History of Evidence Act –

 Common Law & English Statute Law

 Act X of the Governor General – in - Council
 Act II of 1855
 Draft Bill of 1868 prepared by the Indian Law Commissioners chaired by Henry
Sumner Maines
 The Indian Evidence Act [I of 1872] drafted by Sir James Fitzjames Stephen

The expression “evidence” is derived from the Latin word 'evidens' or 'evidere' meaning 'to
show clearly', 'to make plainly certain" 'to ascertain', ‘to prove’.

The two necessary functions of a court of justice are to ascertain the existence or non-
existence of certain facts and then to apply the substantive law to the ascertained facts and
declared the rights or liabilities of parties in so far as they are affected by such facts. The
means by which the Court informs itself of these facts is termed as “evidence”.

According to Taylor, it includes all legal means, exclusive of argument, which tend to prove
or disprove any matter of fact, the truth of which is submitted to judicial investigation.

As per sec. 3 of the Indian Evidence Act, 1872, “Evidence” means and includes:

(1) All statements which the Court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court.
such documents are called documentary evidence.

Proved: A fact is 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 on the supposition that it exists;

Disproved: A fact is said to be disproved when similar belief is possible that it does not exist
or its non-existence is so probable. The burden of proof for disproving a fact lies on the
person, who claims that an alleged fact is not true.

Not Proved: When a fact is neither proved nor disproved it is said to be not proved.
Section 4 of the Act deals with presumptions. A presumption may be stated to be a rule of
law which obliges Courts to draw a particular inference from a particular fact, unless and
until the truth of such an inference is disproved.

Sec. 5: The scheme of the Evidence Act is that no fact other than those having rational
probative value shall be admitted in evidence. But evidence may be given only of the
existence or non-existence of every fact in issue and of such other facts as are declared to be
relevant by the Act, but of no others. This is subject to the further limitation that a person will
not be entitled to give evidence of a fact, which he is disentitled to prove by any provision of
the law for the time being in force relating to civil procedure.

Sec. 6: Facts, which, though not in issue, are so connected with the facts in issue as to form
part of the same transaction, are relevant, whether they occurred at the same time and place or
at different times and places.

This corresponds to the English rule of res gestae, which expression has not even been
employed in the Act. Sir James Stephen defined a transaction as "a group of facts so
connected together as to be referred to by a single legal name, as a crime, a contract, a wrong,
or any other subject of enquiry, which may be in issue"; then evidence can be given of any
other part of transaction. This is so on account of the other part of the transaction also being
in issue, evidence of which would be permissible under section 5, or because such other part
becomes relevant under section 6.

The general Rule of evidence is that hearsay evidence is not admissible. However,
Section 6 of the Evidence Act embodies a principle, usually known as the Rule
of res gestae in English Law, as an exception to hearsay rule. The rationale behind this
Section is the spontaneity and immediacy of the statement in question which Rules out any
time for concoction. For a statement to be admissible Under Section 6, it must be
contemporaneous with the acts which constitute the offence or at least immediately
thereafter. (Gentela Vijayvardhan Rao & Anr. v. State of Andhra Pradesh (1996) 6 SCC
241 and Krishan Kumar Malik v. State of Haryana (2011) 7 SCC 130)
Sec. 8: Motive, preparation and previous or subsequent conduct

This section and motive itself assumes great importance in cases that rely heavily upon
circumstantial evidence, as in a case where there is cogent direct evidence, the question of
motive is irrelevant. In cases where there is absence of motive, the effect is that the other
circumstances pointing towards the guilt of the accused have to be very closely examined.
This section permits res gestae evidence when it goes to the root of the matter.

The words "may presume" merely enable the Court to raise or not to raise a presumption
while the words "shall presume" requires the Court to necessarily raise the presumption.
While in the first, the Court may or may not raise the presumption, in the second, the Court
must necessarily raise the presumption. But in both situation, that is to say, where the
presumption is raised in the first as well as the second types of situations, the presumption is
rebuttable

The definition of "may presume" as well as "shall presume" in Section 4 clearly provides that
the presumption holds until it is disproved'. That is why the presumption raised in both these
situations is rebuttable

Under 'conclusive proof, there is no question of rebuttal because the definition in Section 4
uses the words 'conclusive proof and states that the Court 'shall not allow evidence to be
given for the purpose of disproving it'

The term 'hearsay' is used with reference to what is done or written as well as to what is
spoken and in its legal sense, it denotes that kind of evidence which does not derive its value
solely from the credit given to the witness himself, but which rests also, in part, on the
veracity and competence of some other person.

The word 'hearsay' is used in various senses:

Sometimes it means whatever a person is heard to say. Sometimes it means whatever

a person declares on information given by someone else and sometimes it is treated as nearly
synonymous with irrelevant.
The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can
be admitted. Every act done or spoken which is relevant on any ground must be proved by
someone who saw it with his own eyes and heard it with his own ears.

The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and
vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is
inadmissible.

It is a well-established rule in criminal jurisprudence that circumstantial evidence can be

reasonably made the basis of an accused person's conviction if it is of such a character that it
is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.

If the circumstances proved in the case are consistent either with the innocence of the accused
or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or
dispute about this position

In the matter of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4

SCC 116, the following guidelines were laid down:

• The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The circumstances concerned must or should and not may be established;
• The facts so established should be consistent only with the hypothesis of the guilt of
the accused, that is to say, they should not be explainable on any other hypothesis
except that the accused is guilty;
• The circumstances should be of a conclusive nature and tendency;
• They should exclude every possible hypothesis except the one to be proved; and
• There must be a chain of evidence so compete as not to leave any reasonable ground
for the conclusion consistent with the innocence of the accused and must show that in
all human probability the act must have been done by the accused.

