Sections 17 to 31 of the Indian Evidence Act, 1872 deal with what is called as ‘admissions and confessions’. However, the Act treats ‘confessions’ as merely a kind of ‘admissions’. This way one can say that the admissions in the Criminal cases is ‘confessions’. Here, admission is a statement, oral or documentary or contained in electronic form.

Admissions

Admission plays a very important part in judicial proceedings. If one party proves that the other party had admitted his case, the work of court becomes easier.

Section 17 of the Act defines ‘admission’ in the following manner:

Define admissions? What is their evidentiary value?

Therefore, according to this section is a statement oral or documentary which suggest any inference, to any fact in issue or relevant fact in issue.

Sections 18 to 20 enumerate various categories of person, whose admissions will be relevant. Sections 18 to 20 reads as under:

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Reasons for admissibility of admissions

What are the reasons for admissibility of admissions?

An admission is a relevant evidence. Admissions are admitted because the conduct of a party to a proceeding, in respect of the matter in dispute, is a fact relevant to the issue. Several reasons have been suggested for receiving admissions in evidence:

(i) Admissions a waiver of proof:—

Every fact has to prove which is fact-in-issue or relevant fact by the parties. But, a party has admitted a fact, it dispenses with the necessity of proving that fact against him. It operates as waiver of proof. But it cannot be regarded conclusive. The Court may, in its discretion, requires the facts admitted to be proved otherwise than by such admission. However admission constitute a weak kind of evidence, and the Court may reject an admission wholly or partly or requires any further proof. Waiver of proof, thus, cannot be an exclusive reason for the relevancy of an admission.

(ii) Admission as statement against interest:—

Admission means ‘conceding something against’ the person making the admission. This is a general rule (exceptions are in section 21) that admission should be self-harming. It is highly improbable that a person will voluntarily make a false statement against his own interest. However, section 17 does not require that a statement should be a self-harming statement, the definition also include self-serving statement.

(iii) Admission as evidence of contradictory statements:—

Another reasons that party accounts for the relevancy of an admission is that there is a contradiction between the party’s statement and his case. This kind of contradiction discredits his case. However, a party can prove all his opponent’s statements about the facts of the case and it is not necessary that they should be inconsistent with his case.

(iv) Admissions as evidence of truth:—

The most widely accepted reason that accounts for relevancy of admission is that whatever statements a party makes about the fact of case, whether they be for or against his interest, should be relevant as representation or reflecting the truth against him. Whatever a party says in evidence against himself……. what a party himself admits to be true may be presumed to be so.

Admission – an exception to hearsay rule

Admission constitute an exception to hearsay rule. This is so because an admission, though a hearsay, is nevertheless the best evidence. What is said by a party to the suit is not open to the objection ‘that a party is going to offer worse evidence than the nature of the case admits’ (the supposition on which rule of best evidence is found).

Thus, if A sues B on a loan, which B denies and make a statement to C, a third person, that he had taken the loan, B’s statement is an admission and C may gave evidence of it although C was not present at time of the loan and had only heard B admitting the fact of the loan.

Requisites of an admission

Following are the requisites of an admission:

(i) it must be a statement(s) oral or documentary;

(ii) the statement must suggest any inference as to any fact in issue or relevant fact;

(iii) it must be made by any of the following persons as mentioned in sections 18 to 20:

(a) Party to the proceeding.¹ (section 18).

(b) Agent authorised by such party,¹ (section 18).

(c) Party’s representatives, i.e., party suing or sued in a representative character making an admission.¹

(d) Person jointly interested in the subject-matter of the proceedings, i.e., person who has any proprietary or pecuniary interest in the subject-matter of the proceedings.¹

(e) Persons from whom the parties to the suit have derived their interest or title to the subject-matter of the suit.¹

(f) Person whose position or liability is necessary to prove against a party to a suit. This is case of admission by strangers to the suit if they occupy such a position or are subject to such a liability.²

(g) Referee, i.e., person to whom a party to the suit has expressly referred for information or opinion.³ This is also a case of admission by a stranger.

Party to the proceedings – meaning of

The word ‘proceeding’ in section 18 refers to proceedings in which the matter stated by the parties in the issue.

(1) Parties to the proceedings in the Evidence Act, can be divided into two types:

(i) Parties in criminal cases: 

In criminal cases the accused is the party, his admissions are, therefore, receivable subject to the exclusionary rules; contained in sections 24 to 26.

(ii) Parties to civil suits: 

All plaintiffs and defendants are parties to the suits. A statement made by the party in a former suit between the same or different party is admissible. The proceeding may be civil or criminal. When several persons are jointly interested in the 

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subject-matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and others, provided that the admissions relate to the subject-matter in dispute.

(2) Admission by agents: 

The admission of an agent are admissible because the principle is bound by the acts of his agent done in the course of business and within the scope of his authority; Sri Chand Gupta v. Gulzar Singh, MANU/SC/0022/1992 : AIR 1992 SC 123: (1992) 1 SCC 143: 1991 AIR SCW 2813: 1992 (1) All Rent Cas 353: 1992 (19) AllLR 242: 1992 (46) DLT 6: JT 1991 (6) SC 532: 1992 (1) UJ (SC) 90. Agents includes pleaders, counsel or solicitor and manager of Hindu Joint family. Admissions made by co-defendants and partners are also admissible.

(3) Parties suing or sued in a representative character: 

When a party sues or is sued in a representative capacity, e.g., as a trustee, executer or administrator or the like, his representative capacity is distinct from his ordinary capacity, and only admissions made in the former capacity are receivable whereas statements made before he acquired the representative character are inadmissible.

(4) Admissions by persons who have any proprietary or pecuniary interest: 

They must be made during the continuance of such interest. An admission made by one of the several parties in front of others-jointly interested will not bind others.

(5) Admissions by persons from whom the parties to the suit have derived their interest: 

A tenant derives a title from the landlord. Such admissions are relevant if made during the continuance of the interest of the person making the statement. Admission of one person is also evidence against others in respect of privity between them.

Here ‘Privity ‘means mutual or successive relationship to the same right of property.

Statements must be made under the following circumstances

(a) Admission by a representative of a party, if made while holding such representative character.¹

(b) Admission by person jointly interested, if made during the continuance of such interest.¹

(c) Admission by person, from whom the parties to the suit have derived interest or title, if made during the continuance of such interest.²

(d) Admission by stranger to the suit; when their statements would be relevant in a suit brought by or against them.²

(e) Admission by a referee in a reference to matter in dispute.³

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Admission – Kinds of

Admissions are of two kinds viz., formal or informal, they may be considered as being on the record as actual if they are either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly, as between parties by agreement or notice.

