CHAPTER-III

LAW RELATING TO CONFESSION UNDER INDIAN

EVIDENCE ACT 1872

3.1. Introduction

“A confession may be defined as a voluntary and full acknowledgment of

guilt made by the guilty person. The etymological meaning of the word
“confession” conveys the meaning of completeness, for this comes from a Latin
word “confiteri” --- (Con signifies completeness, and fateri-fari, to speak) so a
confession in strictness, must be an unreserved and total avowal by the accused
person of his guilt; and such a statement must be wholly free from outside
influence, either in the nature of threats or inducement.”131 A confession will be
usually an outcome of the irresistible prompting of a conscience burdened with
guilt and contrition. The reason for making a confession as far as the accused
person is concerned is to lighten his oppressive mental feelings, and the solace is
a feeling that he is boldly facing the consequences of his guilt act by telling the
truth. So very often prisoners admit that the pangs of suffering of their repentant
hearts are more terrible and oppressive than the suffering of jail life. This is the
highest form of a confession, and made with a view, probably, to bring upon
oneself the deserved punishment, “the first uniform legislation on Evidence was
drafted by the Indian Law Commission.”132 “The Bill was however, dropped as it
was felt not sufficiently elementary in as much as it pre-supposed some
knowledge of the English rules and practice and as such would not be suitable in
India. J.F. Stephen then drafted a new bill which came to he be passed as the
present The Indian Evidence Act, 1872”.

131
Gopal S. Chaturvedi (ed.) C.D. Field’s, Law on Admissions and Confessions (Delhi Law
House, Delhi, 2014).
132
The Draft of Indian Evidence Act, prepared by India Law Commission in 1868.

54
 The law was “enacted a century ago by the representative of the British
Government has remained totally static”. The Code of Criminal Procedure133 “as
once against thoroughly revised in 1973 has not made any changes in sections
affecting custodial confessions. The very few amendments made in the Evidence
Act have also not touched Sections 24 to 27. No judgment of the Supreme Court
or of any of the High Courts in half a century after the Constitution coming into
force appears to have questioned the propriety of the total exclusion clause.”

“A confession is a straight acknowledgment of guiltiness, on the part of

the accused, and by the very force of the definition expelled an admission which
of itself as applied in Criminal Law, is statement by the accused direct or implied,
of facts relevant to the issue, and treatment in connection with a proof of other
facts to prove his guilt but of itself is insufficient to authorize a conviction. In
other words, a confession is an admission made at any time by a person charged
with a crime stating or portentous the conclusion that he committed that crime.”

The definition of admission as given in Section 17 of The Indian Evidence

Act also becomes applicable to confession also. Section 17 defines admission as
“a statement oral or documentary, which suggests any inference to any fact in
issue or relevant fact”.134

One practical effect of this difference between the definition of an

admission and confession would be that a statement which may not amount to a
confession may still be relevant as an admission. In a case before the Supreme
Court,135 “a person being prosecuted under the Custom Act told the Custom
officer that he did not know that the goods loaded in this truck were contraband,
nor they were loaded with his instructions. The court held that the statement was

133
THE CODE OF CRIMINAL PROCEDURE, 1973. ACT (2 OF 1974).
134
Lal, Batuk “Law of Evidence” (Central Law Agency, Edition 20th, Allahabad).
135
Veera Ibrahim v. State of Maharashtra, A.I.R.1976 S.C. 1167. Pandru Khadia v. State of
Orissa, 1992 Cr. L.J. 762 (Orissa), neither whole guilt admitted, nor the statement
addressed to any person. The accused going round the village shouting that he had killed
his wife, the court holding that it did not amount to a confession, seems to be wrong, for,
it is well known, that a confession may take place even when one is talking to oneself.

55
not a confession, but it did amount to an admission of an incriminating fact and
was, therefore, relevant under Sec. 17 read with Sec. 21.” On this point the
distinction between “admission” and “confession” needs to be appreciated. Only
voluntary and direct acknowledgment of guilt is a confession but when a
confession falls short of actual admission of guilt, it may nevertheless be used as
evidence as against the person who made it as an admission under Sec. 21. As an
admission it would not suffer from the handicap of being made to a “police officer
or a person in authority”. Acting on this, the Supreme Court held that “entries in
the diary of a person mentioning the names of certain persons as the recipient of
money were not relevant against them but as between Jain brothers they were
relevant as admission under Sec. 18 as the statements of an agent who was
authorized to make the payments.”136

In a statement recorded by the magistrate, the accused did not admit his
guilt in terms and merely went on stating the fact of assault on the deceased by
mistake. The Supreme Court held that “such statements could not be used against
the accused as a confession.”137where the accused confessed that he knew about
the conspiracy to commit the murder in question but did not confess that he was a
party to the crime, the statements was held to be relevant as a confession in
case.138

3.2. Main Differences between Admission and Confession.

The evidence Act draws a distinction between admission and
confessions.139 The case in Imperatrix v. Pandharinath 140
falls short of holding
that admissions and confessions are the same thing.141 The broad distinction
between an admission and confession is that “the latter is statement made by an
accused person which is sought to be proved against him in a criminal proceeding

136
C.B.I. v. V.C. Shukla, (1998) 3 S.C.C. 410.
137
State of Haryana v. Rajinder Singh, (1996) 8 S.C.C. 77 ; 1996 Cr. L.J. 1875.
138
Shabad Pulla Reddy v. State of A.P., AIR 1997 S.C. 3087 : (1997) 8 S.C.C. 495.
139
10 Bom. L.R. App. 2, Empress v. Dabee Pershad, I.L.R. Cal. 530; Queen Empress v.
Nilmadhub Mitter, I.L.R. 15 Cal. 595 at p. 607 (F.B.).
140
6 Bom. 34.
141
Queen Empress v. Meher Ali Mullick, I.L.R. 15 Cal. 589 at p. 593.

56
to establish and offence, while under the former term are comprised all other
statements amounting to admissions as defined in Sec 18”142 In order to determine
whether a statement is a confession of guilt or an admission of a criminating
circumstance, a court must look to the statement itself.143 “A confession is a direct
acknowledgment of guilt on the part of the accused and, by the very force of the
definition, excludes an admission, which, of itself, as applied in criminal law, is a
statement by the accused, direct or implied, of facts pertinent to the issue, and
tending, in connection with proof of other facts to prove his guilt, but of itself is
insufficient to authorize conviction.”144 Confession in common acceptation
means and implies acknowledgment of guilt its evidentiary value and its
acceptability however shall have to be assessed by the court having due regard to
the credibility of the witness. In the event however, “the court is otherwise in a
position having due regard to the attending circumstances believes the witness
before whom the confession is made and is otherwise satisfied that the confession
is in fact voluntary and without there being any doubt in regard thereto and order
of conviction can be founded on such evidence.”145
Confession is a species of Admissions.146 It is an accepted doctrine that
confessions are admissions but the opposite is not true. The fundamental opinion
which governs a confession and an admission is the same and that principle is that
a statement made by a person against his personal interest might be true. The
word confession is also placed in combination with admission. Therefore Section
17 to 31 deal with admissions usually though sections 24 to 30 deal with
confessions as distinguished from admissions. The following are the main
differences between the two:
1. The extensive distinction seems to be that a confession is a statement

142
5 M.L.J. Art., p. 12 at p.15.
143
5 Bom. L.R. 312 at p.313.
144
Holloway, J., in State v. Guie, 56 Mount. 485: 186 Pac 329, cited in Wigmore, Vol. III.
Sec. 821.
145
State of Punjab v. Gurdeep Singh, 1999 (7) S.C. 618 at p. 620.
146
Kavita Dhull, A STUDY OF CONFESSION UNDER CRIMINAL LAW WITH SPECIAL
REFERENCE TO ITS EVIDENTIARY VALUE (2013) (Unpublished Ph.D. Thesis, M.D.
University, Rohtak).

57
 made by an accused person which will be used against him in a criminal
proceeding to establish the commission of the offence by him while an
admission is a statement by a party to proceeding or by a person who has
an interest in the subject-matter of the proceeding whereby he admits a
fact in issue or relevant fact and such an admission will be generally used
in a civil proceeding.
2. “A confession untainted by any legal disqualification may be established
as definite in itself of the matters confessed as conclusive in itself of the
matters confessed” as held in Emperor v. Narayan,147 but “an admission is
no conclusive proof of the matters admitted though it may operate as an
estoppels.”148
3. “A confession always goes against the person making it. An admission
may be sometimes proved by or on behalf of the person making the
admission” under the provisions of Section 21 of the Evidence Act.
4. The confession of one accused tried along with some other accused may
be used in opposition to the others, if the requirements of section 30 of the
Evidence Act are satisfied but “an admission of one of several defendants
is no evidence against another defendant.”
5. An admission need not be voluntary to be admissible in evidence as is the
case with confessions.
6. There can be a relevant admission made by an agent or even a stranger on
behalf of a party but for a confession to be relevant. It must be made by
the accused himself. Holloway. J. has clarified the distinction in an
American case titled as State v. Guie.149

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

criminal law is not a technical refinement but based upon the substantive
difference of the character of the evidence deduced from each. A confession is a

147
(1907) 32 (Bom.) III (F.S.).
148
See Section 31, Indian Evidence Act of 1872.
149
56 (Mont.) 485.

58
straight acknowledgement of guilt on the part of the accused and by the very force
of the definition excludes an admission, which of itself as apply in criminal law is
a statement by the accused, direct or implied of facts pertinent to the issue and
tending in connection with other facts to prove his guilt, but of itself is
insufficient to authorize a conviction.” The matter was also dealt within Ram v.
State,150 and the court observed as follows:
“If the statement by itself is sufficient to prove the guilt of
the accused, it is a confession but that if, on the other hand, the
statement falls short of it. It amounts to an admission. The acid test
which distinguishes a confession from an admission is that where a
confession can be based upon the statement alone it is a confession
and that where supplementary evidence is needed to authorize a
conviction then it is an admission.”
So there is a real difference between a confession and an admission and
the matter is put clearly by Holloway J. in an American case “The distinction
between a confessions an admission, as applied in criminal law, is not a technical
refinement but based upon the substantive differences of the character of the
evidence deduced from the each. A confession is a direct Acknowledgment of
guilt on the part of the accused, and by the very force of the definition excludes an
admission, which (of itself as applied in criminal law) is a statement by the
accused, direct or implied, of facts pertinent to the issue and tending in connection
with other facts, to prove his guilt, but of itself is insufficient to authorize a
conviction”151
On hand we discuss the Acid Test to distinguish Confession from
Admission, the Allahabad High Court tried to differentiated between a confession
and an admission in following manner “The acid test which distinguish a
confession from an admission is where a conviction can be based on the statement
alone, it is confession, and where some extraneous evidence is needed to authorise

150
AIR 1959 All. 518.
151
State v. Guie 56 Mont. 485, also cited in Wigmore’s Evidence, Sec. 821.

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a conviction, then it is admission.” 152

3.3. Confession in the Eye of Law153.

We have seen what is meant by a confession strictly so called. But an

absolute confession or the “plenary confession” as it is sometime called is not the
only variety that comes up before court for consideration. There will also cases
where prisoners do not make absolute confessions but make statements, which
though do not contain direct admission of guilt, yet give rise to inference of guilt.
Thus if a prisoner states that he killed another person, it is a clear confession. But
on the other hand, suppose he states “If I speak, I will be exposing B as murderer
who shared with me the jewels from the person of deceased”. This statement
undoubtedly contains incrementing material and from “If I speak, I will be also
exposing B as a murderer” there follow an admission impliedly that the accused
person is in some way guilty for the casualty of the deceased. If the prisoner had
stated nothing more than this, question of some nicety arises as to whether this
statement can be regarded as confession. If it is regarded as a confession, the
safeguards allowed by law, attach to it; if not, it will go without these safe guards.

