compel the court to think that the confession was incorrect, or by
understanding it had botched to be protected the benefit the expectation of which
moved it.86 The Court87 further held that mere allegation of torture or inducement
cannot be accepted as it is true. The benefit of it cannot be given to accused who
retracted his statement merely by all alleging of torture by police but fact of torture
must be supported by evidence.88 Accused made confession before a magistrate but
retracted before the Court of Session has some importance, if it is re-affirmed in the
ground of appeal.89 A girl of 15 was charged with a serious offence who made a
confession in police custody and later on , she retracted on the allegation of police
torture, the conviction was set aside.90

The Supreme Court91 held that accused stated before magistrate that he was
not guilty, would not be considered that the suspect withdrawn of other than judicial
confession. The value of trustworthiness of withdrawn confession be subject to the
surroundings of apiece specific case and every case must be judged by its peculiar and
special circumstances of each case.92 Withdrawn confession should be considered

84
AIR 1957 SC 637, Balbir v. State, AIR 1957 SC 216
85
Haroon Haji v. State, AIR 1968 SC 832
86
Bhuboni v. R,53 CWN 609; A 1948 PC257
87
Hem Raj v. State, AIR 1954 SC 462
88
Purnannanda v. R, AIR 1939 SC 65
89
MC Sarkar, Law of Evidence, 675 ( Lexis Nexis, Gurgaon Haryana, 18 th edn., 2014)
90
Motijan v. R, 6 CWN 380
91
Pakkirisamy v. State of T.M. 1998 Cr LJ SC
92
MC Sarkar, Law of Evidence, 679 (Lexis Nexis, Gurgaon Haryana, 18 th edn., 2014.)

58
with superior caution except the reason specified for completed it in the initial
occurrence, are on the face of them incorrect.93 When the accused retracted from other
than judicial confession, there is no rule to receive the withdrawal. But the court
wishes to throwaway the withdrawal, it must give convincing explanations before
longsuffering the withdrawal. It is totally risky for the court to trust such confession,
except the court on a contemplation of the whole evidence derives to define
assumption that the withdrawn confession is accurate.94 The Supreme Court observed
in Pyrare Lal95 case that “a retracted confession may be the legal basis of conviction,
if the court is satisfied that it was true and was voluntarily made. But it was held that
court shall not base a conviction on such confession without corroboration. It is not a
rule of law but a rule of prudence”.

3.4. Relevancy of Confession

The confessions are a concession of the hearsay regulation. A statement given

by an accused may be either admission or a confession. If it is an admission, it is
acceptable under section 21 Indian Law of Evidence except its expanses to a
confession to section 24 to section 30 apply. If the statement is result of improper
inducement, threat and promise, it will come in section 24 and will be inadmissible as
an acknowledgement. However, it is permissible under section 21 as an admission as
long as it proposes an implication as to the fact in matter or appropriate fact provided
also that it was not given as a law enforcement agency throughout enquiry. The
confessions are pertinent and permissible under following provisions of Indian law of
evidence.96

3.4.1 Confessions are supported by the Discovery of Fact, is Relevant

Any declaration given to law enforcement agency‟s officer is not considered

reliable due to the role of police but, if at the same time, every statement is not taken
to prove the case, every case will not reach at its destination. That is why, if any
statement is made to police officer which leads to recovery, it is considered relevant
in a case. So, this provision has been inserted in Law of Evidence to protect the
interest of prosecution agency.

93
Babulal Udesinh v. State of Gujrat (2006) 12 SCC 268, 274
94
Rameshbhai Chandu Bhai Rathod v. State of Gujrat, (2009) 5 SCC 740
95
Piyare Lal v. State of Rajasthan, AIR.1963 SC 1094
96
Section 27 to 29, The Indian Evidence Act, 1872, [ Act 1 of 1872]

59
3.4.1.1 The Basis of Principle on which This Section is Based

The provision is founded on the rule that if the discovered fact is result of a
statement of accused, that is why it is supposed to be accurate and it was not hauled
out. It originates into action, only when firm evidences are overthrown to as result
material established from a suspect in police safekeeping and the information narrates
particularly to the fact revealed. The basic ground for non-acceptance of confessions
is that suspect may make a false confession due to inducement, promise to law
enforcement agency, but there is necessity for the acceptance of confession for justice
by this section when the veracity of the confession is secured by the finding of facts
97
which is the result of the data given. The word „provided‟ has been used in section
27 and therefore it is a proviso by way of an exclusion to the section 25 and 26 of
Indian Law of Evidence.98 Information given by a suspect by means of confession in
police safekeeping which particularly relates to the element is acceptable in evidence
in contradiction of the accused.99
The purpose of this limited enlivening of the bane is that confession and
statement given to police is guaranteed by actually discovery. This assurance
attributes to the declaration which may be circuitously or in the least connected to the
fact exposed.100 The process of recovery of weapon of offence which is based upon
the statement of the accused made to the prosecution witness is in accordance with the
section 27 of Indian Law of Evidence.101 In the bright of section 27 of Indian law of
evidence, any information suffered by the suspect in consequence of which a datum is
naked only would be acceptable in evidence, whether information quantizes to
confession or not.102 The truth of his statement is confirmed by discovery of fact. The
nature of confession does not matter but if its outcome is unearthing of a datum it
converts to unfailing evidence.103
This section is to be pressed into service only to make admissible a statement
to police, which is otherwise inadmissible leading to certain discovery relating to

97
Parduman Sing v. State of Gujarat, AIR 1992 SC 881, also see B M Prasad, The Law of Evidence,
(Lexis Nexus, Gurgaon, Haryana, 25 TH edn., ,2013)
98
Musher Khan v. State of M.P., (2010) 2 SCC748
99
Delhi Admiration v. Balkrishana, AIR 1972 SC 3, State of Karnataka v. David Razaria, AIR 2002
SC3272
100
Anter Singh v. State of Rajasthan, AIR 2004 SC 2865
101
Shankar Jaiswara v. State of Bengal ,2007, Cr LJ 3274; 2007 AIR SC 3334
102
C.D. Fields, Law of Admissions and Confessions, 23-24 (Delhi Law House, Delhi, 3 rd. edn, 2017)
103
Pawan Kumar v. State of U.P., [ 2015] 7 SCC 148 at page 163

60
offence.104 Sir John Beaumont observed in famous case Polukuri Kottiaya105 and
stated that “this section seems to be based 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 but clearly the extent of information admissible must depend on the nature
of the fact discovered, to which such information required to relate. That ban was
presumably inspired by the fear of the legislature that a person under the police
influence might be induced to confess by the exercise of undue pressure. But if all that
is required to left ban on the inclusion in confession of information relating to an
object subsequently produced, it seems reasonable to suppose that the persuasive
power of the police will prove equal to the occasion, and that in practice the ban will
lose its effects”.106

Earlier this principle was in section 150, Cr. P.C.107 which was shifted to the
evidence act when it was enacted in 1872.108 That statement cannot be taken other
than section 27 of the Indian law of evidence. Where the accused allegedly stated that
the injuries sustained by him were caused due to dog-bite and the evidence showed
that only one of those injuries was attributable to dog-bite, still the declaration of the
suspect could not be taken in evidence against him.109 A written record can be proved,
if there is some recovery or discovery in consequence of information.

In the section 27, the Legislature removed the ban embodied in section 25 and
section 26 in the respect of data which relates clearly to the fact in that way revealed.
A declaration was given by suspect during police custody which results into finding
or recovery of property and fact, was considered confirmed. If, any fact disclosed that
the suspect has been threatened to torture prior to the discovery, the authenticity of the
finding is concentrated disbelieving and the detection converts useless as a part of
evidence.110

104
Arab Ali v. State of Tripura, 2008, Cr LJ 1212
105
Polukari Kottiaya v. R. AIR 1947 PC 67
106
Followed in Ramakrishna v. State, AIR 1955 SC104
107
The Code of Criminal Procedure,1869 (Act 8 of 1869)
108
The Indian Evidence Act,1872 (Act 1 of 1872)
109
Shivaji Gunu Naik v. State of Maharashtra, 1999, Cr.L.J. 471
110
Jethiya v. State, AIR 1955 Raj 147, also see –C. D. Fields, Law of Admissions and Confessions,
(Delhi Law House, Delhi, 3 rd. edn., 2017)

61
3.4.1.2 The Constitutional Validity of the Provision

“No person accused of any offence shall be compelled to be a witness against

himself”.111 A controversy stands up that whether this section comes under the Article
20[3] or not. This question was decided by the Apex Court in State of Bombay v.
Kathi Kallu Oghad112 and decided that the recovery in the consequence declaration
acceptable under section 27 of Indian Law of Evidence Act are not inside the embargo
of Article 20[3] except force has been used in obtaining the evidence.

Simple fact that a suspect was in police protection while making a confession
does not amounts to violation of constitutional right. In a leading case 113, it was held
that a person during his police interrogation cannot demand the presence of lawyer
and the court observed that Section 162 of Cr.P.C.114 and Section 24 to 30 of Indian
Law of Evidence115 already have been taken care of the voluntarily or involuntarily.
But where compulsion has been used, the prohibition of Article 20[3] is attracted.116

A certain individual does feel compulsion in mere asking by a police officer is

not compulsion but in reality, it was misused. It is recurrently distorted by law
enforcement agency but the court is mandatory to be attentive about its submission.
This section is frequently misused by investigating agency. Every case is decided by
the court on weighing the fact and surroundings of which was unveiled in particular
case, is a question of fact.117 Hence Section 27 of Indian law of evidence does not
intrude upon the Constitutional establishment and therefore does not stand abrogated
by Article 13.118 The Apex Court held in Kasab119 case that “the right against self-
incrimination under article 20(3) has been statutorily incorporated in the provision of
Criminal Procedure and the Indian law of evidence Act, as manifestations of
enforceable due process, and thus compliance with statutory provisions is also
compliance with Constitutional requirement. The protection of accused against any
self-incrimination guaranteed by the Constitution is very strongly built into the Indian

111
Article 20[3], The Constitution of India.
112
AIR 1961 SC1808.
113
Jagir Singh v. State of Tamil Nadu, 1986, Cr LJ 841
114
The Code of Criminal Procedure,1973 (Act 2 of 1973)
115
The Indian Evidence Act,1872 (Act 1 of 1872)
116
Fr. Benedict v. State of Kerala, 1967, K.L.T. 466 p.no. 483
117
C.D. Fields, Law of Admissions and Confessions, 23-24 (Delhi Law House, Delhi, 3 rd. edn, 2017)
118
Jethiya v. State, AIR 1955 Raj 151
119
Mohammed Ajmal Mohammed Amir Kasab v. State of Maharashtra, 2012 (4) RCR (Criminal)
SC417

62
statutory framework and we see absolutely no reason to draw any help from the
Miranda principle for providing protection against self-incrimination to the accused”.

 The Section 27 Does Not Violate Equal Protection before Laws

The constitutional validity of section 27 is that it is undemocratic as it

interrupts Article 14 of the constitution guaranteeing equality before laws. It brands
an illogical discrimination between statement given by person in safekeeping and
person not in custody and it permits a statement made in custody which primes to the
unearthing of a fact, are made permissible under this section. A person, who was not
in custody, enjoys better protection which violates the equality before laws. But the
Supreme Court held that this classification is reasonable and does not violate the
constitutional spirits.120 It was further held that the distinction made between two
classes of the person cannot be called arbitrary, artificial or evasive. A suspect in
safekeeping and person‟s not in safekeeping, do not opinion on the similar stability
nor necessitate alike shield.121

3.4.1.3 The Scope and Necessary Condition of the Provision

“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 information, whether it amount to confession or not, as relates
distinctly to the fact thereby discovered, may be proved”.122 The Apex Court in M.
Inayatullah v. State of Maharashtra123 case, laid down some proposition –

[1] There must be a recovery of relevant facts in consequence of material

acknowledged from a suspect of an offence.

