Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134

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(1966) 1 SCR 134 : AIR 1966 SC 119 : 1966 Cri LJ 100
In the Supreme Court of India

(BEFORE K. SUBBA RAO, RAGHUBAR DAYAL AND R.S. BACHAWAT, JJ.)
AGHNOO NAGESIA … Appellant;

Versus
STATE OF BIHAR … Respondent.
Criminal Appeal No. 37 of 1965* , decided on May 4, 1965
Advocates who appeared in this case:
K.K. Jain, Advocate (at State expense), for the Appellant;
S.P. Varma and R.N. Sachthey, Advocates, for the Respondent.
The Judgment of the Court was delivered by
R.S. BACHAWAT, J.— The appellant was charged under Section 302
of the Indian Penal Code for murdering his aunt, Ratni, her daughter,
Chamin, her son-in-law, Somra and Dilu, son of Somra. He was
convicted and sentenced to death by the Judicial Commissioner of
Chotanagpur. The High Court of Patna accepted the death reference,
confirmed the conviction and sentence and dismissed the appeal
preferred by the appellant. The appellant now appeals to this Court by
special leave.
2. The prosecution case is that on August 11, 1963 between 7 a.m.
and 8 a.m. the appellant murdered Somra in a forest known as
Dungijharan Hills and later Chamin in Kesari Garha field and then Ratni
and Dilu in the house of Ratni at Village Jamtoli.
3. The first information of the offences was lodged by the appellant
himself at Police Station Palkot on August 11, 1963 at 3.15 p.m. The
information was reduced to writing by the officer-in-charge, Sub-
Inspector H.P. Choudhury, and the appellant affixed his left thumb-
impression on the report. The Sub-Inspector immediately took
cognisance of the offence, and arrested the appellant the next day, the
Sub-Inspector in the company of the appellant went to the house of
Ratni, where the appellant pointed out the dead bodies of Ratni and
Dilu and also a place in the orchard of Ratni covered with bushes and
grass, where he had concealed a tangi. The appellant then took the Sub
-Inspector and witnesses to Kasiari garha khet and pointed out the
dead body of Chamin lying in a ditch covered with Ghunghu. The
appellant then took the Sub-Inspector and the witnesses to
Dungijharan Hills, where he pointed out the dead body of Somra lying
in the slope of the hills to the north. The Sub-Inspector also recovered
from the appellant's house a chadar stained with human blood. The
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evidence of PW 6 shows that the appellant had gone to the forest on

