Extra Judicial Confession, Confessions caused by Threat, Confession to Police & by Co-accused

Author: Mudra Motivaras, 1st Year, LL.B, Jitendra Chauhan College of Law, Mumbai.

The article has been written by the author while pursuing the internship program with us.

Introduction

One of the most important methods through which guilt of the accused is brought home is the confession or admission of the guilt by the accused. A confession is an acknowledgment by the accused in criminal case, of the truth of the guilty fact charged or of some essential part of it.[1] The origin of the word confession comes from a Latin word “confiteri”. Con means completeness and fiteri means to speak. 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.[2]

Definitions of confession:

The word confession is nowhere defined under the Indian Evidence Act, 1872.[3] Justice Stefan has defined confession as: “confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

According to Black’s Law Dictionary, confession is defined as: “a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime.”

In Pakala Narayan v. emperor,[4] Lord Atkin rejected the definition given by Justice Stefan and observed that, A confession must either be admitted in the context of any offence or in relation with any substantial facts which inaugurate the offence with criminal proceedings. And an admission of serious wrongdoing, even conclusively incriminating fact is not itself a confession”.

In Palvinder Kaur v. the State of Punjab, the court uplifted the judgement given in the above case and held that A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory matter is of some fact, which if true would negative the offence alleged to be confessed. A confession must either admit in term the offence or at any rate substantially all the facts that constitute the offence. Further, it stated that, confessions and admissions that these must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.[5]

Essential elements of confession:

  1.  Confession can only be made by a person who is accused of crime. It is sought to be proved against him in criminal proceedings.
  2. It shall be a voluntary statement. Voluntary statements can only hold evidentiary value.
  3. Confession shall affect the confessor. The person confessing shall be the one who actually committed the crime.
  4. Confession shall be made in front of a Magistrate or any other person. For example, confession can also be made to a police officer but confession made to a police officer will hold less evidentiary value as compared to the confession made in front of Magistrate.
  5. Confession can only be a statement where the confessor admit his guilt. For example: if a person say that I have seen a theft trespassing a house. This statement will not be considered as confession as it does not admit any guilt.
  6.  Confession shall be oral or written.

Types of Confession:

1. Judicial confession

Judicial confession means confession made in front of a Magistrate or in an open court during judicial proceedings. It holds more evidentiary value.

2. Extra-Judicial confession

  • Extra-Judicial confessions are those confessions which are made to any person other than a Magistrate. It should be free and voluntary confession.
  •  Extra-Judicial confession holds less evidentiary value as compared to Judicial confession.
  • Extra-Judicial confession can be accepted if it passes the test of credibility.
  •  For example confession made to a private person in a private room, confession made to the police officer in a police custody or confession made to traffic police on a highway.

Difference Between Judicial and Extra Judicial Confessions

Judicial Confession
  • It is made in front of a Magistrate.
  • Judicial confession does not need witnesses to prove it.
  • It hold more evidentiary value.
  • Conviction can be based merely on judicial confession.
Extra-Judicial Confession
  • It is made to any private person not authorised by law.
  • Extra Judicial confession need witnesses to prove it.
  • It hold less evidentiary value.
  • Conviction cannot be based merely on judicial confession.It also need other evidences.
Confession caused by inducement, threat or promise from a person in authority (Section 24)

Ingredients of Section 24:[6]

  • The confession is the result of inducement, threat or promise: The confession is the result of inducement, threat or promise: A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.[7]
  •  The inducement, threat or promise has come from a person in authority: The term ‘person in authority’ according to section 24 of Indian Evidence Act means a person who has the authority to interfere in the matter charge against the accused. For example: police or Magistrate.
  • The inducement, threat or promise relates to the charge in question: The accused must be forced to confess charges levied against him. Charges should relate the present case and not other cases.
  •  The inducement, threat or promise holds out some worldly benefit or advantage: The inducement, threat etc. would be sufficient to convince the mind of the accused that he would get some advantage or avoid evil of temporal nature. Where a person charged with murder was made to make confession to Panchayat which threatened his removal from caste for life.
  • The confessor shall confess his crimes voluntarily. In kasab’s case, Kasab, who was one of the terrorists responsible for the attacks of 26/11, told the court that he has voluntarily confessed his crimes. But later on he retracted his confession.[8] The confession of Kasab was recorded on tape. But the court held that recorded confession can only be a supportive evidence.
  •  In Pyare Lal v. State of Rajasthan, if a friend of a accused induces or threatens him to make a confession or promises him that if he makes the confession he will be released and if the accused believes this and make a confession then that confession will not attract section 24. The reason is that the inducement or threat or promise does not come from a person in authority.[9]

Confession to police not to be proved (section 25)