3.4. Legislative Provisions

The “term Confession154 is nowhere defined in Indian Evidence Act 1872.
All the provisions relating to confession occur under the heading of admission.”155
This shows the legislative intent of not distinguishing between an ‘admission’ and
a ‘confession’, so far as at least definition is concerned. The definition of
‘admission’ as given in section 17 becomes applicable to confession also.
According to this section a statement is called admission as a statement oral or

152
Ramasing v. State, AIR 1959 All. 518.
153
Rabindra Kumar Pal @ Dara Singh v. Republic of India, AIR 2011 SC 1436.
154
A. Tajudeen v. Union of India, 2014 (11) SCLAE 754.
155
Section 17 of Indian Evidence Act 1872, Admission defined- an admission is a statement,
oral or documentary [or contained in electronic form], which suggests any inference as to
any fact in issue or relevant fact, and which is made by any of the person, and under the
circumstances hereinafter mentioned.

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documentary, which suggests any inference as to any fact in issue or relevant fact.
If such a statement made by a party in civil proceedings it will be called an
‘admission’ and if it is made by a party charged with a crime it will be called a
‘confession’.
It was held in State of Maharastra v. Kamal Ad Md Vakil Ansari156 that in
term of the Act, “a confession is a statement made by a person charged with a
crime suggesting an inference as to any fact in issue or as to relevant fact. The
inference that the statement should suggest should be that he is guilty of the
crime.”
The term appears for the first time in Indian Evidence Act under section
24. The Indian Evidence Act 1872, when incorporating Sections 24 to 27 placed
confession under the category of admission.157 Thus it can be stated that
confessions are a species of admission.158 In Palvinder Kaur v. State of Punjab 159
the apex court accepted the Privy Council Conclusion in Pakala Narayan
Swami160 Case over two scores:
1. “That for an admission amounts to confession, it must either admit the
guilt in terms or admit considerably all the facts which compose the
offence.
2. That a mixed up statement which even though consist of some
confessional statement but will lead to acquittal, is no confession.”
Thus, “a statement that has self-exculpatory matter which if true would
contradict the convictions, cannot be called a confession.” Now here we
discuss the provision of the Indian Evidence Act 1872, in which provisions
relating to confession are defined.
3.4.1. Significance of Section 24.

Under the Indian evidence Act section 24 have great value because in this
section word confession is used. Section 24 explain as, c”onfession caused by
156
AIR 2013 S.C. 1441.
157
Q.E. v. Babu Lal, I.L.R., 6 All, 509,529 (1884).
158
Q.E. v. Ashootosh Chuckerbutty. I.L.R., 4Cal. 483, 492 (1878).
159
AIR 1952 S.C. 354.
160
A 1939 PC 47.

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inducement, threat or promise when irrelevant in criminal proceeding.” A
confession should be voluntary in order to be admissible. If it is an outcome of
remorse and a want to make compensation for the offence, it is admissible. “But if
it flows from hope or fear, excited by a person in authority, it shall be
inadmissible”161

The purpose is to safeguard the interest of the accused, on the ground of

public policy and for proper administration of justice162. The apex Court observed
in Aher Raja Khima v. State of Saurashtra,163 “It is abhorrent to out notions of
justice and fair play, and is dangerous to allow a man to be convicted on the
strength of confession unless it is made; and any attempt by a person in authority
to bully a person into making a confession, or any threat or coercion would at
once invalidate it, if the fear was still operating on his mind at the time he makes
the confession, and if it would appear to him reasonable for supporting that by
making he would gain an advantage or avoid any evil of a temporal nature in
reference to the proceeding against him.”164

Lord Sumner in Ibrahim v. R., 165

observed is the following words, “Even
the rule, which excludes evidence of statements made by a prisoner when they are
induced by hope held out, or fear inspired by a person in authority, is a rule of
policy”

In Phipson on evidence,166it is stated that “the ground for the rejection of

confessions which are not voluntary is the danger that the prisoner may be
induced by hope or fear to incriminate himself falsely.”

161
Vasant Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253.
162
Aftab Ahmad Ansari v. State of Uttaranchal, (2010) 2 SCC 583.
163
AIR 1956 S.C. 217.
164
Shakil Ahmad Khan & Manmohan Lal Sarin, (ed) Chief Justice M. Monir Law of
Evidence 315 (Universal Law Publishing, New Delhi,2013).
165
AIR 1914 PC 599.
166
Jonathan Auburn, Roderick Bagshaw, et. Al. (eds.), Phipson on Evidence 418 (Thomson
Sweet and Maxwell, Australia, 13th edn., 2007).

62
 Lord Diplock observed that “the underlying rational of this branch of
criminal law, though it may originally have been based on ensuring the reliability
of confession is, in my view, now to be found in the maxim, memo debt proderese
ipsum, no one can be required to be his own betrayer, or in its popular English
mistranslation the right to silence”167

168
The Apex Court in Shankaria v. State of Rajasthan observed that it is
well settled rule that a confession, if voluntarily and truthfully made, is an
efficacious proof of guilt. Therefore, when in a capital case the prosecution
demands a conviction of the accused primarily on the basis of his confession
recorded under section 164 of Criminal Procedure Code1973, the court must
apply a double test:

1. Whether the confession was perfectly voluntary?

2. If so, whether it was true and trustworthy?

Satisfaction of the first test is 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, it must be
excluded and rejected brevimanu. In such a case, the question of proceeding
further to apply the second test does not arise. If the first test is satisfied, the court
must, before acting upon the confession, reach the findings that what is stated
therein is true and reliable. For judging the reliability of such confession or, for
that matter, of any substantive piece of evidence, there is no rigid cannon of
universal application. Even so, one board method which may be useful in most
cases for the evaluation of a confession may be indicated. The court should be
carefully examine the confession and compare it with the rest of the evidence, in
the light of the surrounding circumstances and probabilities of the case.”169

167
R. v. Sang, 1979 2 All ER 1222.
168
AIR 1978 SC 1248.
169
Devendra Prasad Tiwari v. State of U.P. AIR 1978 SC 1544.

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 Mahmood J. stated that the principle is a rule of relevancy, called forth by
the abstract principles of evidence and not a positive prohibition necessitated by
exigencies. It is a rule of exclusion because; this section declares that a confession
made by an accused under certain circumstances is irrelevant in criminal
proceedings. Therefore, it is only the satisfaction of the court is necessary, though
there may not be a decision in so many words that a confession is not relevant.170

171
In the case of Bishnu Parsad Sinha v. State of Assam, The Supreme
Court explains most important ingredients of section 24; “these ingredients are the
main conditions of irrelevancy:

1. The confession must be result of inducement , threat or promise;

2. Inducement , etc. should be proceed from a person in authority;

3. It should relate to the charge in question ; and

4. It should hold out some worldly benefit or disadvantage.”

On the basis of above cases researcher find out the main factors
adulterating confession. Some of them are explain in detail as under:

3.4.1.1. “Inducement, Threat or Promise”

“A confession should be free and voluntary. If it proceeds from remorse

and a desire to make reparation for the crime, it is admissible”. If it flow from
hope or fear, exited by a person in authority, it is inadmissible. “The ground for
not receiving such evidence is such that it would not be safe to receive a statement
made under any influence or fear. There is no presumption of law that it is false or
that the law considers that such statement cannot be relied upon.”172

Where the prisoner is only told to tell the truth without exiting any hope or
fear in him, his statement cannot be regarding as being made in response to any

170
Q.E. v. Babulal, ILR 1884 6All 509.
171
AIR 2007 SC 848.
172
Tofan Singh v. State of Tamil Nadu, [2013] 9 SCR 962.

64
threat or promise. “Where a prisoner was told by a constable that he need not to
say anything to criminating himself, but what he did say would be taken down
and used in evidence against him, it was held that such words did not amount to
any threat or promise to induce the prisoner to confess.”173 POLLACK, C.B.
pointed out that “where the admission to speak the truth has been coupled with
any expression importing that it would be better for him to do so, the confession
was not receivable, and the objectionable words being that it would be better
speak the truth”.174 In R. v. Voisin 175
it was held that “the body of a woman was
found in parcel with a piece of paper carrying the words ‘Bladie Belgiam’. The
accused, before being charged, was asked to write the words. He expressed his
willingness and wrote ‘Bladie Belgiam’. This amounted to some sort of
confession that the writing on the piece of paper found with the body was that of
accused. The writing was held to be free and voluntarily and therefore, relevant.
The prisoner wrote those words quit voluntarily. The mere fact that they were
written at the request of a police officer did not tend to change the character of
handwriting, nor did they explain the resemblance between his handwriting and
that upon the label, on account for the same miss-spelling occurring in both.” The
mere fact that “the accused was in custody of an intelligence officer at the time of
the statement would not be sufficient to create the presumption of inducement,
thereat or promise.”176

“In deciding whether a particular confession attract the frown of section

24 of the IEA, the question has to be considered from the point of view of the
confessing accused as to how the inducement, threat or promise proceeding from
a person in authority would operate in his mind.” The facts of the case, 177
in
which this statement occurs, were that a senior police officer, after having failed

173
R. v. Baldry, (1852) 2 Den. C.C. 430.
174
The words “you had better” carry a hidden threat or inducement. R. v. Richards, (1967) 1
WLR 653 (C.A.).
175
(1918) 1 K.B. 531.
176
Pon Adhithan v. Deputy Director, Narcotics Control Bureau, AIR 1999 S.C. 2355. The
statement in court of intelligence officer corroborated the confessional statement.
177
Satbir Singh v. State of Punjab, (1977) 2 S.C.C. 263.

65
to get any confessional statement from the accused through other sources, took
upon himself to question the accused and he succeeded in securing confession.
The question was whether the confessions were voluntarily. The Supreme Court
held that they were not. When the two accused were questioned separately after
several abortive attempts to secure confession can it be said that “there was no
inducement, threat or promise” of some kind proceedings from the (senior officer)
to have made any impact on their minds resulting in the confessions? The officer
having stated to the accused that “now that the case has been registered they
should state the truth”,178 it is difficult to hold that by this statement he would not
generate in the minds of the accused some hope and assurance that if they told the
truth they would receive his support”.

Where the accused was told by the magistrate, “Tell me where the things
are and I will be favorable to you,”179 or “if you do not tell the truth you may get
yourself into trouble and it will be worse for you”180or “if you make a clear breast
of it, I will see you acquitted,” and a sailor’s confession in response to the
captain’s words that “if you do not tell me, I will give you to police”, 181confession
obtained in response to these statements were held to be irrelevant.182

“It is for the prosecution to prove affirmatively that the confession was
free and voluntary.”183 It is sufficient for the purpose of excluding a confession
that the confession appears to have been the result of an inducement, even if it is
not proved that the inducement reached the accused.184A well known illustration
is R. v. Tompon185 “the prisoner was charged with embezzling the money of the
company which employed him. Evidence was offered to show that he not only
confessed to the chairman of the company but also returned some money though

178
Nirmal Singh Pehlwan @ Nirma v. Inspector, Customs, Customs House, Punjab , (2011)
12 SCC 298.
179
R. v. Thompson, (1783) 1 Leach 291.
180
R. v. Cooly, (1888) 10 cox. C.C. 536.
181
R. v. Parratt, (1831) 4 C. & P. 570.
182
Kanhiyalal v. Union of India, (2008) 4 SCC 668.
183
Reathu v. State of U.P., AIR 1956 S.C. 56.
184
Pyare Lal Bhargva v. State of Rajasthan, AIR 1963 S.C. 1094.
185
(1893)2 Q.B. 12 : 69 L.T. 22 : 17 Cox C.C. 461.