However, it ought to be remembered that there is no qualitative or practical difference

between direct and circumstantial evidence, and that a conviction based solely on
circumstantial evidence is as valid in law as one based on circumstantial evidence.
The dictum of the Supreme Court in the matter of Rameshbhai Chandubhai Rathod v. State
of Gujarat, (2009) 5 SCC 740, is noteworthy and is reproduced hereunder:

“38. The plea that in a case of circumstantial evidence death should not be awarded
is without any logic. If the circumstantial evidence is found to be of unimpeachable character
in establishing the guilt of the accused, that forms the foundation for conviction. That has
nothing to do with the question of sentence as has been observed by this Court in various
cases while awarding death sentence. The mitigating circumstances and the aggravating
circumstances have to be balanced. In the balance sheet of such circumstances, the fact that
the case rests on circumstantial evidence has no role to play. In fact in most of the cases
where death sentence are awarded for rape and murder and the like, there is practically no
scope for having an eye witness. They are not committed in the public view. But very nature
of things in such cases, the available evidence is circumstantial evidence. If the said evidence
has been found to be credible, cogent and trustworthy for the purpose of recording
conviction, to treat that evidence as a mitigating circumstance, would amount to
consideration of an irrelevant aspect. The plea of learned Counsel for the appellant that the
conviction is based on circumstantial evidence and, therefore, the death sentence should not
be awarded is clearly unsustainable.”

The dangers of circumstantial evidence were succinctly noted by Jenkins J in the matter of
Barindra Kumar Ghose & Ors. v. Emperor reported in (1910) ILR 37 Cal 467, thus:

“87. Another matter to which I desire to allude is the general character of the
evidence. from the nature of the case it is to a large extent circumstantial, and in dealing
with it the rules specially applicable must be borne in mind. There is always the danger in a
case like the present that conjecture or suspicion may take the place of legal proof, and
therefore it is right to recall the warning addressed by Mr. Baron Alderson to the Jury in
Reg. v. Hodge (1838) 2 Lew. 227, where he said "the mind was apt to take a pleasure in
adapting circumstances to one another, and even in straining them a little, if need be, to
force them to form parts of one connected whole; and the more ingenious the mind of the
individual, the more likely was it, considering such matters, to overreach and mislead itself,
to supply some little link that is wanting, to take for granted some fact consistent with its
previous theories and necessary to render them complete."
SECTION 5

The object of this section is to restrict the evidence to be led by parties and thus considered
by Court, so that irrelevant and immaterial facts are not brought before Court, and the time of
the Court is not wasted; and resultantly, the trial is not prolonged unnecessarily.

Admissibility of evidence however, must be decided as soon as the question arises, and
should not be put off till the time judgment is to be delivered. Section 136 of the Act can be
referred in this context.

ADMISSIBILITY

It is settled law today that barring an express or implied prohibition in the Constitution or
other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.
In other words, what has been emphasized by the Constitution Bench of the Supreme Court in
the matter of Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors.
(1974) 1 SCC 345, is that the test of admissibility of evidence lies in relevancy and unless
there is an express or necessarily implied prohibition in the constitution or other law,
evidence obtained as a result of illegal search or seizure is not liable to be shut out.

SECTION 6

The principle contained within this provision is the rule or doctrine of res gestae. The said
concept is mentioned nowhere in the Act, but the same is extensively referred to in judgments
and is a concept of English Law. It must also be remembered that the said doctrine operates
as an exception to the prohibition against admissibility of hearsay evidence. The extent upto
which the exception operates has been summarized in the decision of Teper v. R., (1952) 2
All. E.R. 447, in the following manner:

“The Rule that in a criminal trial hearsay evidence is admissible if it forms part of the
res gestae is based on the propositions that the human utterance is both a fact and a means of
communication and that human action may be so interwoven with words that the significance
of the action cannot be understood without the correlative words and the dissociation of the
words from the action would impede the discovery of the truth. It is essential that the words
sought to be proved by hearsay should be, if not absolutely contemporaneous with the action
or event, at least so clearly associated with it that they are part of the thing being done, and so
an item

In Sawaldas v. State of Bihar, AIR 1974 SC 778, the utterances of the children of the
deceased were taken to be admissible evidence u/s 6 of the Act, as res gestae,
contemporaneous with the commission of crime

The dictum of the Supreme Court in the matter of Krishan Kumar Malik v. State of
Haryana, (2011) 7 SCC 130, may also be profitably referred to:

“37. Section 6 of the Act has an exception to the general Rule whereunder hearsay
evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of
Section 6, what is required to be established is that it must be almost contemporaneous with
the acts and there could not be an interval which would allow fabrication. In other words,
the statements said to be admitted as forming part of res gestae must have been made
contemporaneously with the act or immediately thereafter. Admittedly, the prosecutrix had
met her mother Narayani and sister soon after the occurrence, thus, they could have been the
best res gestae witnesses, still the prosecution did not think it proper to get their statements
recorded. This shows the negligent and casual manner in which the prosecution had
conducted the investigation, then the trial. This lacunae has not been explained by the
prosecution. The prosecution has not tried to complete this missing link so as to prove it,
beyond any shadow of doubt, that it was the Appellant who had committed the said
offences.”

SECTION 7

The admissibility of tape-recorded conversations is extremely important, inasmuch as, the

same many a time constitute the occasion, cause or effect of facts in issue or relevant facts.
The decision of the Supreme Court in the matter of R. M. Malkani v. State of Maharashtra,
(1973) 1 SCC 471, is apposite, and the relevant extract thereof is reproduced hereunder:

“Tape recorded conversation is admissible provided first the conversation is relevant

to the matters in issue; secondly, there is identification of the voice: and, thirdly, the
accuracy of the tape-recorded conversation is proved by eliminating the possibility of
erasing the tape record. A contemporaneous tape record of a relevant conversation is a
relevant fact and is admissible Under Section 8 of the Evidence Act. It is res gestae. It is
 also comparable to a photograph of a relevant incident. The tape-recorded conversation
is therefore a relevant fact and is admissible Under Section 7 of the Evidence Act. The
conversation between Dr. Motwani and the appellant in the present case is relevant to
the matter in issue. There is no dispute about the identification of the voices. There is no
controversy about any portion of the conversation being erased or mutilated. The
appellant was given full opportunity to test the genuineness of the tape-recorded
conversation. The tape-recorded conversation is admissible in evidence.”

SECTION 8

Motive: As discussed earlier, motive becomes extremely important in cases that rest upon
circumstantial evidence. The words of Lord CJ Campbell in the matter of Reg. v. Palmer
may profitably be referred to:

But if there be any motive which can be assigned, I am bound to tell you that the
adequacy of that motive is of little importance. We know, from experience of criminal courts
that atrocious crimes of this sort have been committed from very slight motives; not merely
from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time
pressing difficulties". Though, it is a sound proposition that every criminal act is done with a
motive, it is unsound to suggest that no such criminal act can be presumed unless motive is
proved. After all motive is a psychological phenomenon. Mere fact that prosecution failed to
translate that mental disposition of the accused into evidence does not mean that no such
mental condition existed in the mind of the assailant.