[2] Recovery of facts is required

[3] The suspect must be in the police safekeeping when information was received

[4] The material connected particularly to the fact thereby exposed.

After analyzing bare provision of this section, there are various requirements
or condition for application of this section as follow: -

120
State of U.P. v. Deoman Upadhyaya, 1961 [2] SCJ 334 [337]
121
Raju v. State of Rajasthan, 1997, Cr LJ4547
122
Section 27 0f Indian Evidence Act, 1872 (Act 1 of 1872)
123
AIR 1976 SC 483

63
(i) The Fact must be Relevant to the Issue

The evidence must be given of relevant facts which are in the issue. The rule
relating to relevancy of other evidence is applicable to the relevancy of the fact
discovered in direction to brand the fact exposed permissible. The rule of relevancy is
same as applicable to other provisions the act. Fact means and comprises- “anything,
state of things, or relation of things, capable of being perceived by senses or any
mental condition of which any person is conscious”.124

It not only includes physical observations but also mental observations, such
as, a state or condition of a person‟s mind. In this way, negligence, good faith,
intention, etc. are facts as per evidence act. Hearing and watching anything by
someone are a fact and he said a word is a fact. The arrangement of convinced things
in a convinced instruction in a convinced apartment is a fact. Thus, a fact includes
physical facts, psychological facts, negative facts and positive facts. A connection of
one thing to other is said to be relevant to another when the one is connected with the
other as per provision of this act. Relevancy means connections and such connection
ship with the facts in issue. Any act done by a person before commission of crime
and after commission of crime, are relevant facts. According to Stephen, relevancy
means “connection of events as cause and effects”.125 This section admits only
evidence which is related to the datum in question and not to admit evidence which is
not relevant to the matter. A gandasa was not blood- stained which was recovered
and it was not proved how it was related to the crime and it was decided that the
announcement was barred.126
“Issue”-Facts which are in dispute are facts in question.127 The proof possibly
will be agreed in inference to facts which are in controversy or dispute between the
parties. Fact in issue depends on substantive law which is applicable to offence. Fact
in question is alleged fact by one revelry and deprived of by other party in a civil
pleading in civil case or suspected by the prosecution and deprived of by the suspect
in a criminal case. “It was held in Charandas Swami v. State of Gujrat128 that “the
word fact as contemplated by Section 27 is not limited to actual physical material

124
Section 3, The Indian Evidence Act. 1872 [ act 1 of 1872]
125
Batuk Lal, The Law of Evidence, 7, (Central Law Agency, Allahabad, 16 th edn., 2006)
126
Kashi Ram v. Emperor, AIR 1955, Lah 433s
127
Dr. Ashok K. Jain, The Law of Evidence, 8, (Ascent Publications, Delhi, 14 th edn., 2002)
128
AIR 2017 SC 1761

64
object. The discovery of fact arises by reason of the fact that the information given by
the accused exhibited the knowledge or the mental awareness of the informant as to
its existence at a particular place”. The Section 27 is founded on the opinion that the
acknowledgement of suspect is established by the detection of a fact and it possibly
will be supposed that it is not extracted. It is acceptable only in contradiction of
maker.

An accused person in police safekeeping gave a statement and that statements

resulted into finding of some unknown facts. Thus, information given by accused
person sets the police in motion and the facts are recovered due to information given
by accused. The evidence should be linked with each other and if any part of
statement does not fulfill test it must be omitted. The discovered evidence in
consequence of material from a person suspect, must be helpful to bring into light
case and it can be kept as of any significant probative worth.129

Kotayya v. Emperor130 , in this case, the appellant guilty of murder who stated
before the police that “I, Kottaya, and other beat Baddupati, Chinna, Sivayya and
Subhayya to death. I hid the spear and my cane in the ricks of my village and I would
display you if come and we did it on instigation of Phulkari Kotayya”. The Privy
Council held that the “I hid the spear and my stick in rick of my village and I will
show you if come” is only admissible because that portion of statement only leads to
the unearthing of stick and spear and other part of statement cannot be taken into
consideration. It was held that the finding of fact in result of material from suspect in
police safekeeping must be overthrown and distinctly related facts are recovered as to
be proved. An accused admitted that he cut the throat with knife and the knife was hid
in sewerage of kitchen. Here the second part is relevant because it results into the
finding of knife in consequence of statement but first is not relevant as there is no
discovery in consequence of statement and it is incriminating. In Sadhu Singh131 the
Apex Court held that “the place from which the incriminating article was recovered
must be place of concealment which would be difficult or impossible for the police to
discover said without assistant from accused, so that a discovery may come under the
provision”.

129
Dwarkadas Gehanmal v. State of Gujarat, (1988) SCC 57,
130
AIR 1947 PC 67
131
Sadhu Singh v. State, AIR 1967 Punj 14

65
 The article was discovered from an open place and it was not in accuser‟s
occupation does not attract section 27.132 The recovery of articles connected with rape
from concealed place and on information acknowledged from suspect, is held
applicable.133 The clothes of deceased were recovered on basis of disclosure statement
by accused, was held admissible.134 A dead body was recovered from exposed field
three months latter which was encircled by further field and this provision will not
apply and it was not a place which is in exclusive knowledge of accused.135

The expression „fact discovered‟ is correctly observed by Sir Beaumont in the

famous case Pulukuri Kotayya v. R136 and held “it is fallacious to treat the „fact
discovered‟ within the section as equivalent to the object produced; the fact
discovered embraces the place from which the object is produced, and the knowledge
of the accused as to this, and the information given must relate distinctly to this fact.
Information as to past user, or the past history of the object produced is not related to
its discovery in the setting in which it is discovered. Information supplied by a person
in custody that „I will produce a knife concealed in the roof of my house‟ does not
lead to the discovery of a knife, knives were discovered many years ago. It leads to
the discovered of the fact that a knife was concealed in the house of the informant to
his knowledge, and if the knife is proved to have been used in the commission of the
offence, the fact discovered is very relevant. But if the statement the words be added
with which I stabbed A, these words are inadmissible since they do not relate to the
discovery of the knife in house of informant”.

It was decided in case in NCT of Delhi v. Navjot Sandhu137 that “the

expression discovery of fact should be read with the definition of „fact‟ as contained
in section 3 of Indian law of evidence which define the fact as meaning and including
anything, state of things, or relation of things, capable of being perceived by the
senses and also includes any mental condition of which any person is „conscious.” In
this way, discovery amounts to the confirmation and it guaranteed the veracity of the
information assumed the only and restriction of the law enforcement agency should
132
S.V. Chalke v. State of Maharashtra, 1993, Cr LJ 3364
133
Ghuraiyha v. State of M.P., 1990, Cr LJ 1129
134
A K Ansari v. State of Uttaranchal, AIR 2010, SC583
135
Kantar Singh v. State of Punjab, AIR 1993 SC 341
136
AIR 1947 PC 67
137
NCT of Delhi v. Navjot Sandhu, AIR 2005 SC 3820, Amitsingh Bhikamsingh Thakur v. State of
Maharashtra, 2007, 2 SCC 310

66
not have had entree to those facts prior. Some facts are recovered on basis of
statement given by accused which would be acceptable under the section 27 the
Indian law of evidence against the person who gave the statement.138

The recovery of weapons is meaningless, if it is not supported by disclosure

statement of accused and the statement regarding a fact which was not in exclusive
knowledge of the accused and was evident to the police is no admissible.139 A suspect
made a statement which results to the whereabouts of co-accused is admissible in this
provision. The accused had told the police that dead body of Deepak was taken by
me and Guruji [ second accused] on his motorcycle which was dropped in the canal
in which The Apex Court decided that the tail lamp of motorcycle was recovered
from canal was admissible.140 The Apex Court held in Bodhraj141 case that this
section is proviso to section 25 and 26 and permitted certain statement which is
definitely connected to finding of facts. The doctrine of confirmation has been
evolved which is founded on the rule that if any fact is naked on the declaration given
by accused and such detection is an assurance that the material provided by the
detainee is true.

In State of Maharashtra v. Suresh142, a dead body was recovered from an

apartment which was jagged out by the accused and the court could believe that it was
hidden by the suspect himself, if it was not denied by accused and such an explanation
was not unpredictable with the rule personified in section 27. The recovery of a
polythene bag containing a pistol and other incriminating article were recovered from
open place accessible to all on basis of the statement of accused which was held
admissible as the acquaintance of the suspect of the apartment from where the
polythene bag was allegedly recovered.143 The recovery of article does not make it an
outcome in detection of a fact and it does not come in purview of this section.144

The retrieval of the matter was discovered from a place which was reachable
to all which did not render inadmissible the statement of accused but court held that

138
State of Punjab v. Gurnam Kaur, (2009) 11 SCC225
139
Vijay Kumar v. State, 1996, Cr LJ 2429
140
State of Maharashtra v. Damu, (2000) SCC, 108
141
Bodhraj Alias Botha v. State of Jammu and Kashmir, AIR 2002 SC 3164
142
AIR 2000 SC 471
143
Salim Akhtar v. State of U. P., AIR 2003 SCC 499
144
Pandurang Kalu Patil v. State of Maharashtra, AIR 2002, SC 733

67
the vital test was that it was generally observable to other. If it is not, it is immaterial
whether it is open or accessible to other.145 Under section 27 of Indian Law of
Evidence, information is inadmissible, if the evidence uttered by a person who is not
in the police safekeeping.146

There is no restriction that the retrieval must be made instantly after the
declaration is given and so long as, the recovery is an outcome of the declaration
given by a suspect, the said announcement is admissible under this section.147 But
unexplained delay and belatedly discovery on disclosure statement creates doubts on
its authenticity or voluntariness.148 The recovery is not reliable and admissible, if the
stolen property recovered on the foundation of the statement of accused is different
from one the described in the FIR.149 Information cannot be construed as equal with
announcement as distinct from statement. Justice Ford observed that throughout the
authorities dealing with section 27, the word statement is used interchangeably with
the word information.150 Mere pointing out of the house complaint is neither
information nor a statement.151 When a statement containing information under the
section which led to discovery is recorded and witnesses are present, nothing in law
prevents them from testifying to it and even from attesting it.152 When, there is a
recovery of an object of crime on the foundation of information assumed by suspect
which connected a connection in the chain of surroundings and the information which
leads to recovery, is admissible.

(iii) The Accused of an Offence

For submission of the provision, the maker of the declaration must be

accused of any crime. The expression „accused of offence‟ have been held to be
descriptive of the person who is giving the declaration. It has been laid down that “the
expression „accused of offence‟ is descriptive of the person against whom evidence,
relating to information to be given by one and it does not mean that there must be a

145
State of H.P. v. Jeet Singh, AIR 1999, SC 1293
146
State of Karnataka v. David Rozario, AIR 2002, SC 3272
147
Parveen Kumar v. State of Karnataka, [2003] 12 SCC199 and Nisar Khan v. State of Uttaranchal,
(2006) 9 SCC 386,
148
Inspector of Police, Tamil Nadu v. Balaprasanna, 2008, Cr.L.J. 4332
149
Laxman Chand v. State of M.P. ,1977 Jab L.J.66S
150
Sarkar, Law of Evidence, 774(Lexis Nexis, Goagaon Haryana, 18 th edn., 2014)
151
Dhaman v. R, AIR 1937 SCC 251
152
State of Kerala v. K. Chekkoty Ker. L.T. 843

68
formal arrest of a person who made a statement which leads to the discovery”.153 It
does not mean that there must be formal arrest of a person under section 46(1) of Cr.
P.C. for attracting this section. The recoveries of some articles were affected on the
basis of the statements that were in police custody but the formal arrests were affected
on the next day, was held admissible.154 The statement made by a stranger or
prosecution witnesses which leads to discovery, is not admissible in this section.
Anyone who is arrested during the investigation by the police officer is accused
person and the term „accused of offence‟ cannot be narrowly construed under section
27 of Indian law of evidence. The accusation may come in any way.

