DHARMASHASTRA NATIONAL LAW UNIVRSITY

2021-2022

PROJECT TOPIC: EVIDENCE OF CONFESSION

SUBMITTED TO SUBMITTED TO

Gautam Gupta Vishrut Verma

Assistant Professor of Law BAL/082/19

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 ACKNOWLEDGMENT

I would like to begin by expressing my sincerest gratitude to the Vice Chancellor of

Dharmashastra National Law University for providing students with the opportunity and
liberty to conduct our research for our projects as per our will and provide us with all the
necessary resources and facilities to do the same. Dr. Manwendra Tiwari as Head of the
Department has always been a guiding force for the students and has always been available
and up for helping us in any way he can and I would like to thank him for the same. Prof.
Gautam Gupta -Assistant Professor of Law has been incredibly encouraging and an immense
support in the process of the completion of this project and prevented it from being a hassle
or strenuous in any way and gave us the liberty to conduct our projects any way we deem fit.
Without their constant support and guidance, this project wouldn’t have been a possibility and
wouldn’t turn out to be the way it has.. Lastly, I would like to extend my gratitude to my
family for being patient and lending an ear to me in my times of need in this project and
giving me the apt environment for the timely completion of this project.

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 OVERVIEW

RESEARCH METHODOLOGY

The research methodology followed in this research is Doctrinal Research. The doctrinal
research is also called secondary research. In this research type the data is collected from
already existing sources and materials. There is no field work in this research type and is also
called arm-chair research because non survey, interview or questionnaire is involved. For my
research work I collected data from various sources such as

▪ Research Papers
▪ Books
▪ Online cases

In this type, the already available information is interpreted, condensed and analysed. Since
primary research was not conducted for this project the perspectives of the previous
researchers might bear resemblance to those of my own.

RESEARCH OBJECTIVES

● To ascertain the evidentiary value of confessions

● Seek out loopholes and irrationality of provisions related to confession
● Elaborate on the factors determining probative value of confessions

RESEARCH QUESTIONS

● On what grounds does section 27 endure criticism?

● What are the provisions with respect to admissibility of confession statements in part?

LITERATURE REVIEW

Banoo, S., 2020. Confession Under Indian Evidence Act, 1872-a

Critique. Available at SSRN 3669253.

The paper dealt with Indian Evidence Act and the provisions with respect to confession as a
form of evidence. The essay analyzed the evidentiary value of confessions and how it has
solidified itself as an indispensable part in criminal trials. The various forms of confession
were dealt with too and their respective importance and admissibility was critically analysed.
What the paper didn’t have however was a critique of some of the provisions and how

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they’ve impacted trials and rights of the accused. This is what I have attempted to conver in
my research.

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Understanding confession through the prism of the Indian Evidence Act,1872

Section 3 of the Indian Evidence Act, 1872 defines “evidence” to mean and include –

(1) All statements which the court permits or requires to be made before it by witnesses
in relation to matters of fact under inquiry ; such statements are called oral evidence ;
(2) All documents including electronic records produced for the inspection of court1

What are the types of evidence?

The types of evidences mentioned in the IEA, 1872 are –

i. Direct Evidence: Also known as positive evidence “is evidence about the real point in
controversy”2
ii. Indirect Evidence: Also known as circumstantial evidence, relates to a series of other
facts than the fact in issue. Not to be confused with hearsay or secondary evidence.
iii. Oral Evidence: Oral Evidence is “statement made by a witness before a court in
relation to a matter of fact under inquiry. Oral evidence is the evidence given before
court”3
iv. Documentary Evidence: “When a document is produced in support of the case of the
party producing it, the document becomes the documentary evidence in the case.”4
v. Primary Evidence: Primary Evidence “means documents itself produced for the
inspection of the court.”5
vi. Secondary Evidence
vii. Hearsay Evidence
viii. Judicial Evidence
ix. Non-judicial evidence
x. Real Evidence

1
Subs. by the Information Technology Act, 2000, (Act No.21 of 2000). S.92 and Sch. II.
2
BATUK LAL, THE LAW OF EVIDENCE 37 (Central Law Agency 2020).
3
BATUK LAL, THE LAW OF EVIDENCE 33 (Central Law Agency 2020).
4
Ibid.
5
Indian Evidence Act, 1872 , §62, No. 01, Acts of Parliament, 1872 (India).