Who can prove admission

While section 17 of the Act, defines admissions and sections 18 to 20 enumerate various categories of persons, whose admissions will be relevant. Section 21 is an exception to the general rule that admissions must be proved against the maker and not for his benefit. Section 21 reads:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed,
and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations

Section 21 makes admissions relevant and provable. The rule of law with respect to self-regarding evidence is that when in the self-serving form it is not in general receivable, but that in self-harming form, it is, with few exceptions, receivable and is usually considered proof of a very satisfactory kind. As a general rule, man shall not be allowed to make evidence for himself. But on the other hand universal experience testifies that, as men consult their own interest and seek their own advantage whatever they say or admit against their interest or advantage may with tolerable safety to be taken to be, true as against them, at least, until the contrary appears. Not only would it be manifestly unsafe to allow a person to make admissions in his own favour which should affect his adversary but, also evidence has, if any, but a very slight and remote probative force.

Exceptions

Section 21 contains following three exceptions:

(1) An admission is relevant and may be proved against the author of it and his representative in interest.¹

(2) Generally an admission cannot be proved by or on behalf of the maker, or by his representative in interest.¹

(3) Admissions can be proved by the maker or on his behalf or by his representative only under the three following circumstances:

(a) When it is of such a nature that if the person making it were dead, it would be relevant as between third persons under section 32.²

(b) When it consists of a statement of the existence of any state of mind or body made at or about the time when such state of mind 

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or body exist and is accompanied by conduct rendering its falsehood improbable.¹

(c) When it is relevant otherwise than as an admission.¹

In Illustrations (b) to (e) to section 21 of the Act, there is some ground of probability that statement is true.

Meaning of expression “as against the person who makes them”

This expression means as against the person by or on whose behalf they are made. Thus, an admission is made by a referee or by the agent of the party or by a person jointly interested with a party, the admission is provable, as against the party on whose behalf it is made. The rule as regards statements made by a person is that they may be proved only when they are against him; otherwise a party may manufacture any amount of evidence in his own favour.

Admissions regarding state of mind or body

Clause (2) of section 21 states that an admission may be proved by or on behalf of the person making it if it contains statements as to existence of a state of mind or body provided that:—

(i) Such state of body or mind is in issue or relevant for determination of fact in issue;

(ii) the statement is made at or about the time when such state of mind or body existed; and

(iii) statement was accompanied by conduct making its falsehood improbable.

Clause (2) of section 21 has no illustrations. However, illustrations (k), (l) and (m) of section 14 may be consulted on this point.

His representative in interest

Oral admissions as to contents of documents

relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Under section 22, the contents of documents like true copies, attested, certified, xerox, duplicate copies can be produced alongwith an oral evidence. Under section 22 it has been laid down that when there has been a document, nobody can be allowed to prove oral admission about the contents of that document e.g., X executed a deed of mortgage in favour of Y. Y files a suit for the possession of the property mortgaged on the basis of that mortgage. During the trial X denied the execution of the mortgage. Now in this case Y cannot prove by oral evidence that he had before some persons admitted that he had mortgaged the property to him. Y can prove the execution of the mortgage and can get possession of the property only when he files that deed of mortgage in the court and proves it.

There are two exceptions to this rule:

(1) When a person is entitled to give secondary evidence of the contents of some documents he will be entitled to rely on oral admission;

(2) Under section 65 secondary evidence of the contents of a document can be given when the original is lost or when it is in possession of the opposite party and so on. Thus, we see that under section 22 a party can prove oral admission of the contents of the document when he proves that the document has been lost, destroyed or that it is in possession of the opposite party.

Oral evidence of admission can also be given when a document is produced and its genuineness is disputed.

However, oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.¹

Admission in Civil Cases

Generally, for the purpose of compromise, negotiations take place out of the court between the parties to buy peace. During the process of negotiation parties make many statements. If such statements are allowed to be proved in the Court, it will be impossible for the parties to negotiate for any compromise. Section 23 provides protection for the negotiation, which is applicable in civil cases only. Section 23 reads as under:

Section 23 lays down that in civil cases if a person admits the liability upon an express condition that evidence of such admission should not be given or if it is made in such circumstances that the Court can infer that there was some sort of agreement that the admissions will not be proved in evidence in a case, such admission will not be relevant and will not be allowed to be proved.

Essential conditions for protection

Following are the essential ingredients in order to gain protection under section 23:

(i) There must be a civil dispute between the parties.

(ii) There must be negotiations between the parties or their agents with a view to compromise.

(iii) That negotiation must take place out of Court.

(iv) For this purpose, there must be express condition or circumstances from which the Court can infer that the parties had negotiated.

Evidentiary value

From what has been said above, it is not to be inferred that admission of a party is of no or little evidentiary value. When the admission is duly proved and the person against whom it is proved does not satisfy the Court that it was mistaken, untrue, there is nothing to prevent the Court from deciding the case in accordance with it. Admissions are very strong piece of evidence against the party making it unless they are proved to be false. Admission by a party in plaint may be used against him in other suits. But such admission cannot be regarded as conclusive and the party can show it to be wrong; Basant Singh v. Janki Singh, MANU/SC/0284/1966 : AIR 1967 SC 341: 1967 BLJR 27: 1967 All LJ 1: (1967) 1 SCWR 125: 1967 (1) SCJ 476: 1967 SCD 399: (1967) 1 SCR 1.

Admission does not create title

No title can pass from one person to another by mere admission; Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 605: 

(1966) 1 SCA 35: 1966 BLJR 147: 1966 SCD 485:(1966) 1 SCR 758.

Admission is substantive evidence

Admission is a substantive evidence though they are not conclusive proof of matter. If the admissions are not explained by the person by whom it was made it is a very strong piece of evidence against the matter. The admissions are not to be put to the matter for contradiction if he appears as a witness if they are not ambiguous.

It is true that evidentiary admissions are no conclusive proof of the facts admitted and be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof to the person making them or his representative-in-interest unless shown or explained to be wrong, they are efficacious proof of the facts admitted; Avadh Kishore Dass v. Ram Gopal, MANU/SC/0003/1978 : AIR 1979 SC 861: 1979 UJ (SC) 251: (1979) 4 SCC 790.