In Atley v. State of U.P., 1955 Cri LJ 1653, it was held that is true, and where there is clear
proof of motive for the crime, that lends additional support to the finding of the court that the
accused was guilty but absence of clear proof of motive does not necessarily lead to the
contrary conclusion.

Preparation: Arranging the means and measures necessary for commission of crime.
Preparation not just to commit a crime, but also to flee from the scene of the crime, might
become relevant. However, the inference can be rebutted, if the accused were to show that the
preparations were innocent and not towards the commission of any crime.
Conduct: Refusal to appear in a TIP or give specimens can be taken to be indicative of guilt,
similarly absconding after commission of a crime.

SECTION 10

This section, as the opening words indicate, will come into play only when the Court is
satisfied that there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, that is to say, there should be a prima
facie evidence that a person was a party to the conspiracy before his acts can be used against
his co-conspirators.

The evidentiary value of the said acts is limited by two circumstances, namely, that the acts
shall be in reference to their common intention and in respect of a period after such intention
was entertained by any one of them.

In short, the section can be analyzed as follows :

 There shall be a prima facie evidence affording a reasonable ground for a Court to
believe that two or more persons are members of a conspiracy;
 if the said condition is fulfilled, anything said, done or written by any one of them in
reference to their common intention will be evidence against the other; [State of
Maharashtra v. Damu, AIR 2000 SC 1691]
 anything said, done or written by him should have been said, done or written by him
after the intention was formed by any one of them;
 it would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the conspiracy or
after he left it; and
 it can only be used against a co-conspirator and not in his favor

Sardar Sardul Singh Caveeshar v. State of Maharashtra AIR 1965 SC 682

Barindra Kumar Ghose v. Emperor (1910) ILR 37 Cal 467

Once the common intention ceased to exist any statement made by a former conspirator
thereafter cannot be regarded as one made "in reference to their common intention." In other
words, a post-arrest statement made to a police officer, whether it is a confession or
otherwise, touching his involvement in the conspiracy, would not fall within the ambit of
Section 10 of the Evidence Act. Refer State of Gujarat v. Mohammed Atik (1998) 4 SCC
351; Mohd. Khalid v. St. of WB (2002) 7 SCC 334; Sardul Singh Caveeshar AIR 1965 SC
682; Mirza Akbar v. King Emperor AIR 1940 PC 176.

In State v. Nalini (1999) 5 SCC 253, wherein it has been held that ordinarily the connection
with conspiracy would snap after arrest, but there may be situations where it continues. In the
matter of Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 234, paras 533
and 534, it was held that the phone transcripts of other accused, were admissible in evidence
u/s 10 as against Ajmal Kasab, even though they pertained to a time after he was arrested.

SECTION 11

The plea of alibi flows from Section 11 and is demonstrated by illustration (a).

Sarkar on Evidence (Fifteenth Edition, p. 258) states the word 'alibi' is of Latin origin and
means "elsewhere". It is a conventional term used for the defence taken by an accused that
when the occurrence took place he was so far away from the place of occurrence that it is
highly improbable that he would have participated in the crime.

Alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other
law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts
which are inconsistent with the facts in issue are relevant. The burden of proving commission
of offence by the accused so as to fasten the liability of guilt on him remains on the
prosecution and would not be lessened by the mere fact that the accused had adopted the
defence of alibi.

But once the prosecution succeeds in discharging its burden then it is incumbent on
the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of
his presence at the place and time of occurrence. An obligation is cast on the Court to weigh
in scales the evidence adduced by the prosecution in proving of the guilt of the accused and
the evidence adduced by the accused in proving his defence of alibi.
If the evidence adduced by the accused is of such a quality and of such a standard that the
Court may entertain some reasonable doubt regarding his presence at the place and time of
occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced
on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The
burden of the accused is undoubtedly heavy. This flows from Section 103 of
the Evidence Act which provides that the burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence. However, while weighing the
prosecution case and the defence case, pitted against each other, if the balance tilts in favor of
the accused, the prosecution would fail and the accused would be entitled to benefit of that
reasonable doubt which would emerge in the mind of the Court.

Refer Jayanti Bhai Bhenkaarbhal v. State of Gujarat, (2002) 8 SCC 165 and State of
Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari and Ors., (2013) 12 SCC 17.

SECTION 13

The section deals with both pubic as well as private rights. Refer Jasjit Singh & Anr. v.
Smt. Charanjit Kaur & Anr. AIR 1995 P&H 177.

Under Section 13(b) of the Indian Evidence Act, when the question of any right or custom is

claimed, certain instances on which the right or custom claimed, asserted or departed are
relevant factors to be considered. Therefore, a person cannot claim custom or usage, merely
declaring by himself, that he is entitled to custom and usage that too in respect of a religious
institution, unless he pleads certain instances which are relevant, to prove the same. Refer D.
Ganesa Gurukkal and Ors. v. Sri Dharbaranyeswaraswamy Devasthanam Thirunallar,
represented by its Special Officer, (2005) 1 MLJ 370

In Lakshmidhar Mishra & Ors. v. Rangalal & Ors. reported in AIR 1950 PC 56, the right
of a village to use a parcel of land as a cremation ground was recognized on the basis of the
same being a customary right.

The terms "custom" and "usage" are often used interchangeably. Strictly speaking there is
a clear technical distinction between the two. Usage represents the twilight stage
of custom. Custom begins where usage ends. Usage is an international habit of action that has
not yet received full legal attestation. Usages may be conflicting, but custom must be unified
and self-consistent. Viner's Abridgement, referring to custom in English law, has the matter
in a nutshell: ''A custom, in the intendment of law, is such a usage as hath obtained the force
of a law" (Starke's international Law (6th Edn. 34).

It is well settled that custom cannot be extended by analogy. It must be established

inductively, not deductively and it cannot be established by a priori methods. Theory and
custom are antitheses, custom cannot be a matter of mere theory but must always be a matter
of fact and one custom cannot be deduced from another. A community living in one
particular district may have evolved a particular custom but from that it does not follow that
the community living in another district is necessarily following the same custom. Refer
Abdul Hussein Khan v. Soma Dero I.L.R. 45 Cal 450 P.C.; Saraswathi Ammal v.
Jagadambal and Anr., AIR 1953 SC 201.