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What is a confession?

In the IEA, 1872, confession isn’t precisely defined in the act. The term is first dealt with in
Section 24 of the Indian Evidence Act, 18726 where confession caused by inducement, threat
or promise when irrelevant in criminal proceeding is touched upon. In order to get a just and
clear definition of confession, and to know what it entails, precedents have to be relied upon.
The Apex court in Palvinder Kaur v. State of Punjab7 upheld Pakala Narayana Swami’s8
decision on two grounds i) the definition of confession is that it must entail admitting guilt in
terms or substantially the facts which constitute the offense. Other than that, a mixed up
statement despite containing despite containing confessional statement that will lead to
acquittal, is not a confession. In the case of Nishi Kant Jha v. State of Bihar9, the Supreme
Court highlighted how there wasn’t any issue or problem with being reliant on a part of
confessional statement and discarding/rejecting the other by drawing from the English
precedents. The court may rely on the inculpatory part of an accused’s statements when
there’s enough evidence to reject the exculpatory part.10

What are inculpatory and exculpatory statements?

An inculpatory statement is one in which the accused directly admits his guilt. This statement
is essentially an admission of guilt. Exculpatory statements, on the other hand, are exactly the
opposite. Exculpatory statements are those which discharge the accused from his liability and
as evidence proves beneficial to the defendant. A self-exculpatory statement obviously
doesn’t amount to a confession as held in Pati Soura v. State, and that a statement containing
self-inculpatory matter that is, in a self defence case does not amount to a confession in case
the exculpatory part pertains to a fact which is the truth, would negate the offence that is
alleged to be confessed. A fully self-incriminating statement that also details the elements of
the offence is considered a confession. When a statement is partially self-exculpatory or
self-inculpatory, there is ambiguity. The Apex Court in the case of Hanumant Govind
Nargendkar v. State of Madhya Pradesh that that admission must be used in whole or not at
all.11

6
Indian Evidence Act, 1872. [Hereinafter known as IEA 1872]
7
Palvinder Kaur v. State of Punjab, AIR 1952 SC 354.
8
Pakala Narayana Swami v. Emperor, AIR 1939 P.C 47.
9
Nishi Kant Jha v. State of Bihar, 1969 AIR 422.
10
Ibid.
11
Hanumant Govind Nargendkar Vs. State of M.P 1952 SCR 1091.

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 Confession: Admissibility, forms, and evidentiary value

What are the forms of confessions?

A confession is of different forms depending on whom it is made to, its contents, where it is
made, and whether it was made on one’s own volition or not. Beginning with, a judicial
confession is one that is made to the court. An extra-judicial confession on the other hand is
one that is made outside of court to anyone. In the case of Sahoo v. U.P12, the accused had
regular quarrels with his daughter in law, and was charged with her murder. He was seen
going out on the day of the murder uttering sentences such as “I have finished her and with
her the daily quarrels.” This statement amounted to a confession pertinent in evidence. He
was overheard and this also highlights that a confession doesn’t particularly need to be made
to some other person. Based on the fact whether the confession was made on one’s own
volition or not, we have voluntary and non-voluntary confessions.

According to sections 25 and 26 of the Indian Evidence Act, a confession made to a police
officer is never relevant and cannot be proven. Confessions made extrajudicially and sent to
the magistrate during an investigation are only admissible if made voluntarily. If the court
determines during the confession process that it was made under undue influence, threat,
coercion, inducement, or promise have reference to the change against the accused person
coming from a person in authority and sufficient in the court's opinion to provide the accused
person grounds13, which would appear reasonable for supporting that by making it he/she
would gain any kind of advantage or avoid any evil of a secular nature in reference to the
proceedings against him/her, it would not be relevant and also cannot be proved against the
person making the statement.14 Section 24 of the Indian Evidence Act makes provision for
non-voluntarily made confessions. A magistrate may record a confession under Section 164
of the CrPC. It should also be noted that an unwilling person cannot be forced to confess.