Case Law

Bishwanath Prasad case

In Biswanath Prasad v. Dwarka Prasad, MANU/SC/0006/1973 : (1974) 1 SCC 78: 

MANU/SC/0006/1973 : AIR 1974 SC 117: 1974 SCD 134: 1974 (1) SCJ 564: (1974) 2 SCR 124; the question was whether certain belonged to the defendant and certain others were liable to partition. The opposite party had made statements in dispositions in an earlier suit that they belonged to the defendant. Similar admissions occurred in the written statement filed by the plaintiff and his father in that suit. It was contended on behalf of the plaintiff, relying on section 145 of Evidence Act, that if a witness is to be contradicted by his own earlier statement, the statement must be put to him so that he may have an opportunity to explain it and this was not done in the present case. Thus, the admission made in an earlier suit cannot be used against the plaintiff.

The Supreme Court observed that there is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by the use of his prior statement. In the former case, admission by a party is a substantive evidence if it fulfils the requirements of section 21, in the latter case a prior statement is used to discredit the credibility of witness and does not become substantive evidence. In the former, there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore (of its own force). In the latter case, the Court cannot be invited to disbelieve a witness on the strength of the prior contradictory statement unless it has been put to him, as required by section 145.

Admissions are substantive evidence by themselves, though they are not conclusive proof of the matters admitted. Admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether he was confronted with these statements in case he made a statement contrary to these admissions (vide Bharat Singh v. Mst. Bhagirathi, MANU/SC/0362/1965 : AIR 1966 SC 405: 1966 SCD 153: (1966) 1 SCWR 222: 1966 (2) SCJ 53: (1966) 1 SCR 606).

The Court further said that admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out. The Court, thus, held that an admission in an earlier suit is a relevant evidence against the plaintiff.

Confession

Define confessions. What is their evidentiary value. To what extent confessional statement are relevant for the purpose of conviction?

(1) If he states that he committed the crime he is charged with, or

(2) If he makes a statement by which he does not clearly admit the guilt, yet from the statement some inference may be drawn that he might have committed the crime.

The word ‘confession’ appears for the first time in section 24 of the Indian Evidence Act. This section says that:

When confession is not voluntary: conditions

A confession should be free and voluntary. Following are the conditions where confession is not considered as voluntary:

(i) Where the confession is result of inducement, threat or promise;

(ii) That inducement, threat or promise should proceed from a person in authority;

(iii) Confession should relate to charge in question; and

(iv) It should hold out some worldly benefit or disadvantage.

Kinds of Confession

Define confessions and their relevancy. What are `judicial and extra-judicial' confessions?

Confession must be true and trustworthy

Where a confession is made by a person before a report was made to the police and before he was accused of an offence by others. The confession must be regarded as one made by an accused within the meaning of this section. A confession, if voluntary and truthfully made is an, “efficacious proof of guilt”. It is an important piece of evidence and therefore, it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy; Shivappa v. State of Karnataka, MANU/SC/0189/1995 : AIR 1995 SC 980: 1995 AIR SCW 956: (1995) 2 SCC 76.

Confession is a statement, wherein, guilt is admitted

In Pakalo Narain Swami v. King Emperor, MANU/PR/0001/1939 : AIR 1939 PC 47; Lord Atkin J., observed that, it is improper to construe confession as a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constituted the offence. An admission of a gravely incriminating fact even an inclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife/revolver which caused death with no explanation of any other man’s possession.

Confessional statement should be taken as a whole

The statement of the accused was partly guilty and partly remarks. It did not amount to a confession but merely an explanation. It must be taken into the consideration either as a whole or not at all. The confession must be either accepted as a whole or rejected as a whole; Palvinder Kaur v. State of Punjab (I), MANU/SC/0038/1952 : AIR 1952 SC 354: 1952 Cr LJ 154: 1952 SCJ 545: 1953 SCR 94: 1953 SCA 226: 1953 Mad WN 418: ILR 1953 Punj 107; Nishi Kant Jha v. State of Bihar, MANU/SC/0060/1968 : AIR 1969 SC 422: 1969 2 SCR 1033: ILR 48 Pat 9.

Inducement, threat or promise

A confession should be free and voluntary. A positive proof of the fact that there was any inducement, threat or promise is not necessary. On the evidence and the circumstances in a particular case, it should appear to the Court that there was a threat, inducement or promise, though this fact may not be strictly proved, Pyare Lal Bhargava v. State of Rajashtan, MANU/SC/0152/1962 : AIR 1963 SC 1094: 1963 All LJ 459: 1963 BLJR 407: 1963 SCD 341: (1963) 2 Cr LJ 178: 1963 SUPP 1 SCR 689. Anything from a barest suspicion to positive evidence would be enough to discard a confession. Further, in deciding whether a particular confession attracts section 24, the question has to be considered from the point of view of the confessing accused as to how the inducement, etc. proceeding from a person in authority would operate on his mind. The criteria is the reasonable belief of the accused that, by confessing, he would get an advantage or avoid any evil of a temporal nature in reference to the proceeding against him.

In Bhagbaticharan v. Emperor, (1893) 60 Cal 719; the accused, a post-office clerk, under suspicion, fell at his departmental inspector’s feet begging to be saved if he disclosed everything, and the inspector replied that he would try his utmost to save him if he told the truth. The confession was held to be inadmissible, as there was an inducement by the inspector.

Person in authority

Even a village mukhia (head of a village) and the Pradhan of a village have been held to be persons in authority; Emperor v. Har Piari, MANU/UP/0201/1926 : AIR 1926 All 737; Kansa Behera v. State of Orissa, MANU/SC/0240/1987 : AIR 1987 SC 1507: 1987 Cr LJ 1852: JT 1987 (3) SC 193 (2): MANU/SC/0240/1987 : (1987) 3 SCC 480: 1987 Cr LR (SC) 389: (1987) 2 Cr LC 350: 1987 SCC (Cri) 601: 1987 All WC 1239.

Confession recorded on oath

If any person in authority records the confession of an accused on oath, the statement becomes non-voluntary. Giving oath to the accused would by itself amount to a concealed threat because if the statement was found to be false, the appellant may have entertained a genuine belief that he might be prosecuted; Brijbasi Lal Shrivastava v. State of Madhya Pradesh, MANU/SC/0090/1979 : AIR 1979 SC 1080: 1979 Cri LR (SC) 123: 1979 Cur LJ (Cri) 162: 1979 UJ (SC) 314: 1979 Cr LJ 913: 1978 Serv LC 160: MANU/SC/0090/1979 : (1979) 4 SCC 521.