the morning of August 11, 1963.
4. The medical evidence discloses incised wounds on all the dead
bodies. The injuries were caused by a sharp-cutting weapon such as a
tangi. All the four persons were brutally murdered.
5. There is no eyewitness to the murders. The principal evidence
against the appellant consists of the first information report, which
contains a full confession of guilt by the appellant. If this report is
excluded, the other evidence on the record is insufficient to convict the
appellant. The principal question in the appeal is whether the
statement or any portion of it is admissible in evidence.
6. The first information report reads as follows:
“My name is Aghnu Nagesia. (1) My father's name is Lodhi
Nagesia. I am a resident of Lotwa, Tola Jamtoli, Thana Palkot,
District Ranchi. Today, Sunday, date not known, at about 3 p.m. I
having come to the P.S. make statement before you the S.I. of Police
(2) that on account of my Barima (aunt) Mussammat having given
away her property to her daughter and son-in-law quarrels and
troubles have been occurring among us. My Barima has no son and
she is a widow. Hence on her death we shall be owners of her-lands
and properties and daughter and son-in-law of Barima shall have no
right to them. She lives separate from us, and lives in her house
with her daughter and son-in-law and I live with my brother
separately in my house. Our lands are separate from the time of our
father. (3) Today in the morning at about 7-8 a.m. I had gone with a
tangi to Duni Jharan Pahar to cut shrubs for fencing. I found Somra
sitting alone there who was grazing cattle there. (4) Seeing him I
got enraged and dealt him a tangi blow on the filli (calf) of right leg,
whereby he toppled down on the ground. Thereupon I dealt him
several Chheo (blows) on the head and the face, with the result that
he became speechless and died. At that time there was none near
about on that Pahar. (5) Thereafter I came to the Kesari Garu field
where Somra's wife Chamin was weeding out grass in the field. (6) I
struck her also all of a sudden on the head with the said tangi
whereby she dropped down on the ground and died then and there.
(7) Thereafter I dragged her to an adjoining field and laid her in a
ditch to the north of it and covered her body with Gongu (Pala ke
Chhata) so that people might not see her. There as no person then
at that place also. (8) Thereafter I armed with that tangi went to the
house of my Barima to kill her. When I reached there, I found that
she was sitting near the hearth which was burning. (9) Reaching
there all of a sudden I began to strike her on the head with tangi
whereupon she dropped down dead at that very place. (10) Near her
was Somra's son aged about 3-4 years. (11) I also struck him with
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the tangi. He also fell down and died. (12) I finished the line of my
Barima so that no one could take share in her properties. (13) I hid
the tangi in the jhari of my Barima's house. (14) Later on I narrated
the occurrence to my chacha (father's brother) Lerha that I killed the
aforesaid four persons with tangi. After sometime (15) I started for
the P.S. to lodge information and reaching the P.S. I make this
statement before you. (16) My Barima had all along been quarrelling
like a Murukh (foolish woman) and being vexed, I did so. (17) All the
dead bodies and the tangi would be lying in those places. I can point
them out. (18) This is my statement. I got it read over to me and
finding, it correct, I affixed my left thumb-impression.”
7. We have divided the statement into 18 parts. Parts 1, 15 and 18
show that the appellant went to the police station to make the report.
Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10
disclose the movements and opportunities of the appellant before the
murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11
disclose that the appellant killed the four persons. Part 12 disclose the
killing and the motive. Parts 7, 13 and 17 disclose concealment of a
dead body and a tangi and his ability to point out places where the
dead bodies and the tangi were lying. Part 14 discloses the previous
confession by the appellant. Broadly speaking, the High Court admitted
in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and 18.
8. On behalf of the appellant, it is contended that the entire
statement is a confession made to a police officer and is not provable
against the appellant, having regard to Section 25 of the Indian
Evidence Act, 1872. On behalf of the respondent, it is contended that
Section 25 protects only those portions of the statement which disclose
the killings by the appellant and the rest of the statement is not
protected by Section 25.
9. Section 25 of the Evidence Act is one of the provisions of law
dealing with confessions made by an accused. The law relating to
confessions is to be found generally in Sections 24 to 30 of the
Evidence Act and Sections 162 and 164 of the Code of Criminal
Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found
under the heading “Admissions”. Confession is a species of admission,
and is dealt with in Sections 24 to 30. A confession or an admission is
evidence against the maker of it, unless its admissibility is excluded by
some provision of law. Section 24 excludes confessions caused by
certain inducements, threats and promises. Section 25 provides:“No
confession made to a police officer, shall be proved as against a person
accused of an offence”. The terms of Section 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
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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.
Section 26 prohibits proof against any person of a confession made by
him in the custody of a police officer, unless it is made in the
immediate presence of a Magistrate. The partial ban imposed by
Section 26 relates to a confession made to a person other than a police
officer. Section 26 does not qualify the absolute ban imposed by
Section 25 on a confession made to a police officer. Section 27 is in the
form of a proviso, and partially lifts the ban imposed by Sections 24, 25
and 26. It provides that when any fact is deposed to as discovered in
consequence of information received from a person accused of any
offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the
fact thereby discovered, may be proved. Section 162 of the Code of
Criminal Procedure forbids the use of any statement made by any
person to a police officer in the course of an investigation for any
purpose at any enquiry or trial in respect of the offence under
investigation, save as mentioned in the proviso and in cases falling
under sub-section (2), and it specifically provides that nothing in it
shall be deemed to affect the provisions of Section 27 of the Evidence
Act. The words of Section 162 are wide enough to include a confession
made to a police officer in the course of an investigation. A statement
or confession made in the course of an investigation may be recorded
by a Magistrate under Section 164 of the Code of Criminal Procedure
subject to the safeguards imposed by the section. Thus, except as
provided by Section 27 of the Evidence Act, a confession by an accused
to a police officer is absolutely protected under Section 25 of the
Evidence Act, and if it is made in the course of an investigation, it is
also protected by Section 162 of the Code of Criminal Procedure, and a
confession to any other person made by him while in the custody of a
police officer is protected by Section 26, unless it is made in the
immediate presence of a Magistrate. These provisions seem to proceed
upon the view that confessions made by an accused to a police officer
or made by him while he is in the custody of a police officer are not to
be trusted, and should not be used in evidence against him. They are
based upon grounds of public policy, and the fullest effect should be
given to them.
10. Section 154 of the Code of Criminal Procedure provides for the
recording of the first information. The information report as such is not
substantive evidence. It may be used to corroborate the informant
under Section 157 of the Evidence Act or to contradict him under
Section 145 of the Act, if the informant is called as a witness. If the
first information is given by the accused himself, the fact of his giving
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the information is admissible against him as evidence of his conduct