The English rule that a 'custom, in order that it may be legal and binding, must have been
used so long that the memory of man runneth not to the contrary' has not been strictly applied
to Indian conditions. All that is necessary to prove is that the custom or usage has been acted
upon in practice for such a long period and with such invariability and continuity as to show
that it has by common consent been submitted to as the established governing rule in any
local area, tribe, community, group of family. Certainty and reasonableness are indispensable
elements of the rule. For determination of the question whether there is a valid custom or not,
it has been emphasized that it must not be opposed to public policy. Refer Bhimashya & Ors.
v. Smt. Janabi @ Janawwa, (2006) 13 SCC 627.

SECTION 14

The present section is concerned with facts that show the existence of any state of mind, viz.,
intention, knowledge, good faith, negligence; body; or bodily feeling, when such state of
mind, body or bodily feeling is a fact in issue or relevant. There is a thin distinction between
‘bad character evidence in the context of section 54 and similar fact evidence which is
covered by sections 14 and 15. Refer Chandrakant Jha v. State Criminal Appeal No.
216/2015 along with Death Sentence Reference No. 2/2013 dated 27.01.2016.

Generally, the law precludes evidence of previous offences or convictions and such evidence
is inadmissible. Similar facts are, therefore, ordinarily inadmissible to prove the main fact, a
part of the transaction, or the identity or connection with the accused, as they would only
show a general disposition or habit. However, Sections 14 and 15 of the Evidence Act do
stipulate and covenant exceptions to this axiom. Similar fact evidence is admissible if it bears
on the question whether the acts alleged to constitute a crime were designed or mere
accidents and thereby to rebut defences alleging an innocent state of mind. This rule applies
when mental condition of the person with reference to a particular act is in issue

SECTION 16

This section is an application of the general principle expressed by the Latin maxim, omnia
proesumuntur rite essa acta, i.e., all acts are presumed to be rightly done. Especially in the
context of commercial and official dealings.

The Supreme Court in the matter of Mst. L.M.S. Ummu Saleema vs. Shri B.B. Gujaral
and Anr., (1981) 3 SCC 317, held that, a certificate of posting might lead to a presumption
that a letter addressed to someone and posted, in due course reached the addressee. But, that
is only a permissible and not an inevitable presumption. Neither section 16 nor section 114 of
the Evidence Act compel the Court to draw a presumption. The presumption may or may not
be drawn. The Supreme Court refused to presume that a letter of retraction was infact sent to
the Assistant Collector of Customs in this particular matter.

In the matter of Sai Nath Enterprises & Ors. v. North Delhi Municipal Corporation &
Ors. CS (OS) Nos. 3397 and 3460/2014 decided on 23.12.15, the Delhi High Court presumed
that e-mails were received by and that, the other side had knowledge of the contents of the
same, while rejecting the plaints in both suits by holding that the suits were not maintainable.

SECTION 56

Recognition of facts without formal proof is a matter of expediency and no one has ever
questioned the need and wisdom of accepting the existence of matters which are
unquestionably within public knowledge. Shutting the judicial eye to the existence of such
facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial
process to a meaningless and wasteful ritual. No Court therefore insists on formal proof, by
evidence, of notorious facts of history, past or present. The date of poll, the passing away of a
man of eminence and events that have rocked the nation need no proof and are judicially
noticed. Judicial notice, in such matters, takes the place of proof and is of equal force. In fact,
as a means of establishing notorious and widely known facts it is superior to formal means of
proof. Refer Onkar Nath & Ors. v. The Delhi Administration, (1977) 2 SCC 611.
SECTION 57

Court shall take judicial notice of following facts (refer ppt 2, slides 63 and 64) –

Judicial notice cannot be taken of particular facts, and the opinion of judges cannot
masquerade as judicial notice. Refer Abida Khatoon and Anr. vs. State of U.P. and Ors.
AIR 1963 All 260.

It was held by the Supreme Court in the matter of Laxmi Raj Shetty v. State of Tamil
Nadu, (1988) 3 SCC 319 held that, judicial notice cannot be taken of newspaper reports, the
same being in the nature of hearsay, despite the presumption of genuineness in terms of
section 81, as presumption of genuineness and proof of a fact are different.

In the matter of Shakuntalabai & Anr. v. L.V. Kulkarni & Anr. (1989) 2 SCC 526, the
Supreme Court considered a wide variety of authoritative texts, when called upon to decide
the custom of dissolution of marriage in the context of Lingayats in Karnataka.

SECTION 58

Section 58 provides that a fact may not need to be proved in any proceeding which the parties
thereto agreed to admit at the hearing or which, before the hearing, they agree to admit by
any writing under their hands or which they admitted by their pleading, even in that case
court may, in its discretion, even if such a admission has been made by the party, require the
fact admitted to be proved otherwise than by such admission. In fact, admission by a party
may be oral or in writing. `Admissions' are governed under Sections 17 to 31 of the Evidence
Act and such admission can be tendered and accepted as substantive evidence. While
admission for purposes of trial may dispense with proof of a particular fact. Section 58 deals
with admissions during trial i.e. at or before the hearing, which are known as judicial
admissions or stipulations dispense it with proof. Admissions are not conclusive proof but
may operate as estoppel against its maker. Documents are necessarily either proved by
witness or marked on admission. Refer Union of India v. Ibrahim Uddin, (2012) 8 SCC
148.

Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence

Act, made by the parties or their agents at or before the hearing of the case, stand on a higher
footing than evidentiary admissions. The former class of admissions are fully binding on the
party that makes them and constitute a waiver of proof. They by themselves can be made the
foundation of the rights of the parties. On the other hand, evidentiary admissions which are
receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to
be wrong. Nagindas Ramdas v. Dalpatram Ichharam alias Brijram & Ors., (1974) 1
SCC 242; Also refer Section 31 of the Act

SECTION 17

An admission is a statement, oral or documentary, or contained in electronic form which

suggests any inference as to any fact in issue or relevant fact, and which is made by any of
the persons, and under the circumstances hereinafter mentioned.