Burden of proof

In case of an ordinary confession there is no initial burden on the prosecution to prove that the confession sought to be proved is not obtained by inducement, threat, etc. It is the right of the accused to have the confession excluded and equally the duty of the court to exclude it even suo motu. In the absence of an evidence to show that any threat, promise or inducement was made to the accused and when he had continuously questioned all the time but only at intervals during the period the mere fact that it took two or three hours from the time that accused was brought to the house of the Mukhia to the time when he made the confessional statement cannot make his confession one other than free and voluntary; Ratan Gond v. State of Bihar, MANU/SC/0054/1958 : AIR 1959 SC 18: 1959 Cr LJ 108: 1959 BLJR 1: 1959 All LJ 35: 1959 MPC 46: 1959 SCJ 222: 1959 All Cr R 118: MANU/SC/0054/1958 : 1959 SCR 1336.

Confession to police officer not to be proved

Confessional statement

The confessional statement made by accused under TADA Act, in different cases cannot be utilised by prosecution in instant case as charges were framed only for offences under the Indian Penal Code; Sunderlal Kanaiyalal Bhatijia v. State of Maharashtra, MANU/SC/0223/2010 : AIR 2010 SC 1666.

Admissibility of confessional statement

The Court admits the confessional statement in a very tight way as was held by the Supreme Court in case of Sunderlal Kanaiyalal Bhatijia v. State of Maharashtra, MANU/SC/0223/2010 : AIR 2010 SC 1666, that where confessional statement relates to allegations both under Indian Penal Code and TADA Act and later the allegations on TADA Act, were droped and trial is based on only for offences under the Indian Penal Code, then the confessional statement made under TADA Act, could not be utilised by prosecution as charges were framed only for offences under Indian Penal Code.

Reasons for exclusion of confession to police

The principle upon which the rejection of confession made by an accused to a police officer or while in the custody of such officer is founded is that a confession thus made or obtained is untrustworthy. The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession.

The reason for this rule is stated Queen Empress v. Babu Lal, (1884) ILR 6 All 509; wherein it has been said that the object of the rule is to prevent the extortion of confessions by police officers who in order to gain credit by securing conviction go to the length of positive torture. If confession 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. A confession so obtained would naturally be unreliable. It would not be voluntary. Such a confession will be irrelevant whatever may be its form, direct, express, implied or inferred from conduct.

Section 25 of the Act, expressly declares that such confessions which are regarded as involuntary and those are made to a police personal shall not be proved; Haider v. State of Maharashtra, MANU/SC/0290/1979 : (1979) 4 SCC 600.

A series of conflicting suggestions as to the rational underlying this inflexible statutory bar emerges from the decided cases:

(1) 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.

This is to be noted that, this principle of exclusion applies only to statement which amount to a confession. If a statement falls short of a confession, that is, it does not admit the guilt in terms or substantially all the facts which constitute the offence; Palvinder Kaur v. State of Punjab (I), MANU/SC/0038/1952 : AIR 1952 SC 354: 1952 Cr LJ 154: 1952 SCJ 545: 1953 SCR 94: 1953 SCA 226: 1953 Mad WN 418: ILR 1953 Punj 107.

When confession said to have made to police officer

In order that a statement may be said to be made to a police officer must be near the person making the confession, rather the statement must be in presence of the police officer.

In Murli alias Denny v. State of Rajasthan, MANU/SC/0136/1994 : AIR 1994 SC 610: 1994 Cr LJ 1114: 1994 AIR SCW 378: 1995 Scc (Cri) 57: (1995) Supp 1 Scc 39; the confession was made in F.I.R. This cannot be used for any purpose in favour of prosecution and against the accused. However, the admission in favour of accused can be taken into account to examine whether the case falls under Exception 1 to section 300, IPC particularly when there is evidence disclosing as to how the quarrel ensued and attack took place.

Sitaram accused wrote a letter as follows:

“My dear Darogaji, I have myself committed the murder of my wife Smt. Sindora Rani. Nobody else perpetrated this crime. I would appear myself after 20 or 25 days and then will state everything. One day the law will extent its hands and will get me arrested. I would surrender myself.” (Signed Sitaram.)

This letter was kept near the dead body of Sindora and found by the S.I. It was held to be admissible.

Who are police officers?

Section 25 of the Evidence Act, provides a healthy protection. This section should not be interpreted in narrow and technical sense; but it should be understood in popular and wide perspective. But at the same time its interpretation should not be made in such a wide sense that those persons should be included in as police officer who had been given some powers of Police Officer.

The important quality (feature) of a police officer is that he must not only have power to make investigation of crime but to file a report against criminal and to have the power to prosecute the criminal. Unless and until a person has power to make investigation and frame charge against accused under 173 of Cr. P.C. he cannot be called a police officer within the meaning of section 25 of the Evidence Act.

In reference to custom officers the Supreme Court did not find them possessing the powers of a police officer and held them to be outside the purview of section 25 of the Act; State of Punjab v. Barkat Ram, MANU/SC/0021/1961 : AIR 1962 SC 276: (1962) 1 Cr LJ 217: (1962) 2 SCA 321: (1962) 3 SCR 338; followed by Balakishan A. Devidayal v. State of Maharashtra, MANU/SC/0112/1980 : AIR 1981 SC 379: 1980 Cr LJ 1424: 1980 SC Cr R 421: 1980 Cr LR (SC) 588: (1981) 1 APLJ (SC) 17: 1980 BBCJ (SC) 131: MANU/SC/0112/1980 : (1980) 4 SCC 600: 1981 SCC (Cri) 62: (1981) 1 SCR 875.

Confessional statement under English Law: Admissibility

In England, a confession made to a police officer would be relevant evidence. If the judge feels confident that there was no oppression and the statement was free, fair and voluntary, he may admit it.

Confession while in Custody

The value of confession depends upon the voluntary nature of confession. Section 26 of the Act, provides that no confession, which is made by any accused while in police custody can be proved against him unless it was made in the immediate presence of the Magistrate. Section 26 reads:

Object

The object of section 26 of the Evidence Act is to prevent the abuse of their powers by the police, and hence confessions made by accused persons while in custody of police cannot be proved against them unless made in the presence of a Magistrate. The custody of a police officer provides easy opportunity of coercion for extorting confession obtained from accused persons through any undue influence being received in evidence against them.

