USE OF CONFESSION OF AN ACCUSED IN A CRIMINAL TRIAL – CRITICAL ANALYSIS
M. KARUNANITHI, B.Sc., M.L.,
Advocate / Former Special Public Prosecutor ‘Q’ Branch CID
32, Law Chambers, High Court Buildings, Madurai – 625 023.
The topic can be analysed on the following sub-headings:
i. Introduction
ii. Meaning of Confession
iii. Provisions relating to Confession
iv. Judicial Confession
v. Extra-Judicial Confession
vi. Confession before Police Officer
vii. Appreciation of Confession by Criminal Court
viii. Important Concepts in Confession
ix. Conclusion
I. INTRODUCTION:
The term confession has not been defined in the Indian Evidence Act, 1872. (Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40). Confession means admission of guilt. In most of the criminal cases the prosecuting agency is coming forward with confession statement of an accused. Hence, the study on confession is very much important in criminal field.
II. MEANING OF “CONFESSION”:
Since the law has not defined the term Confession, it is necessary to get the meaning from the lexicons.
As per the Black Law Dictionary, the meaning for confession is “a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offences charged, and discloses the circumstances of the Act….”
A Confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.
A confession is a statement made by an accused which must either admit in terms of the offence or at any rate substantially all the facts constituting the offence. (Pakala Narayana Swami Vs. Emperor: AIR 1939 PC 47).
DISCUSSIONS:
IMPORTANT PROVISIONS RELATING TO CONFESSION:
1) Sections 24 to 27 and 30 of Indian Evidence Act, 1872.
2) Section 164 Code of Criminal Procedure, 1973.
3) Rule 72 of Criminal Rules of Practice are the relevant provisions mostly used relating confession of an accused.
In order to have better idea, Sections 24 to 27 of Indian Evidence Act, 1872 are extracted hereunder.
Section 24 – 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, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
It is relevant to read Section 316 of Code of Criminal Procedure, 1973 conjointly with Section 24 of Indian Evidence Act, 1872
Section 316 Cr.P.C. – No influence to be used to induce disclosure – except as provided in Section 306 and 307, no influence by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge.
In order to attack a confession made before the Police Officer with reference to Section 24 of Indian Evidence Act, the following ingredients shall be present:
On appreciation of evidence if the Court finds that the confession of an accused has been obtained or recorded by any of the following method
(a) by inducement
(b) threat,
(c) promise,
Then the so-called confession is irrelevant and the same is liable to be rejected.
1) AIR 1971 SC 1087 – Rustomji Basta Vs. State of Maharashtra. In the above case the application of Section 24 of Indian Evidence Act has been dealt with.
2) AIR 1977 SC 1294 – Satbir Singh Vs. State of Punjab. Whether a confession is hit by Sec. 24 of Indian Evidence Act is to be considered from the point of accused as to how threat, inducement or promise proceeding a person in authority would operate in his mind.
3) 1991 Crl.LJ 3054 - Budhwara Bai Vs. State of M.P. Confession appearing to have been caused by threat, inducement or promise is irrelevant.
In order to appreciate the point that the confession of an accused is hit by Sec. 24 of Indian Evidence Act, what is required is that whether confession of an accused has been obtained either by way of inducement, threat or promise. To apply the same, it is not necessary that there must be a strong evidence, but if it appears to the Court that the confession was not voluntary, but obtained by inducement or threat or promise then the said confession has to be treated as irrelevant to the criminal proceedings.
Section 25 – Confession to police officer not to be proved – No confession made to a police officer, shall be proved as against a person accuse of any offence.
1) Admissibility – If an accused makes confession statement, to Police Officer the same is inadmissible as per Section 25 of Indian Evidence Act. So, the same cannot be brought on record by the prosecution to obtain conviction – Ramsingh Vs. Central Bureau of Narcotics –AIR 2011 SC 2490
2) Inculpatory statement as FIR – Suppose, the report in terms of Section 154 Cr.P.C., is given to police officer by an accused, the same would amounts to confession statement. The proof of the confession is prohibited u/s. 25 of Indian Evidence Act – Aghnu Nagesia Vs. State of Bihar – AIR 1966 SC 119.