under Section 8 of the Evidence Act. If the information is a non-
confessional statement, it is admissible against the accused as an
admission under Section 21 of the Evidence Act and is relevant, see
Faddi v. State of Madhya Pradesh1 explaining Nisar Ali v. State of U.P.2
and Dal Singh v. King-Emperor3 . But a confessional first information
report to a police officer cannot be used against the accused in view of
Section 25 of the Evidence Act.
11. The Indian Evidence Act does not define “confession”. For a long
time, the courts in India adopted the definition of “confession” given in
Article 22 of Stephen's Digest of the Law of Evidence. According to that
definition, a confession is an admission made at any time by a person
charged with crime, stating or suggesting the inference that he
committed that crime. This definition was discarded by the Judicial
Committee in Pakala Narayanaswami v. King-Emperor4 . Lord Atkin
observed:
“…no statement that contains self exculpatory matter can amount
to 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 at any rate
substantially all the facts which constitute the offence. An admission
of a gravely incriminating fact, even a conclusively incriminating
fact, is not of itself a confession, e.g., an admission that the accused
is the owner of and was in recent possession of the knife or revolver
which caused a death with no explanation of any other man's
possession.”
These observations received the approval of this Court in Palvinder Kaur
v. State of Punjab5 . In State of U.P. v. Deoman Upadhyaya6 Shah, J.
referred to a confession as a statement made by a person stating or
suggesting the inference that he has committed a crime.
12. Shortly put, a confession may be defined as an admission of the
offence by a person charged with the offence. A statement which
contains self-exculpatory matter cannot amount to a confession, if the
exculpatory statement is of some fact which, if true, would negative the
offence alleged to be confessed. If an admission of an accused is to be
used against him the whole of it should be tendered in evidence, and if
part of the admission is exculpatory and part inculpatory, the
prosecution is not at liberty to use in evidence the inculpatory part
only. See Hanumant v. State of U.P.7 and Palvinder Kaur v. State of
Punjab5 . The accused is entitled to insist that the entire admission
including the exculpatory part must be tendered in evidence. But this
principle is of no assistance to the accused where no part of his
statement is self-exculpatory, and the prosecution intends to use the
whole of the statement against the accused.
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13. Now, a confession may consist of several parts and may reveal
not only the actual commission of the crime but also the motive, the
preparation, the opportunity, the provocation, the weapons used, the
intention, the concealment of the weapon and the subsequent conduct
of the accused. If the confession is tainted, the taint attaches to each
part of it. It is not permissible in law to separate one part and to admit
it in evidence as a non-confessional statement. Each part discloses
some incriminating fact i.e. some fact which by itself or along with
other admitted or proved facts suggests the inference that the accused
committed the crime, and though each part taken singly may not
amount to a confession, each of them being part of a confessional
statement partakes of the character of a confession. If a statement
contains an admission of an offence, not only that admission but also
every other admission of an incriminating fact contained in the
statement is part of the confession.
14. If proof of the confession is excluded by any provision of law
such as Section 24, Section 25 and Section 26 of the Evidence Act, the
entire confessional statement in all its parts including the admissions of
minor incriminating facts must also be excluded, unless proof of it is
permitted by some other section such as Section 27 of the Evidence
Act. Little substance and content would be left in Sections 24, 25 and
26 if proof of admissions of incriminating facts in a confessional
statement is permitted.
15. Sometimes, a single sentence in a statement may not amount to
a confession at all. Take a case of a person charged under Section 304-
A of the Indian Penal Code and a statement made by him to a police
officer that “I was drunk; I was driving a car at a speed of 80 miles per
hour; I could see A on the road at a distance of 80 yards; I did not
blow the horn; 1 made no attempt to stop the car; the car knocked
down A”. No single sentence in this statement amounts to a confession,
but the statement read as a whole amounts to a confession of an
offence under Section 304-A of the Indian Penal Code, and it would not
be permissible to admit in evidence each sentence separately as a non-
confessional statement. Again, take a case where a single sentence in a
statement amounts to an admission of an offence. ‘A’ states “I struck
‘B’ with a tangi and hurt him”. In consequence of the injury ‘B’ died. ‘A’
committed an offence and is chargeable under various sections of the
Indian Penal Code. Unless he brings his case within one of the
recognised exceptions, his statement amounts to an admission of an
offence, but the other parts of the statement such as the motive, the
preparation, the absence of provocation, concealment of the weapon
and the subsequent conduct, all throw light upon the gravity of the
offence and the intention and knowledge of the accused, and negatives
the right of private defence, accident and other possible defences. Each
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and every admission of an incriminating fact contained in the