The moment of suspicion arises to a person or where any evidence creates

doubts to his guilt and then he was taken in the police safekeeping and questioned on
that foundation and now he converts an accused of a wrongdoing. However, F.I. R
does not disclose his name155. But, in Trilochan Joshi v. Union of India156, it was
decided that if there are recoveries of article at the instance of person who is not
accused is of no avail. The two persons made a joint statement which leads to
discovery is not per se inadmissible in evidence, but it is a weak piece of evidence.
The Apex court decided in Md. Dastagiri v. State157 that it is not an essential
requirement that the person must be in the police custody whose statement leads to
discovery, but mere accusation is enough to attract this section. There is no need for
taking signature of accused on the recovery panchnama.158

(iv) The Safekeeping of Police

The section 27 of Indian Law of Evidence was re-embedded with slight

alteration of language that was earlier in section 150 of Criminal Procedure159 and
omitted the word „or‟ which displays that the process of this section is controlled to
information from an individual who is in police safekeeping. Further, it was held in re
Malladi Ramiah v. R160 that a person making statement must be accused as well as in
police safekeeping for application of it. But now since the decision of Supreme Court

153
State of U.P. v. Deoman, AIR 1960 SC 1125
154
Vikram Singh v. State of Punjab, AIR 2010 SC 1007
155
Amin v. State AIR 1958 AP 293
156
1938, Cr LJ 109[ DEL]
157
AIR 1960 SC 756
158
Kishore Bhadke v. State of Maharashtra, 2017(1) RCR (Cri) 606 SC
159
Code of Criminal Procedure, 1861 (Act XV of 1860)
160
AIR, 1948, Lah 69

69
 161
in Domain’s case the only essential aspect for application of Section 27 of the
Indian law of evidence is that the police safekeeping is very essential.162

The word „custody‟ is not defined in act. „Custody‟ does not essentially mean
confinement and imprisonment. Mere submission to the police amounts to custody as
it was mentioned in section 46 (1) of Cr. P.C.163 It does not include official detention
but also comprises police observation and restraint of the movement of the individual
concerned by the police. “Custody and arrest” are not identical terms. Every single
arrest includes custody, but not vice versa. Custody may be equal to a detention in
some cases but it is not so in all cases. Section 25 of Indian Law of Evidence is
proviso of Section 25 and 26 of this Act and any recovery which is result of statement
of suspect in the safekeeping of police may be proved in a case and it was
considered/relevant and admissible.164

It was held in Onkar v. State of M. P165 that it does not mean the custody after
formal arrest and the expression custody in section 27 of Indian law of Evidence
connotes some limitation on the freedom of an individual whether in words or action.
Even incidental regulation over the movement of criminal by the police would be
equal to the police safekeeping166.A person voluntarily gave a declaration to law
enforcement agency that he committed an act which is an offence and submitted
himself to the police, amounts to the police custody. An individual suffered a
statement after going to police which displays that he has committed a crime, here he
is not officially detained, but he has not freedom to go anywhere, he adores after
suffering of the information to the law enforcement agency and he must be considered
in the police custody within this section.167 Police custody extends to an instance
where the suspect is under the surveillance to police. The custody in this section
includes surveillance or restriction of the individual which possibly will be complete
or partial.

161
State of U.P. v. Deomani, AIR1956 SC 1125
162
Batuk Lal, The Law of Evidence.151, (Central Law Agency, Allahabad, 16 th edn., 2006)
163
Code of Criminal Procedure, 1974 (Act 2 of 1974)
164
Rajak Khazir v. State of Jammu & Kashmir, 2018 Cr App R (SC) 160 (SC)
165
1974, ALJ 377 [384]
166
Paramhansa v. State of Orissa, AIR 1964, Ori144
167
Ratanlal and Dhirajlal, The Law of Evidence, 210(Lexis Nexis, Gurgaon, Haryana, 25 th edn., 2013)

70
 In State of U.P. v. Doman168, it was decided that an individual goes to police
station and suffers a statement, is considered that he surrendered himself to the police
and he is in the custody as per this section.” Further, Justice Shah has observed that
“When a person directly giving to a police officer by word of mouth information
which may be used as evidence against him, may be deemed to have submitted
himself to the custody of the police officer within the meaning of section 27 of the
Indian Evidence Act”.

In T.N. Jayadeish Devidas v. State of Kerala169, it was decided that the court
cannot remand a person to police custody to enable the police to secure recovery
under section 27. There is substantial incongruity in the evidence of eye-witness and
investigating officer in respect to regaining of arms at the instance of suspect
statement, so second cannot be relied. The accused was arrested on information of
informer who stated the he committed the offence and he was taken to police station
where he gave a confession on which recoveries were made, were not illegal.

In Sakal Deep v. State of U. P170, it was decided that the suspect caused the
death of deceased with an axe which was handed over by the accused who took out
the axe from a place of concealment and the recovery of axe alone or statement to that
effect would not be admissible as the suspect was not in the safekeeping. The
prolonged custody of accused underwent interrogation several times, it was held to be
no ground to infer that his statement leading to discovery of article was not
voluntary.171 Involuntary confession that leads to recovery of incriminating material
and is caused by inducement, pressure and coercion, there is violation of Article 20(3)
of Constitution.172

(v) The Discovery must be Result of Information which was Deposed by Accused

The discovery of the fact is essential for application of this section. The
information and recovery must be as reason and result. If any part of information does
not satisfy this assessment, it must be omitted.173 It is an exception to general, so it
must be construed strictly. A person must be accused as well as in police custody for

168
AIR 1960 SC 1125
169
1980, Cr LJ 906
170
1993, Cr LJ 551 [ ALL]
171
M.G. Thakur v. State of Gujrat, 1993, Cr LJ 730 [Guj]
172
Ashish Jain v. Maksand Singh, 2019(1) RCR (Criminal) 338 (SC)
173
Sukham v. Emperor, AIR 929 Lah 283

71
 174
application of this section. In Kamakshi it was laid down that it is essential that an
individual must have been accused of and in police custody for the offence confessed.
The informant himself should not personally discover the property, but the discovery
must be result of the information given by the informant. Where article is first
produced and then confessional statement is made, the statement does not lead to
discovery and is not admissible.175 An axe was produced by accused who stated that it
was used in commission of crime, is not admissible under this section. The confession
was made by an accused before investigating officer on which the dead body was
recovered on his declaration which is acceptable under section 27.176 The discovery of
fact would be relevant in case the police had not earlier educated about it from other
bases and the information of the police can solely be attributed to the data received
from the suspect.

Accused had killed the victim by throwing into a well after committing rape
and he was convicted on his disclosure statement on which article and skeleton was
recovered. it leads to believe that information and statement are reliable.177 A blood
stained knife was recovered before the arrest, is not admissible under this provision.
„Sua‟ was recovered on instance of accused but medical evidence revealed that
injuries found on body of deceased person could not be caused by this weapon, hence
accused were acquitted.178 Stolen article was recovered on information uttered by
suspect and neither any evidence nor any explanation given by accused person on
recovery of stolen article were found satisfactory and it was considered relevant.179

(vi) Only Definite and Stringent Fact Related to Information

This section is an exception that there is admissibility of confession before

police officer. The necessary condition to carry this provision into operations that
detection of element must be result of information given by suspect in custody and the
material connected distinctly to the datum thereby exposed may be evidenced.
Distinctly means straight, „firmly „and unambiguously.180 The said word confines the

174
Kamakshi Naidu v. R, 29, Cr LJ 790
175
Nuri Santa v. R, AIR 1945 P161
176
Swamy Shraddananda v. State of Karnataka, AIR 2007 SC 2531
177
G.V. Rao v. State of A.P., AIR 2003 SCC 438
178
Ashish Jain v. Maksand Singh, 2019(1) RCR (Criminal) 338 (SC)
179
Surinder Singh v. State of Uttarakhand, 2019(1) RCR (Criminal) 263 (SC)
180
Meghaji Godadji Thakore v. State of Gujrat, 1993 Cr LJ 730 [ GUJ]

72
information which may be proved within certain strict limits and it means „clearly‟ or
„positively‟. If an accused made a compound statement which should be divided by
the court into its component part and a statement which affected the recovery of the
particular fact, is admitted.181 The said provision is basically founded on opinion that
if a fact is really exposed due to result of information assumed, some assurance
afforded thereby that the information which can be carefully taken to be given in
evidence. The fact exposed holds the place from which the article is twisted and the
information of suspect as to this, and the material assumed must narrate definitely to
this fact.182 Here, fact include any fact professed by the wits and any intellectual
condition of which any individual is conscious.183

The words “relates distinctly to the fact” are significant and the strict view was
propounded by Lord Williams, J., of Calcutta High Court in a case of Legal
Remembrancer v. Bhajju Mali184 whereas the extreme opinion was accepted by the
Madras High Court in Athappa Goundan185, wherein the whole statement was thought
to be admissible. The Privy Council upheld the extreme view of Calcutta High Court
in Kottaya’s186 case and set rest the controversy. The assessment of the Privy Council
was recognized by the Apex Court in Kishan Mithanlal Sharma v. State of Bombay187
and held that “where the information consists of a statement made by the accused to
the police officer and the police officer is obviously precluded from proving the
information or part thereof unless it comes in four corner of this section and the court
have to considerer whether it relates distinctly to the effect thereby discovered and
allow the proof thereof only if the condition was satisfied”.188 In Uday Bhan v. State
of U. P189 the Apex Court had clearly decided the limitation of admissible
information and described in these words that “a discovery of fact includes the object
found, the place from which it is produced and the knowledge of the accused as to its
existence”
181
Dharma v. State, I.L.R. (1966) 25 Raj 989
182
Sir John Woodroffe and Amir Ali‟s, Law of Evidence, 965, (The Law Book Company [P] Ltd,
Allahabad, 5 th edn., 1989
183
Pulukuri Kottaya v. Emperor, AIR 1947 PC67
184
57 Calcutta 1069
185
AIR 1937 Madras 618, [ FB]
186
AI. 1947, PC 67,
187
1955 Cr LJ 196 (208) [SC]
188
M. Monir, The Law of Evidence,127 (Universal Publication Co. Pvt. Ltd. New Delhi ,8 th edn.,
2011)
189
1952 [1] SCJ 545

73
 A part of declaration in which the accused described how he disposed of the
material object is admissible as per the law in India that is contrary to the modern
English rule and the rule prevalent in several jurisdiction of America. In Mohd
Inayatullah v. State of Maharashtra,190 it was held that discovery must be from a
place of concealment and a public place like railway platform of which any one could
know. In a murder case, some sticks were recovered but no mark of blood was found
on them and the said unconnected recovery was held to not constitute any evidence.191
There is nothing to show connection between recovery and particular information is
not a reliable evidence.192

3.4.1.4 The Extent of Admissibility under the Provision

The exact nature of the recovered fact decides the extent of admissibility of
information which such material is essential to narrate. In Chinnaswamy193 case, it
was held that the portion of the announcement which is clearly connected to the
detection permissible as entire, whether it amounts to confession or not. Every case is
decided upon the circumstances of each cases that it is product of information
assumed by the suspect.194 But some guideline was laid down in Uma Krishna195
which must be applied in the case of any recovery –

(i) The police generally persuaded the complainant to state the in the First
Information Report an article which was not actually stolen and it is used by
the police to show that it is improved in the result of the data given by suspect

(ii) Property similar to stolen property might have been received by the police
from the complainant or someone and it is used for creating fabricating the
recoveries.