Admissions are dealt with by sections 17 – 23 of the Act, whereas confessions are
dealt with by sections 24 – 30.

It may be said that, statement is the genus, admission the species and confession the sub-
species. The term statement includes both oral and written statements. Sahoo v. State of UP,
AIR 1966 SC 40.

Admissions have to be clear if they are to be used against the person making them.
Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Act.
Though they are not conclusive proof of the matters admitted. What weight is to be attached
to an admission made by a party is a matter different from its use as admissible evidence.
Bharat Singh v. Bhagirathi, AIR 1966 SC 405.

Though in a prior statement, an assertion in one's own interest, may not be evidence, a prior
statement, adverse to one's interest would be evidence. In fact, it would be the best evidence
the opposite party can rely upon. Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju,
(2006) 1 SCC 212. However, it is always open to the party against whom the admission is
sought to be used, to clarify the said admission and to show why the admission should not be
acted upon. DTC v. Shyam Lal (2004) 8 SCC 88 and Udham Singh v. Ram Singh, (2007)
15 SCC 529.

Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in
pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by
the parties or their agents at or before the hearing of the case, stand on a higher footing than
evidentiary admissions. The former class of admissions are fully binding on the party that
makes them and constitute a waiver of proof. They by themselves can be made the foundation
of the rights of the parties On the other hand, evidentiary admissions which are receivable at
the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.
Refer Nagindas Ramdas v. Dalpatram, (1974) 1 SCC 242. (para 27).

Admissions must be voluntary, and it has been held by the Supreme Court in the matter of
Shri Krishan v. Kurukshetra University, (1976) 1 SCC 311, that, an admission made in
ignorance of legal rights or in terrorem, or under duress cannot bind the maker of that
statement or admission

SECTION 18

Observations of the SC in the matter of Nagubai Ammal v. B. Shama Rao, AIR 1956 SC
593, wherein reliance was placed on the well-known observations of Baron Park in Slatterie
v. Pooley [1840] 6 M. &; W. 664, 669; 151 E.R. 579, 581], that "what a party himself admits
to be true may reasonably be presumed to be so”. Further, an admission is not conclusive as
to the truth of the matters stated therein. It is only a piece of evidence, the weight to be
attached to which must depend on the circumstances under which it is made. It can be shown
to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to
his detriment, when it might become conclusive by way of estoppel.

In the matter of UOI v. Mokshi Builders, (1977) 1 SCC 60, there is an oblique reference to
statement of co-defendant not being used against another defendant, however, the same
cannot be taken to be the ratio of the judgment.

It was held by the Supreme Court in the matter of Basant Singh v. Janki Singh, AIR 1967
SC 341 that pleadings signed and verified by a party in a proceeding and admission made
therein could be used against it in other proceedings as well.

In the case of counsel, it has been held by a 3 Judge Bench of the Supreme Court in the
matter of Jamilabai Abdul Kadar v. Shankarlal Gulabchand, AIR 1975 SC 2202, that the
authority of counsel differs from that of other agents and that unless the client were to
expressly put fetters and limitations in the vakaltnama, the authority of counsel would
necessarily extend to settling or compromising the proceedings in the interest of his client in
a bona fide manner.

Statement made by person having proprietary or pecuniary interest must similarly be made
whilst such person has that interest, and is acting in such capacity. In the matter of Sri Chand
Gupta v. Gulzar Singh, (1992) 1 SCC 143, the Supreme Court held that the statement of the
brother of the tenant, in a dispute regarding tenancy, was inadmissible as the brother did not
have any pecuniary or proprietary interest in the matter.

SECTION 20

The views of the Supreme Court on the said provision as exposited in Hirachand Kothari v.
State of Rajasthan, AIR 1985 SC 998 (paras 6, 7 & 8) are extracted hereunder:

The word 'information' occurring in Section 20 is not to be understood in the sense

that the parties desired to know something which none of them had any knowledge of. Where
there is a dispute as regards a certain question and the Court is in need of information
regarding the truth on that point, any statement which the referee may make is nevertheless
information within the purview of Section 20. Section 20 is the second exception to the
general rule laid down in Section 18. It deals with one class of vicarious admission i.e.
admissions of persons other than the party. Where a party refers to a third person for some
information or an opinion on a matter in dispute, the statements made by the third person are
receivable as admissions against the person referring. The reason is that when a party refers
to another person for a statement of his views, the party approves of his utterance in
anticipation and adopts that as his own. The principle is the same as that of reference to
arbitration. A position analogous to that of agency is created by the reference. The reference
may be by express words or by conduct, but in any case, there must be a clear intention to
refer, and such admissions are generally conclusive.

SECTION 21
There is a cardinal distinction between a party who is the author of a prior statement and a
witness who is examined and is sought to be discredited by use of his prior statement. In the
former case an admission by a party is substantive evidence if it fulfils the requirements of
Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the
credibility of the witness and does not become substantive evidence. In the former there is no
necessary requirement of the statement containing the admission having to be put to the party
because it is evidence proprio vigore : in the latter case the Court cannot be invited to
disbelieve a witness on the strength of a prior contradictory statement unless it has been put
to him, as required by Section 145 of the Evidence Act. Bishwanath Prasad v. Dwarka
Prasad, (1974) 1 SCC 78.

It is also important to note that, an admission need not be communicated, as exemplified in

illustration (b) and held by the Supreme Court in the matter of Bhogilal Chunilal Pandya v.
The State of Bombay, AIR 1959 SC 356.

SECTION 23

This section deals basically with what are known as, “without prejudice” documents, i.e., any
documents, correspondence which may be exchanged between parties to a litigation during
the process of settling or compromising the matter. The rationale behind the same being that
in the first place, it serves a public purpose by bringing litigation to an end; and secondly, that
without such a protection, no party to a litigation would feel comfortable entering into a
compromise.

SECTION 24

The Evidence Act, 1872 is termed to be adjectival or procedural law as distinguished from
substantive law, i.e., laws under which jural relations are recognized. However, with respect
to confessions, the substantive law is contained in the Evidence Act, 1872 and the procedural
law is contained in the Cr.P.C. Sections 24 – 30 of the Act contain the substantive law on
confessions whereas section 164, 281 and 463 of the CrPC contain the adjectival law on the
subject.
Sections 24 to 30 deal with confession. Section 24 speaks of the effect of a confession made
by an accused through inducement, threat or promise proceeding from a 'person in authority'.
Whereas Section 25 and Section 26 deal with situations where such 'person in authority' is
police. It is an institutionalized presumption against confession extracted by police or in
police custody. In that frame of reference, Section 24 is the genus and Sections 25 and 26 are
its species. 

Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial
confessions are those which are made before a Magistrate or a court in the course of judicial
proceedings. Extra-judicial confessions are those which are made by the party elsewhere than
before a Magistrate or court. Extra-judicial confessions are generally those that are made by a
party to or before a private individual which includes even a judicial officer in his private
capacity.

An involuntary confession is one which is not the result of the free will of the maker of it. So
where the statement is made as a result of harassment and continuous interrogation for
several hours after the person is treated as an offender and accused, such statement must be
regarded as involuntary.

A promise is always attached to the confession alternative while a threat is always attached to
the silence alternative; thus, in one case the prisoner is measuring the net advantage of the
promise, minus the general undesirability of a false confession, as against the present
unsatisfactory situation; while in the other case he is measuring the net advantages of the
present satisfactory situation, minus the general undesirability of the confession against the
threatened harm. It must be borne in mind that every inducement, threat or promise does not
vitiate a confession. Since the object of the rule is to exclude only those confessions which
are testimonially untrustworthy, the inducement, threat or promise must be such as is
calculated to lead to an untrue confession. State of Punjab v. Harjagdev Singh, (2009) 16
SCC 91.

PPT 3, slides 29, 30, 31 - The law of confessions was succinctly explained by a 3
Judge Bench of the Supreme Court in the matter of Aghnoo Nagesia v. State of Bihar, AIR
1966 SC 119.

Another extremely important facet of confessions is that the same need not be
communicated to anyone. The dicta of the Supreme Court in the matter of Sahoo v. State of
U.P., AIR 1966 SC 40 are extremely important – PPT 3, 31 and 32
If it appears to the court that the making of the confession was caused by any inducement,
threat or promise proceeding from a person in authority, the confession is liable to be
excluded from evidence. The expression 'appears' connotes that the Court need not go to the
extent of holding that the threat etc. has in fact been proved. If the facts and circumstances
emerging from the evidence adduced make it reasonably probable that the confession could
be the result of threat, inducement or pressure, the court will refrain from acting on such
confession, even if it be a confession made to a Magistrate or a person other than police
officer. State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600.

It was held in the matter of Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094, that the
word “appears” can be read as “seems” and would mean a prima facie opinion of the Court
based on the evidence and circumstances of the particular case.

Regarding “person in authority” an interesting case is that of Percy Rustomji Basta v. State
of Maharashtra, (1971) 1 SCC 847, where the Supreme Court whilst dealing with section
24 vis-à-vis section 108 of the Customs Act, 1962. In this matter, it was contended by the
appellant that his statement tendered u/s 108 of the Customs Act stood vitiated and was
inadmissible in view of the bar u/s 24. Negativing the said contention, the Supreme Court
held that, in terms of s. 108, the appellant was never accused of any offence, and that the
statement although recorded by a “person in authority” could not be vitiated u/s 24 inasmuch
as the threat of perjury and prosecution; and that proceedings being judicial proceedings u/s
193 & 228 of the IPC, is inbuilt u/s 108 and did not flow from such “person in authority”.

The threat, inducement or promise must proceed from a person in authority and it is a
question of fact in each case whether the person concerned is a man of authority or not. What
is more important is that the mere existence of the threat, inducement or promise is not
enough, but in the opinion of the court the said threat, inducement or promise shall be
sufficient to cause a reasonable belief in the mind of accused that by confessing he would get
an advantage or avoid any evil of a temporal nature in reference to the proceedings against
him. While the opinion is that of the court, the criterion is the reasonable belief of the
accused. The section, therefore, makes it clear that it is the duty of the court to place itself in
the position of the accused and to form an opinion as to the state of his mind in the
circumstances of a case. Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094

SECTION 25

A police officer is inherently suspect of employing coercion to obtain confession. Therefore,

the confession made to a police officer under Section 25 should totally be excluded from
evidence. The reasons seem to be that the custody of police officer provides easy
opportunities of coercion for extorting confession. Section 25 rests upon the principle that it
is dangerous to depend upon a confession made to a police officer which cannot extricate
itself from the suspicion that it might have been produced by the exercise of coercion or by
enticement. The legislative policy and practical reality emphasize that a statement obtained,
while the accused is in police custody, truly be not the product of his free choice. So, a
confessional statement obtained by a police officer is inadmissible in evidence. Kartar Singh
v. State of Punjab, (1994) 3 SCC 569.

The terms of s. 25 are imperative. A confession made to a police officer under any
circumstances is not admissible in evidence against the accused. It covers a confession made
when he was free and not in police custody, as also a confession made before any
investigation has begun. The expression "accused of any offence" covers a person accused of
an offence at the trial whether or not he was accused of the offence when he made the
confession. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.

In the same matter, there was discussion on the effect of section 25 on FIRs, in case
the informant happens to be the accused, and it was held by the Supreme Court that, if the
first information report is given by the accused to a police officer and amounts to a
confessional statement, proof of the confession is prohibited by s. 25. The confession
includes not only the admission of the offence but all other admissions of incriminating facts
related to the offence contained in the confessional statement. No part of the confessional
statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27.
If the first information is given by the accused himself, the fact of his giving the information
is admissible against him as evidence of his conduct under s. 8 of the Evidence Act. It was
further held that, an FIR is not a substantive piece of evidence and can only be used to
corroborate the informant under s. 157 of the Evidence Act or to contradict him under
s. 145 of the Act, if the informant is called as a witness.

The ban which is partial under s. 24 and complete under s. 25 applies equally whether or not
the person against whom evidence is sought to be led in a criminal trial was at the time of
making the confession in custody. For the ban to be effective the person need not have been
accused of an offence when he made the confession. Whereas s. 25 prohibits proof of a
confession made by a person to a police officer whether or not at the time of making the
confession, he was in custody, s. 26 prohibits proof of a confession by a person in custody
made to any person unless the confession is made in the immediate presence of a Magistrate.
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.

