INTRODUCTION

 The use of evidence as material in the reconstruction of past events makes a

number of important philosophical assumptions1. The law of Evidence
occupies a most important part of adjective law. It is for courts to ascertain
the existence or non existence of certain facts and to apply the substantive
law to the ascertained facts and to declare the rights and liabilities of parties
in so far as they are affected by such facts.
 The means by which the courts inform themselves of the existence of these
facts is termed evidence2. The purpose of calling evidence in the court is to
try to prove certain facts to be true.
 Evidence which assists in this process is relevant and that which does not
assist is irrelevant.
 It is the first rule of evidence, and one to which there are no exceptions, that
irrelevant evidence is never admissible in courts. Bentham perceived rules of
evidence to be nothing more than an artificial restriction on the science of
evidence, invented by lawyers for less than honorable purposes.
 Evidence may be defined in general terms as any material which has the
potential to change the state of a fact-finder’s belief with respect to any
factual proposition which is to be decided and which is in dispute. In the
words of Stephen3, “the Law of Evidence is that part of the law of procedure
which, with a view to ascertain individual rights and liabilities in particular
cases, decides-
What facts may and what facts may not, be proved in;
What sort of evidence must be given of a fact which may be proved?

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By whom and in what manner the evidence must be produced by which any fact is
to be proved.

 The term confession is not defined anywhere in Indian Evidence Act. But it
is thought that an Admission in case of a criminal matter is Confession. The
same was stated by Stephen in his digest that that a confession is an
admission made at anytime by a person charged with a crime, stating or
suggesting the inference that he committed the crime.
Confession under Indian Evidence Act, 1872
 The word ‘confession’ has not been defined under the Act. According to
Privy Council, “A confession is a statement made by an accused which must
either admit in terms the offence or at any rate substantially all the facts
which constitute the offence4.”
 An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not of itself a confession 5. The confession is a form of
admission consisting of direct acknowledgement of guilt in a criminal
charge.
 It must be in express words by the accused in a criminal case of the truth of
the guilt fact charged or some essential part of it and a statement that
contains a self-exculpatory matter cannot amount to confession.
 The confession should be a voluntary one that means not caused by
inducement, threat or promise. Whether a confession is voluntary or not is
essentially a question of fact6.
 According to Lord Wigmore, “A confession is an acknowledgement in
express words, by the accused in a criminal case, of the truth of the guilty
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 fact charged or of some essential part of it. It is to this class of statements
only that the present principle of exclusion applies7.”
 A close scrutiny of the sections 17 to 30 of the Act, discloses that the
statement is the genus, admission is the species and confession is the sub-
species8. Sir James Stephen in his “digest of the Law of Evidence” defined
confession: “As an admission made at the time by a person charged with the
crime stating or suggesting the inference that he committed a crime”
 The acid test which distinguishes a confession from an admission is that
when conviction can be based on a statement alone, it is a “Confession and
where some supplementary evidence is required to authorize a conviction,
then it is admission”9. The word “statement” includes both oral and written
statement. Communication to another is not however an essential component
to constitute a “statement”.
 Section 164 of CrPC 1973 lays down procedure of recording of confession.
 It is a general rule of criminal law that no confession is admissible, unless it
is shown to have been a voluntary statement in the sense that it has not been
obtained from him either by fear, or prejudice, or hope of advantage
exercised or held out by a person in authority10.
 It is the duty of the court to see whether the confession is voluntary or not,
and the burden of proof lies on prosecution. Even most gentle threats or
slightest inducement, or hope of advantage to the accused will taint a
confession. Therefore, an unambiguous confession, if admissible in evidence

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 and free from suspicion of falsity is a valuable piece of evidence possessing
a high probative force11.
 In India, the substantive law of confession is contained in sections 24 to 30

of the Evidence Act, while the adjective law is found in sections 163, 164,
364, 533 of the Code of Criminal Procedure, 1973.
 Sections 24 to 26 lay down when the confessions are not relevant i.e.
provable. While sections 27 to 29 are limitations to their operation. Section
24 excludes confessions obtained by inducement, etc. Section 25 bars all
confessions made to police officers under any circumstances, whether
voluntary or involuntary, while section 26 shuts out confessions made in
police custody, except those made in the presence of the Magistrate.

Conditions for Relevancy of a confession

 It must not be caused by inducement, threat or promise (Section 24).
 It must not be made to a police officer (Section 25), subject to the
provisions of section 27.
 It must be made in the immediate presence of a Magistrate when the
accused is in the custody of police officer (Section 26).
 It must be made after the impression, caused by any inducement, etc, has
been fully removed (Section 28).
 The confession of an accused is relevant only against himself, subject to
section 30.