Police custody: meaning of

The custody of a police officer for the purposes of section 26, Evidence Act, is no mere physical custody. A person may be in custody of a police officer though the other may not be physically in possession of the person of the accused making the confession. There must be two things in order to constitute a custody. Firstly, there must be some control imposed upon the movement of 

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the confessioner, he may not be at liberty to go any way he likes. Secondly, control must be imposed by some police officer indirectly. The crucial test is whether at the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them for the purpose of securing such confession. The word ‘custody’ in this and the following section does not mean 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 subjected to some sort of surveillance or restriction.

Exceptions

(1) In the immediate presence of a Magistrate:

As a general rule, a confession which has been made by an accused during police custody, will not be admissible. But one of the exceptions to this general rule is that, when a confession is made to or in the immediate presence of a Magistrate, is a valid confession. It is immaterial that, while making such confession the accused was in custody. The expression “immediate presence” means presence in the same room before the maker where the confession being recorded. No policeman should be present in the room. Where the Magistrate was taking tea in the adjoining room, the confession shall not be a valid confession as it was not recorded in the immediate presence of the Magistrate; Nika Ram v. State of Himachal Pradesh, MANU/SC/0193/1972 : AIR 1972 SC 2077: (1973) 1 SCR 428: ILR 1974 HP 187.

Confession recorded by a second class Magistrate:

 Where a second class Magistrate, not specially authorised by the State Government to record a statement of confession, under section 164, Criminal Procedure Code has recorded the confession of the accused under section 164, Criminal Procedure Code is not admissible. His oral evidence to prove the confession will also be inadmissible.

In Preetam Singh v. State of Madhya Pradesh, MANU/SC/0120/1997 : AIR 1997 SC 445: 

1996 Cr LJ 4458: 1996 AIR SCW 3829: 1996 (3) All Cr LR 642: 1996 (2) Cr CJ 630: MANU/SC/0120/1997 : (1996) 10 SCC 432: (1996) 3 SCR 939: 1996 Scc (Cri) 1343; the Supreme Court held that, when Magistrate cautioned the accused as required, that he was not bound to make confession and that if he did make the confession, it might be used against him, however, not fulfilling other requirement of putting the question to the accused to satisfy himself that the accused was making confession voluntarily the confession cannot be entertained as a piece of evidence.

(2) Confession and Consequential discovery: 

Another exception to the general rule of section 26 is section 27 of the Evidence Act, which is explained in later part of this chapter.

Conditions for the applicability of section 26

Following conditions must be satisfied to invoke section 26:

(i) Statement must amount to confession;

(ii) It must have been made while the accused was in police custody; and

(iii) It must not have been made in the immediate presence of the Magistrate.

The following confessions are, thus, held to be irrelevant:

(1) A woman arrested for the murder of a young boy was left in the custody of villagers while the chowkidar (watchman) who arrested her left for the police-station and she confessed in his absence; Emperor v. Jagia, MANU/BH/0098/1938 : AIR 1938 Pat 308.

(2) While the accused being carried on a tonga was left alone by the policeman in the custody of the tonga-driver and he told of his criminality to the tonga-driver; R. v. Lester, ILR (1817) 20 Bom 165.

(3) Where the accused was taken to a doctor for treatment, the policeman standing outside at the door, the accused confessed to the doctor; Emperor v. Mallangowda, (1917) 19 Bom LR 683.

Confession and consequential discovery

Discuss the relationship between section 26 and section 27 of the Evidence Act. How is `a fact discovered' different from `object produced'? Discuss with case laws.

Section 27 of the Evidence Act, is the second exception to the general rule that confession made to the police is not admissible. It reads as under:

From this section it is clear that, section 27 is in the nature of a proviso to section 26; Lal Singh v. State of Gujarat, MANU/SC/0017/2001 : AIR 2001 SC 746: 2001 Cr LJ 978: 2001 AIR SCW 389: 2001 (1) Crimes 115: JT 2001 (1) SC 410: (2001) 3 SCC 221: 2001 (1) SCJ 236: (2001) 1 Scale 284: 2001 Scc (Cri) 473: 2001 (1) Supreme 78: 2001 (1) UJ (SC) 608. The reason for admissibility of evidence under this section is that the discovery of fact guarantees the truth of the confession. This section of the Act, is founded on the principle that if the confession of the accused is supported by the discovery of a fact then it may be presumed to be true and not to have been extracted. It comes into operation only—

(1) If an when certain facts are deposed to as discovered in consequence of information received from an accused person in police custody, and

(2) If the information relates distinctly to the facts discovered.

This section is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend upon the exact nature of the facts discovered to which such information is required to relate.

Admissibility of discloser statement by accused

In case of Vikram Singh v. State of Punjab, MANU/SC/0062/2010 : AIR 2010 SC 1007, the Supreme Court held that the word “accused of any offence” in section 27 are descriptive of person making statement. It could not be said that section 27 would be operable only after formal arrest under section 46(1).

Protection against self-incrimination

Section 27 of Evidence Act, permits the derivative use of custodial statements in the ordinary course of events to the extent, that they can be proved by the subsequent discovery of facts. In Indian Law there is no automatic presumption that the custodial statements have been extracted though compulsion. However in circumstances, where it is shown that a person was indeed competed to make statements while in custody relying on such testimony as well as its derivative use will offend article 20(3); Selvi v. State of Karnataka, MANU/SC/0325/2010 : AIR 2010 SC 1974.

Evidentiary value of discovery of weapon

The Supreme Court in case of Musheer Khan @ Badshah Khan v. State of Madhya Pradesh, MANU/SC/0065/2010 : AIR 2010 SC 762, held that if the discovery of weapon was otherwise reliable, its evidentiary value was not diluted just by reason of non-compliance with the provision of section 100(4) or section 100(5) of Criminal Procedure Code.

Case laws

Pulukuri Kottaya case

In Pulukuri Kottaya v. Emperor, AIR 1947 PC 67; the scope of section 27 was explained by the Privy Council.

In the instant case, the appellants guilty of murder made some confessions in the police custody. In the appeal, they contended that their statements were admitted in violation of sections 26 and 27. The statement of one of them was: “I, Kottaya, and others beat Sivayya and Subbaya to death. I hid the spear and my stick in the rick of my village. I will show if you come. We did all this at the instance of P. Kottaya”. Another accused said: “I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place”. The relevant articles were produced from their respective places of hiding.

While explaining the scope of section 27, their Lordships observed: Section 27 provides an exception to the prohibition imposed by section 26 and enables certain statements made by a person in police custody to be proved. The condition necessary to bring section 27 into operation is that discovery of a fact in consequence of information received from accused (in police custody) must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally, the section is brought into operation when a person in police custody produces from some place of concealment some object e.g. a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.