Where the accused himself lodges the first information report, the fact of his giving the
information to the police is admissible against him as evidence of his conduct under
Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also
be relevant under Section 21 of the Evidence Act but the confessional part of the first
information report by the accused to the police officer cannot be used at all against him in
view of the ban of Section 25 of the Evidence Act. Bheru Singh v. State of Rajasthan,
(1994) 2 SCC 467.

In the matter of Sita Ram v. State of UP, AIR 1966 SC 1906, it was held by the Supreme
Court that, a letter addressed by the accused to the Sub-Inspector confessing to the murder of
his wife, which was recovered from the crime scene, was held not to amount to a
“confession” and thus was held not to be barred in terms of section 25.

It has been held by the Supreme Court in the Constitution Bench decision in the matter of
Badku Jotu Savant v. State of Mysore, AIR 1966 SC 1746, that Customs or Central Excise
officers although entrusted with the powers of an officer in charge of a police station in terms
of the respective Acts governing them, are not police officers for the purpose of section 25 of
the Evidence Act inasmuch as they are not competent to file final report u/s 173 CrPC and
must after completion of their investigation file a complaint before the jurisdictional
Magistrate who would thereupon take cognizance in terms of section 190 CrPC, and that such
officers are also not police officers within the meaning of Chapter XII of the CrPC.
Similar rationale was also expressed by the Supreme Court in the matter of State of Gujarat
v. Anrirudhsingh, (1997) 6 SCC 514, in the context of senior reserve police force officers
appointed under the Bombay State Reserve Police Force Act, 1951.

The provision absolutely excludes from evidence against the accused a confession made by
him to a police officer. This provision applies even to those confessions which are made to a
police officer who may not otherwise be acting as such. If he is a police officer and
confession was made in his presence, in whatever capacity, the same becomes inadmissible in
evidence. Indra Dalal v. State of Haryana, 2015 (7) SCALE 17.

However, confessions made to the police in the course of departmental proceedings have
been held to be admissible. Refer Commissioner of Police v. Narender Singh, (2006) 4
SCC 265.

SECTION 26

Sections 24 to 30 deal with confession. Section 24 speaks of the effect of a confession made

by an accused through inducement, threat or promise proceeding from a 'person in authority'.
Whereas Section 25 and Section 26 deal with situations where such 'person in authority' is
police. It is an institutionalized presumption against confession extracted by police or in
police custody. In that frame of reference, Section 24 is the genus and Sections 25 and 26 are
its species. 

The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that
confessions whenever and wherever made to the police, or while in the custody of the police
unless made in the immediate presence of a magistrate, shall be presumed to have been
obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible,
except so far as is provided by Section 27 of the Act. Aloke Nath Dutta & Ors. v. State of
West Bengal, 2006 (13) SCALE 467.

In the case of K. Padayachi v. State of Tamil Nadu AIR 1972 SC 66, the Supreme Court
whilst considering the scope and extent of section 26, in a matter wherein a contention was
canvassed to the effect that, a statement made by the accused to the doctor at the time of
medical examination to the effect that he had caused an injury on the toe of the deceased on
the night of his death would be barred in terms of section 26 as the same was made in the
custody of the police was held to be without merit. The Supreme Court in this matter held
that, there was nothing that could bar the statement of the accused becoming admissible
under section 21 of the Act.

In the matter of Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440, the
Supreme Court shed some light on the concept of arrest and custody in the following manner:

It will be appropriate, at this stage, to note that in every arrest, there is custody but not
vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though
'custody' may amount to an arrest in certain circumstances but not under all circumstances. If
these two terms are interpreted as synonymous, it is nothing but an ultra-legalist
interpretation which if under all circumstances accepted and adopted, would lead to a
startling anomaly resulting in serious consequences.

The Orissa High Court in the matter of Paramhansa Jadab v. State, AIR 1964 Ori 144,
explained the term “custody” in the following words:

It is now well settled that "police custody" for the purpose of Section 26 of the
Evidence Act does not commence only when the accused is formally arrested but would
commence from the moment when his movements are restricted and he is kept in some sort
of direct or indirect police surveillance.

Nazir Ahmad v. Emperor AIR 1936 PC 253 – PPT 3, slides 47, 48

The principles governing extra judicial confessions were succinctly explained by the
Supreme Court in the matter of Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403, as
follows:

 The extra judicial confession is a weak evidence by itself. It has to be examined by

the court with greater care and caution.
 It should be made voluntarily and should be truthful.
 It should inspire confidence.
  An extra judicial confession attains greater credibility and evidentiary value, if it is
supported by a chain of cogent circumstances and is further corroborated by other
prosecution evidence.
 For an extra - judicial confession to be the basis of conviction, it should not suffer
from any material discrepancies and inherent improbabilities.
 Such statement essentially has to be proved like any other fact and in accordance with
law.

In the case of C.K. Raveendran v. State of Kerala AIR 2000 SC 369, the Supreme Court
disbelieved a confession to be voluntary on the grounds that the witness and the accused had
both consumed alcohol

In the matter of State of Haryana v. Ved Prakash, AIR 1994 SC 468, it was held that an
accused confessing to a rank stranger, and that stranger in this case being a doctor who had
kept a tape recorder ready to record the confession did not inspire confidence, and showed
that extraneous influence was brought to bear.

A retracted confession may form the legal basis of a conviction if the court is satisfied that it
was true and was voluntarily made. But it has been held that a court shall not base a
conviction on such a confession without corroboration. It is not a rule of law, but is only rule
of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that
under no circumstances such a conviction can be made without corroboration, for a court
may, in a particular case, be convinced of the absolute truth of a confession and prepared to
act upon it without corroboration; but is may be laid down as a general rule of practice that it
is unsafe to rely upon a confession, much less on a retracted confession, unless the court is
satisfied that the retracted confession is true and voluntarily made and has been corroborated
in material particulars. Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.

SECTION 27

Section 27 is founded on the principle that even though the evidence relating to confessional
or other statements made by a person, whilst he is in the custody of a police officer, is tainted
and therefore inadmissible, if the truth of the information given by him is assured by the
discovery of a fact, it may be presumed to be untainted and is therefore declared provable in
so far as it distinctly relates to the fact thereby discovered. Even though sec. 27 is in the form
of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same
character. The ban imposed by sec. 26 is against the proof of confessional statements.
Section 27 is concerned with the proof of information whether it amounts to a confession or
not, which leads to discovery of facts. By sec. 27, even if a fact is deposed to as discovered in
consequence of information received, only that much of the information is admissible as
distinctly relates to the fact discovered. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC
1125.