(iii) Some stolen property might have been concealed by the police which is used
in creating a recovery from other accused.

(iv) Some property is recovered from third person that is used to show a recovery
from an accused.

190
AIR 1976 SC 461
191
N.R. Datavale v. State, 1997, Cr LJ 1788 [Bombay]
192
Krishan Das v. State of H.P. 2003 Cr LJ 2663 [HP]
193
Chinnaswamy v. State of A.P., 1963, L.T.111; A.W.R. 56
194
Chunilal v. Union of India, AIR 1964 H.P.27
195
Uma Krishan v. State of Ajmer, 1956 Cr LJ 1134

74
 Only that part of speech is permissible in this section which is proximate
reason of the recovery but as it is connected remotely, it does not come in the preview
of this section which must be excluded.196 A suspect in the police safekeeping makes
a statement to the police officials and says-„I put a bomb in R‟s office; I will show it
to you „and a bomb is recovered in the consequence of the statement of accused, it is
admissible in evidence under this section.197

3.4.1.5 The Joint Statement Given by Accused Persons

Where one of several accused persons makes a statement on which any fact or
article is discovered and other persons make similar statement, it should not be
considered as the recovery from the information of them all. There is no concept of
„joint recovery‟ as the more than one person‟s give information on which discovery
has been made. The recovery made on the information first given, is admissible and
where it is not certain that who made it first, is not admissible.198 There is no certainty
or exactness who gave the statement first which led to discovery cannot be used
against any of the accused. A recovered fact cannot be rediscovered and a
simultaneous and joint statement by more than one accused as well as a simultaneous
and joint discovery of a fact cannot be evidenced make it admissible under this
section.199 A joint statement of a number of persons is not treated as information
given by any particular accused out of the several accused.200 It was held in Ram
Singh v. Emperor201, that the information given by first accused is taken in evidence,
if it results into the unearthing of fact.

The Apex Court held in Lachman Singh v. State202 that the several accused
give information of the concealment of incriminating article to the police in which the
first given information is admissible under section 27 but if the prosecution fails to
satisfy the court as to which of the accused gave the information first and then it is not
admissible under section 27. When an object is improved in consequence of an
announcement assumed by one of the suspects, the subsequent retrieval on the data

196
Sukhan v. Emperor, 1929, 10 Lahore, 283
197
Mohmad Inayalullah v. State of Maharashtra, AIR 1976 SC 843
198
Thampi Sebastian v. State of Kerala, (1988) 2 Cr LJ
199
Hemant Ramji v, State, (1975] 16 Gujrat L.R.782
200
Puttu v. Emperor, AIR 1945 Oudh 235, Dhakeswari v. Commissioner of Income Tax, AIR 1955 SC
154, Babu v. State of Allahabad, 1972, Cr LJ 815 [ALL [
201
AIR 1916 Lahore 433.
202
1952 SCJ 230

75
given by the other suspects does not come in ambit of section 27.203 It was decided in
Meghaji Godadji Thakore v. State of Gujarat,204 that the discovery cannot be basis of
a combined statement given by the suspect and it is not barred per se but it is a very
feeble evidence which can be relied. It was also observed in Navjot Sandhu case.205

“A joint disclosure statement is not per se admissible under Section 27 of the

Indian Evidence Act, 1872. However, when two persons in custody are interrogated
separately and simultaneously and both of them may furnish similar information
leading to the discovery of fact which was reduced into writing, such disclosure
statement by two or more persons in police custody do not go out of the preview of
Section 27 altogether”206

3.4.1.6 The Discovery of Fact Amounts to Confession or not

The word „confession‟ not only includes a complete confession of culpability
but also any implicating statement. Generally, an acknowledgement assumed by
suspect in the police safekeeping is excluded but any fact that has been improved on
the base of his declaration, would constitute a confession which is excluded in earlier
section.207 The statement will be admissible wholly, if fragment of the declaration
definitely relates to the detection and court cannot exercise a part of it because it is a
confessional nature.208
3.4.2. The Confessions Given After Removing the Inducement, Threat and
Promise, Becomes Relevant
Generally, a confession triggered by unlawful means is wholly excluded
under section 24 of Indian Evidence Act.209 But if such acknowledgement is made
after removal of the dint of incentive, menace and potential in the view of court, it is
related and admissible under this section this act.
3.4.2.1 Principle and Scope of this Section

A confession cannot be admitted as evidence, if it is instigated by inducement,

menace or promise. But if it is evidenced to the comprehensive satisfaction of the

203
M.A Hafeez v. State of A.P., AIR 1983 SC 367
204
1993, Cr LJ 730 [Gujrat]
205
State of Delhi v. Navjot Sandhu, 2005 Cr LJ 3950
206
Kishore Bhadke v. State of Maharashtra, 2017(1) RCR (Cri) 606 (SC)
207
C.D. Field‟s, Law on Admissions and Confessions.790, (Delhi Law House, Delhi 3rd edn.,2017)
208
Sir John Woodroffe and Amir Ali‟s, Law of Evidence, 984, (The Law Book Company [P] Ltd.
Allahabad, 18 th edn., 1989)
209
(Act 1 of 1872)

76
judge that the impact of all these factors has been wholly detached, a confession
subsequently made becomes admissible. The weight of proof that the original
confessions have been fully removed on the person who wants to have the second
confession declared relevant. The confession under this section should be voluntary
and it must be a result of reflection and free determination, unaffected and uninduced.
In Stephen‟s Digest210, it was observed – “A confession is deemed to be a voluntarily,
if it is shown to have been made after removal of the impression produced by any
inducement, threat, or promise which would otherwise render it involuntarily.”

3.4.2.2 The Provision is an Exception to Section 24

This section is an exception of section 24; hence it was placed just after
section 24. Mahmood J. Observed in Babu Lal211 case that section 28 is a
qualification of section 24 and it should have been placed after section 24. Before
deciding the acceptability of confession under this section, the court must be properly
and adequately satisfied that there is no impression of influence which was fully
removed. Whether the impact of these factors has been detached or not, is a query for
the Court to consider. The satisfaction of the court is essential that the improper
inducement was totally removed to make evidence admissible.

3.4.2.3 The Impression of Inducement, etc. must be Fully and Wholly Removed

„Fully‟ means thoroughly, completely, entirely. A confession is admissible

under this section, when the prosecution has proved that the impressions of
inducement are fully removed while making the confession. In Bhagirathi v. State of
M.P,212 it was detected that the term completely is very important in this provision
and it expresses that systematically, totally or fully and there does not remain any
dash of the dint formed by suffering or terror. In the leading case in Shobha Param
Kochhi v. State,213 it was stated that the impression created in the mind of torture of
fear cannot be removed in the short interval between the beating given by the police
and the recording of confession, the court discarded the confession altogether. Where
it is presumed that the impact of these factors was not removed in spite of warning,

210
Stephen Digest, Law of Evidence in Criminal Cases, 31, (Cambridge Publication, London, England,
7 th edn., 1868)
211
Queen-Empress v. Babu Lal, 6 Allahabad 509
212
AIR 1959 MP17
213
1954 MP 125

77
 214
this section cannot be applied. Where the court is content that the encouragement
had actually terminated, the confession can be acknowledged.

3.4.2.4 The Rule of Relevancy

Mahmood J. observed in Queen-Empress v. Babu Lal215 by giving his

dissenting opinion that the section 28 of Indian Law of Evidence is a rule of
relevancy. The section 24 affirms that acknowledgement instigated by all these factors
is immaterial whereas section 28 makes it relevant when the impression of
inducement has been fully removed. Whether it is intended or not, it is a query of fact.
A confession is relevant and admissible when it has been given willingly, and made
after removing impression of all these factors which affect its voluntariness

3.4.3. The Confessions are Relevant even if, it was Caused by Promise of
Secrecy and Etc.

It is in public interest that criminals must be prosecuted in the criminal cases.

Where a suspect person is convinced to acknowledge by using tricks and then he
gives evidence against him which confession is nevertheless relevant. Wigmore in his
law of evidence, Article 823 observed that “a confession is not excluded because of
any breach of confidence or good faith which may thereby be involved. This has been
accepted from the beginning. When it is shown that confession was voluntarily made
and that it was true, it becomes relevant”.216

In Rengappa Hamamappa v. State, it was held that this section come in the
field already occupied by Section 24 to Section 28 of the Act. If, the conditions of the
law of the Evidence are not violated, a confession is admissible. If there is any
uncertainty on the reliability or willingness of the confession. The court may reject
the confession and not act upon it, even if it is acceptable in evidence.217

3.4.3.1 Scope of this Section

This Section states the relevancy and admissibility of confession when it is

recorded in given circumstances. A confession was received from any prisoner or
accused by promise, is admissible because it is essential in the public awareness and

214
Nazir v. Emperor AIR 1933 ALL 31
215
6 Allahabad, 509
216
SK Banerjee v. D Banerji AIR 1974 Cal. 61 (SB)
217
Dagdu vs. State of Maharashtra, AIR 1977 SC 1579

78
to convict the criminals and not negotiating with them. The accused made his
confession before his Boss who told him that he had already received information of
that incident and it was decided that the confession is acceptable under this Section.218
An accused made a confession under a deception, is held admissible. A confession
received by false pretences and fraud, is not voluntary and not admissible in evidence
and this would definitely see a safer principle.219

An accused was informed that his brother-in-law said that he was guilty and
then he made confession due to this deception which is admissible and covered by
220
Section 29. The accused has been eavesdropped while talking to his wife, or
muttering to himself or other confidential person will be permissible in evidence.221
A statement of prisoners was overheard by police official, is not legally admissible.222
223
In Sahoo v State of UP the Supreme Court expressed that a confessional
monologue; heard by another, is a straight part of evidence but it can be used only
after corroboration. A prisoner was overheard while confessing to co-prisoner, it was
decided that the confession was permissible.224
Drunk accused made a confession is permissible in evidence. An accused
took liquor given by the police officer in the hope of his saying something and he
suffered a confessional statement which was not held inadmissible in evidence.225
Justice Coleridge stated in R. v. Spilsbury 226 “am of opinion that a statement made by
a prisoner while he was drunk is not therefore inadmissible, it must either be obtained
by hope or fear. This matter of observation for me, upon the weight that ought to
attach to his statement when is considered by the jury.” A confession should be
adjudicated with orientation to the time of its exclamation, and the intoxication of
accused is not a base of exclusion the confession.227 A person made a confession in
228
his sleep which has been heard, it seems not to be legal evidence against him. .
Confession in sleep was excluded in America as well as English law but soliloquy at

218
R.V. Md Baksh, 8 Bom LR 507/4 Cr LJ 49
219
Taylor, Taylor’s Evidence, 621 (Sweet & Maxwell, Ltd.12 th edn.1931)
220
Queen v. Ramchuran, 20 W R Cri 33
221
Sarkar, Law of Evidence, 824, (Lexis Nexis, Gurgaon Haryana, 18th edn., 2014)
222
R v. Sagina, 7 WR Cr 56
223
AIR 1966, SC 40
224
R.V. Boughton 70 JP 508, also Rattan Lal & Dhiraj Lal, The Law of Evidence, 537, (Lexis Nexis,
Gurgaon, 23 rd edn., 2014)
225
Rattan Lal & Dhiraj Lal, Law of Evidence, 537, (Lexis Nexis, Gurgaon, HR 23rd edn., 2014)
226
7 C & P 187
227
CD Field‟s, Law on admissions and confession, 832, (Delhi Law House Delhi, 3rd edn., 2017)
228
Ibid

79
night while on a couch, admitted even though made while asleep. Acts of persons of
unsound mind are not in general binding but it is subjected to some exception.
Any truth or statement elicited in answer to question put to the accused, does
not become inadmissible but such interrogator must not be police because under
section 25, 26 no confession made to the police is admissible. Any question put by
the magistrate without giving warning is not inadmissible. It does not infringe the
fundamental right mentioned in article 20(3) construction which state that “no one has
been compelled to be a witness against himself”. A person was questioned by a
person is authority which elicited a confession and it was held permissible in
evidence.