66
his brother. The chairman admitted that before he received the confession he had
asked the prisoners brother: ‘It will be the right thing for your brother to make a
statement or to make a clean breast of it.’ There was no treat or promise in
addition to these words, nor there do any proof that the chairman’s statement was,
in fact communicated to the prisoner prior to his confession”. So it was held that
“the confession was not admissible.”

Consequently, the conviction was quashed. Cave J., pointed out that
though “ in the present case there is no evidence that any communication was
made to the prisoner at all; but after the chairman’s statement that he had spoken
to the prisoners’ brother about the desirability of the prisoner making a clean
breast of it, with the expectation that what he would be communicated to the
prisoner, it was incumbent on the prosecution to prove whether any, and if so
what, communication was actually made to the prisoner before the magistrate
could properly be satisfied that the confession was free and voluntarily ,” and this
was not done by prosecution.186

3.4.1.2 Person in Authority

The second requirement is that “the inducement, threat or promise should

proceed from a person in authority”187. Who is a person in authority? The
expression definitely refers to government officials: “Magistrate, even those not
acting as such in the case, their clerks, corners, police constable, warders and
others having custody of the prisoners, searches, prosecutors, and their wives and
attorneys’.”188 About these there is no doubt. Every governmental official will be
person in authority whom the accused thinks that he is capable of influencing the
course of prosecution.189A senior military officer is a person in authority over

186
Bhagwan Singh v. State of M.P., AIR 2003 S.C. 1088.
187
Ibrahim Musa Chauhan @ Baba Chauhan v. State of Maharashtra, 2013 (3) SCALE
207.
188
COCKEL’s CASES AND STATUTS ON EVIDENCE,186 (11th Ed, by G.D.
NOKES,1970), citing R. v. Wilson, (1967) 2 Q.B. 406 (C.A.)
189
R. v. Middleton, (1974) Q.B. 191 (C.A.) S.K. Modi v. State of Maharastra, (1979) 2
S.C.C. 58, where officer of the custom department were held to be person in authority in
reference to a person from whom they had extorted a confession.

67
those below him.190Even a private person can in circumstances be a person in
authority over the employee if the charge relates to the contract of employment191.
Thus where an employee was charged with arson of his employer’s house, a
confession made on exhortations of the employer’s wife that it would save his
neck, was held to be irrelevant.192A confession to a private on the threat of
dismissal would be equally irrelevant. But “it is only when the offence concerns
that master or mistress that holding out the threat or promise renders the
confession inadmissible.”193 Thus where a maid –servant confessed in response to
her mistress’s inducement that she had killed her child, the confession was held to
be relevant. A village Mukhiya194 (head of a village) and the president of village
Panchayat 195
“have been held to be person in authority.” Thus where a person
was apprehended four years after a murder and brought before the village
Pardhan where he confessed on the assurance that “he would not be handed over
to the police, the Supreme Court held the confession to be not relevant.” 196

It is not absolutely essential that the inducement be made by the very

person who is in authority. The father of the accused told him at the police station,
in the presence of two detectives, to tell the police everything and that if he (the
accused) had not hit the victim he could not be hanged. The court of appeal held
“that the statement was an inducement.”197

A purely private person “cannot be regarded as a person in authority for

this purpose even if he is not able to exert some influence upon the accused”198. In
R. v. Gibbons199held that a surgeon was called as a witness to prove the
confession made to him by the prisoner who was charged with murder. The

190
R. v. Smith,(1959) 2 Q.B. 35.
191
Gurjinder Singh v. State of Punjab, AIR 2011 SC 972.
192
R. v. Upchurch, (1936) Mood C.C. 465.
193
PARKE, B. in R. v. Moore, (1852) 2 Den 522 : 5 Cox C.C. 555.
194
Emperor v. Har Pirari, A.I.R. 1926 All. 737.
195
Emperor v. Aushibibi, A.I.R. 1916 All. 342.
196
Kansa Behra v. State of Orissa, AIR 1987 S.C. 1507 : (1987) 3 S.C.C. 480.
197
R. v. Cleary, (1964) 48 Cr. App. R. 116 (C.A.)
198
Vikram Singh and ors v. State of Punjab, AIR 2010 SC 1007.
199
(1823) 1 C. & P. 97 : 171 E.R. 1117.

68
surgeon was attending the prisoner at the time the statements were made so that
he was a person in authority. The surgeon told the court that he held out no threat
or promise to the prisoner, but a woman present on the occasion had told the
prisoner that she had better tell the truth and the prisoner confessed to the
surgeon. Parke, J. laid down that "as no inducement had been held out by surgeon,
to whom the confession was made”, and the only inducement held out being by a
person having no sort of authority, it must be presumed that the confession to the
surgeon was a free and voluntary confession. If the promise held out by any
person having any office or authority, as the prosecutor, constable, etc., the case
would be different; but here some person, having no authority of any sort
officiously says, you had better confess. The court had not the least doubt that the
confession was admissible.

Recovery of articles prior to making of confession. - The Court declined to act

on “the confession for the reason that the recovery of the articles was made prior
to the confession.”200 The Supreme Court held that the reason was too insufficient
for overruling the confession. That aspect, instead of vitiating the confession,
could be a factor in favour of voluntariness of the confession. When the culprit
found that the articles concealed by him were all disinterred, it was it was possible
that he might feel that there was no use in concealing the fact any more. Then he
might desire to make a clean breast of everything to any person or authorities.201

Warning to the person confessing. - Section 108 of the Custom Act, 1962
empowers its officers to record the statement of person who are summoned under
the Act. Since the Act does not authorize the recording of confessions. It would
have to be done by using the authority under Section 164, of Criminal Procedure
Code, 1973. This section requires “a warning to be given to the person making the

200
Santosh Kumar Satishbhusan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
201
State of Tamil Nadu v. Kutty, AIR 2001 S.C. 2778 at p. 2781. Confession was made by
him while in judicial custody and therefore, chances of victimization were ruled out.

69
statement that it would be used in evidence against him. This is fundamental of
criminal jurisprudence.”202

3.4.1.3 “Inducement, Threat or Promise should be in Reference to Charge”

Thirdly, the inducement threat or promise should be in reference to the

charge in question. This specifically so stated in the section itself, which says that
the inducement must have “reference to the charge against the accused person”.
Thus, “it is necessary for the confession to be excluded from evidence that the
accused should labour influence that in reference to the charge in question his
position would be better or worse according as he confesses or not. Inducements
in reference to other offences or matters or offences committed by others will not
affect the validity of confession.”203 Thus, “where a person charged with murder,
was made to confess to a Panchayat which threatened his removal from the caste
for life, the confession was held to be relevant, for the treat had nothing to do with
charge.”204

While this is the principle under section 24 of the Act, the position of
English law is not clear. After making a deep investigation of all the prior
authorities and opinions of authors in Commissioners of Custom and Excise v.
Hartz and Power,205 the house of lords found that “neither the authorities nor the
opinion of authors were consistent and, therefore, came to conclusion that it is not
necessary for a confession to be excluded from evidence that the inducement
should relate only to the charge in question”. The principle as stated in COCKEL
on the authority of the case is that “to render a confession inadmissible an
inducement need not relate to the charge or contemplated charge”. 206The charge
upon the two accused was that of conspiracy to defraud in relation to purchase
tax. The customs officers threatened one of them with prosecution for violation
tax laws; if he did not answer their interrogatories. Consequently, he made oral
202
NSR Krishna Prasad v. Directorate of enforcement, 1992 Cr. L.J. 1888 (A.P.).
203
Radhakant Yadav v. Union of India, AIR 2012 SC 3565.
204
Empress v. Mohan Lal, (1881) I.L.R. 4 All. 46.
205
(1967) 1 A.C. 760 : (1967) 1 W.L.R. 297 : (1967) 1 All E.R. 117.
206
COCKEL’S Cases And Statutes On Evidence 193 (11th ed., by G.D. NOKES 1970).

70
admission of their guilt. The question was about their relevancy. The threat was in
reference to purchase tax and the charge about their relevancy. The threat was in
reference to purchase tax and the charge upon them was conspiracy. Thus the treat
did not relate to charge.

Even so it was held that the confession was not admissible. Lord REID
considered authorities. His Lordship noted the following passage from Taylor on
EVIDENCE.207 “It may be laid down as a general rule that in order to exclude o
confession the inducement whether it be in the shape of promise, a threat or mare
advice must have to reference to prisoner’s escape from criminal charge against
him.”

A similar opinion is expressed by STEPHEN. He says that “the inducement must

have reference to the charge against the accused person”. 208

His Lordship then referred to Reg. v. Smith,209 “A soldier was accused of murder
during a barrack room fight. Soon after the fight the sergeant – major put his
company on parade and said that they would be kept there until he learned who
was responsible. After a time Smith confessed. The inducement clearly was that,
if the culprit confessed, his commander would be released. It had nothing to do
with any impending charge. But it was held sufficient to make the confession
inadmissible. If the alleged rule existed the result would have been different.”

3.4.1.4 Benefit of Temporal Nature

The last condition of section 24 to come to play is that “the inducement,

threat or promise must be such as sufficient, in the opinion of the court, to give
the accused person grounds, which would appear to him reasonable, for
supposing that by making the confession he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings against him.” Thus,
the evil which is threatened to him or the benefit which is promised him must be

207
592 (1st ed., 1848).
208
DIGEST OF LAW OF EVIDENCE, 28 (1876,1st ed).
209
(1959) 2 Q.B. 35. See also Reg. v. Joyee, (1958) 1 W.L.R. 140 at p. 142.

71
off material, worldly or temporal nature. For example, the threat of expulsion
from the caste to which the accused belongs is an evil of temporal nature, though,
of course, if the threat has nothing to do with the charge in question, it will not
render the confession inadmissible.210 Mere moral or spiritual inducement or
exhortations will not vitiate the confession. For example, where the accused is
told, “Be sure to tell the truth”211 or “You have committed one sin, do not commit
another and tell the truth,”212 a confession made in response to this is valid. The
same is true where the accused is taken to a temple or church and told to tell the
truth in the presence of Almighty.

Reliability of Judicial Confession: - the accused admitted in his confession “the

full length role played by him in association with the other two assailants for
murdering the two ladies. He did not own in his confession that he also stabbed at
least one of the two deceased it was held that the very fact that he did not say in
so many words that he also inflicted one stab injury was of no consequence. In a
way this aspect was a further assurance that his confession was not what the
police wanted him to say to the magistrate. There was no reason to think that the
accused has been prevailed upon any extraneous influence to make the
confession.”213

Protection against Self-incrimination is available even at the stage of

investigation. It ensures that the statements have been made by the person accused
voluntarily and therefore they are reliable.214

Burden of Proof: - the burden is on the accused to show that his confessional
statement is irrelevant because it attracts the bar of section 24 of Indian Evidence

210
Bhagwan Dass v. State (NCT Govt.), (2011) 6 SCC 396.
211
Surendera Kohli v. State of U.P., (2011) 4 SCC 80.
212
R. v. Sleeman, (1853) 6 Cox. C.C. 245.
213
State of Tamil Nadu v. Kutty, AIR 2001 S.C. 2778 at p. 2782; Devi Singh v. State of
Rajasthan, (2005) 10 S.C.C. 453, magistrate duly observed all legal formalities in
recording confession which was also voluntary, police tortured not substantiated, details
become verified, conviction on the basis of confession proper. State (NCT of Delhi) v.
Navjot Sandhu, (2005) 11 S.C.C. 600, need for confession to have been made with full
knowledge of the nature and consequences of the confession.
214
Selvi v. State of Karnatka, AIR 2010 S.C. 1974.