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 CLASSIFICATION OF CONFESSION

 A confession may occur in any form. It may be made to the court itself, or to
anybody outside the court. Confession may be divided into basically two
kinds:- Judicial and quasi judicial.
 When it is made to the court itself then it will be called judicial confession and
when it is made to anybody outside the court, in that case it will be called
extra-judicial confession.
 It may even consist of conversation to oneself, which may be produced in
evidence if overheard by another. For example, in Sahoo v. State of U.P. the
accused who was charged with the murder of his daughter-in-law with whom
he was always quarreling was seen on the day of the murder going out of the
house, saying words to the effect : “I have finished her and with her the daily
quarrels.” The statement was held to be a confession relevant in evidence, for it
is not necessary for the relevancy of a confession that it should be
communicated to some other person

 Judicial Confession- A judicial confession is a confession that is made in

front of a magistrate or in a court. It may be made in the course of a judicial
proceeding. When an accused makes a confession to a Magistrate or Judge, it
is called Judicial Confession.
 Section 164 of the Code of Criminal Procedure, 1973 prescribes the rules to be
followed by the Magistrate while recording a confession made by the accused
to the Magistrate during investigation of a crime. If a confession is made to the
Magistrate and recorded properly. It will be substantive evidence against the
accused12.
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  A judicial confession undoubtedly is admissible in evidence. It is relevant fact.
A judgment of conviction can also be based on a confession if it found to be
truthful, deliberate and voluntary and if clearly proved. It is however, essential
that they be made or the free will of the party and with full knowledge of the
nature and consequences of the confessions.
 In the case of State (NCT of Delhi) v NavjotSandhu 13, the Supreme Court
observed that Confessions are considered highly reliable because no rational
person would make admission against his interest unless prompted by his
conscience to tell the truth. "Deliberate and voluntary confessions of guilt, if
clearly proved are among the most effectual proofs in law". The confession
must be made with full knowledge of the nature and consequences of the
confession. If any reasonable doubt is entertained by the court that these
ingredients are not satisfied, the court should eschew the confession from
consideration.
 Similarly in the case of Mohd. Azad v State of West Bengal, it has been
observed that confession cannot be used against an accused person unless the
Court is satisfied that it was voluntary and at that stage the question whether it
is true or false does not arise. If the facts and circumstances surrounding the
making of a confession appear to cast a doubt on the veracity or voluntariness
of the confession, the Court may refuse to act upon the confession, even if it is
admissible in evidence.

 Extra judicial confession- Extra-Judicial confessions are those which are

made by the party elsewhere than before a Magistrate or in court. This term
embracing not only express confession of crime but all those admissions and
acts of the accused from which guilt may be implied.

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  An extra-judicial confession is a confession that is made by the party

elsewhere than before a magistrate or in a court. It is admissible in evidence

under Section 21 and it is proved by the witnesses who had heard the speaker's
words constituting the confession.
 Thus when an accused makes a confession to his friend, wife, any other

relative, a co-prisoner, a police officer, a doctor or any other person it is Extra

Judicial Confession is also relevant 14. For example, an extra judicial confession
made to village administrative officer by accused is admissible. As held in the
case BhisheshwarDhani Ram v. State15, the Extra-Judicial confessions embrace
those made as well to private individuals as to the officers of justice such as
constable police officers etc. If voluntarily made they are receivable in
evidence after being proved like other facts.
 An extra-judicial confession if satisfactorily provided to have been voluntarily

made may be the basis for a conviction even in the absence of corroboration.
However, the fact as to whether a conviction can be based purely on an extra-
judicial confession which does not get any corroboration is highly doubted has
been the subject matter of various different judicial opinions.
 An extra judicial confession, if it is voluntary truthful, reliable and beyond

reproach, is an efficacious piece of evidence to establish the guilt of the

accused and it is not necessary that the evidence of extra judicial confession
should be corroborated on material facts.
 The extra judicial confession cannot be sole basis for recording the confession