Probative value of a confession

Confession is regarded as a weak form of evidence. Because of the likelihood of being

threatened, induced, etc., the evidentiary value is considered lower. As a result, they must be

12
Sahoo Vs. The State of U.P. AIR 1966 S.C. 42.
13
Supra note at 16.
14
Supra note at 17.

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considered alongside other evidence on the record. And, in accordance with general
prudence, the court should refrain from convicting a person solely on the basis of conviction,
taking into account all circumstances and facts.15

Justice Bose in the case of Muthuswamy v. State of Madras16, observed that confession is a
weak type of evidence and simply can’t be admitted because it is made by the accused and
contains details. The Supreme Court also held that as a matter of prudence, the court must not
base a conviction solely upon a confession.17 Thus, the Pakala Narayan Swami case
established that confession refers to the direct admission of guilt. A confession that has been
properly recorded and is free of legal flaws can also be used as substantive evidence against
its maker, though it should be corroborated by other evidence. Also, only a confession which
is voluntary and true can be acted upon. That is a confession which is free from any threat,
inducement or promise.18

15
‘What is Evidentiary value of confession, Ipleaders https://blog.ipleaders.in/evidentiary-value-confession/.
16
Muthuswamy v. State of Madras AIR 1939 P.C. 47.
17
Supra note at 20.
18
Supra note at 20.

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 Criticisms and Suggestions

Confessions made in police custody (unless in front of a magistrate) or to police officers are
not relevant, as previously stated in relation to non-voluntary confessions and their
acceptance. Before delving into the criticism of section 27, which is an exception to section
25 of the Indian Evidence Act, it is necessary to understand what prompted the drafters to
include this section and what the idea behind it was. According to Section 25 of the Indian
Evidence Act, "confession to police officer not to be proved." It rejects the accused's
confessions and labels them untrustworthy. In an era when people are more aware of police
brutality and prison violence, the section appears to function as a safeguard mechanism for
the accused in such cases. The main reason for not admitting the same is to avoid the error
and possibility of admitting a false confession.19 A police officer when dealing with serious
cases like dacoity, robbery etc. may implicate innocent to safeguard himself against criticism
and in charge of neglect upon 20failing to discover evidence or real culprits. It can also be a
possibility that the police officer subjects innocents to severe torture and threat to get them to
confess motivated by external factors. A confession to a police officer made at any time, be
it before or after investigation is not admissible. Statement made to a police officer by one
accused is also inadmissible against a co-accused.21

This section too has its exceptions such as a statement made before an officer under the
NDPS Act. However this confession will be subjected to closer scrutiny than a confession
made to a private person under the act.22 Sections 25,26 and 27 are inextricably linked
together. Section 27 of the Indian Evidence Act states “How much information received from
accused may be proved”

“Provided that, when any fact is deposed to as discovered inconsequence of information

received from a person accused of any offence, in the custody of a police officer, so much o
such information, whether it amounts to a confession or not, as it related distinctly to the fact
thereby discovered, may be proved.”

19
Paulose v. Stae of Kerala, 1990 Cr LJ 108 Ker.
20
Pakala Narain Swami v. Emperor, AIR 1939 PC 47.
21
Nagu Jhalla v. Emperor 36 IC 480.
22
Francis Stanley v. Intellegence Officer, Narcotic Control Bureau, Thiruvananthapuram, AIR 2007 SC 794 at pp.
796-797

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In the case of Pandu Rang Kallu v. State of Maharashtra23, it was held by the Supreme Court
that Section 27 of the Indian Evidence act was enacted as a proviso to provisions of section
25 and 26 of the same act. The ban stated in sections 25 and 26 would only be lifted when the
statement is related to discovery of facts. This provision is to permit a certain portion of the
Evidence Act to include a certain portion of the statement made by the accused. Under
section 27 disclosure of statement leading to discovery of fact is admissible.24