3.4.3.2 Want of Warning and the Procedure of Section 164 Cr.P.C.

The section 164 (2) of the Code229 provides that “the Magistrate shall, before
recording any confession made to him during the course of an investigation, explain
to the person making it that he is not bound to make a confession and that if he does
so it may be used as evidence against him”.230 but Section 29 of Indian Law of
Evidence231 says that “a confession does not become irrelevant because the accused
was not warned that he was not bound to make it”.

On this conflict the Bombay High Court has held in Emperor v. Ramnath
232
Mahavir that the Cr.P.C. is a special enactment and it cannot override the general
provisions of this section but where these circumstances bring the section into
operation. A voluntary confession is evidence even if one was not warned that he is
not bound to make it. Justice Gagendragadkar in Rangappa Hamumappa v. State 233
held that the permissibility of proof was decided by the Evidence Act and „these rule
alone‟ the question of admissibility must be determined and said that the mere fact
that the process given by section 164(2), Cr.P.C., in regard to giving a warning to the
suspect has not be obeyed with in soundtrack the confession, would not by itself
necessarily make the said confession inadmissible.

229
Code of Criminal Procedure, 1973 (Act 2 of 1973)
230
Ibid
231
Indian Evidence ACT, 1872, (Act1 of 1872)
232
AIR 1926 Bom 151
233
AIR 1954 Bom 385

80
 234
The Supreme Court decided in Dagdu v. State of Maharashtra and
expressed that the non-application of Section 164(3) will not make the confession
unacceptable in evidence. The evidence act will decide the Relevancy and
admissibility of evidence. The Supreme Court held that the provision of this Act
decides the relevancy and admissibility of oral and documentary evidence whereas
Criminal Procedure describes the practice of criminal cases of the Legislature wanted
the strict adherence to the provisions under Section 164 Cr.P.C., it would have made a
suitable amendment in Section 29 of this Act.235 It was decided that Magistrate
recorded the statement of accused without warning which is described under Section
164 and 463 Cr.P.C. and it is relevant under per Section 29, it is otherwise relevant.236

3.5. Irrelevancy of Confessions

Confession caused by inducement, threat and promise; confession made to

police and confession made to police in police safekeeping are not relevant and not
acceptable in law. Now we discuss one by one.

3.5.1 A Confession Caused by Inducement, Threat, Promise are not Relevant

The Indian Evidence Act makes a confession irrelevant under Section 24

which says that “a confessional statement of an accused person is immaterial in a
criminal proceeding, if the making of 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.”

3.5.1.1 Principle

This Section is based on the principle that essential requirement for confession
is that it must be voluntarily and result of free will which must be encouraged by the
all-encompassing of his own conscience. It must be true. This section protects the
interest of accused person on the ground of public policy which is needed for
appropriate administration of justice. It is unsafe to permit a man to be sentenced on

234
AIR 1977 SC 1579
235
State v. Mitu, 1977 Cr.L.J. 1018, also see Emperor v. Ram Nath, AIR 1926, Bom 151
236
State of Mizoram v. Lalrinauma, 2000, Cr.L. J, 2358 (Gua) are)

81
the confession which is not true and willing and it is against the fair play.237 Lord
238
Summer in Ibrahim v. R. observed that it is a rule of policy that the statement is
encouraged by expectation held out and terror caused by any authority which must be
excluded.

3.5.1.2 A Confession Result of Enticement, Threat or Promises

A confession would be inadmissible in evidence if it seems to be the effect of

some “inducement, threat or promise.” “Inducement” means incentive or persuasion
to do a thing. For the determination of Section 24 of Indian Law of Evidence, words
used by a person in authority, must serve as an incentive or persuasion to the accused
person to make a confession. For example, if you make a confession, that will go a
great way in your favour in the matter of awarding punishment to you, are surely
capable of offering an incentive to confession.

A threat is a declaration of the orator intended to execute of his commands

are not complied with. It means the speaker is determined to punish the person
against whom the threat is administered, if the speaker‟s behests are not carried out.
If you will not confess, I will torture you, is the exact example of a threat. It is not
only harsh or authoritative but also frightening. A promise means an undertaking to
do or not to do something. There is not modification in the lexicon of a stimulus or
promise but there is difference of impressions. In promise, there is express
understanding whereas in inducement, there is no express undertaking. In Kunja
Subuddhi v. King Empero 239, it was expressed that every case must be judged in its
circumstances with reference to inducement, promise or threat.

3.5.1.3 Having Reference to the Charge

Suspect is charged in criminal proceeding who suffers a confession due to

these factors with position to the charged offence but such confession relates to
collateral matter unconnected with charge, is not excluded from evidence. If they
relate to a different offence other than the one in question, or they relate to some
extraneous matter, then the “inducement, threat or promise” are be considered
objectionable for the determinations of section 24 of the Indian Law of Evidence.

237
Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217
238
AIR 1914 PC 599
239
1928, Pat 289

82
3.5.1.4 Given to Person in Authority by an Accused Person

A confessional statement that is result of these factors will not be permissible

and it has been proceeded from a person who has a command. It is very difficult to
decide whether an individual is in authority or not because it is not defined in
Evidence Act. Chief Justice Sergeant laid down in Reg. v Navrogi Dedabhi240 that
“the test would seem to be, had the person any authority to interfere with matter and
any concern or interest in it would appear to be sufficient to give him that authority
and the expression „ a person in authority‟ the test is to see whether the person has any
power to interfere in the matter or has any concern or interest in the matter. This is a
comprehensive construction that can be put on the term and by this the wholesome
provision contained in this section gains rather than loses in its good operation”.

Anyone connected with the investigation of any case is considered that he is

authority in this provision.241 Thus, in Mist Viran Wali v. State 242
a trainee nurse
made the confession to the Chief Surgeon who has power confirm that nurse and court
held that the acknowledgement is given to a commanding person within sense of
Section 24 of Indian law of evidence which was omitted. Two accused persons
suffered a confessional statement who were in jail custody but later on one of them,
said that he suffered a confession statement involving himself due to reason of
menace assumed by the first suspect. The court decided that the confession would be
acceptable in trial and first accused cannot be termed as an authority.243

The word „accused‟ in Section 24 to 26 includes any statement by a person

who is not accused at the time of giving the declaration, but afterwards in criminal
proceeding were in scene is relevant.244 Accused person under this section means a
person who is not only an accused while making a confession but also to one who
becomes an accused subsequently. It is not necessary that one should be a suspect at
the time when he makes the confession but at the time when the confession is being
245
considered by the court, and when he is definitely an accused person. An

240
1872, 9BHC 358
241
Mst Bhagan v. State, AIR 1955 Pepsu, 33
242
AIR 1961, J&K, Roshan Lal v. Union of India, AIR 1955 HBI
243
Aheibam Neingal v. State, AIR 1967, Manipur 111
244
Abdul Ghani v. Emperor, AIR 1931 Lah 763
245
Viran Wali v. State, AIR 1961, J & K 11 See also Sir Johan Wood Forte & Amis Ali‟s, Law of
Evidence, 879, (The Law Book Company (P) Ltd., Allahabad, 15 th edn., 1989)

83
individual is a suspect person for the determinations of section 24 even if there is no
proper complaint or charge. Suspect person includes a person who subsequently
becomes accused.

3.4.1.5 Appear to Court

The word „appears‟ does not want positive proof of inopportune stimulus to
validate the denial of the confession but requires a slighter degree of possibility.
There is no need for direct proof but it appears to judge that it was produced by all
these factors which can be excluded.246 It imports judicial discretion. Justice Subha
247
Rao in Pyare Lal Bhargava v. State of Rajasthan has pointed out that “the
appropriate meaning of the word „appears‟ is seems. It imports a lesser degree of
probability than proof. Section 3 of the Evidence Act says: „A fact is said to be
proved when after considering the matters before it, the court either believes it to exist
or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition than it exists”.
248
Justice Mukherjee exactly observed in Emperor v. Panchkari Datt that “it
is indeed very difficult to lay down a hard and fast rule as to the sufficiency of the
circumstances which would make the confession irrelevant under the provisions of
this section. A study of cases, bearing upon the question, which are too numerous to
mention, would show that anything ranging between the barest suspicion on the one
hand and absolute certainty on the other has been held to be sufficient to satisfy the
requirement of the section”.This section imports a judicial discretion and it is very
difficult to lay down any fixed principle for the exercise of such discretion and it
might be drilled upon the condition and surroundings of each particular case.
3.4.1.6 Temporal Nature
This inducement must be of a temporal kind and it is not spiritual or religious
inducement. Confession obtained from accused by moral or spiritual inducement is
admissible under this section. It is not necessary that the inducement must essentially
be made straight and any authority but it may be in other way which similarly
operational even if, all these factors is connected to the person through one more
person.

246
Ragghav v. R AIR 1925 All 627
247
AIR 1963 SC 1094, 1096
248
AIR 1925 Cal 587 Available at: https:Indiankanoon.org.doc. (Visited on 1st September, 2018)

84
3.4.1.7 Section 25 of Indian Evidence Act and Section 162 of Cr.P.C.

The Section 25 of Law of Evidence and Section 162 of Criminal Procedure

have been passed to save the interest of suspect person against the unlawful and
illegal tactics. The object for enacting Section 25 and 162 Cr.P.C. is similar and
barred from being admitted in evidence. “But it does not affect the Section 27 of
Indian Law of Evidence. The Section 162 Cr.P.C. forbid the use of any statement
made by any person to police officer in the course of investigation for any purpose at
any inquiry or trial in respect of officer under investigation save as mentioned in
proviso and case falling under sub-Section (2), it is specifically provided that nothing
in it, shall be deemed to effect Section 27 of Law of Evidence”.

The Section 62 and Section 25 of Evidence Act should be taken together while
admitting any statement except a statement result to discovery of effect is admissible.
In this way, Section 25 protects accused in respect of the confession by him to police
officer whereas Section 62 protects accused if he made any statement during
investigation.249

3.4.1.8 Statement Documented under Section 161 and 163 of Criminal Procedure

A witness familiar through the fact of case can be examined by a law

enforcement agency‟s officer making investigation and reduced them to writing if he
wants to do so.250 Such person cannot be beaten and confined for obtaining a
statement.251 The Section 162 confirms the power to law enforcement agency to
scrutinize the accused also and Article 20 (3) of Constitution of India says that “no
person accused of any offence shall be compelled to be a witness against himself”.
Interrelation of both Section have been examined in the case of Nandini Satpathy v.
P.L. Dani252 and decided that both sections cover the same area. Accused cannot be
enforced to answer all the questions but answer of question by person must be true
and if a person gives a false answer, he is liable under Section 182 of Indian Penal
Code.253 Under Sub-Section (3) of 161 Cr.P.C. confirms that officer has discretionary
power to record or not.