of the accused, if the other surrounding circumstances and the materials

available on the record do not suggest his complicity 16. An extra judicial
confession by its very nature is rather a weak type of evidence and requires
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 appreciation with a great deal of care and caution where an extra-judicial
confession is surrounded by suspicious circumstances, its creditability becomes
doubtful and it loses its importance.
 Court must generally look for independent reliable corroboration before
placing any reliance upon extra judicial confession 17. Therefore, we can
conclude by the observation as was made by the Supreme Court in the case of
State of UP v M K Antony18, extra judicial confession appears to have been
treated as a weak piece of evidence but there is no rule of law or rule of
prudence that it cannot be acted upon unless corroborated. It is not open to any
court to start with a presumption that extrajudicial confession is weak type of
evidence. It would depend on the nature of the circumstances, the time when
the confession was made and the credibility of the witness who speak about
such a confession19. Two rules of caution are to be followed as held by the
Supreme Court in the case WakilNazekv. State of Bihar20 before such action
namely:
(1) Whether the evidence of confession is reliable.
(2) Whether it finds corroboration

CONFESSIONS WHEN NOT RELEVANT (SCETION 24, 25 & 26

of the Indian Evidence Act)

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  A confession becomes irrelevant and thus, inadmissible, in situations
described in the Sections 24, 25, and 26. The confession of an accused may
be classified into Voluntary and non-voluntary.
 A confession to the police officer is the confession made by the accused
while in the custody of a police officer and such kind of confession is not
relevant under section 25 and 26 of the Evidence Act. If it appears to the
court that confession have been caused by any inducement, threat or
promise having reference to the change against the accused person
proceeding from a person in authority and sufficient in opinion of the court
to give the accused person grounds, which would appear to him reasonable
for supporting that by making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the proceeding against him, it will
not be relevant and it cannot be proved against the person making the
statement.
 Section 24 of the Evidence Act lays down the rule for the exclusion of the
confession which is made non-voluntarily 21. For admissibility, a confession
must be necessarily shown to be voluntary, which is not caused by
conditions mentioned under sect 24 and does not mean a confession made
willingly as all confessions made in consequences of inducement etc are
voluntary in the latter sense of term. A confession which is voluntary is
admissible, even if it is false22.

 Section 24 talks about confession caused by inducement, threat or

promise, when irrelevant in criminal proceeding- 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,
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 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 supporting that by making it he would gain any advantage or
avoid any evil of temporal nature in reference to the proceeding against
him23.
 Section 24 enacts the general rule of inadmissibility of involuntary
confessions, recognized all over the world and guaranteed under Article
20(3) of the Constitution of India. Article 20 (3) of the Constitution protects
an accused person against testimonial compulsion. A confession made under
circumstances which would make it appear to the Court that such confession
was caused by any inducement, threat or promise from a person in authority
is irrelevant in a criminal proceeding24.
 Offering such inducement, threat or promise by police officers is prohibited
under the Code of Criminal Procedure25. Words “appear to him” in the last
part of the section refer to the mentality of the accused 26. A confession made
in the course of trial or enquiry is required by law to be reduced in writing
and hence oral evidence thereof is inadmissible, except to a limited extend as
mentioned under section 553 of CrPC27.
 Thus it is clear that if threat or promise from persons in authority is used in
getting a confession it will not be taken into account as admissible
evidence28. The burden of proving a voluntary or involuntary character of a
confession under English law, lies on the prosecution.

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24

25

26

27

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  Moreover, the inducement must have reference to the charge against the
accused person that is the charge of offence in the criminal courts and
inference the mind of the accused with respect to the escape from the charge.
The inducement must have reference to escape from the charge. Thus, it is
necessary for the confession to be excluded from evidence that the accused
should labour under influence that in reference to the charge in question his
position would be better or worse according as he confesses or no29.
 The expression ‘person in authority’ does not mean person having control
over the prosecution of the accused. The test appears to be, has the person in
authority to interfere in the matter under enquiry, as for example, a person
engaged in the apprehension, detention or prosecution of the accused or who
is empowered to examine him30.
 Moreover the word ‘appears’ indicates a lesser degree of probability than
would be necessary if proof had been required. Section 24 does not require
the same cogency of evidence as is necessary to prove fact. The word
’appears’ is important in judicial discretion in matter of accepting and
rejecting the confession31. The value of the evidence as to the confession just
like any other evidence depends upon the veracity of the witnesses to whom
it is made32.
 Section 25 – confession to police officer not to be
proved.