72
Act, but such burden is not as high as on the prosecution. Once the accused is able
to establish facts which create a reasonable doubt that the confession was not
voluntary, the burden would be shifted to the prosecution to show that the
confession was voluntary and also satisfied all the requirements of the relevancy.

The confession of an accused person made outside the court (extra judicial)
implicating him and his co-accused cannot be used against the co-accused.215 But
on other hand section 28 provides that when at the time of confession, the
impression created in the mind of the accused by threats etc. was no longer there,
the confession would be relevant. In the context of Bombay terror attack,
confession made in custody was nevertheless held to be voluntary as it was made
months after the confessing accused had remained in custody and after many
sessions of interrogation. Voluntariness of the confession was further becoming
clear from the fact that the confession was made to set an example to others to
follow him.216

3.4.2. Section 25 (Custodial Confessions)

The Indian legislatures have formed a total bar to admissibility of
custodial confessions in evidence. So, “confessions made by an accused person to
police or to anyone, whilst in police custody.” These are governed by Sections 25
and 26 of the Evidence Act. The total exclusion rule has been justified on the
basis of unpredictability of the police for according to rights of the accused during
interrogation of a case.
In order Section 25 should be working to avoid a statement being received
in evidence. It must amount to a confession. We need not go in detail on what are
the main ingredients of a confession after the decision of the Privy Council in
Pakala Narayan Swami v. King Emperor217 In this case, it was observed by the
Council that even statements containing admission of gravely incriminating facts
attention to suggest that the accused committed an offence, cannot be covered by

215
Basanti v. State of H.P., (1987) 3 S.C.C. 227 : AIR 1987 S.C. 1572.
216
Md. Ajmal Md. Amir Kasab v. State of Maharashtra, AIR 2012 S.C. 3565.
217
AIR 1939 P.C. 47.

73
Section 25 if they fall short of actual admission of guilt. So, a statement which is
not a confession cannot be expelled by provisions of Section 25 of the IEA. Thus,
where a man accused of murder said, “The deceased broke into my house and
attacked me with a sword and I killed him in my self-defence” this statement
though an admission of fact and made to a police officer, cannot be admissible in
evidences. However, testimony of such a statement would be banned by Section
162 of the Code of Criminal Procedure 1973. Now here we explain the main
ingredients of Section 25 of Indian Evidence Act, some of them are explained as
under:
3.4.2.1 Who is Police Officer?

A police officer means for this purpose “a member of the regular police
force, but the Supreme Court has held that the expression would include any
218
person who is clothed with the powers of police officer.” Thus the excise
inspectors and sub inspectors enjoying police powers were held to be police
officers.219 There is no exact definition of the expression “Police Officer” in any
of our Laws, as used in Section 25 of the Evidence Act. Therefore, the first
essential is to know what is meant by the term Police. According to the definition
of the word ‘Police’ in the Police Act (V of 1861) all those persons who are
enrolled under that Act are included within that term. These include low-grade
police officers and upper grade police officers. Therefore, the expression “police-
officer” in Section 25 is a classification to denote all those who are in the police
force.220 The phrase “Police-officer” is also freely used in the Criminal Procedure
Code including all ranks of the police with powers assigned to all and different as
defined in different sections of that code. Therefore, one thing is very clear that
the term police officer includes all persons of the regularly constituted police
force starting for a constable to the highest rank i.e. a Director-General. Now the

218
Rumi Bora Dutta v. State of Assam, AIR 2013 SC 2422.
219
Raja Ram Jaiswal v. state of Bihar, AIR 1964 S.C. 828. See further Assistant Collector,
Central Excise v. C. Fernandes, (1982) 3 S.C.C. 512, statements to custom officials for
the purpose of inquiry pursuant to a magistrate’s order , held relevant.
220
R. v. Macdonald, 10 B.L.R. App. 2.

74
question is whether this phrase should be given a limited meaning or a wider
meaning i.e. whether it should be restricted in its application to the ordinary
constituted police force or should be allowed to include members of other
Government departments together with the frequently constituted police force so
as to live it a wider interpretation.

In the case of Radha Krishan Marwadi v. Emperor,221 the first strict

interpretation to the expression “Police-Officer” was pronounced and decided by
the special bench of the Patna High Court, it was held that the term “Police-
officer, in Section 25 of the Evidence Act was proposed to apply to police officers
and police officers alone and to no class of persons other than the police officers.”
But it has been the accepted view of most of our High Courts that this term is not
limited to officers of the regular police force but to members of the other
Government departments so as to give it a broadminded interpretation.222 The
Supreme Court has also held likewise in a series of decided cases.223

In Q.E. v. Salemudin,224 it has been held that the expression ‘police

officer’ used in Section 25 is not limited to officers of the regular police but
includes members of special police and of the criminal investigation department.
A police officer does not cease to be so if he is also invested with magisterial
powers.225 However, a Sub-Divisional Magistrate has been held not to be a police
officer.226 A food Grade Inspector227 and an Assistant Inspector of Customs228 are
also not police officers. It has been held in State of Punjab v. Barkat Ram,229 that
custom officer to possess certain investigatory powers similar to those of police

221
AIR 1932 Pat. 293 (SB).
222
See, e.g. Sarkar, LAW OF EVIDENCE, 683, 705 (17th ed. 2011).
223
State of Punjab v. Barkat Ram AIR 1962 S.C. 276 Raja Ram Jaiswal v. State of Bihar,
AIR 1964 S.C. 828;Badaku Joti v. State of Mysore (1966) S.C. 1746 : Ramesh Chandra
Mehta v. State of West Bengal AIR 1970 S.C. 94.
224
3 CWN 393.
225
Abdul Rashid v. State of Bihar , (2001) 9 SCC 578.
226
Srikant Das v. E. 35 Cr. L.J. 1217.
227
Abu v. E 49 Cr. L.J. 43.
228
In re Mayilvahanam 48 Cr. L.J. 326. Also, Percy Rustomje Bosta v. State of
Maharashtra. AIR 1971 S.C. 1087.
229
1962 (3) S.C.R. 333.

75
officers but they can still “not be equated with police officers for the purpose of
this provision.” Ram Jethmalani argues that custom officers should also be taken
as police officers and confessions made before them should be made
inadmissible.230 It is however, submitted that the alleged unreliability of the
police, being the sole justification propounded for the total exclusion created by
Section 25 the term police officer should not be given any extended meaning so as
to include other authorities whose reliability or unreliability has not been tested.
They are certainly persons in authority and cannot be allowed to compel, coerce
or induce any person to make a confession. But these situations can be taken care
of by Section 24 and confessions made before them can be excluded if any
vitiating circumstances are shown. There is however, no justification to totally
exclude confessions made before them irrespective of the circumstances.

3.4.2.2 Main Reasons for Exclusion of Confession to Police

“If confessions to police were allowed to be proved in evidence, the police

would torture the accused and thus force him to confess to a crime which he
might not have committed.”231 “A confession so obtained would naturally be
unreliable, it would not be voluntary, and such a confession will be irrelevant.
Whatever maybe it is from, direct, express, implied or inferred from conduct.”232
The reasons for which this policy was adopted when the Act was passed in1872
are probably still valid. GOSWAMI, J., of Supreme Court noted:233 “the archaic
attempt to secure confession by hook or by crook seems to be the be-all and end-
all of the police investigation. The police should remember that confession may
not always be a short cut to solution. Instead of trying to start from a confession
they should strive to arrive at it. Else, when they are busy on their short routes to
success, good evidence may be disappear due to inattention to the real clues. Once
a confession is obtained, there is often flagging of zeal for a full and thorough
investigation with a view to establish the case de hors the confession. It is often a

230
Ram Jethmalani : Confession Modifying the Perspective. 1987 (F): ILEJ 8.
231
Nar Singh v. State of Haryana, 2015- 1 LW(Criminal) 742.
232
Narayanrao v. State of A.P., AIR 1957 S.C. 737.
233
Dagdu v. State of Maharashtra, (1977) 3 S.C.C. at p. 93 : AIR 1977 S.C. 1579.

76
sad experience to find that on the confession, later, being inadmissible for one
reason or other, and the case fuddles in the court.”

“Police authority itself, however, carefully controlled, carries a menace to

those brought suddenly under its shadow and the law recognizes and provides
against the danger of such persons making incriminating confessions with the
intention of placating authority without regard to the truth of what they are
saying.”234

“A series of conflicting suggestions as to the rational underlying this inflexible

statutory bar emerges from the decided cases:

1. It has been suggested that an objective and dispassionate attitude cannot

confidently be expected from police officers.

2. The privilege against self incrimination has been thought to lie at the root
of the principle.

3. Importance has been attached to the discouragement of abuse of authority

by the police that could erode the fundamental rights of the citizen.

The risk is great that the police will accomplish behind their closed doors
precisely what the demands of our legal order forbid.”235

3.4.2.3 Effects of Police’s Presence on Confessional Statements236

The mere presence of the police man should not have this effect. “Where
the confession being given to someone else and the policeman is only casually
present and overhears it that will not destroy the voluntary nature of the
confession. But where that person as a secret agent of the police deputed for the

234
R. v. Murugan Ramsay, (1964) 64 C.N.L.R. 265 (P.C.) at 268.
235
R. v. Gangaseeha, (1968) 73 C.N.L.R. 154 at 180. Cases Examined in G.L. Peiris, R.S.
de Soysa. “Admissibility of confessions in criminal proceedings; A comparative Analysis
of the Law of South Africa and Sri Lanka,” (1980) 97 S.A.L.J. 451 626.
236
R. Palanisamy v. State, MANU/TN/0377/2013.

77
very purpose of receiving a confession, it will suffer from the blemish of being a
confession to police.”237

In a rather unusual case, “the accused left a letter recording his confession
near the dead body of his victim with an avowed object that it should be
discovered by the police, the Supreme Court held the confession should be
relevant. There was not even the shadow of policeman when the letter was being
written and planted.”238

Exclusion of Confessional Statements only239: - this principle of exclusion

applies only to statement which amount to a confession. “If the statements fall
short of a confession, that is, it does not admit the guilt in terms of substantially
all the facts which constitute the offence, it will be admissible even if made to a
policeman, for example, the statement of an accused to the police that he
witnessed the murder in question. The statement being not a confession was
received in evidence against him, as showing his presence on the spot.”240

Confession Inadmissible if made to a Police Officer at any Time before or after

the Investigation: - The words of Section 25 Evidence Act are wide enough to
exclude any confession to a police officer. Thus a confession made to a police
officer at any time that is either before commencement of investigation or after, is
inadmissible241. Further in Hussain v. Emperor,242 it was said that the confession
need not be a confession of the crime under investigation. In Kodangi v.
Emperor,243 it was held that “even a confession to the police officer of an offence
other than the one under investigation during the investigation of the latter offence

237
Emperor v. Har Piari, AIR 1926 All. 737. Where the accused made his confessional
statement in the house of Sarpanch (Village Chief) in the presence of Gram Ayakshi (a
Policeman) the confession was held to be vitiated, Pandru Khadia v. State of Orissa,
1992 Cr. L.J. 762 (Orissa).
238
Sita Ram v. State, (1966) Supp. S.C.R. 265.
239
Nandu Sharma v. State of Bihar, 2009 (4) PLJR 536.
240
Queen- Empress v. Jagrup, I.L.R. (1885) 7 All. 646.
241
S.P. Raj Kumar vs. Central Bureau of Investigation, S.C.B., Mumbai and ors.,
MANU/MH/0475/2016.
242
AIR (1936 Lah. 360.
243
AIR 1932 Mad. 24.