There is criticism of the section based on the very fact that it stands in contravention to the
reasons and principles of its implementation in section 25 and 26. This is completely ignorant
of that. As courts have already held that section 27 stands as an exception to sections 25 and
26, then what exactly remains the justifiable reason to exclude these statements made to
individuals other than police officers. Even if it is contended in section 27 that only the
self-incriminatory part is discarded, and only the part with respect to the discovery of new
facts is admitted, the problem is not the extent but the fact that it still allows validity of
statements made to police officers. In the Pakala Naraina Swami25 case, the court envisaged
that the statements need not just be made to a police officer but can be made to any one while
in custody. Hence, Section 27 being an exception to Section 25 and 26 is a misnomer and
would be effective if the accused could be protected from the ‘persuasive powers’ of the
police by allowing for statements made to other individuals. This completely disregards why
section 25 and 26 came about to be in the first place.

Section 27 does not take into account the derivation of a statement, therefore its wording does
not affect the evidentiary value of a statement even if it has been derived by any kind of
threat or torture. The case of Ashish Bantham v. State of U.P led to another lacuna in section
27 that there is no prescribed time limit for such discovery to be made. Although this
judgement did also cast a doubt on the validity and reliability of such evidence, there is room
for fabrication of evidence against the accused in such cases.

The interpretation of this section should be such that the recoveries are to be made
immediately on receiving information or within a reasonable time i.e. as would be required
by the police to obtain evidence. The basic point which Courts should ensure is that there
should be no possibility of concocting evidence by, say, imposing false weapons on the place

23
Pandu Rang Kallu v. State of Maharashtra AIR 2002 SC 733.
24
Rumi Bora Dutta v. State of Assam, AIR 2013 SC 2422.
25
Supra note at 21.

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of the accused as mentioned, otherwise it will become an easy tool for the police to plant
evidence, and more often than not, secure a conviction against the accused.

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 CONCLUSION

In conclusion, while confessions do not have a high evidentiary value, they can be useful in
some cases when gathering evidence. This research demonstrates how the evidence act takes
into account the various exceptions, or instances where the relevance of a confession is to be
relied on. However, as with most laws, certain provisions concerning confessions have been
criticized. Section 27 of the Indian Evidence Act is one such example. For the completion of
this research, significant cases and precedents concerning the admissibility of confession as
evidence were relied on.

Hopefully, the research will shed light on the state of confessions as evidence in India and
how Indian procedural and substantive law addresses it. For the research, the provisions of
the Indian Evidence Act of 1872 are addressed.

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 BIBLIOGRAPHY

Research articles

▪ Banoo, S., 2020. Confession Under Indian Evidence Act, 1872-a Critique. Available
at SSRN 3669253.
▪ Yadav, P., 2021. Traversing the Muddy Waters—Legality, Tenability, and Reliability
of Co-defendant’s Confession under the Indian Evidence Act. Statute Law
Review, 42(3), pp.335-343.

Internet Sources

▪ Anshul Ramesh and Andolan Sarkar, “The Irrationality of of Section 27 of the Indian
Evidence Act”, 1872, (Criminallawstudiesnluj, October 30, 2020)
https://criminallawstudiesnluj.wordpress.com/2020/10/30/the-irrationality-of-section-
27-of-the-indian-evidence-act-1872/.
▪ What is Evidentiary value of confession, Ipleaders
https://blog.ipleaders.in/evidentiary-value-confession/ .

▪ Siddhart Negandhi, ‘Confessions carrying inculpatory and exculpatory statements’,

(Lex Auxilium, Jun 17, 2020),
https://lexauxilium.com/2020/06/17/confessions-carrying-inculpatory-and-exculpator
y-statements/.

▪ Shraddha Chaudhary, Confession appears for the first time in section 24 of the Indian
Evidence Act, Legal Service India.com,
http://www.legalservicesindia.com/article/1547/Confession-under-Indian-Evidence-A
ct.html.

Books

▪ Dr. Avatar Singh, Principles of The Law of Evidence 160-165 (21st ed. 2014).
▪ BATUK LAL, THE LAW OF EVIDENCE 37 (Central Law Agency 2020).

Legislations

Indian Evidence Act, 1872

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