3) Exculpatory statement of an accused as FIR – When the accused after committing murder – gives complaint as if his wife committed suicide – the said information is admissible in evidence. Purkha Ram Vs. State – 1997 Cr.LJ 1566.
Section 26 – Confession by accused while in custody of police not to be proved against him. – 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.
The ingredient of the Section 26 of Indian Evidence Act is that the accused must be in custody of the police at the time of recording the confession.
On bare reading of the Sections 24 to 26 of Indian Evidence Act, 1872 one case says that we need not bother about confession before the police officer while in his custody because the same is inadmissible. It is pertinent to be pointed out here that Section 27 of Indian Evidence Act is exception to Sections 24 to 26 of Indian Evidence Act. It runs as follows:
2004 Crl. L.J 1380 SC – Antar Singh Vs. State of Rajasthan – Section 27 Indian Evidence Act is an exception to preceding provisions particular Sections 25 and 26 – conditions to bring home section 27 has been discussed (Para 14 and 16):
1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind the provision has nothing to do with question of relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
2) The fact must have been discovered.
3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act.
4) The persons giving the information must be accused of any offence.
5) He must be in the custody of police officer.
6) The discovery of the fact in consequence of information received from an accused in custody must be deposed to.
7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.
Section 27- How much of information received from accused may be proved – Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether is amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
In order to apply Section 27 of Indian Evidence Act, 1872 the following ingredients must be there
(1) There must be some accusation against accused.
(2) Accused must be in custody of police officer
(3) There must be some information.
(4) The Information may be confession or statement.
(5) There must be recovery of fact from the statement of accused.
(6) The recovery must be distinct One.
AIR 1983 SC 446 – Eavabhadrappa Vs. State of Karnataka
Section 27 of Indian Evidence Act, is an exception to see Sections 25 and 26 and is a proviso to Section 26.
Whether Section.27 of Evidence Act, is Constitutionally valid?
As per Article 23 of Constitution of India nobody can be compelled to be a witness.
By quoting the said Article of Constitution of India a reasonable question would arise that whether confession / statement of an accused leading to recovery of a fact is constitutionally valid, because a statement can be used against himself.
No doubt, a statement or confession of an accused given before the police officer while he was in custody when leads to recovery of a fact distinctly, then it can be proved against accused. Bu the accused is not compelled to give statement to police officer. A voluntary statement leading to the recovery of material fact is certainly admissible into evidence and the same is constitutionally valid.
A. In State of Uttar Pradesh v. Deoman Upadyaya – AIR 1960 SC 1125 :: 1960 Cri.L.J 1504 SC. When a person gives information, which leads to discovery of facts and the same facts are used against him for his conviction, such principle and Section 27 of Indian Evidence Act is reasonable and not contrary to provision of Constitution of India.
B. State of Bombay v. Kathi Kalu – AIR 1961 SC 1808 :: 1961 (2) Cri.L.J 856 SC. As there is no compulsion to make a confession the provision of section 27 of Indian Evidence Act is not liable to be considered as unconstitutional.
C.
Whether all recoveries are admissible under Section 27 of Evidence Act:
1) Senthil @ Senthilkumar Vs state 2017 (1) MWN Criminal 62 (Para. 20) There is no nexus between the recovery of aruval and the crime has been established. Hence, the same is rejected.
2) (2017) 3 SCC 832 - Debapriya Pal v. state of West Bengal (Paras. 7 to 10) Mere matching of blood group on the blood stained clothes, would not lead to the conclusion, that it is the appellant who had committed the crime. Recovery of laptop does not have any bearing. It is neither the weapon of crime nor it has any cause of connection in the commission of crime.
3) 1969 (2) SCC 872: Jaffar hussain Dustagir v. state (Para 5) Essential ingredient of the Sec.27 is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence.
From the above judgments it is made clear that all the recoveries made out of confession of an accused is admissible in evidence but those recoveries related to the commission of the offence alone is admissible u/s. 27 of Evidence act.
IV. JUDICIAL CONFESSION:
Confession of an accused recorded u/s. 164 Cr.P.C., is known as judicial confession and the confession recorded by other person is known as extra-judicial confession. If the confession of an accused is recorded by the Investigation Officer, the same is governed by Sections 24 to 27 of the Indian Evidence Act, 1872.