Explaining the relationship between section 26 and section 27, their Lordships said: The proviso to section 26 added by section 27 should not be held to nullify the substance of the section. It is fallacious to treat the “facts discovered” as equivalent to the object produced; the facts discovered also embraces the place from which the object is produced and the knowledge of accused as to this fact. Information as to the ‘past use’ of the object produced is not related to its discovery.

Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in commission of offence, the fact discovered is very relevant. But if to the statement the words “with which I stabbed A” are added, these words are inadmissible because they do not relate to the discovery of knife in the house of the informant. The part which relates as ‘what he did to the object’ and not ‘what he did with the object’, is relevant under section 27, because the letter entails a remote connection with the fact. Further, if there is no other evidence connecting the knife with the crime and only the evidence is a statement coming under section 27, then the accused must be acquitted.

Referring to the facts of the case, their Lordships held that the whole of the statement except the passage “I hid it (spear) and my stick in the rick in the village. I will show if you come”, is admissible. The above passage is admissible as it served to connect the object discovered with the offence charged. The other portions of the statement relates to the past history of the object produced, thus, not admissible.

Mohmed Inayatullah case

In Mohmed Inayatullah v. State of Maharashtra, MANU/SC/0166/1975 : AIR 1976 SC 483:

 1975 Cr LR (SC) 567: MANU/SC/0166/1975 : (1976) 1 SCC 828: 1976 Cr LJ 481: 1976 SCC (Cri) 199: 1976 (1) SCJ 517: (1976) 1 SCR 715; the accused, charged with theft, stated: “I will tell the place of deposit of the three chemical drums which I took from the Haji Bunder on first August”. The facts discovered were – chemical drums, the place of deposit of drums, and the accused’s knowledge of such deposit.

The Supreme Court laid down following propositions:—

(1) that it is necessary for bringing this section (section 27) into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence.

(2) that the discovery of such fact must be deposed to. The ‘discovery of fact’ includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.

(3) that at the time of the receipt of the information the accused must be in police custody.

(4) that only “so much of information” as relates distinctly to the fact thereby discovered is admissible. The word “distinctly” means “ directly”, “indubitably”, “strictly”, “unmistakably”.

It was held that only the first part of the statement, namely “I will tell the place of deposit of three chemical drums” was relevant because only this part was immediate and direct cause of the act discovered. The rest of the statement was a pure and simple confession (past history) which led to no discovery.

However, the relevant portion was not, by itself, sufficient to presume that the accused was a thief. He himself deposited drums, or he only knew that the drums were lying there? Since it was a public place (railway platform) and not a place of hiding, anyone could have put them there and the accused might have only knowledge of that fact. Thus, he was given ‘benefit of the doubt’ (if the whole of his statement had been admitted he would undoubtedly have been held guilty).

Confession made after removal of inducement

Section 28 deals with the validity of confession which is made after the effect of inducement is already over in the following manner:

This section should be read with section 24 of the Act. Under section 24 we have seen that if in the opinion of a court a confession seems to have been caused by any inducement, threat or promise having reference to the charge and proceeding from a person in authority, it is irrelevant and cannot be proved even against a person making the confession.

Section 28 provides that if there is inducement, threat or promise given to the accused in order to obtain confession of guilt from him but the confession is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, the confession will be relevant because it becomes voluntary.

The impression created by threat, promise or inducement, etc. can be removed:

(i) by lapse of time; or

(ii) by warning given by some person superior in authority to the person inducing or making such threat or promise; or

(iii) by conduct of the person making threat or promise etc; R. v. Navroji Dadahai, 9 Bom HCR 358 (370); Bhagirathi v. State of Andhra Pradesh, MANU/MP/0009/1959 : AIR 1959 MP 17; Vali Isa Mahmed v. State, AIR 1963 Guj 135: (1962) 3 Guj LR 1052: 1963 (1) Cr LJ 755.

Confession made under promise of secrecy

Under section 29 of the Evidence Act, a confession, unlike an admission, is relevant even if it is made under promise of secrecy. In addition to this, section 29 provides for so many other things also in the following words:

Section 29 lays down that if a confession is relevant, i.e., if it is not excluded from being proved by any other provision of the Indian Evidence Act, it cannot be irrelevant if it was taken from the accused by:

(1) giving him promise of secrecy; or

(2) by deceiving him; or

(3) when he was drunk; or

(4) because it was made clear in answer to question which he need not have answered, or because no warning was given that he was not bound to say anything and that whatever he will be state will used against him.

Section 24 lays down that a confession which is the outcome of inducement, threat or promise from a person in authority would not be relevant. Section 25 lays down that a confession to a police officer is irrelevant. Section 26 excludes the statement of an accused in a police custody to any person other than a Magistrate. Section 29 lays down that if a confession is not excluded by sections 24, 25 or 29 it will not be excluded on the ground of the promise of secrecy or of deception or of being drunk, or for being made in answer to question or without warning that it will be used against him in evidence.

To make it clear it may be said that if a confession is made voluntary without an inducement, threat or promise from a person in authority and if it is not made to a police officer nor was it made while the accused was in police custody to any person other than a Magistrate will be received in evidence even if it was made by a promise of secrecy, in consequence of deception, in a state of drunkenness, or in answer to questions or without any warning that it may be used against him.

Section 29 assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provisions, viz., sections 24 to 26 and it then proceeds to invalidate or negative other positive objections or bars that may be raised against its admissibility.

Confession of co-accused

Section 30 of the Evidence Act, is an exception to the general rule that a confession of the crime is only admissible against the maker. Section 30 reads:

Illustrations

According to this section, when two or more persons are tried jointly for the same offence, and the confession made by one of them is proved, the Court may take into consideration that confession against all accused. It should be noted that, when more than one person are being jointly tried for and the same offence or offences they are called ‘Co-accused’; Vinayak v. State of Maharashtra, MANU/SC/0136/1984 : AIR 1984 SC 1793: (1984) 4 SCC 441: 1984 SCC (Cri) 605. It appears to be very strange that the confession of one person is to be taken into consideration against another. Where the confession of one accused is proved at the trial, the other accused persons have no opportunity to cross-examine him. It is opposed to the principle of jurisprudence to use a statement against a person without giving him the opportunity to cross-examine the person making the statement. This section is an exception to the rule that the confession of one person is entirely inadmissible against another.