At one time it was held that the expression "fact discovered" in the section is restricted to a
physical or material fact which can be perceived by the senses, and that it does not include a
mental fact. Now it is fairly settled that the expression "fact discovered" includes not only the
physical object produced, but also the place from which it is produced and the knowledge of
the accused as to the same. Mohmed Inayatullah v. State of Maharashtra, (1976) 1 SCC
828, and Vasant Sampat Dumpare v. State of Maharashtra, (2015) 1 SCC 253.

Pulukuri Kotaya v. Emperor, AIR 1947 PC 67

There is a clear distinction between the conduct of a person against whom an offence is
alleged, which is admissible Under Section 8 of the Evidence Act, if such conduct is
influenced by any fact in issue or relevant fact and the statement made to a Police Officer in
the course of an investigation which is hit by Section 162 of the Code of Criminal Procedure.
What is excluded by Section 162, Code of Criminal Procedure is the statement made to a
Police Officer in the course of investigation and not the evidence relating to the conduct of an
accused person (not amounting to a statement) when confronted or questioned by a Police
Officer during the course of an investigation. For example, the evidence of the circumstance,
simpliciter, that an accused person led a Police Officer and pointed out the place where stolen
articles or weapons which might have been used in the commission of the offence were found
hidden, would be admissible as conduct, Under Section 8 of the Evidence Act, irrespective of
whether any statement by the accused contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 of the Evidence Act. Prakash Chand v. State, Delhi
Admn., (1979) 3 SCC 90.

There is nothing in Section 27 of the Evidence Act which renders the statement of the
accused inadmissible if recovery of the articles was made from any place which is "open or
accessible to others". It is a fallacious notion that when recovery of any incriminating article
was made from a place which is open or accessible to others, it would vitiate the evidence
under Section 27 of the Evidence Act. Any object can be concealed in places which are open
or accessible to others. For Example, if the article is buried on the main roadside or if it is
concealed beneath dry leaves lying on public places or kept hidden in a public office, the
article would remain out of the visibility of others in normal circumstances. Until such article
is disinterred its hidden state would remain unhampered. The person who hid it alone knows
where it is until he discloses that fact to any other person. Hence the crucial question is not
whether the place was accessible to others or not but whether it was ordinarily visible to
others. If it is not, then it is immaterial that the concealed place is accessible to others.” State
of Himachal Pradesh v. Jeet Singh, (1999) 4 SCC 370.

It was held by the Supreme Court in the matter of Bhimappa Jinappa Naganur v. State of
Karnataka, 1993 Supp (3) SCC 449, that the discovery must be made in pursuance of the
disclosure/confessional statement, else the discovery is meaningless and vitiated.

In the matter of Ghanshyam Das v. State of Assam, (2005) 13 SCC 387, the Supreme Court
held that although discovery made without disclosure would be barred from evidence,
however the conduct of the accused could be taken note of under section 8.

In the matter of Bharat v. State of M.P, (2003) 3 SCC 106, the Supreme Court held that
common articles and ornaments that might be expected to be found in any home cannot be
taken to amount to discovery.

In the matter of Praveen Kumar v. State of Karnataka, (2003) 12 SCC 199, it was held
that there was nothing in the language of section 27 to suggest that the statement in question
must be made before independent witnesses and that normally in cases where the evidence
led by the prosecution as to a fact depends solely on the Police witnesses, the courts seek
corroboration as a matter of caution and not as a matter of rule. It was further held by the
Supreme Court that there was similarly nothing in the language of sec. 27 to suggest that
recoveries should be made immediately and some delay in making the same does not vitiate
the discovery.

SECTION 28

In the matter of Vali Isa Mahmed and Anr v. State, AIR 1963 Guj 135, the Gujarat High
Court held that, although the Supreme Court in the matter of Sarwan Singh v. State of
Punjab, AIR 1957 SC 637, had observed that speaking generally at least 24 hours’ time for
reflection should be given and that in some cases even more time may be necessary. But the
question whether a confession is voluntary or not is always a question of fact, and there is no
rule of law that if a certain period is not given for reflection that itself would be sufficient to
rule out the confession. After noting the aforesaid, the High Court held that considering the
precarious health of the accused, 4 hours’ time was insufficient to remove the inducement
and thus in terms of section 24 held the confession to be inadmissible.

SECTION 29

SECTION 30

Section 30 applies to confessions, and not to statements which do not admit the guilt of the
confessing party...But a confession of a co-accused is obviously evidence of a very weak
type. It is a much weaker type of evidence than the evidence of an approver which is not
subject to any of those infirmities. Section 30, however, provides that the Court may take the
confession into consideration and thereby, no doubt, make it evidence on which the Court
may act but the section does not say that the confession is to amount to proof. Clearly 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
confession of the co-accused can be used only in support of other evidence and cannot be
made the foundation of a conviction. Bhubani v. The King, AIR 1949 PC 257.

The said matter was heavily relied upon in the case of Kashmira Singh v. The State
of Madhya Pradesh, AIR 1952 SC 159, and which in turn was relied upon and approved in
the Constitution Bench decision in the matter of Hari Charon Kurmi and Jogia Hajam v.
State of Bihar, AIR 1964 SC 1184.

It must be remembered that as laid down by the Supreme Court in the matter of Shankaria v.
State of Rajasthan, (1978) 3 SCC 435, the Court is to apply double test for deciding the
acceptability of a confession i.e. (i) whether the confession was perfectly voluntary and (ii) if
so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its
admissibility in evidence. If the confession appears to the Court to have been caused by any
inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must
be excluded and rejected. If the first test is satisfied, the Court must before acting upon the
confession reach the finding that what is stated therein is true and reliable.

SECTION 31

Evidentiary admissions are not conclusive proof of the facts admitted and may be explained
or shown to be wrong, but they do raise an estoppel and shift the burden of proof on to the
person making them or his representative-in-interest. Unless shown or explained to be wrong,
they are an efficacious proof of the facts admitted. Refer Avadh Kishore Das v. Ram Gopal
& Ors., (1979) 4 SCC 790.