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  No confession made to a police officer shall be proved as against a person
accused of any offence33. Under this section, a confession made to a police
officer is inadmissible in evidence, except so far as provided under sec 27.
 The principle behind this exclusion is that a confession thus made is
untrustworthy. The reason for the rule is to put a stop to the extortion of
confessions by police by malpractices; and to avoid the danger of admitting
false confessions34.
 Any confessional statement given by accused before police officer is
inadmissible in evidence and cannot be brought on record by the prosecution
and is insufficient to convict the accused 35.In Dagdu v. State of
Maharashtra36, Supreme court noted:

 The archaic attempt to secure confessions 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-route to success, good evidence may
disappear due to inattention to real clues. Once a confession is obtained,
there is often flagging of zeal for a full and through investigation with a
view to establish the case de hors the confession, later, being inadmissible
for one reason or other, the case fundles in the court37.
 In R vs .MuruganRamasay38,

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  Police authority itself, however, carefully controlled, carries a menace to
those brought suddenly under its shadow and the law recognises and
provides against the danger of such persons making incriminating
confessions with the intention of placating authority and without regard to
the truth of what they are saying39.
 The term ‘police officer’ must not be read in strict technical sense. It
includes an officer vested with the powers of police by law whether he is
called a police officer or by any other name and exercises other functions
also under other provisions of law.
 The term police officer is wider than the term contained as in section of the
Police Act, 1861. However we cannot include persons on whom certain
police powers are conferred like a customs officer or an excise officer40.
 In the case of Raja Ram vs State of Bihar 41, SC held that the term police-
officer is not be be interpreted strictly but must be given a more
comprehensive and popular meaning. However, these words are also not to
be construed in so wide sense as to include a person on whom only some
powers exercised by the police are conferred. The test for determining
whether such a person is a police officer, is whether the powers are such as
would tend to facilitate the obtaining of confession by him from a suspect.
Thus, a chowkidar, police patel, a village headman, an excise officer, are all
considered to be police officer.

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40

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  Section 26 states that no confession made by any person whilst he is in
the custody of a police-officer, unless it be made in the immediate
presence of a Magistrate, shall be proved as against such person.
 This section further tries to ensure that the confession is not extracted due to
the influence of the police. This section is an extension of the principle laid
down under section 25.
 Any confession made while the maker is in custody of the police is invalid
unless it is made in the immediate presence of a magistrate. The presence of
a magistrate is, by a legal fiction, regarded as equivalent to removal of police
influence and the statement is therefore considered to be free from police
influence42.
 Section 25 and 26 does not lay down identical propositions as 25 talks of
confession made to the police while 26 governs confessions while in police
custody made to the person other than police.
 Therefore, statement made in police custody are considered to be unreliable
unless they have been subjected to cross examination or juridical scrutiny 43.
 The term ‘Custody’ has same meaning under section 26 and 27. A formal
accusation or arrest is not necessary to constitute custody as understood in
section 26 or 2744.
 It is sufficient if the state of affairs is such wherein the accused can be said
to have been under the surveillance or restriction. He will be deemed to be in
custody if he is not permitted to depart to his own free will 45.Mere absence
of the police officer from a room where confession is taken does not
terminate his custody of the accused. The word custody does not just mean

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 formal custody but includes such state of affairs in which the accused can be
said to have come into the hands of a police officer or can be said to have
been under some sort of surveillance or restriction46.

CONCLUSION

 What is confession is not defined in the Indian Evidence act or under any
other Law. The definition gives under section 17 of the Act for admission,
becomes applicable to confession also. A close scrutiny of the sections 17 to
30 of the Act, discloses that the statement is the genus, admission is the
species and confession is the sub-species.
 It is a well settled law that if once police custody has commenced, the mere
fact that for a temporary period the police discretely withdraws form the
scene and left the accused in charge 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 or other the police officer happens to be
temporarily absent and during this temporary absence leaves the accused in
charge of a private individual does not terminate his custody, the accused
shall be deemed to be still in police custody.
 The test, therefore, is whether at the time when the person makes an extra
judicial confession, he is a free man or his movements are controlled by the
police either by themselves or through some other agency employed by
them for the purpose of security of such a confession. With the above study
it seems that the relevance of the statement of the accused is an important

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 fact in conviction of the accused. But there are various factors involved in
the relevance of the statement of the accused.
BIBLIOGRAPHY

PRIMARY SOURCES

 The Indian Evidence Act, 1872

 The Code of Criminal Procedure, 1973
 All India Reporters
 Supreme Court Cases
Websites

1. www.scconline.com
2. http://hanumant.com
3. http://highcourtchd.gov.in
4. http://www.legalservicesindia.com
5. http://aananthnb.wordpress.com
6. http://www.lawteacher.net
7. http://shodhganga.inflibnet.ac.in
8. http://delhihighcourt.nic.in