Retracted confession

When a person, having once recorded a confession which is relevant, goes back upon it, saying either that he never confessed or that he wrongly confessed or confessed under pressure it is called a retracted confession. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and voluntarily made. However, a court shall not base a conviction on such a confession without corroboration; Pyare Lal Bhargava v. State of Rajashtan, MANU/SC/0152/1962 : AIR 1963 SC 1094: 1963 All LJ 459: 1963 BLJR 407: 1963 SCD 341: (1963) 2 Cr LJ 178: 1963 SUPP 1 SCR 689.

Distinction between Admissible and Confession

What is evidentiary value of confession?

Sections 17 to 31 deal with admissions generally and include sections 24 to 30 which deal with confession as distinguished from admission. From this it would appear that confessions are a species of which admission is a genus. All admissions are not confession but all confessions are admissions. Thus, a statement amounting under sections 24 to 30 to confession in a criminal proceeding may be an admission under section 21 in a civil proceeding. Sections 18 to 21 are not confined in their application to civil cases only. Incriminating statements not hit by section 162, Cr. P.C. may be admissible as admissions even in criminal cases.

Evidentiary value of confession

A confession is considered as best and most conclusive evidence, as no person will make an untrue statement against his own interest. It is well-settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt.

However, the evidential value of a confession is not high. As observed a confession may be ‘false’ due to mental aberration, mistake of law, to escape physical or moral torture, to escape ignominy of a stifling enquiry, due to vanity, to endanger others by naming them as co-offenders, and so on. Therefore, confessions may not always be true.

Therefore, the confessions must be checked in the light of the whole of the evidence on the record in order to see if they carry conviction. It would be very dangerous to act on a confession put into the mouth of the accused.

Muthuswamy v. State, AIR 1954 SC 47; the Apex Court observed that a confession should not be accepted merely because it contain details. Unless the main features of the story are shown to be true, it is unsafe to regard mere wealth of uncorroborated details as a safe guard of truth. Normally speaking, it would not be quite safe as a matter of prudence, if not of law, to base a conviction for murder on a confession by itself.

In Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1965) 2 SCA 292: 1965 SCD 809: (1965) 2 SCWR 484: 1966 Cr LJ 68: 1966 MPLJ 533: 1966 (2) SCJ 172: (1965) 3 SCR 86; it was held by the Supreme Court that there is clear distinction between the admissibility of evidence and the weight to be attached to it. The Court must apply a double test: (1) whether the confession was perfectly voluntary; (2) if so, whether it is true and trustworthy. The Court should 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. If the confession appears to be probable catalogue of event and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be relied on.

Case laws

Veera Ibrahim case

In Veera Ibrahim v. State of Maharashtra, MANU/SC/0514/1976 : (1976) 2 SCC 302: 

MANU/SC/0514/1976 : AIR 1976 SC 1167: 1976 SCC (Cri) 278: 1976 Cr LJ 860: 1976 Cr LR (SC) 165: (1976) 3 SCR 672; the fact was, one Veera Ibrahim was accused of offences under sections 135(a), 135(b) of Customs Act and section 5 of Imports and Exports (Control) Act, 1947. The appellant was called by custom authorities to Custom House and his statement was recorded while in custody. The statement was that he was not aware that the packages which were loaded in the truck were contraband goods and alleged that goods were not loaded under his instructions. He claimed to be an innocent traveler in the truck when he said, “I did not ask Mulaji (Driver) what goods were being loaded in his lorry-Mullaji was only my friend and I was not aware of any of his mala fide activities.” Question for decision was whether this statement was hit by section 24 of the Evidence Act.

It is necessary to establish the following facts in order to attract the provisions of section 24.

(i) that the statement in question is a confession.

(ii) that such confession has been made by an accused person.

(iii) that it has been made to a person in authority.

(iv) that confession has been obtained by reason of any inducement, threat or promise, proceeding from a person in authority.

(v) such inducement, threat or promise must, in opinion of the Court, be sufficient 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 proceeding against him.

In the present case, the facts under items (i), (iv) and (v) above have not been established. Firstly, the statement in question is not a confession within the meaning of section 24. It is now well-established that a statement in order to amount to a ‘confession’ must either admit in terms, the offence or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, however grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true would negative the offence alleged, cannot amount to confession as held in Pakalo Narain Swami v. King Emperor, MANU/PR/0001/1939 : AIR 1939 PC 47; Palvinder Kaur v. State of Punjab (I), MANU/SC/0038/1952 : AIR 1952 SC 354: 1952 Cr LJ 154: 1952 SCJ 545: 1953 SCR 94: 1953 SCA 226: 1953 Mad WN 418: ILR 1953 Punj 107 or Om Prakash v. State of Uttar Pradesh, MANU/SC/0205/1959 : AIR 1960 SC 409: 1960 Cr LJ 514.

It was held by the Supreme Court that the statement was not a confession within meaning of section 24, and was admissible in evidence under section 21 as an admission of incriminating facts. The mere fact that the Inspector of Custom had, before recording the statement, warned the deponent of possibility of his prosecution for perjury in case he did not make statement truthfully, cannot be constructed as a threat held out by the officer while could have reasonably caused the person making the statement to suppose that he would, by making the statement, gain any advantage or avoid any evil of a temporary nature in reference to the proceeding against him for smuggling. Appeal was dismissed.

Aghnoo Nagesia case

Aghnoo Nagesia v. State of Bihar, MANU/SC/0079/1965 : AIR 1966 SC 119:

 (1965) 2 SCA 367: (1965) 2 SCWR 750: 1966 Cr LJ 100: 1966 MPLJ 49: 1966 (1) SCJ 193: 1966 SCD 243: (1966) 1 SCR 134; the principle evidence was the confessional F.I.R. containing 18 parts and there was no eye witness to the murders. But the medical report confirmed that the wounds on the dead bodies were caused by a sharp weapon. The question for decision was whether the statement (FIR) or any portion of it was admissible in evidence. The appellant’s contention was the entire statement is a confession made to a police officer and is not provable under section 25 against the appellants.

The respondent State contended that section 25 protects only those portions of the statements which discloses the killing by the appellant and rest of the statement is not protected under section 25, and is relevant under section 27.

The Supreme Court observed: A confession or admission is evidence against the maker of it unless its admissibility is excluded by some provisions of law. Section 25 excludes confessions caused by certain inducements, threats and promises. Section 25 provides that no confession made to a police officer shall be proved as against a person accused of any offence (a confessional FIR, thus, hit by section 25). Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer unless it is made in the immediate presence of a Magistrate. Section 27 is in the form of a proviso or exception and partially lifts the ban imposed by sections 24-26. These provisions have been made on grounds of public policy and fullest effect should be given to them.