249
Parvati Nanda Kishore Taksalkas v. State of Maharashtra 2019(1) RCR (Ori) 841 (Bombay)
250
Section 161, Code of Criminal Procedure, 1973 (Act 2 of 1974)
251
State of A.P. v. Venugopal, AIR 1964 SC 575
252
1978, Cr LJ 968 SC
253
B. Ramaiah v. State of A.P., AIR 1960 AP 160

85
 Further, it was decided that “section 163 Cr.P.C. prohibits a law enforcement
agency‟s officer from making inducement, threat or promise as it is mentioned in
Section 24 of the Evidence Act‟.254 The statement documented by the IO under
Section 161 Cr.P.C. cannot be used as substantial evidence before the court.

3.5.2 Confession Given to Police Officer is not Relevant

“The section 25 of Indian Evidence Act, 1872 says that no confession made
to a police officer shall be proved as against a person accused of any offence.” A
confessional statement given to law enforcement agency is prohibited but Section 27
of Act is not operative. The principle for not acknowledging confession given to a
law enforcement agency is too same as that for the police torture and the danger of
false confession. The power of the police is generally abused for obtaining
confessions.

In Queen Emperors v. Babulal255 in Justice Mehmood observed by giving his

dissenting opinion – “The rule contained in section 25, 26, 27 of the Evidence Act
were not originally treated in British India as strictly speaking, rule of evidence, but
rather as rules governing the action of police officer, and as matter of criminal
procedure. The legislature had in view the malpractices of police officer in extorting
confessions from accused person in order to gain credit by securing conviction, and
those malpractices went to the length of positive torture, the legislature, in laying
downs such rules, regarded the evidence of police officers as untrustworthy, and the
object of the rules was to put a stop to the extortion of confession during the trial of
accused person”.

The sections 25 and 26 of Indian Law of Evidence carry out a comprehensive

restriction in the acceptability of confessional declaration which was given to law
enforcement agency or in the custody of police.256 An accused made any
incriminating statement to law enforcement agency‟s officer or in police safekeeping
without any recovery in consequences of his declaration is not acceptable in
evidence.257 In the first report of the Law Commissioners, it was observed that “the
police in the province of Bengal are armed with very extensive powers. They are

254
Atma Ram, AIR 1966 SC 1736
255
1884, 6 All 509
256
Dhanti Ram Reang v. State of Tripura, 2010, Cr LJ 4499
257
N. Natarajan v. State of T.N, 1996, Cr LJ 1007

86
prohibited from inquiring into cases of a petty nature but complaints in cases of the
more serious offences are usually laid before the police „daroga‟, who is authorized to
examine the complainant, to issue process of arrest, to summon witnesses, to examine
the accused and to forward 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
either course. All other provisions for avoiding any types of forces, or abuse, for
obtaining confession or acquiring information. But we are informed, and his
information is corroborated by the evidence, we have examined, that in spite of this
qualification as to the character of the confession, confession is frequently extorted or
fabricated. We are persuaded that any provisions to correct the exercise of this power
by the police will be futile and we accordingly purpose to remedy the evil as far as
possible by the adoption of a rule prohibiting any examination whatever of any
accused party by the police, the result of which is to constitute a written document”.

The Apex Court also observed in the State of UP v. Deoman Upadhyay 258 that
it was not enacted that there is presumption that the statement is false, but taking
respect to the tainted basis of the evidence and that section 25 & 26 are clearly
planned to hit at a malicious and to protect against the risk of getting in evidence
proof from soiled source about declarations given by suspect of offence. In Santosh
259
v. R Case, the Calcutta High Court in which exposes some of malpractices of the
police officer which had come to light in connection with that case. Therefore, the
principle for declaring confession given to law enforcement agency inadmissible is to
evade the risk of acknowledging untrue confessional statements and to save accused
from torture and harassment by the police officer.

3.5.2.1 History Contained in this Rule

This section is not originally contained in the rule of evidence but their rules
are to govern the action of police officers. The extortion of confession by torture
continued in India which acted in the mind of legislature that provided two special
section (330 and 331) in framing the Indian Penal Code in year 1860. These sections
are provided in IPC to stop such malpractices.

258
AIR 1960 SC 1125
259
9 Cr LJ 663

87
 Therefore, the Criminal Procedure Code of 1860 was enacted in which section
150 describes that the information connected definitely to the fact exposed in
consequences of it, it might be received in trial, even though it was given to law
enforcement agency or in the law enforcement agency safekeeping. Thereafter said
section was amended in year 1869 which prohibited the admission of all confessions
made by suspect to law enforcement agency‟s officer whether it led to discovery or
260
not. Later on, the Indian Law of Evidence came into the force and as per section
25 and 26, no confession given by suspect to law enforcement agency or in their
safekeeping of police, are admissible. It was decided in Dhananjay Chatterjee v.
State of West Bengal261 that all these circumstances of these sections are constant with
the supposition of the culpability of the suspect and fully uneven with blamelessness
of suspect.

3.5.2.2 Scope and Object of the Provision

This section is enacted to ensure the impartial trial and no one is forced to
utter material which is contrary to his own and secures the basic spirit of
constitutionalism. The suspect of the offence is ensured from torture and inhuman
method. In Shiv Bahadur Singh v. State of Vindhya Pradesh262, the Apex Court
decided that declaration given by suspect to law enforcement agency in the
progression of the investigation is inadmissible in evidence under this section and
Cr.P.C. The declaration given by suspect to law enforcement agency may also be
lined by the section 25 of the Indian Law of Evidence.263 However, it is clear that
only confessional part is excluded from proof of the guilt and not the entire report. It
was further held that any part of statement which relates the motive and the occasion
for the offence, the existence of sure spectators or gives material about proofs which
are acceptable under Section 27, Evidence Act, will be relevant evidence in the
case.264

This section was enacted to protect the human right and to save an accused
from inhuman torture of police officer who caused it for obtaining confessional

260
Indian Evidence ACT, 1872 (Act1 of 1872)
261
1994(1) S.C.J. 132 at p 147
262
AIR 1954 SC 322
263
Ibrahim Hessen v State, AIR 1969 Goa 68 at page 72
264
CD Field‟s, Law on admissions and confessions, 556, (Delhi Law House, Delhi, 3rd edn., 2017);
Kartar Singh v. State AIR 1952

88
statements from accused. A confession is generally obtained from accused by police
officer by means of any undue influence. The object of the legislature in enacting the
section 25 and 26 of Indian Law of Evidence was to deter and avoid the police officer
for extorting confessions and by rendering such confession totally inadmissible in
proof except, it was made in instant existence of the Judge. The police officer is
considered untrustworthy and object is to stop this malpractice.

3.5.2.3 Police Officer

There is no explanation of the word police officers in Section 25. According

265
to the Police Act (1861) all those persons who are registered under this act are
police officers and it includes all inferior and superior officers of law enforcement
agency. The law enforcement agency‟s officer in section 25 is a terminology that
includes member police force.266 In re Zahirabi 267
, it was decided that the police
officer under Section 25, includes the smallest rank of the regular a police constable.
All ranks of the police come under the expression „police officer‟ in Cr.P.C. also. The
expression „police officer‟ must be given a wider sense and it should not be construed
in a narrow sense. The authority of examination found a straight connection with the
embargo of this section and when such power is conferred, he is police officer within
sense of the provision.268 It not only comprises a person who has been appointed
under the Police Act but also all those people who are discharging the similar
authorities as that of a police officer of a police station is respect of offences.269

Therefore, in short, the expression should be construed liberally and the

officers of other departments may be included if they possess all or substantially all
the powers of a police officer which empowered him to extort a confession from the
suspect but it must be decided in light of circumstances of each case. Officer of
Department of Revenue Intelligence recorded a confession of accused who was vested
with power of police officer under Section 53,270 are admissible because he is not
police officer as is stated in Section 25 of Indian Law of Evidence.

265
The Police Act, 1861 (Vth Act of 1861)
266
R. v. Pitambars (1876) 2 Bom 61
267
AIR 1966, Mysore 199
268
Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828
269
Laxman v. State, AIR 1965 B 195
270
The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)

89
3.5.2.4 Made to Police Officer

For this section, a declaration or announcement must be given to a police

officer and the connection between the maker of statement and the law enforcement
agency is necessary. The communication is also essential which may be direct or
indirect. An accused made a statement in presence of all persons and it will not cease
to be an announcement to law enforcement agency. An accused wrote a signed letter
addressing Sub Inspector stating that he murdered his wife which found near dead
body which was held that the confession was not given to law enforcement agency
and it is acceptable.271 A suspect gave a letter to the police officer in which he stated
all circumstances in which his wife committed suicide is not acceptable in trial in the
light of section 25 of the Indian Evidence Act.272 If no recovery was affected in the
consequence of disclosure statement of accused in the custody, section 25 of Indian
Law of Evidence will apply and it cannot be relevant.273
In Punja Mawa v. State of Gujrat274, it was expressed that some
communication is essential for the purposes of viewing that the declaration was given
275
to a law enforcement agency. Further it was held in Emperor v. Shankar, that the
accused made a statement before a person in the attendance of guard who is labelled
by court as a law enforcement agency‟s officer but without any weight or questing by
the guard to the suspect. It was held that confession is admissible and section is not
applicable. A law enforcement agency overheard the suspect‟s confession, through
given in separate room in unawareness of the policeman‟s neighbourhood and
276
influenced by it which was declared to be lawfully acceptable where the accused
was mumbling to himself or uttering to his spouse or to anyone something is sureness
which was overheard by police officer, it is admissible in evidence.277
Accused made a confessional announcement to a law enforcement agency‟s
officer has not led to any discovery under section 27, such confessional statement
being hit by section 25 of Indian law of evidence is prohibited in evidence.278 This
section does not overrule a confession given in the hearing of a law enforcement
agency but, it applies to confession given to a law enforcement agency‟s officer
271
Sita Ram v. State, AIR 1966 SC 1966
272
Mohan Singh Panwar v. State of Uttaranchal 2007, Cr. L.J 2069.
273
Bhajan Kaur @ Harbhajan Kaur v. State of Punjab, 2018(1) RCR (Criminal), 879
274
AIR 1965 Gujrat 5
275
R.v. Saglona, 7 WR 56(Cr.)
276
AIR 1926 All 318, Available at: https://IndianKanoon.org.doc (Visited on 2 September 2018)
277
Sahoo v. State of UP, AIR 1966 SC 40
278
Mohd. S. Ansari v. State of UP, 2009 Cr L J 12132

90
only.279 The officer of Narcotics Bureau are not the police officer in NDPS Act and
confession documented by such officer are permissible in evidence.280
3.5.2.5 Admission for other Purpose

Confession under 25 of Indian Law of Evidence is not inadmissible for all

purposes. So, the confession may be used for the purpose of arriving at a conclusion.
It can be used by the court to assess the gravity of offence which was committed by
accused.