confessional statement is part of the confession.
16. If the confession is caused by an inducement, threat or promise
as contemplated by Section 24 of the Evidence Act, the whole of the
confession is excluded by Section 24. Proof of not only the admission of
the offence but also the admission of every other incriminating fact
such as the motive, the preparation and the subsequent conduct is
excluded by Section 24. To hold that the proof of the admission of other
incriminating facts is not barred by Section 24 is to rob the section of
its practical utility and content. It may be suggested that the bar of
Section 24 does not apply to the other admissions, but though
receivable in evidence, they are of no weight, as they were caused by
inducement, threat or promise. According to this suggestion, the other
admissions are relevant, but are of no value. But we think that on a
plain construction of Section 24, proof of all the admissions of
incriminating facts contained in a confessional statement is excluded by
the section. Similarly, Sections 25 and 26 bar not only proof of
admissions of an offence by an accused to a police officer or made by
him while in the custody of a police officer but also admissions
contained in the confessions statement of all incriminating facts related
to the offence.
17. A little reflection will show that the expression “confession” in
Sections 24 to 30 refers to the confessional statement as a whole
including not only the admissions of the offence but also all other
admissions of incriminating facts related to the offence. Section 27
partially lifts the ban imposed by Sections 24, 25 and 26 in respect of
so much of the information whether it amounts to a confession or not,
as relates distinctly to the fact discovered in consequence of the
information, if the other conditions of the section are satisfied. Section
27 distinctly contemplates that an information leading to a discovery
may be a part of the confession of the accused and thus fall within the
purview of Sections 24, 25 and 26. Section 27 thus shows that a
confessional statement admitting the offence may contain additional
information as part of the confession. Again, Section 30 permits the
Court to take into consideration against a co-accused a confession of
another accused affecting not only himself but the other co-accused.
Section 30 thus shows that matters affecting other persons may form
part of the confession.
18. 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 Section 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
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extent that the ban of Section 25 is lifted by Section 27.