If the confession of an accused has been recorded by the Village Administrative Officer, the same is governed by Rule 72 of Criminal Rules of Practice framed by the Hon’ble Madras High Court.
For easy reference, Section 164 Cr.P.C., is extracted hereunder.
Section 164 in the Code of Criminal Procedure, 1973
164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A. B.
Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
A. The points to be borne in mind at the time of recording confession under Section.164 Cr.P.C is given below :-
Before recording the confession, the learned Judicial Magistrate has to explain the person making it.
a) That he is not bound to make confession.
b) If he confesses, the same will be used against him.
c) The learned Judicial Magistrate has to satisfy that the confession has been made voluntarily.
d) If the person is not willing to make confession, the learned Judicial Magistrate shall not detain him under police custody.
e) The learned Judicial Magistrate has to make a Memorandum at the foot of the confession as contemplated under Sub Section 4 of Section 164 Cr.P.C.
f) Before recording confession the Learned Judicial Magistrate has to borne in mind the principles given by the Hon’ble Apex Court in Chandran Case [AIR 1978 SC 1574] and Rabindra Kumar Pal v. UOI [ (2011) 2 SCC 490 – Para 64]
g) At the time of recording confession of an accused, the learned Judicial Magistrate shall not administer Oath [Sec.164(5) of Cr.P.C]
B. Whether statement of accused recorded under special statute is confession or not?
Statement of Accused recorded under special statute is not confession. Statements of detenu and accomplices recorded under Section 108 of Customs Act 1962 are not confession and as such there is no requirement to comply with the provisions of Section 164 Cr.P.C. – Usha Rani Vs. Government of A.P. 1994 Crl.L.J. 112.
What are the important points to be borne in mind by the Judicial Magistrate while recording confession?
The Hon’ble Supreme Court in Rabindra Kumar Pal Vs. Republic of India (2011) 2 SCC 490; AIR 2011 SC 1436 has given principles to record confession and statement recorded u/s. 164 Cr.P.C. The same is given below:
(i) The provisions of Sec. 164 Cr.P.C., must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted, the conviction cannot be based on such a confession.
(vii) Non-compliance with Sec. 164 Cr.P.C., goes to the very root of the Magistrate’s jurisdiction to record the confession and render the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer shall apply his mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police officials shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) The Court requires some corroboration from the confession of statement before convicting the accused person on such a statement
C. Confession – whether voluntary or not? How to find out?
Before recording the confession of an accused, the learned Judicial Magistrate has to ascertain whether the confession is voluntary or not. In order to find out the confession is voluntary or not, the learned Judicial Magistrate ought to have put leading questions but it should not be like cross-examination.
(a) AIR 1977 SC 1579 – Dagdu Vs. State of Maharashtra – While recording confession, the Magistrate not caring to ascertain – whether it was voluntary or not –thus violating Sec. 164 (3) Cr.P.C.
(b) AIR 1981 SC – 2007; 1981 SCC (Crl.) 601 – Confession recorded by putting leading question and accused is found to be virtually cross examined – confession cannot be relied upon.
(c) 1978 Crl.L.J. 112 – Magistrate on perusal of CD putting questions and eliciting answer – the initiative did not come from the accused and so the confession cannot base conviction.
(d) AIR 2002 SC 1192 : 2002 SCC (Crl.) 673 - The confessional statement must be shown to have been voluntarily made. The question intended to be put under sub-section (4) of 164 Cr.P.C. should not be allowed to become a matter of mere casual and mechanical enquiry. The Magistrate should be fully satisfied that it is in fact and in substance voluntary.
(e) AIR 2001 SC 2503 - When it is proved that the compliance of requirements under sub-section (2) of 164 Cr.P.C., have not been made by the Magistrate – cannot be treated as a voluntary confession.
D. Reflection time :-
Before recording the confession of an accused, the learned Magistrate has to give reasonable time to the accused. The reflection time to the accused is mandatory. The learned Judicial Magistrate not only to record that reflection time is given to the accused, but with letter and spirit he has to give time to the accused.
(a) 1977 Crl.LJ (NOC) 13 - Noting the time given for reflection is mandatory – mere noting that sufficient time was given for reflection is not enough.
(b) 1994 SCC (Crl) 899 – Kartar Singh Vs. State of Punjab – The confession must be recorded with great care and circumspection. No hard and fast rule could or should be laid down as to the procedure which would be adopted when the accused is brought before the Magistrate to record the statement.