3.5.2.6 One must be charged with Fault, Crime or Offence

“A person accused of any offence” has the same meaning which was discussed
earlier in Section 27. The person suspects of a crime in Section 25 means to a revelry
to the trial before the court and against whom the confession is sought to be used. A
person becomes accused of an offence both when other accused him or when he
accuses himself by the confession. The term „offence‟ used in this section has to be
281
understood in its meaning under Section 3(38) which says that the word offence
does not merely refer to the offence laid down in the IPC but includes all offences
declared by law in power for period being.282

3.5.2.7 Confessional FIR

There is difference between statements and confessions and those which

statement are acceptable except they are barred by section 162 Cr.P.C whereas
confessional statement are totally inadmissible when it given to law enforcement
agency and in their custody. A confessional FIR cannot be used against the accused
himself or against his co-accused who he implicated it.283 Accused made a
confessional FIR is inadmissible under 25 unless some recovery in pursuance to the
statement is made and only that part is admissible.284

In State of Gujrat v. Mohamad Serif Umar Goyal Muslim285, it was held that a
First Information Report was registered on base of confessional announcement of
accused which was excluded in evidence against the suspect by asset of Section 25 of

279
Jagjit Singh Tanma Singh v. State of Kutch, AIR 1956 Kutch I
280
Naveed Masih v. State of Punjab, 2014 (1) RCR Criminal
281
The General Clause Act, 1897 (10 of 1897)
282
Section 40, IPC, 1862 (45 of 1860)
283
Ratan Lal & Dhiraj Lal, Law of Evidence,189(Lexis Nexis, Gurgaon Haryana, 25th edn., 2015)
284
Ram Beti v. State of UP, 1996, Cr LJ 1512 (All)
285
2008 Cr.L. J 644 (649) (Guj)

91
Indian Law of Evidence. But the statement in FIR can be taken to challenge or
validate his proof, if he offers himself as an observer at the trial.286 A non-
confessional is acceptable against the suspect under Section 21 of Indian law of
evidence. In Nisar Ali v. State of UP287, it was decided that “A First Information
Report not a substantive price of evidence and can only be used to corroborate the
statement of the maker under section 157, Evidence Act, or to contradict it under
section 145 of the Act. It cannot be used as evidence against the maker at the trial if
he himself becomes an accused nor to corroborate or contradict other witnesses”.

3.5.2.8 Analogous

Section 162 of the Criminal Procedure is similar to Section 25 of Indian law of

evidence which says that “no statement made by any person to a police officer in the
course of an investigation under this section, if taken down in writing be signed by the
person making it, nor shall such writing be used as evidence”.288

3.5.2.9 Confessional Statement under NDPS, POTA and TADA

The statement recorded by officer under Narcotic and Drugs Statute289 is

admissible in evidence. The authorized officer of customs, excise and other
departments are not considered police officer and statements given to them are not
excluded in evidence and the provision of Cr.P.C. cannot be attracted.290The
confession made to the authorized officer under this law is permissible in evidence
and that confession was not barred by Section 25 of the Indian law of evidence.291

According to Indian Law, custodial confessions are not admissible in the

Courts but there is some special law like TADA & POTA which makes the
admissibility of confessions in police custody. Though, now TADA and POTA are
both repealed. According to UK‟s law the confessions in police custody are
admissible as long as they are not coerced and according to USA‟s law, the evidence
in custody, custodial confession against procedure is inadmissible.

286
Bandlamuddi Atduth Ramaiah v. State of A.P., AIR 1997 SC 496
287
AIR 1967 SC 366
288
CD Field‟s, Law on admissions and confession, 542, (Delhi Law House Delhi, 3rd edn., 2017)
289
The Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985)
290
Mangal Singh Bhan Singh Rathod v. State of Gujrat, 1989 Cr LJ 460 (Guj)
291
Raj Kumar Karwal v. Union of India, AIR 1991 SC 45

92
3.5.2.10 Confession or Statement through the Scientific Tools

The scientific tools include as “Polygraph Test or lie detector or the Brain
Mapping and the Narcoanalysis test or the truth Serum Test”. The new scientific
tools are used for interrogation and for obtaining the statements and confession from
accused and to the fact finder for arriving at the logical significances. The Supreme
Court of India and Law Commission of India emphasized and recognized the need of
scientific tools of investigation and highlighted the importance in criminal justice
system. The narcoanalysis test is a state of unconsciousness in which he tells whatever
is there in his mind. He cannot speak lie which is presumed.292

(A) Narco-analysis Test or Truth Serum Test

Confession to law enforcement agency or in police safekeeping is rejected

under Section 25 and 26 of Indian Law of Evidence and it is a well-settled rule that
confession to law enforcement agency or in police safekeeping is untrustworthy.
However, these evidences may be considered in Section 45 of Indian Law of
Evidence as an opinion upon a point of science is relevant. All questions related to
admissibility of these evidence, were settled in Dinesh Dalmia v. State293 and it was
decided that these tests do not amount to testimonial compulsion and applying a
narcoanalysis test on a suspected does not interrupt Article 20(3) per se. Only
incriminating information and statement violate this provision. In this way, the test
helps in investigation and there is no ground of unconstitutionality.

The certain guidelines have been issued by the Union Government which are
followed. The written consent of the person and permission of the court are
compulsory and before obtaining consent, all procedures of test must be informed to
the person. All these clinics must be well connected and supervised by the “National
Human Rights Commission or State Human Rights Commission” and the presence of
Member or these Commissions is essential at the time of test.

(B) Polygraph Test

Polygraph Assessment is also recognized as a Lie Detector Examination or

Brain Mapping Assessment. It involves a person in which selected physiological

292
H.O Pricilla, “Polygraph and Narco Test in Indian Evidence Law – Through Case Law” 125 IJPAM
(2015), Available at: http://www.acadpuble.cu/hub/(Visited on June 13 2018)
293
Available at: http//indiankanoon.org.in (Visited on June 26, 2018)

93
activities are recorded. This test includes the recording of involuntary bodily
response such as blood pressure, respiration, palmar sweating and cardiovascular
activity, etc. This test is used to verify the statement of suspect witness and
complainant. It is also used for corroborating the finding of investigation agency.

The constitutional validity of this test was examined in State of Bombay v.

294
Kathi Kalu Oghad and held that the applying the Polygraph test with consent of
accused person is not violation of Article 20(3) of Indian Constitution. Thereafter, the
latest and famous case in Salvi v. State of Karnataka295 held that Polygraph test
should not be directed short of permission of the individual and if it is conducted
without his consent, it would be a violation.

4.5.3 Confession in Police Custody

The Section 26 of Indian law of evidence says that a confession given by a

suspect while he is in the police safekeeping is also inadmissible, except that he gives
it in instant presence of Magistrate. It is a settled view that an individual in police
custody is presumed to be under their influence and he may be tortured and harassed
to give a false confession but the presence of Magistrate is a safeguard against such
malpractice. The main object of legislature is to enact this section to stop the misuse
of the authority by the law enforcement agency. The immediate presence of
Magistrate secures the voluntary and free confession and stops the abuse of power by
police. It also creates an opportunity for a confessing person for making unrestrained
by any terror of the police. The prohibition of admissibility activates not only on
witnesses but also suspects. In Nandini Satpathy v. P.L. Dhani296, the Apex Court
observed that safekeeping interrogation are fundamentally forcible, discoveries
expression in Section 26, while this provision restrictions it to acknowledgement
which is a narrows perception than self-accusation.

This section not only includes confession given in law enforcement agency‟s
safekeeping but also in the attendance of law enforcement agency. In Danti Ram
Reang v. State of Tripura,297 it was decided that these two provisions set an absolute
bar in the acceptability of a confessional declaration made to a police officer. In this

294
AIR 1961 SC 575
295
AIR 2010 SC 1976
296
AIR 1978 SC 1025
297
2010 Cr LJ 4499

94
section the words “no confession has been used which means and included not merely
a confession of the offence then under inquiry but also of any other offence. Accused
made extra judicial confession while in the police custody which is barred by section
26 of Indian Law of Evidence and it cannot be admitted into evidence.298

3.5.3.1 Confession

A direct admission of an offence is a confession. The section 25 and 26 put a

total bar of permissibility of confession when it was made to law enforcement agency
or in their custody not in the attendance of magistrate. An accused stated that box
belonged to him when he was apprehended taking away a container at night which
was held admissible against him, in a trial for theft regarding the box.299 Suspect gave
a declaration to a Doctor in police custody that injuries on his person were caused by
the murdered person which amounts only to an admission of facts, though
incriminating and its admissibility is not barred under this section.300

(i) The Police Restraint

The confession given in police restraint is not admissible and the bar of
Section 26 will apply because the restraint of police shows and creates inducement,
threat and promise of any nature. Accused made an extra-judicial expression to a
doctor who was in police station for 3/4 days at the instance of police which was held
that it is inadmissible in evidence.301 Accused who was in police custody made
confession statement before custody officer, is not permissible in evidence. Accused
made confession in immediate presence of Magistrate of high security of CBI which
was considered involuntary confession and it cannot be basis of conviction.302

(ii) The Presence of Magistrates

For acceptability of the confession of accused, it is essential that it must be

given in the instant attendance of a Judge. A confession given to a Magistrate himself
confirms to the prerequisite of this provision, but if the confession is given to other
than Judges, the attendance of Judge is compulsory303. This section includes all the

298
Ram Singh v. Sonia and other, 2007 Cr LJ 1642 (SC)
299
Emperor v. Mohmed, ILR (1903) 5 Bom 363
300
Kanda Padayachi v. State of Tamil Nadu AIR 1972, SC 66
301
Mohamad Dwara Rawther Ismail v. State of Kerala 1982, Cr.L.J. 2012 (Ker)
302
Seeni Nainar Mohammed v. State, 2017(2) RCR (Cr.) 1048 (SC)
303
Sideshwar v. R. AIR 1934 All 351

95
 304
Magistrates. It was held in Panchanathan v. Emperor that “the expression
„Magistrate does not include the head of a village discharging magisterial function in
the Presidency or elsewhere, unless such headman is a magistrate exercising a power
of Magistrate under Cr.P.C.”
305
The Apex Court held in State of U.P. v. Singhara Singh that a statement
was recorded by unauthorized Second-Class Magistrate to write confession under
section 164 Cr.P.C. whose verbal evidence in respect of the confession is not
acceptable. A statement of accused was recorded who was under police pressure, is
not acceptable in evidence and the bar of section 26 will apply.306 It was stated that
“Where the police officer took the Magistrate with him while the police officer was
conducting the investigation, the evidence of the Magistrate as to what happened is
not admissible under section 26. It is unobjectionable, if a Magistrate carried out such
an investigation himself but for a Magistrate merely to accompany a police officer is
making the investigation does not render the evidence of what happened admissible
under the Evidence Act”.307 The mere standing by of a Magisterial Officer while the
declaration of suspect was written by police official, is not acceptable in trial.

3.5.3.2 Police Custody

The word „police custody‟ is the equivalent connotation in Section 26 and 27

of Indian Law of Evidence. The dictionary denotation of the expression „custody‟ is a
possession or safeguarding, position of being safeguarded or observed to avoid escape
limit of liberty, imprisonment, it will see, therefore, that the instant attendance of the
guardian is not essential. There must be double factors in custody that some restriction
is levied upon the freedom of the confessor and then this restriction must be levied by
the law enforcement agency308. The formal arrest is not required under section 26.
The custody includes that the suspect is present before the police and he is directed
not to move anywhere. There is some difference between the custody and under
arrest.