19. Our attention is not drawn to any decision of this Court or of the
Privy Council on the question whether apart from Section 27, a
confessional first information report given by an accused is receivable in
evidence against him. Decisions of the High Courts on this point are
hopelessly conflicting. They contain all shades of opinion ranging from
total exclusion of the confession to total inclusion of all admissions of
incriminating facts except the actual commission of the crime. In Harji
v. Emperor8 and Noor Muhammad v. Emperor9 the Lahore High Court
held that the entire report formed a single connected story and no part
of it had in Emperor v. Harman Kisha10 the Bombay High Court held
that the entire confessional report dealing with events on the night of
the offence was hit by Section 25, and it could not be said that portions
of it dealing with the motive and the opportunity were not parts of the
confession. In King-Emperor v. Kommoju Brahman11 the Patna High
Court held that no part of the confessional first information report was
receivable in evidence, the entire report formed a single connected
story and no part of it had any meaning or significance except in
relation to the whole, and it would be wrong to extract parts of the
statement and treat them as relevant. This case was followed in Adi
Moola Padayachi v. State12 and the Court admitted only the portion of
the confessional first information report which showed it was given by
the accused and investigation had started thereon. In State of
Rajasthan v. Shiv Singh13 the Court admitted in evidence the last part
of the report dealing with the movements of the accused after the
commission of the offence, but excluded the other parts of the
statement including those relating to motive and opportunity. In Legal
Remembrancer v. Lalit Mohan Singh Roy14 the Calcutta High Court
admitted in evidence the narrative of the events prior to the night of
the occurrence disclosing the motive of the offence. This case was
followed by the Nagpur Court in Bharosa Ramdayal v. Emperor15 . In
Kartar Singh v. State16 the Court admitted in evidence the introductory
part and the portion narrating the motive and the opportunity. In Ram
Singh v. State17 the Rajasthan High Court held that where it is possible
to separate parts of the first information report by an accused from that
in which he had made a confession, that part which can be so
separated should be admitted in evidence, and on this view, admitted a
part of the report relating to motive and subsequent conduct including
the statement that the accused had left the deceased lying wounded
and breathing in the tibari and there was no hope of her surviving and
he had come having covered her with a cloth. In Lachhuman Munda v.
State of Bihar18 the Patna High Court admitted in evidence portions of
the first information report relating to the motive, the opportunity and
the entire narrative of events before and after the crime. This case was
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followed in the judgment under appeal. Some of the decided cases took
the view that if a part of the report is properly severable from the strict
confessional part, then the severable part could be tendered in
evidence. We think that the separability test is misleading, and the
entire confessional statement is hit by Section 25 and save and except
as provided by Section 27 and save and except the formal part
identifying the accused as the maker of the report, no part of it could
be tendered in evidence.
20. We think, therefore, that save and except Parts 1, 15 and 18
identifying the appellant as the maker of the first information report
and save and except the portions coming within the purview of Section
27, the entire first information report must be excluded from evidence.
21. Section 27 applies only to information received from a person
accused of an offence in the custody of a police officer. Now, the Sub-
Inspector stated he arrested the appellant after he gave the first
information report leading to the discovery. Prima facie therefore, the
appellant was not in the custody of a police officer when he gave the
report, unless it can be said that he was then in constructive custody.
On the question whether a person directly giving to police officer
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, there is conflict of opinion. See the
observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman
Upadhyaya6 . For the purposes of the case, we shall assume that the
appellant was constructively in police custody and therefore the
information contained in the first information report leading to the
discovery of the dead bodies and the tangi is admissible in evidence.
The entire evidence against the appellant then consists of the fact that
the appellant gave information as to the place where the dead bodies
were lying and as to the place where he concealed the tangi, the
discovery of the dead bodies and the tangi in consequence of the
information, the discovery of a blood-stained chadar from the
appellant's house and the fact that he had gone to Dungi Jharan Hills
on the morning of August 11, 1963. This evidence is not sufficient to
convict the appellant of the offences under Section 302 of the Indian
Penal Code.
22. In the result, the appeal is allowed, the conviction and sentence
passed by the Courts below are set aside, and the appellant is directed
to be set at liberty forthwith.
———
* Appeal by Special Leave from the Judgment and Order dated 9th November, 1964 of the
Patna High Court in Criminal Appeal No. 200 of 1964 and Death Reference No. 9 of 1964.
1
Criminal Appeal No. 210 of 1963 decided on January 24, 1964
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2
AIR 1957 SC 366
3 LR 44 IA 137
4 (1939) LR 66 IA 66, 81
5
(1952) 2 SCC 177 : (1953) SCR 94, 104
6
(1961) 1 SCR 14, 21
7 (1952) 2 SCC 71 : (1952) SCR 1091, 1111
8
AIR 1918 Lah 69
9 (1925) 90 IC 148
10
(1935) ILR 59 Bom 120
11
(1940) ILR Patna, 301, 308, 314
12 (1960) MWN 528
13 AIR 1952 Rajasthan, 3
14
(1922) ILR 49 Cal 167
15 AIR 1941 Nag 86
16 AIR (1952) Papsu 98
17
(1952) ILR 2 Rajasthan 93
18
AIR 1964 Patna 210
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Page 1 Sunday, January 15, 2023

(1966) 1 SCR 134 : AIR 1966 SC 119 : 1966 Cri LJ 100

In the Supreme Court of India

AGHNOO NAGESIA … Appellant;

evidence of PW 6 shows that the appellant had gone to the forest on

made before any investigation has begun. The expression “accused of

the information is admissible against him as evidence of his conduct

and every admission of an incriminating fact contained in the

extent that the ban of Section 25 is lifted by Section 27.

7 (1952) 2 SCC 71 : (1952) SCR 1091, 1111

12 (1960) MWN 528

13 AIR 1952 Rajasthan, 3

15 AIR 1941 Nag 86

16 AIR (1952) Papsu 98

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