  •  Confession under this section is inadmissible as police holds a position of influence over the accused.
  • Due to a greater influence of police over accused, there is high probability that police can use force or torture the accused in order to make him confess any particular crime.
  • Such confession is irrelevant and it cannot be used against the accused in the court of law.
  • Under this section only confession is excluded. Those statements which are not confession are admissible and can use against the accused.
  • In Raja Ram v. State of Bihar, the appellant was caught with illegal drugs by the excise duty officer. The appellant confessed his guilt to the officer and he was convicted under Bihar and Orissa excise act, 1915. 1915. Supreme court held that “Police Officer” in section 25 of the Indian Evidence Act are not to be construed in a narrow way but have to be construed in a wide and popular sense. Those words are however not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. Further, the court said that Chawkidar, police patel, excise officers, village headmen, are all considered as police officers under this section.[10]
  •  In Dagdu v. State of Maharashtra, the Supreme court held that police shall not start their investigation with a confession but the confession shall sum up the entire investigation.[11]
  • Effect of police presence: If the confession is made to a police officer and another person or another police office is casually present there and overhears the confession then section 25 will not be attracted. Confession made by accused in this case will be counted as voluntary confession provided that, the other person is not a secret agent of the police.
Confession by accused in police custody (section 26)
  • Confession made by an accused or co-accused in police custody is not admissible unless it is made in the immediate presence of Magistrate. ·
  • Police custody: under this section this term is used in a wide sense. It says that if a police officer lay his hand on the accused or hand cuff him or tie his waist then also it can be said that the accused is under police custody. Also, even if the police officer does not touch the accused but he is in the position to influence or control the accused then also it can be said that the accused is in police custody.
Consideration of proved confession affecting person making it and others jointly under trial for the same offence (section 30)
  • When two or more persons are accused for same offence and if a confession is made by one accused which affect himself as well as other person or co-accused, then such confession can be taken into consideration if it is proved to be true.
  • Such a confession should be taken against all the accused and not just against the one who is confessing.
  • In bhuboni Sahu v. The king, one accused was held guilty on the basis of uncorroborated evidence given by other accused. The court held that before such evidence can be acted upon as against other accused parsons, should be corroborated by independent evidence in material particulars. A statement made under Section 164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement.[12]
Confession and Admission

In section 24 of Indian evidence Act, the word confession appears for the first time. Confession is no where defined in evidence act but confession is only a part of admission. Section 17 of Indian Evidence act defines admission as An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the Circumstances. An admission is a supreme evidence against the person who makes it. However, confession is often confused with admission. The main difference has been discussed below:

Confession
  • By the term confession, we mean a legal statement made by the accused in which he/she concedes the guilt of the offence.
  • Confession can be retracted.
  • Confession is only related to civil law.
  • Confession made by one accused can be used against other accused.
  • A confession must be voluntary in order to be relevant.[14]

Admission

  • In contrast, admission means acceptance of truth or fact in issue or a material fact in a civil or criminal proceeding.[13]
  • Admission is related to both civil and criminal law.
  • Admission once made cannot be retracted so easily.
  • Admission of one accused is no evidence against the other.
  • While an admission need not be voluntary to be relevant (though it may affect its weight)
  • A relevant admission can be made by an agent or even by a strange.
  • The person himself must make a confession.

Conclusion:

In the Indian Evidence Act, section 24 to 30 deals with confession and distinguish it from admission. Confession is not defined in the act but its meaning can be drawn out from its section. Confession has a narrow scope. It can be said that confession is the species of which admission is the genus. Confession is of two types Judicial and extra Judicial. Judicial confession is relevant while extra-judicial confession is irrelevant and does not hold evidentiary value subject to some exceptions. Extra-Judicial confessions are considered irrelevant as a police officer or any other person can influence or force the accused in order to confess a particular which he may or may not actually did. These confessions can only be relevant on the basis of strong evidence. On the other hand, section 30 is the controversial section as it is an exception to the fundamental principle of criminal law. Therefore, this section has to be applied in a very cautious manner. Confession is a piece of important evidence against the confessor. Though section 24 to 26 are implemented for the protection of the rights of accused, some criminal take undue advantages of these sections. So it is advised to the court to first look into the history of the accused and check if he or she has any criminal record. If he or she is a habitual offender then the police should be allowed to use force to an extent.


REFERENCES: [1] Mustafa Faizan, Islamic Law of confession: a comparison with western and Indian laws, vol. 32, ISLAMIC STUDIES, 49 (1993) https://www.jstor.org/

[2] Law relating to confession under Indian Evidence Act, 1872 https://shodhganga.inflibnet.ac.in/bitstream/10603/207487/9/6_%20chapter%203.pdf

[3] Indian Evidence Act, 1872, No. 1, No. 1, The Governor-General in Council, 1872 (India).

[4] Pakala Narayana Swami v. Emperor, (1939) 41 BOMLR 428 (India).

[5] Palvinder Kaur v. The State of Punjab, 1952 SCR 94, (India)

[6] Shantanu chakrak, section 24 of Indian Evidence act, 1872 https://www.shareyouressays.com/knowledge/section-24-of-the-indian-evidence-act-1872/120410

[7] Indian Evidence Act, 1872, pg. 24, https://indiacode.nic.in/bitstream/123456789/6819/1/indian_evidence_act_1872.pdf

[8] Mohd. Ajmal Kasab v. State of Maharashtra (2012) 9 SCC 1

[9] Pyare Lal Bhargava v. State of Rajasthan (1962) AIR 1094 (1963), (India).

[10] Raja Ram Jaiswal v. State of Bihar 1964 SCR (2) 752, (India).

[11] Dagdu and others v. State of Maharashtra 1977 AIR 1579, (India).

[12] Bhuboni Sahu v. The king, (1949) 51 BOMLR 955, (India).

[13] Surbhi S., Difference between Confession and Admission, KEY DIFFERENCES (Aug 29, 2017), https://keydifferences.com/difference-between-confession-and-admission.html

[14] S. Rangarajan, Law of Evidence, http://14.139.60.114:8080/jspui/bitstream/123456789/738/13/Law%20of%20Evidence.pdf


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