78
is inadmissible.” For example if A says to the police officer. “I noticed B
murdering X while I was murdering Z.” There is a confession of A that he
murdered Z. As it is undoubtedly a confession made to a police officer even
though made during the investigation of the murder committed by B. It is
inadmissible under Section 25, Evidence Act. In re Elukuri Seshapani Chetty,244
the court said that the whole spirit of Section 25. Evidence Act is to exclude
confession to the police and the movement a statement is found to amount a
confession it matters not in the slightest of what crime it is said to be a confession.
The provisions of Section 25 are unqualified. It indicates an absolute rule of
exclusion relating to confession made to a police officer.

3.4.2.4 Confessional F.I.R.

245
The term F.I.R. hereafter as FIR has not been defined in Indian
Evidence Act 1872. But here we see the importance of confessional FIR. “When
an accused himself went to the police station and lodges the First Information
Report with regard to an offence committed by him the fact of his giving the
information is admissible against him as evidence or res-gestae.”246 A statement
in FIR can normally be used only to contradict its maker as provided in section
145 of Evidence Act or to corroborate his evidence as envisage in section 157 of
the Act. Neither is possible in criminal trial as long as its maker is an accused in
the case unless he offers himself to be examined as a witness.247 If the information
is non-confessional it is admissible as an admission under Section 21of the IEA.
But in the case of Aghnoo Nagesia v. State of Bihar,248 it has been held that “a
confessional FIR by the accused to the police cannot be used in evidence against

244
AIR 1937 Mad. 209.
245
A First Information Report (FIR) is a written document prepared by police organizations
in Bangladesh, India, and Pakistan when they receive about the commission of
a cognizable offence. It is generally a complaint lodged with the police by the victim of a
cognizable offense or by someone on his or her behalf, but anyone can make such a
report either orally or in writing to the police.
246
Mangu Singh and ors. v. Dharmendra and ors., 2015 (13) SCALE 800.
247
See, e.g. Sarkar, LAW OF EVIDENCE, at pg. no. 622 (17th ed. 2011).
248
AIR 1966 S.C. 199.

79
him in view of Section 25.” In the case of Banarsi Dass v. State of Punjab,249 it
was held that if the First Information Report made by an accused person contains
facts connecting to motive research and chance to obligate the crime with which
he is charged and the facts reacted therein are self-inculpatory in the sense that the
narrative describing the relation between the accused and the deceased gives the
motive for the crime by means of which the accused is charged, the entire
testimonial must be treated as “a confession made to a police officer” and would
be hit by section 25.
In Legal Ram v. Lalit,250 it was held that “the confessional part and the
non-confessional part whether amounting to admission or not may be separated
and only the confessional part should be excluded.”
It was held in State of Rajasthan v. Shiv Singh,251 that “if there is a
confession of the accused pure and simple in the F.I.R. Prepared by him, the
whole First Information Report is inadmissible in evidence. If in adding to the
confession it contains convinced other matters which are applicable to the inquiry
in the crime they may be taken into evidence as admission of the accused but care
must be taken to see that such statements are not a part of the narrative of
confession. A confessional declaration does not denote only that piece of the
statement in which the commission of the authentic offence is referred to. But the
accused has made a confession admitting that he had committed an offence and at
the same time further gives the details of the preparation which he had made for
the commission of the offence. It cannot be said that the part that relates to the
research of the offence or other activities of the accused in the material of the
commission of the offence can be understand in evidence and only that part which
relates to the actual commission of the offence is not admissible in evidence of the
case. The whole narrative in such a case is not admissible”. If the first information
report made by an accused person contains details linking to “motive, preparation
and occasion to commit the crime with which he is charged and the facts recited

249
1981 Cr. L.J. 1235 (P & H).
250
49C 167 .
251
AIR 1962 Raj. 3.

80
in that are as self-inculpatory in the logic that the description describing the
relations between the accused and the departed gives the purpose for the crime
with which the accused is charged the whole statement must be treated as a
confession made to a police officer and would be hit by Section 25.”252 “A
narrative disclosing strained relations between the accused and the deceased or
referring to an event that occurred several days before the occurrence in the First
Information Report given by the accused being a statement disclosing motive for
the crime is inadmissible under Section 25 of the Evidence Act.”253
It was held in Pakala Narayan Swami v. Emperor,254 that in judging
whether a statement made by an accused in the First Information Report amounts
to a confession or not it has to be seen whether it is self-inculpatory as a in one
piece or whether it includes various exculpatory matter relating to a fact which, if
true, would establish his innocence. If it is of exculpatory nature then it cannot be
deemed. On the other hand if it is self-inculpatory one as a whole, then it amounts
to a confession.
However, the court pointed out that if the First Information Report is
given by the accused to Police Officer and amounts to a confessional statement
the 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 offence contained in the confessional statement. No part of the
confessional statement is receivable in evidence apart from to the amount that
prohibit on Section 25 is lifted by Section 27.” 255 The court said that not even a
single case of this Court or of the Privy Council is there on the question which
may suggest that apart from Section 27 of a confessional First Information Report
provided by an accused is included in evidence against him, therefore, save and
except as provided by Section 27 and save and apart from the proper part
identifying the accused as the maker of the report, every part of a confessional
First Information Report is hit by Section 25 of the Act and no part of that could
252
B.A. Ramaiah v. State of A.P., AIR 1997 SC 496.
253
Ram Sajiwan v. State, AIR 1964 All. 447.
254
AIR 1939 P.C. 47.
255
Aghnoo Nagesia v. State of Bihar (1966) 1 S.C.R. 134.

81
be tendered in evidence.
3.4.3. Confessions in Police Custody (Section 26)

Section 26 carries the theory of deemed involuntariness due to presence of

police still further and bars any confessions made by the accused to anybody
except in the presence of a Magistrate. “The presence of a Magistrate is supposed
to negative the influence of police custody on the mind of the accused and to
serve as a safeguard for him to feely exercise his option to make a confession or
not except when made in presence of a Magistrate, a confession made by an
accused whilst he is in police custody to any person be it a fellow prisoner, a
doctor or a visitor is inadmissible in evidence.”256

Mehmood J. has observed in Q. v. Babu Lal,257that “Section 25 and 26 lay down

two clear and definite rules. In Section 25 the criteria for excluding a confession
is the answer to the query. To whom was the confession made?, if the answer is
that it was given to a police officer, the confession is enormously excluded from
evidence. On the other hand the criterion adopted in Section 26 is the answer to
the question. Under what circumstances was the confession made? If the answer
is that it was made whilst the accused was in custody of a police officer the law
lays clown that such confession shall be excluded from evidence unless it was
made in the immediate presence of a Magistrate.”

3.4.3.1 “Confession in Police Custody”

“No confession is made to anybody while the person making it is in police

custody”258 is provable. “The section will come into play when the person in
police custody is in conversation with any person other than a police officer and
confess to his guilt.”259 The section is based upon the same fear, namely, that the
police would torture the accused and force him to confess, if not to the police

256
Vikram Singh and ors. v. State of Punjab, AIR 2010 SC 1007.
257
6 A 509 (F.B.).
258
Gyanesh Rai and ors v. State of U.P., 2015 (6) ALJ 499.
259
See Queen v. Sageena, A.I.R. 1948 All 7, conversation between the accused and another
overheard by a policeman held not relevant.

82
officer himself, at least to someone else. The confession made to a police officer
or to anyone else while the accused in police custody are not different in kind and
quality. Both are likely to suffer from the blemish of not being free and voluntary.
“The police objectives underlying the limitation are clear. It is the manifest to
every one’s experience that from the movement a person feels himself in custody
on a criminal charge, his mental condition undergoes a very remarkable change
and he naturally becomes much more accessible to every influence that addresses
itself to either his hopes or fears.”260

“Statements made to TV and press reporters by the accused person in the

presence of police and also in police custody were held to be inadmissible.”261

3.4.3.2 Police Custody

“Police custody means police control even if it be exercised in a home, in

an open place or in the course of a journey and not necessarily in the walls of a
prison.” 262
Common connotations of the word ‘custody’ are a state of being
guarded or watched to prevent escape, restrain of liberty, confinement. It would
therefore be seen that the immediate presence of the custodian is not necessary.

In the case of Parho Sahiwal v. Emperor,263 it was held that “the word
custody has not been defined in the Evidence Act. But the ordinal meaning is
sufficiently clear. Two things there must be first there must be some limitation
imposed upon the liberty of the confessor; secondly this limitation must be
imposed either directly or indirectly by the police.” Under Section 26 there is no
necessity to prove a formal arrest264. It would be sufficient to constitute police
custody if the accused is present before the police and cannot depart as his own
free will. It must be pointed out that there is a distinction between an accused
being “under arrest” and an accused being “in custody”. The learned judge

260
Culambe v. Connecticut, 367 under section 568 (1961) at p. 575.
261
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 S.C.C. 600.
262
Chandera Kant Jha v. State (NCT Govt. of Delhi), 229 (2016) DLT 398.
263
A.I.R. (1932) Sind 201.
264
Satish Kumar jayanti Lal Dabgar v. State of Gujarat, 2015 (3) SCALE 344.

83
pointed out that “threat of construing the appearance police custody in Section 26
of the Evidence Act in a more contracted technical logic as beginning from the
time when the accused is officially arrested.”265 The learned judge said that the
correct explanation would be that as soon as an accused or alleged person comes
into the custody of a police officer he is in the absence of any clear and clearly
identifiable evidence to the opposite, no longer at liberty and is therefore, in
“custody” within the meaning of Section 26 and 27 of the Evidence Act. “Even
indirect control over the movements or suspects by the police would means to
Police Custody within the meaning of this Section.”266

In Jai Ram Ojha v. State,267 “a constable who was engaged on beat duty in
neighboring village soon after committing of the offence, came to the spot, kept
guard over the dead body as some foul play was suspected. He was also guarding
the accused so that he may not run away. It was held by the court that the accused
was under surveillance or the police constable and that any confession made by
the accused under surveillance would be hit by Section 26 of the Evidence Act as
confession made under Police Custody.”

In State of U.P. v. Deoman Upadhyay,268 the court held that “when a

person not in custody approaches a police officer investigating an offence and
offers him to provide information primary to the detection of a fact having a
manner on the charge which may be made against him he may properly be
deemed to have surrendered himself to the police.” Section 46 of the Criminal
Procedure Code does not consider any requirement before a person can be said to
be taken in custody, submission to the custody by word or action by a person is
sufficient. A person openly giving to a police officer some information by words
which may be used as evidence against him may be deemed to have submitted
himself to the ‘Custody’ of the police officer.

265
Muang Lay v. Emperor AIR 1924 Rangoon, 173.
266
Haroon v. Emperor AIR 1932,144.
267
AIR 1968 Orr. 87.
268
AIR 1960 S.C. 1145.