304
AIR 1929, Mad 487 also see Emperor v. Halasi AIR 1933 All 286
305
AIR 1964 SC 358
306
State v. Suram Singh, 1976 Cr LJ 96 (J&K)
307
Mst Gajrani v. R. AIR 1933 All 394
308
Pharho Sahiwal v. Emperor, AIR 1932 Sind 201

96
 309
It was held in Lay Maung v. Emperor , that the correct interpretation
includes the presence of suspect in the hands of a law enforcement agency, he is
310
considered in safekeeping within sense. It was held in Haroon v. Emperor that it
is not essential that there must be straight regulation on the movement of maker by the
law enforcement agency to consider the law enforcement agency‟s safekeeping within
sense of this section it may be indirect control.

A dead body and accused were guarded by a constable who was involved on
his duty and then suspect suffered a statement. It was laid down that any
acknowledgement given by the suspect was construed under observation of constable
which barred as confession made under „Police Custody‟.311 A person stated a
statement after going in police station which showed that he had committed the
offence and he was directed not to go anywhere after exposing of the information to
the law enforcement agency, he was considered to be in law enforcement agency‟s
safekeeping.312 It is of no importance whether suspected or accused person is in legal
custody or unlawful custody. An unlawful custody is a safekeeping for determination
of this section.

The policy of legislation appears to be that any statement in the nature of an

acknowledgement uttered by suspect while under custody and control of law
enforcement agency should be excluded from evidence. This is no doubt a
wholesome policy and this policy would be defeated if court were to hold that the
section will not apply when the capture by the police official would be illegal. The
disruption which this provision is proposed to deter ruins entirely the similar whether
the detention is lawful or unlawful. Therefore, the key test is that at the time when a
suspect gave other than judicial confession, he is permitted to move but he is observed
by the police for the purposes of safeguarding such a confession.

3.5.3.3 Difference Between Sections 25 and 26 of Indian Law of Evidence

The Section 25 says that acknowledgement given to any law enforcement

agency is not admissible and is absolutely excluded. The section 26 goes beyond
section 25 and describes that an acknowledgement by a suspect in police safekeeping

309
AIR 1924 Rangoon 173
310
AIR 1932 Sind 144, See also Pharho Sahiwal v. Emperor, AIR 1932 Sind 201
311
Jai Ram Ojha v. State, AIR 1968 Orr. 87
312
State v. Memon Nohamad Hussain Ismail AIR 1959 Bom 534

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to anyone is inadmissible except when made in instant attendance of judge. The
reason of the rule is that the protection of a police official affords relaxed chances of
coercion for extracting a revelation. It is presumed that the presence of Magistrate
removes the influence of police which is created due to police custody. In R.v.
Hurribole,313 Chief Justice Garth observed the position as following: -

“A confession made to a police officer under any circumstance is not

admissible in evidence against him and that section 26 is not intended to qualify the
plain meaning of section 25; but means that not confession made by a person in
custody, to any person other than police officer, shall be admissible unless made in
the immediate presence of a Magistrate. It is an enactment to which the court should
give the fullest import and I see no sufficient reason for reading section 26 so as to
qualify the plain meaning of section 25.”

3.5.3.4 ‘Magistrate’ and ‘Police Officer’

The Magistrate under section 26 means a Judicial Magistrate but not an

Executive Magistrate. It means any Magistrate whether he has jurisdiction or not. A
confession made to Magistrate in England or in any other foreign country is
admissible in evidence.314

A confessional declaration of suspect was written by the Tehsildar when

accused was in law enforcement agency‟s safekeeping, is inadmissible in evidence
because it cannot be relied315. The police officer has the similar meaning in Section 25
and section 26 of Indian Law of Evidence. The word police officer and Magistrate of
section 26 of Indian Law of Evidence include police officer and magistrates of Indian
States as well as those of India. As crux the rule with regard to section 25 and 26 is
that no confession is admissible, if given to a law enforcement agency whether the
person making it is in safekeeping or not; and that no confession shall be evidenced in
contradiction of the suspect though in the law enforcement agency protection whether
given to law enforcement agency‟s officer or to other except given in the instant
attendance of Judge.

313
(1876) 1 Cal. 207, 205
314
Panchanatham v. R, AIR 1929 M 487
315
Velu v. State, 2009, Cr LJ 955

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3.6 Confessions of Co-accused

This Section is a concession to the universal principle that a confession has

evidentiary value against the maker and it cannot be used against other. It is a very
feeble form of evidence because it was neither assumed on pledge nor in attendance
of suspect and its truthfulness cannot be verified by cross-examination. This section
applies to confessions and not to admissions. As per Common law of England, “the
confession of accused person is only evidence against himself and cannot be used
against others.” Therefore, this provision was criticized as it is against the basic
principle. The Privy Council observed in Bhukoni v King 316 and their lordship stated
that “the confession may be considered by the court, but this section does not say that
the confession is to amount to proof, but there must be other evidence. 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 this observation about the effect of this section in
317
Kashmira Singh v. State of M.P and also decided that “the confession of an
accused person against a co-accused is not evidence in the light of Section 3 of Indian
Law of Evidence and a conviction cannot be based on the uncorroborated testimony
of accomplice”. A confession of suspect is not a proof contrary to his co-accused and
it can be availed in contradiction of suspect if there is further relevant evidence
tending to prove his culpability.318 Co-accused made a disclosure statement which
does not lead to any recovery and is hit by Section 25 of this Act.319

3.6.6.1 Essential Condition for Applicability of this Section

There are the following conditions for applicability of this section –

(I) Jointly Tried

For making admissible in evidence the confession of suspect in contradiction

of co-suspect, there should be a joint trial which should be permitted by law. The
expression „tried jointly‟ means legally tried jointly and it is not simply trying them as
a matter of fact. Where the accused pleads guilty at trial and is convicted, he cannot

316
AIR 1949 PC 257
317
AIR 1952 SC 159
318
Sudhir Chandra Das v. State, AIR 1971 Tripura 8 at P.P 12-13
319
Rajan Bhardwaj v. CBI, 2019(1) RCR (Criminal) 520 (P&H)

99
be said to be jointly tried with his co-accused who pleads not guilty.320 An approver
cannot be considered that he is being conjointly tried with the suspect and therefore,
his confessional utterance to implicate the other is precluded under provision against
the suspect.

(ii) Similar Crime

The combined trial of the similar crime is required as committed by the

suspects and it is applicable to confessions only and the statements are excluded from
operation of this section. The confession of suspect essentially incriminates him in the
charge of the crime charged to the similar degree as he incriminates the fellow-
accused. Same offence means an offence coming under the same section of the law.
Confession in this section means confessions of the very offence for which the
accused are being tried.321

(iii) Confession of Accused Affects Himself and other Co-accused.

The Supreme Court held in Balbir Singh v. State of Punjab322 that “a

confession must incriminate the maker significantly to the similar degree as the
fellow-accused person in contradiction of whom it is required to be engaged into
deliberation. But a statement made by accused implicate co-accused and exculpate
himself, are not regarded as evidence under section 30”.323
(iv) Proved
The confession of accused implicates himself and co-accused which was made
in the absence of co-accused which entails that it should be „proved‟ as in
contradiction of the co-accused to whose preconception it is to be taken. The proof of
a confession is required in this section rather proof of a datum in problem. It is
compulsory to be demonstrated at the proceeding which is to be proved by the
prosecuting agency. A datum is evidenced if afterward in view of the matter, the
court believes it to occur.324 The value of such confession will be subject to the fact
and situations of respective case. Confession may have been made at any time before
or at the trial. It may be made in absence of co-accused against whom it is offered in
evidence.

320
People’s Union for Civil Liberties, Delhi v. CBI, 1997 Cr. LJ 3242 (Del)
321
Periyaswami Moopar, in re (1930) 4 Mad 75
322
AIR 1957 SC 216
323
Mohan Singh Patel v. State of MP 2002, Cr LJ NOC 145 MP
324
Section 3 of Indian Evidence ACT, 1872, (Act1 of 1872)

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(i) May take into consideration

The expression “the court may take into consideration such confession” is
substantial which provide a pleasure upon the judges to receipt them into observation
against other person. The court can only treat a confession as lending guarantee to
supplementary evidence contrary to a fellow-accused.325 The court has full discretion
to exclude the confession altogether from consideration against a co-accused if, from
fact and circumstances, the court is disposed of to take that view.326

3.6.6.2 Accomplice and Confession of Co-accused and its Construction

The testimony of accomplice is higher in probative force than the confession

of accused against co-accused because it is uttered before the judges after observing a
pledge and verified by cross-examination. The Apex Court laid down in Laxman
Padma v. State327 that evidence of an accomplice, since he is a witness examined in
the court like any other witness, is a utilitarian piece of evidence, while the confession
of a co-accused stances on a diverse footing, since it is not evidence in this Act.328

Justice Grover observed in Queen Emperors v. Jaffar Ali329 and said “this
section introduces an entirely new and rather dangerous element in the conduct of
Criminal trials, it ought to be construed with strictness” The Apex Court held in
Balbir Singh v. State of Punjab that judicial opinion is uniform that this section must
be very strictly construed. The greatest caution and care must be taken in using this
section and brand unquestionable.

3.6.6.3 The Use and Evidential worth of Confession of Fellow-Accused.

An acknowledgement of a fellow-accused is evidence of a very weedy

category because it not given on pledge nor in the attendance of the suspect and it
cannot be verified by cross-questioning. It is neither evidence nor does this section
declare it to be relevant. The act declares that a judgment must be based on relevant
facts. Therefore, a conviction based on confession of co-accused is not justified by
law. The court can only treat a confession as lending assurance and other evidence

325
R v. Lalit, (1911) 38 C 559
326
Sir John Woodroffe & Amir Alis, Law of Evidence,1015, (The Law Book Company (P) Ltd.,
Allahabad 15th edn., 1989)
327
AIR 1965 195
328
Hariharan v. State of Bihar, AIR 1964 SC 1184, also see Kashmira Singh v. State of MP AIR 1952
SC 159
329
(1873) 19 WR Cr 57

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against a co-accused. The confessions of fellow-suspect may be taken only in backing
of supplementary evidence. It is not the basis of conviction and it cannot be used fill
up the gap in the prosecution evidence.330
331
Further it was held in Hem Raj v. State of Ajmer that only limited use
which can be made of a confession of a co-accused is by way of furnishing an
additional reason for believing such other evidence exists. A confession can be used
against a co-accused where the evidence against him lacks certainty or there is some
lingering doubt about his guilt. It is said that the statement must have been recorded
by the police immediately after the incidence as it is likely to be true. On other hand,
it is said that the statement to police can be relied because it was obtained by using
malpractices. In England Law, there is no distinction between a statement made to
private citizen and to police but in case the statement amounts to confession.

In Indian Law, there is totally different position in this regard. The Evidence
Act, 1872 and the Cr.P.C. 1937 look down upon with great suspicion any declaration
given by the suspect to the law enforcement agency because the character of law
enforcement agency force is peculiar in India. The police force is neither educated nor
trained nor well paid in our country which creates doubt in their integrity and
efficiency. So, the interest of accused is saved.

The criminal justice system of Indian is reflecting stances of evolution and

transformation where numerous new methods and technical apparatuses are being
used to extract the material in the mind of the suspect. With the emergence of new
scientific methods like Brain Mapping, Fingerprinting, Norco Analysis, Lie Detectors,
etc., for tracing the information for purposes of corroboration of information and
admissibility as piece of evidence in the cases, there is a need for bringing changes in
law. The Famous Malimath Committee reflects the thoughtful concern on the same in
the report on criminal reforms

330
Intra Mohan v. State of Assam, 1982, Cr LJ (NOC) 127 (Gau)
331
AIR 1954 SC 462

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