The Court further observed that a confession may consists of several parts, and may reveal not only the actual commission of the crime but also the motive, preparation, opportunity, provocation, weapons used, intention, concealment of the weapon, and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts, suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of the confessional statement partakes of the character of the confession. If proof of the confession is excluded by any provision of law, the entire confessional statement, in all its parts, including the admissions of minor incriminating facts, must also be excluded, unless roof of it is permitted by some other section.

If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the evidence is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. The accused is entitled to insist that the entire admission, including the exculpatory part, must be tendered in evidence.

The Court held that, no part of the statement can be separated and the entire confessional statement is hit by section 25, except the formal part identifying the accused as maker of the report and the portions within the purview of section 27. Thus, the information leading to the discovery of dead bodies, knife and clothes is admissible in evidence, being the ‘discovery of facts’ under section 27. This evidence is insufficient to convict the appellant of the offence under section 302, IPC. The corroboration by medical report will not be sufficient.

M.C. Verghese case

In M.C. Verghese v. T.J. Ponnan, MANU/SC/0054/1968 : (1969) 1 SCC 37: 

MANU/SC/0054/1968 : AIR 1970 SC 1876: 1968 Ker LT 904: 1970 Cr LJ 1651: 1970 SC Cr R 198: (1969) 2 SCR 692: 1970 (2) SCJ 353: 1970 Mad LJ (Cri) 630. Rathi, daughter of M.C. Verghese, was married to T.J. Ponnan. On July 18, 1964, July 25, 1964 and July 30, 1964, Ponnan wrote from Bombay letters to Rathi who was then residing with her parents at Trivandrum which it is claimed contained defamatory imputations concerning Verghese. Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Ponnan charging him with offence of defamation.

The District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory of another person does not amount in law to publication, since the husband and wife are one in the eye of the law. In so holding, he relied upon the judgment in Wennhak v. Morgan and Wife, (1888) 20 QBD 635.

In a revision application filed by Verghese before the Court of Session, the order was set aside and further enquiry into the complaint was directed.

The case was then carried to the High Court of Kerala in revision. The High Court set aside the order of the Court of Session and restored the order of the District Magistrate.

The Supreme Court held that the question whether the complainant in this case is an agent of the wife because he has received the letters from the wife and may be permitted to give evidence is a matter on which no opinion at this stage can be expressed. The complainant claims that he has been defamed by the writing of the letters. The letters are in his possession and are available for being tendered in evidence. We see no reason why inquiry into that complaint should, on the preliminary contentions raised, be prohibited. If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage.

The Supreme Court further held that, when the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court. We are, therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside. The proceedings will be remanded for trial to the District Magistrate according to law.

David Razario case

In State of Karnataka v. David Razario, MANU/SC/0800/2002 : AIR 2002 SC 3272: 

2002 Cr LJ 4127: 2002 AIR SCW 3798: JT 2002 (7) SC 283: (2002) 7 SCC 728: 2002 (4) SCJ 326: 2002 (5) SLT 400: 2002 (9) SRJ 352: (2002) 6 Scale 500: 2002 Scc (Cri) 1852: 2002 (6) Supreme 491; an octogenarian old lady was the victim of robbery and murder allegedly committed by the respondents David Rozario and Christopher David. The VII Additional Sessions Judge, Bangalore, on the basis of evidence on record found the accused appellants guilty under section 302 read with section 34 of the Indian Penal Code. They were sentenced to undergo imprisonment for life for aforesaid two offences. The Division Bench of the Karnataka High Court set aside the conviction.

The State of Karnataka appealed to the Supreme Court.

The Supreme Court on issue whether the evidence in relation to recovery is sufficient to fasten the guilt on the accused, held that, the statement which is admissible under section 27 is the one which is the information leading to discovery, thus what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer, in other words the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is therefore necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so record the exact information must be adduced through evidence, the basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee one is true, the information might be confessional or non-inculpatory in nature but if it results in discovery of a fact it becomes a reliable information. It is now well-settled that recovery of an object is not discovery of fact it becomes a reliable information. It is now well-settled that recovery of an object is not discovery of fact envisaged in the section. Section of Privy Council in Pullkari Kottayya v. Emperor, is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced the knowledge of the accused as to it, but the information given must relate distinctly to the effect. No doubt the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicated of the information given.

The Supreme Court set aside the judgment of the High Court allowing the appeal.

Jayawant Dattatray case

In Jayawant Dattatray Suryarao v. State of Maharashtra, MANU/SC/0710/2001 : (2001) 10 SCC 109: 

2002 Cr LJ 226: 2001 AIR SCW 4717: 2002 (1) Crimes 31: JT 2001 (9) SC 605: 2001 (5) SCJ 180: (2001) 8 Scale 36: 2002 Scc (Cri) 897: 2001 (8) Supreme 362; the prosecution version as revealed from the confessional statement and other evidence is that there are two gangs operating in Mumbai i.e., one of Dawood Ibrahim and other of Arun Gawli. Their activities are of eliminating or causing harm or injury to those who do not obey their dictates and of extortion from builder, hoteliers, industrialists, professionals and other persons. They also indulge in smuggling and drug trafficking and for undertaking all these activities in an organized manner, they employ a number of persons. Such a situation, it could be inferred that the dastardly act was to administer a terror or a shock wave in the people at large and convey that the fate of all those who did not obey their dictates or oppose them would be the same as that of Shailesh Haldankar.

The Supreme Court held that, it is true that if the confessional statements are taken as they are, the accused can be convicted for the offences for which they are charged as the said statements are admissible in evidence and are substantive pieces of evidence. However, considering the facts of the case, particularly that the confessional statements were recorded by the police officer during investigation; the said statements were not sent to the Judicial Magistrate forthwith; and that after recording the statements, the accused were not sent to judicial custody, unless there is sufficient corroboration to the said statements, it is not safe to convict the accused solely on the basis of the confessions.

The Apex Court further held that, confessional statement before the police officer under section 15 of the TADA is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of sub-section (2) of section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed. It is true that there may be some cases where the power is misused by the authority concerned. But such contention can be raised in almost all cases and it would be for the court to decide to what extent the said statement is to be used. Ideal goal may be confessional statement is made by the accused as repentance for his crime, but for achieving such ideal goal, there must be altogether different atmosphere in the society. Hence, unless a foolproof method is evolved by the society or such atmosphere is created, there is no alternative, but to implement the law as it is.