84
 In State of Maharashtra v. Mohd. Hussain Ismail,269 the court held that “a
person goes to a police officer and makes a statement which shows that an offence
has been committed by him. The accuses himself and though formally he is not
arrested since he is not fee to move wherever he likes after disclosure of the
information to the police he must be deemed to be in police custody”. The fact
that “the accused was interrogated and that he made a statement and led the
Panchas and the police officer to a field and therefore, produced certain articles
which were the subject matter of dacoity was sufficient to establish that there was
submission on his part to police custody”, it was held in Bakshia Mukila v. State
of Bombay.270

In short it can be said that it is now well settled that “Police Custody” 271
for the purpose of Section 26 or Section 27 of the Evidence Act “does not mean
formal custody but includes such State of affairs in which the accused can be said
to have been under some sort of surveillance or restriction and does not
commence only when the accused is 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.”272

It is also well settled in Paramhans Jadad v. State,273 that “if once police
custody has commenced the mere fact that for a temporary period the police
discretely withdraws from the scene and left the accused in of some other person
will not render the confession of the accused before that person admissible.” Once
an accused is arrested by a police officer and is in his custody the mere fact that
for some purpose of other the police officer happens to be temporarily absent and
“during his temporary absence leaves the accused in charge of a private individual

269
AIR 1959 Bom. 534.
270
AIR 1950) Bom. 263.
271
Ram Singh v. Sonia and Ors., AIR 2007 SC 1218.
272
Chottelal v. State AIR 1954 All. 687.
273
AIR 1964 Orr. 144

85
does not terminate his custody the accused shall be deemed to be still in police
custody.”274

Under Section 26 of Evidence Act, it is immaterial whether the police held

the suspected person or the accused under legal custody or under an illegal
custody. An illegal custody is ‘custody’ for the purpose of Section 26.

Thus, a confession article by an accused person while he was in illegal

custody of the police suffers from the same defects which Section 26. Evidence
Act intends to avoid. So a confession made by an accused under such
circumstances is also inadmissible in evidence as the illegality of the arrest does
not make Section 26, Evidence Act inapplicable. In fact, there is more
justification to exclude such confessions than when made in legal custody275.

The crucial test, therefore, is whether at the time when a person makes an
extra-judicial confession he is a free man or his activities are restricted by the
police either by themselves or in the course of some additional organization
employed by them for the purpose of securing such a confession.

3.4.3.3 “Presence of Magistrate”

The section recognizes one exception, “If the accused confesses his guilt
while in police custody but in the immediate presence of a Magistrate, the
confession will be valid. The presence of a Magistrate rules out the possibility of
torture thereby making the confession free, voluntary and reliable.”276 Immediate
presence of the Magistrate means “his presence in the same room where the
confession is being recorded. His presence in the adjoin room cannot afford the
same degree of protection against torture.”277

274
Emperor v. Nat Jagia (1938) 17 Pat. 369
275
Baldev Raj v. State of Haryana, AIR 1991 SC 37.
276
The fact that the advice of a counsel was not available at the time when the accused was
recording his confession to Magistrate would not destroy its value. Sarkari Mardi v. State
of West Bengal, (1992) Cr. L.J. 367 (Cal.).
277
See Zwing Lee Ariel v. State of M.P., AIR (1954) S.C. 15.

86
 “A confession made while the accused is in judicial custody or lock-up
will be relevant, even if the accused is being guarded by policeman.”278

It was held in State of Maharashtra v. Damu,279 “under this section the

confession of an accused to be admissible in evidence must be made in the
immediate presence of a Magistrate. A confession made to a Magistrate himself
conforms to the requirements of this section but if the confessor is made to a third
person the presence of the Magistrate is necessary.” It was further held in Jograj
v. R.280 that “the section does not make the admissibility of the confession
dependent upon the knowledge of the accused as to the identity of the Magistrate,
the main consideration being the presence of the Magistrate and the making of the
confession in his presence.” The proposition is however doubtful because
ignorance of the accused about the presence of the Magistrate still not remove the
traumatic influence of police custody from his mind for him to exercise his free
will within the matter of making a confession. The confession made in the
presence of a Magistrate does not become inadmissible for the mere reason that
the accused had been in the custody of the armed constable. Ordinarily a
Magistrate should not keep the accused in charge of the armed policeman unless
for reasons to be recorded that he is satisfied that there was risk and danger to life.
As far as possible, the accused should be kept in charge of the Magistrate’s own
staff. Where the police officer took the Magistrate with him while the police
officer was conducting his investigation the evidence of the Magistrate as to what
happened is not admissible under Section 26. It is unobjectionable; if a Magistrate
arrived out such an investigation himself but for a Magistrate merely to
accompany a police officer while the police officer is making the investigation
does not render the evidence of what happened admissible under the Evidence
Act.281

278
Parmananda Pega v. State of Assam, AIR 2004 SC 4197.
279
AIR 2000 SC 1691.
280
AIR 1930 (Lah.) 534.
281
Anant Chintaman Lagu v. State of Bombay, MANU/SC/0043/1959.

87
Magistrate: - The word ‘Magistrate’ in Section 26 Evidence Act is not used in
any restricted sense. The word is not confined to Magistrate specially empowered
under Section 164 of the Code of Criminal Procedure but includes all Magistrates
who are empowered under the Code of to Criminal Procedure. Under Section 26
courts are not precluded from taking into consideration confessions made by
prisoners in police custody to Magistrate in England or in a foreign country the
definition of ‘Magistrates’ in the General Clauses Act not being confined to
Magistrates exercising jurisdiction over a particular area.282

It is, however, submitted that if the word Magistrates is extended to

include even Magistrates of foreign countries it would be stretching the meaning
of the word ‘Magistrate’ used in Section 26 too far. The Act being limited in its
application to the territory of India its provisions also, unless specifically
mentioned can have no application to Foreign Territories. Under this section,
Magistrates though on leave and not in the district in which they have been
exercising jurisdiction are Magistrates within the meaning of Section 26 of
Evidence Act. Therefore, it is sufficient for the purposes of Section 26 of
Evidence Act to admit the confession. If the same has been made in the presence
of a Magistrate, may be of any class or has no jurisdiction over the place where
the confession was made.283

3.4.4. “How Much Of Information Received from Accused May be Proved as

Evidence” (Section 27)
Section 27 of Indian evidence act explains that “how much information
received from accused may be proved.”284 Under the Evidence Act, there are two
situations in which confessions to police are admitted in evidence “One is when
the statement is made in the immediate presence of Magistrate, and the second,

282
Abdul Sayeed v. State of M.P., 2010 (4) Crimes 86 (SC).
283
R. v. Vahala, 7 Bombay H.C. 56.
284
See Section 27 of Indian Evidence Act 1872, provided that, when any fact is deposed to
as discovered in consequences of information received from a person accused of any
offence, in the custody of 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.

88
when the statements leads to the discovery of a fact connected with the crime. The
discovery assures the truth of the statement and makes it reliable even if it was
extorted. This is so provided in section 27. In order to assure genuineness of
recoveries, it has become a matter of practice that recoveries should be affected in
the presence of witnesses. The Supreme Court has pointed out that there is no
such practice that where recoveries have to be effected from different places,
different sets of personas should be called to witness them. The fact that the
witnesses to recoveries are the neighbors of the deceased and, therefore,
sympathetic to him, is not material.”285
The object of this section is to admit evidence which is relevant to the
matter under inquiry, namely, the guilt of the accused and not to admit evidence
which is not relevant to the matter. The discovery of a material object is of no
relevancy to the question whether the accused is guilty if the offence charged
against him unless it is connected with the offence. It is therefore, the connection
of the things discovered which renders its discovery a relevant fact. The
connection between the offence and the thing discovered may be established by
evidence other than the statement leading to the discovery but that does not
exclude proof of the connection by the statement itself.286 “If a relevant fact is
discovered in consequences of statements made by one or more accused in
custody, so much of those statements as relate distinctly to the discovery of that
fact is admissible under this section.” No such statements relating to a relevant
fact is admissible under the section if it is made after the discovery of that fact or
if it does not relate distinctly to the fact discovered.287
3.4.4.1 Fundamental Necessities
The two fundamental necessities for the application of Sec. 27 are following:
1. That the person given information must be an accused of any offence; and
2. He must also be in police custody
“The provisions of Sec. 27 are based on the view that if a fact is actually

285
Raj Kumar Singh v. State of Rajasthan, 2013 (5) SCC 722.S
286
Durga Burman (Roy) v. State of Sikkim, AIR 2014 SC 2993.
287
Paramsivam v. State through Inspector of Police, AIR 2014 SC 2936.

89
discovered in consequence of information given, some guarantee is afforded
thereby that the information was true and consequently the said information can
safely be allowed to be given in evidence because such an information is further
fortified and confirmed by the discovery of articles or the instrument of crime. In
the present case the confessional disclosure made by the accused was confirmed
by the discovery of the incrementing articles and therefore, there was reason to
believe that the disclosure statements was true and the evidence led in that behalf
was also worthy of credence.”
“It was soon after the arrest of the appellant that he took the police officer
while in custody to the place where according to him he had thrown the dead
body of the deceased wrapped by the incriminating articles. Those articles were
not found lying on the surface of the ground but they were found after unearthing
the dumping ground under the hillock. Those articles were neither visible nor
accessible to the people but were hidden under the ground. They were discovered
only after the place was pointed out and it was unearthed by the laborers. No fault
therefore could be found with regard to the discovery and seizure of the
incriminating articles.”288
3.4.4.2 “When any Fact is deposed to as Discovered in Consequences of
Information”
The ‘fact’ must be a ‘relevant fact’. “The fact said to have been discovered
in consequences of information received from a person accused of an offence
must be of a kind which such information really helps to bring the light and which
it would be difficult to find out otherwise before it can be treated as of any
substantial probative value.”289 The fact must be the consequences, and the
information the cause of its discovery. The information and the fact should be
connected with each other as cause and effect. “The fact discovered must be in
consequences of the information received from the accused, and the fact should
not have been already within the prior knowledge of the police. The information
288
Suresh Chandra Bahri v. State of Bihar AIR 1994 S.C. 2420: 1994 Cr. L.J. 3271.
289
Nga Shwe Tat v. Queen-Empress, (1897) 1 UBR (1897-1901) 152, shopkeeper’s servant
killed his wife after closing the shop from inside, runaway after opening and seeing
owner arrived, blood-stained clothes recovered at his instance, relevant.

90
should be free from any element of compulsion.”290 If any portion of the
information does not satisfy this test, it should be excluded.291 “In order to utilize
the provision of this section against an accused person an ordinary recovery
cannot be turned into a discovery.”292 “That portion of the information which
merely explains the material thing discovered is not admissible under this section
and cannot be proved.”293 Where a suspect of in custody of police makes a
statement that he committed a murder and removed ornaments which he produced
later, the first part of the statement does not fall under this section because it is not
a statement required to lead up to the production of the property. 294 In a case of
burglary a statement made by the accused in police custody that he would show
the place where he had hidden the ornaments when that statement leads to the
discovery of the ornaments is admissible.295
3.4.4.3 “Information Received From a Person Accused of any Offence”
The expression “accused of any offence” is descriptive of the person
against whom evidence relating to information alleged to be given by him is made
provable by this section. “It does not predicate a formal accusation against him at
the time of making the statement sought to be proved, as a condition of its
applicability.”296 Statements leading to recovery must be proved. Where recovery
took place 23 days after the statement, the informant being still not charged, and
ultimately charged only as an abettor, the Supreme Court upheld the exclusion of
the evidence.297 Where there was no statement on the part of the accused,

290
State (NCT) of Delhi v. Navjot Sandhu, (2005) 11 S.C.C. 600 : A.I.R. 2005 S.C. 3820.
291
Sukhan v. The Crown, (1929) 10 Lah. 283, 293 F.B. ; King-Emperor v. Ramanujam,
(1934) 58 Mad. 642 F.B. Anter Singh v. State of Maharashtra, AIR 2004 S.C. 4197 :
(2004) 7 S.C.C. 779, the expression fact discovered explained, and also the various
requirement of the section restated in point form. The concept of statement which
distinctly relates to discovery also explained. Dead body was recovered from an open
place, 25 days a pistol was recovered from near about the same place. The whole
evidence was regarded as a doubtful.
292
Jackaran Singhv v. State of Punjab, AIR 1995 S.C. 2345 : (1995) Cr. L.J. 3992.
293
Mohibur Rahman v. State of Assam, (2000) Cr. L.J. 4725 (Gau.) recovery of dead body
and wearing apparels at the instance of the accused.
294
Emperor v. Bikha Gober, (1943) 45 Bom. L.R. 884 : (1944) Bom. 25.
295
Chinnaswamy v. State of A.P., AIR 1962 S.C. 1788 : (1963) Cr. L.J. 1.
296
State of U.P. v. Deoman, AIR 1960 S.C. 1125 : (1960) Cr. L.J. 1504.
297
Chanran v. State of T.N., AIR 1978 S.C. 1574 : (1978) Cr. L.J. 1693.

91
recoveries were held to be useless.298
The Patna High Court has held that the statements must be of a person
who was then an accused. If at the time when the confession was made, the
person making it was not an accused person; the statement would not be
admissible. A husband who fatally assaulted his wife immediately went to the
police station and stated “I went into the west facing room and finding my wife
sitting, wounded her and her become senseless”. In consequences of this
information the Sub-Inspector went to the house of the informant and found the
corpse of the woman in that room. It was held that as the informant had not, up to
the time of making the statement, been in the custody of a police officer, the
statement was not admissible.299 The Bombay high court has dissented this view
and has held that “the words information received from a person accused of any
offence cannot be read to mean that he must be an accused when he gives the
information but would include a person if he becomes subsequently an accused
person, at the time when that statement is sought to be received in evidence
against him. Where a person goes to a police officer and makes a statement which
shows that an offence has been committed by him, he accuses himself and though
he is formally not arrested, since he is not free to move wherever he likes after
disclosure of the information to the police he must be deemed to be in custody of
the police within this section.”300
3.4.4.4 “In the Custody of Police-Officer”
This section does not apply to information given to police by an accused
person who was not in custody at the time it was given.301The submission of a
person to the custody of a police officer within the terms of Sec. 46(1) of the

298
State of Haryana v. Sher Singh, AIR (1981) S.C. 1021 : (1981) Cr. L.J. 714, mere failure
on the part of police to interrogate the accused person at whose instance the weapon was
recovered was not regarded as a justification for concluding that the recovery was fake.
299
Sarabjit Singh v. State, (1998) Cr. L.J. 2231 (P&H), recovery made in consequences of
discloser statement made at a time when the maker of the statement was neither accused
of any offence nor under arrest, the statement and recovery were held to be not
admissible.
300
Memon Mohmad, (1958) 61 Bom. L.R. 715; Bakshia Mukinda, (1959) 62 Bom. L.R. 80.
301
Chunda Murmu v. State of West Bengal, AIR 2012 S.C. 2160.

92
Code of Criminal Procedure is ‘custody’ within the meaning of this section.302
The word ‘custody’ in this section does not mean physical custody by arrest.303
“As soon as the accused or the suspected person comes into the hands of police
officer, he is, in the absence of clear evidence to the contrary, no longer at liberty,
and is therefore in custody within the meaning of Sec. 26 and 27.”304 In the case
of mere suspect, “who have not been formally charged with any offence or
arrested under any section of the code of criminal procedure, their presence with
the police officer under some restraint amounts to custody.”305 “Custody,
connotes some idea of restrain on the on the movement of person whether by
word or action and does not means custody after formal restraint.”306 “Even
indirect control over the movements of the suspect by the police would amount to
police custody.”307 “Custody, does not necessarily mean detention or confinement.
A person who makes a statement to a police officer voluntarily confessing that he
had committed an act which the penal law regards as an offence submits himself
to the custody of the said officer is within the meaning of this section.”308
The statement of an accused person in custody to a police officer as a
result of which the murder weapon and a blood-stained bed sheet were recovered
was held to be admissible in evidence even though it was taken by the officer
without the presence of any witness.309
3.4.4.5 “Such Information …as Relates Distinctly to the Fact…Discovered”
The word “distinctly”, means “indubitably”, “strictly” and
“unmistakably”.310 The Supreme Court has held that “the information would
consist of a statement made by the accused to the police-officer and the police-

302
Anter Singh v. State of Rajasthan, (2004) 10 SCC 657.
303
State of Bihar v. Madanlal, AIR 1967 Pat. 63.
304
Sanatan Naskar v. State of West Bengal, AIR 2010 SC 3570.
305
Allah Ditta v. Crown, (1936) 18 Lah. 106.
306
Hakam v. the Crown , (1940) 21 Lah. 242.
307
Paramhansa v. State of Orissa,AIR 1964 Ori. 144.
308
Ashish Batham v. State of M.P., AIR 2002 S.C. 3206 : (2002) Cr. L.J. 4676, recovery of
blood stained life and clothes alleged to be recovered on disclosure made by the accused
person, but because the recovery was delayed and was made only after the second
remand, doubtful evidentiary value.
309
Masang Kishti v. State of Orissa, (2001) Cr. L.J. 1633 (Ori.).
310
Jodha Khoda Rabari v. State of Gujrat, 1992 Cr. L.J. 3298 (Guj).

93
officer is precluded from proving the information or part thereof unless it comes
within the four corners of the section.”311 In a case before the Supreme Court it
was said: “during the investigation by police the main accused made a disclosure
statement to the effect that he along with others had concealed the dead body of
the victim in the stack of hay in the room and that he could get the same
recovered. Except for the discovery of the dead body of the victim and no other
portion of his statement implicating himself and others with the crime is
admissible in the evidence. After the disclosure the statement was made by the
main accused the proceeding of the discloser statements of the other accused
persons were a wholly impermissible exercise and an obvious attempt to rope
them in with the aid of Sec. 27. Since the information had already been given by
the main accused in his discloser statement the statement of the other accused
persons were not admissible in evidence because at the best they were leading to
the rediscovery of a fact already disclosed and capable of discovery”.312 Where
dead body of the wife of the accused was recovered at his instance by digging his
hut and he had been making pretences about her being missing and though the
body was reduced to a Skelton, its structure and articles found along with it
indicted its identity , the evidence was held to be admissible against the
accused.313
“The information which distinctly relates to the fact discovered is only
admissible. But the statement should not be so truncated as to make it insensible.
Information must be recorded and, it’s not recorded the exact information must be
adduced through evidence.”314
3.4.5. Confession made After Removal of Threat, Inducement, Etc. (Sec. 28)

311
Ramkishan Mithanlal v. State of Bombay, (1954) 57 Bom. L.R. 600, the court can exhibit
and look into only that portion of the statement which is related to disclosure, and not the
whole statement.
312
Sukhvider Singh v. State of Punjab,(1994) 5 S.C.C. 152.
313
Shabu Gowala v. State of W.B., (2000) Cr. L.J. 1602(Cal.).
314
Bodhraj v. State of J&K, (2002) Cr. L.J. 4664.(S.C.)

94
 “If such a confession as is referred to in section 24 is made after the
impression caused by any such inducement, threat or promise has, in the opinion
of the court, been fully removed it is relevant.”

This section deals with the validity of confession which is made after the
effect of inducement is already over. Once the mind is set free from the fear
created by threats of evil or from the hope of advantage from confessing (e.g. by
lapse the time), any confession made is likely to be free and voluntary and there
can hardly be any objection as to its validity. Thus, a confession which is rendered
irrelevant under Sec. 24 may become relevant under this section. Sec. 28 lays
down the conditions under which a confession rendered irrelevant by Sec. 24 may
become relevant.

“A confession is admissible after the impression caused by inducement,

etc., has been fully removed because it then becomes free and voluntary. The
confession as mentioned in this section should be voluntary and received as a
result of reflection and free determination, unaffected and non-induced by original
threat or promise. Sec. 28 is an exception to Sec. 24 and hence its proper place
should have been just after Sec. 24.”

Confession obtained by the person in authority from accused person

exercising inducements or extending threats or promise of the kind mentioned in
Sec. 24, are under our law irrelevant. The principle, on which this exclusion of the
above kind of confession os based, is that an accused, more often under those
circumstances, may be led to falsely incriminating himself having the immediate
object of freeing himself from the domineering influence of the person in
authority in whose charge he was for the nonce. Whether actually the inducement
or threat or promise prompted an accused person to make a confession, is not a
matter for close scrutiny it is enough if it appears that the confession was due to
the inducement, threat or promise. The casual connection between the improper
influences and the confession is not meant to be of mathematical certainty for if it
is appears that the confession was engendered by such influences, then it will be

95
excluded from consideration so the consideration. So the considerations which
govern this matter are, whether inducements, threats or promises presided the
making of a confession, and whether they appear to have influenced and accused
to make confession315.

There is another aspect of this matter which is dealt with in Sec. 28. It is
that an inducement, threat or promise once exercised, is not deemed to have a
lasting impression or effect on the accused. There is a scope of every possibility
for the impression created in the minds of an accused, on account of inducement,
threat or promises, to wane and make an accused a free agent to express his
violation. While dealing this kind of a question, a Judge or Magistrate has to
decide before hand, that the impression resulted from improper influence is fully
removed316. The enquiry in this regard should be real and substantial and the
proof that the impression was removed, should be stronger than for the matter of
seeing whether a confession was evoked by an inducement, threat or promise.

Prof. Wigmore has the following passage regarding this subject; “the
exclusion of a confession necessarily assume

1. That the inducement, if it operated at all, was likely to produce a false

confession, and

2. That it did in fact operate upon the mind of the person.

The question arising under the first of these elements – the nature of the
inducement- having been examined, it remains to notice those arising under the
second- the existence and operation of the inducement317. Where an inducement
sufficient to exclude any confession obtained by it, has been offered, the question
often arises, whether a confession subsequent in time to the inducement was in
fact influenced by it. “It must be remembered that no attempt was ever made to

315
Sanjay Dutt (A-117) v. The State of Maharashtra, through CBI (STF), Bombay, AIR
2013 SC 2687.
316
Sit Rosaw v. Emperor, AIR 1936 Rang. 455: 37 Cr. L.J. 1137.
317
Mohd. Farooq Abdul Gafur and Anr. v. State of Maharashtra, (2010) 14 SCC 641.

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investigate the actual the actual motive of the person confessing, or the part
played by the inducement among other motives. The whole theory of the
inducement rests on the probable effect, not actual effect, upon the person. While
that inducement is held out if a confession is made, no enquiry is every made into
the exact share or influence which the inducement had in evoking confession.
Nevertheless, though there is no enquiry into the actuality of the operation of
inducement, and though it is assumed that if it was there, it operated, we may
often have to inquire whether in fact it was there at all i.e., present to the mind of
the person confessing.” There are two kinds of cases in which the question may
be raised. In the one kind, enquiry is “Did the inducement, for the person in hand,
ever come into existence at all?” in other kind, the enquiry is “Was the
inducement, for the person in hand, brought to an end before the confession was
made?”318

3.4.5.1 Scope of the Section

Sec. 28 serves as an exception to the rule contained in Sec. 24, and
therefore its place should have been immediately after Sec. 24. 319 But the
arrangement in the Evidence Act appears to be that all confessions made
irrelevant under it, are placed in juxtaposition while all confessions which are
relevant are embodied in the Act, in a serial order. This principal is contained in
“Stephen’s Digest of the Law of Evidence”, Art22. It is to the following effect:
“A confession is deemed to be voluntary if it is shown to have been made after the
complete removal of the impression produced by any inducement, threat or
promise which would otherwise render it involuntary.” The impression may not
linger for all times. So lapse of time may remove it. The result can be achieved by
counter suggestions that the inducement or threats or promises are not going to
benefit him, or by cautioning that a confession made by him will be used as
evidence against him. So if a court by Judicious exercised of its mind, in a
position to hold that the impression caused by an inducement or threat or promise

318
Wigmore, 853.
319
R. v. Babulal, 6 All 509.

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is fully removed, at the time of making of a confession by an accused, then such
confession can be admitted as evidence. It is of the first importance, regarding this
matter, to see that no trace of the effect of inducement etc., is lingering in the
mind of the accused. What amounts to such total effacement of the impression
and what circumstance can bring about such a result must necessarily be questions
of fact and no cast iron rules can be predicated for this purpose. Thus a Magistrate
merely telling the accused that he should not allow himself to be influenced by
any inducement cannot be held to be sufficient to end the effects of an
inducement.320
The section commence with the words “If such a confession as is referred
to in Sec. 24 is made etc.”321 What is the meaning of this expression? Is it
necessary that the confession should have been actually made in pursuance of an
inducement, threat or promise? The word confession in this section is used in its
accepted sense with the only qualification that it should be one made to a person
in authority, after an inducement, threat or promise was extended and when those
factors were present which have a tendency to create a particular impression in
the mind of the accused over whom they were used. Even such a confession is
rendered relevant by this section if it is made after the impression referred above
is fully removed.322 This Section deals with the legality of confession which is
made after the effect of inducement is already ended. Once the mind is set free
from the apprehension created by threats of evil or from hopes of advantage from
confessing any confession made is likely to be open and voluntary and there can
barely be any doubt to its validity. It is necessary that the effect of threats or
inducements has been completely removed and to the pleasure of the court. All
promises or threats should have been inhibited.323
Where, by reason of exculpatory parts in the declaration, the declaration
does not amount to a confession and, though not be relevant as a confession, it

320
Faiz Ahmed v. Emperor, AIR 1936 Lah.
321
Chandra Kumar Kankariya and Ors. v. State of M.P., 2006 (3) MPLJ 280.
322
R. v. Cheverton, (1862) 2 F and F 833.
323
Venkata Narayan v. Emperor, (1938) Mad. W.N. 24; Bhagirathi v. State of M.P., AIR
1950 M.P. 17.

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can be incorporated in evidence if it is significant under any other section and
then it will not be striking that it was the result of some inducement, threat or
promise. This has been explained by the Supreme Court in a case in which a truck
operator admitted to the Customs Officers that his truck was transport contraband
but he did not know how it came there. The declaration being not a confession in
the real sense of the word was not hit by Sec. 24 and was receivable as an
admission.324
3.4.5.2 The Meaning of word “Fully”
The word “Fully” in Sec. 28 is significant. It means “thoroughly”,
“completely”, “entirely”, so as not to leave any impression created by the torture
or fear, “for a confession forced from the mind by flattery of hope or by the
torture of fear comes in so questionable a shape that no credit can be given to
it”.325 This Section cannot be applied “if there is every reason to believe that the
warning by the Magistrate did not remove the impression caused by the
inducement.”326 In the case reported in Shobha Param kochhi v. State327 as “the
impression created in the mind of the prisoners by the torture of fear had not been
removed” in the short interval between the beating given by the Sub-Inspector and
the recording of the confession the court discarded the confession altogether.
3.4.5.3 Was the inducement brought to an end?
According to Prof. Wigmore here “five questions may arise:
1. Must it be shown clearly that an improper inducement, once offered,
was brought to an end?
2. Are there any situations in which this showing will be regarded as
impossible, and thus the inducement, once made vitiates any further
confession of that person?
3. Can the same person who has offered inducement put an end to it so as
to make admissible a confession afterwards made to himself?

324
Veera Ibrahim v. State of Maharashtra, (1976)2 S.C.C. 302.
325
Bhagirath v. State of M.P., AIR 1959 M.P. 17.
326
Gulam Hussain Shaikh Chougule v. S. Reynolds, Superintendent of Customs, Marmoga,
AIR 2001 SC 2930.
327
1954 M.P. 125.

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 4. Are confessions made subsequently, but to a person different from the
one offering the inducement, to be treated as not made under the
inducement, or must it be shown to have negative by the second
person?
5. What suffice, in general, to end the inducement?”328
3.4.5.4 Person who has offered Inducement can put an end to it.
It has not been decided specifically whether the same person may put an
end to an inducement of his own creating. But there is no reason why he cannot.
“Where a Magistrate told a prisoner that if he did not strike the fatal blow, and
would tell all he knew, he would use his influence to protect him, but afterword
communicated to the prisoner a letter from the Secretary of State declining to give
pardon, a subsequent confession was received.”329
3.4.5.5 Inducement offered by one person and confession made to another.
“There is on principle, no reason for assuming that a promise or a threat
made by one person will be treated by the accused as equally to be attributed to
some other person who had no share in the others conduct and shows no power or
inclination to corroborate his promise or threat. Nevertheless, the inducement
may, on the facts, prove to be in effect the second person’s as much as the first
ones. it should thus be question to be determined in each case; no general rule can
be laid down”.330
3.4.5.6 What suffices in general to end the impression created by inducement,
etc.?
The questions whether the impression caused by inducement, threat or
promise is fully removed are a question of fact and it is for the trial Judge to
decide it with reference to all the material placed before him. On account of an
intervening caution given by some person of superior authority (but not of equal
or inferior authority) to the person holding out the inducement, etc., a confession
subsequently made be admissible.

328
Prof. Wigmore, on Law of Evidence at p. 855.
329
Yakub Abdul Razak Memon v. State of Maharashtra, 2015 (4) SCALE 649.
330
R. v. Tyler 1 C & P. 129; R. v. Clewes, 4C & P 223.

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 Another question arises in the mind that retracted confession if to be
excluded? A confession made to a magistrate but afterwards retracted should also
be excluded if it does not appear that the influence which induced the first
confession had ceased to operate on the accused mind.331
3.4.6. Confession obtained by Deceit or Promise of Secrecy (Section 29).
This section proceeds on the view that a confession made by a normal
human being, whatever be the incentive for making it, will not lack probative
force, if only the authorities capable of influencing the course of a legal
proceeding against him, have no hand in the making thereof. The inhibition of an
offender to make a confession is not so much due to disinclination to speak the
truth as to a fear of punishment and to the ignominy that surrounds a
demonstrated guilt. There are a few hardened criminals who have such
adamantine firmness of mind as not to give out their mind under the influence of
remorse. But even such men may yield to deception or a solemn promise to
maintain secrecy and make a confession. Such means, if adopted to obtain a
confession, may be highly reprehensible, but it cannot be said that the resultant
confession is either not made of his own accord by the accused or that it lacks the
element of truth.332
This provision in its widest import may appear not to preclude a
confession obtained by deception or other invalidating origins, mentioned in
section 29, by persons in authority. But a practice of deception or promise of
secrecy is scarcely distinguishable from the elements mentioned in section 24. So
this section cannot have any application to confession which is made to persons in
authority. Primarily, extra-judicial confessions which are made to those who are
not “person in authority” come within the ambit of section 29.
“The evidence of a policeman, who overheard a prisoner’s statement made

331
Emperor v. Ganesh Chandra Goldar, 50 Cal. 127. Influence or impression may continue
for a length of time and Magistrate’s warning may not have an immediately reassuring
influence.
332
See, e.g. Sarkar, LAW OF EVIDENCE, at pg. no. 730 (17th ed. 2011).

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in another room, is not legally inadmissible.”333 A person charged with an offence
and while in prison, made confession to a fellow prisoner. The police overheard it
by means of a hole bored in the wall, Held, though with hesitation that the
confession was admissible in evidence.334 “Where an accused person is overheard
muttering something to himself or saying something to his wife or to any other
person in confidence, that statement is admissible in evidence.”335
3.5 “Consideration of Proved Confession affecting person making it etc.”
When more than one person are jointly tried for one and the same offence
or offences they are called co-accused. Any one of them on liberty to confess to
his own guilt and his confession will have the full force of evidence against him.
But when he records a confession implicating himself as well his co-accused, that
is called the confession of co-accused and the question arises what is its value
against other non-confessing co-accused. Some guidance is to be found in section
30, which provides that such a confession is relevant against all the accused
persons.336
The section says nothing, nor would it have been desirable to say anything
about the evidentiary value of the confession of a co-accused. All that the section
says and was necessary to say is that “such confession may be taken into
consideration against all of them”, leaving the weight of confession to the
discretion of the court. Their lordship of the Privy Council observed: “the
confession may be considered by the court, 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

333
R v. Sangina, 7 W.R. (Cr.) 56.
334
R. v. Boughton , 70 J.P. Rep. 508.
335
R. v. Simons,6 C. & P. 541.
336
State of T.N. v. Nalini, 1999 Cri L.J. 3124 (S.C.), under Sec. 15 of the TADA Act, 1987,
the confession of a co-accused had been given the status of substantive evidence against
other co-accused person. But the quality of the evidence will count. The weight to attach
is a matter of appreciation of and as a matter of precaution the court may demand some
corroboration.

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case; it can be put into the scale and weight with the other evidence.”337
“Sec. 30 seems to be based on the view that an admission by an accused
person of his own guilt affords some sort of sanction in support of the truth of his
confession against others as well as himself. But a confession of a co-accused is
obviously evidence of a weak type. It does not indeed come within the definition
of “evidence” contained in Sec. 3, Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it cannot be tested by the cross-
examination.”
“To attract the provisions of Sec. 30, it should for all purposes be a
confession, that is a statement containing an admission of guilt and not merely a
statement raising the inference with regard to such guilt. The evidence of the co-
accused cannot be considered under Sec. 30 of the Evidence Act, where he was
not tried jointly with the accused and where he did not make a statement
incriminating him along with the accused.” As noted, the confession of a co-
accused does not come within the definition of evidence contained in Sec.3 of the
Act. “It is not required to be given on oath, nor in the presence of the accused, and
it cannot be tested by cross- examination. It is only when a person admits guilt to
the fullest extent, and exposes himself to the pains and penalties provided for this
guilt, there is a guarantee for the truth. The legislature provides that his statement
may be considered against his fellow accused charged with the same crime.”338
3.6. Conclusion

Section 17 to 30 deals with admissions generally though Sec. 24 to 30

deals with confession as distinguish from admission. It may be said that a
confession is a species of which admission is the genus. Any admission by an
accused of an incriminating fact falls with the scope of section 18 to 21 of the
Indian Evidence Act and is relevant. A confession is an admission in terms of the

337
Alok Nath Dutta v. State of W.B., (2007) 12 S.C.C. 230.
338
Mohd. Khalid v. State of W.B., (2002) 7 S.C.C. 334 at pp. 357-358.

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office itself or at any rates substantially all facts which constitute the offence.
Section 24, 25 & 26 provide circumstances under which confession is not relevant
or cannot prove. Thus new scheme of the Evidence Act is to treat confession
Prime Facie as relevant on provable under the category of admission and to
provide under Section 24, 25 & 26. The circumstances in which they are relevant
on provable. This method of dealing with confession adopted by India Legislature
shows a marked departure from the approach of English Law to the admissibility
of confession. A statement on a declaration of an independent fact from which
guilt may be inferred is not a confession. It is an admission of a particular fact
pertinent to the issue and evidence of that fact, but it is not confession. The
distinction between confession and admission in criminal law is substantial one
confession involves a voluntary acknowledgement of guilt. To make an admission
a confession, it must amount to a clear acknowledgement of guilt. To constitute a
confession it is not necessary that a person confessing should make a full and
explicit admission of guilt. Confession generally means an acknowledgement of
guilt while admission is of same fact not involving criminal intent.339

---- o ----

339 Devinder v. State of Himachal Pradesh, AIR 2007 HP 117.

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