(c) 2010 Crl.LJ 203; 2010(1) MLJ (Crl) 797 - When the mandatory provision of Sec. 164 (4) Cr.P.C., was not adhered to by the Judicial Magistrate while recording the confession of the accused, such confession cannot be acted upon to convict the accused.
(d) 1994 SCC (Crl) 555 - When the Magistrate had taken all the necessary precaution to ensure that the accused had sufficient time to reflect before he made confessional statement and that he was not under fear, or threat or inducement to make the statement. Then the confession can be acted upon.
E. Whether Executive Magistrate can record confession u/s. 164 Cr.P.C.?
The term Magistrate used in Section 164 Cr.P.C., is clearly Judicial Magistrate and not the Executive Magistrate. Hence, confession u/s. 164 Cr.P.C. cannot be recorded by the Executive Magistrate.
AIR 2000 SC 2901: 2000 SCC (Crl.) 1275 - The confession statement of an accused must be recorded by a Judicial Magistrate, if the confession of an accused is recorded by the Executive Magistrate, such confession is inadmissible.
F. Difference between the confession of accused and statement of witness :-
The difference between the confession and statement recorded u/s. 164 Cr.P.C., is that when the Oath is administered it is the statement from the witnesses. So, before recording the confession and the statement, the learned Judicial Magistrate has to strictly follow Section 164 Cr.P.C.
(a) 1980 MLJ (Crl.) 129 - If a Magistrate administers oath to an accused before recording confession, the confession is vitiated and cannot be utilized.
(b) 1988 Crl.LJ 382 - It is mandatory on the part of the Magistrate recording the confession to obtain signature of the person whose confession has been recorded. The omission in this behalf cannot be cured by examining the Magistrate.
G. Whether the accused must be sponsored by the investigating agency to record confession u/s. 164 Cr.P.C?
It has been made clear that as per Section 164(1) Cr.P.C., in the course of investigation under Chapter XII, the Judicial Magistrate can record confession of an accused. So, the Investigating agency alone can forward the accused to the Judicial Magistrate for the purpose of recording confession. Unless the accused is sponsored by the Investigating Officer, confession u/s. 164 Cr.P.C cannot be recorded.
(a) 2000 SCC (Crl) 210 - A person who is neither an accused nor sponsored by the Investigating Agency has no locus standi to apply to the Magistrate to record the statement u/s. 164 Cr.P.C.
(b) AIR 2001 SC 2503 - The Magistrate is not bound to record the statement of the accused on mere asking by accused himself to record the statement, unless he has reason to believe that the investigation is commenced.
(c) AIR 1999 SC 2565 – A person who is neither an accused nor sponsored by the investigating has no locus standi to apply to the Magistrate to record his statement under Section.164 Cr.P.C.
V. EXTRA – JUDICIAL CONFESSION:
Extra-judicial confession cannot be relied upon when confession was made to a person having no intimacy with the accused and no reason was given for making such confession and witness cannot recollect the place where confession was made. [Niranjanlal Vs. Haryana - 1995 Crl.LJ 248, Kashmira Singh Vs. State of Madhya Pradesh - AIR 1952 SC 159, N. Banu Vs. State of Tamil Nadu – 2017 (2) MWN Crl. 338.
(a) Gour Mani Roy vs. State of Tripura, 2014 Cri.L.J. 2843 (Para 47): Extra-Judicial Confession where the accused was in the custody Police Officer is inadmissible.
(b) Extra-judicial Confession if inspires trustfully can form basis for conviction. 2014 Cri.L.J 4630.
(c) In Gura Singh v. State of Rajasthan – (2001) 2 SCC 205. It is settled that extra-judicial confession can be relied upon to convict the accused.
(d) AIR 2012 SC 2435 :: (2012) 6 SCC 403 – Sahadevan & Anr. V. State of Tamil Nadu (Paras. 21 & 22). Extra-judicial Confession can form the basis for conviction, provided it inspires the confidence of the Court and corroborated with the other prosecution.
(e) If the Extra-judicial Confession suffers from
1. Material Deficiencies
2. Inherent improbabilities
And does not appear to be confident the Extra-judicial Confession must be out of consideration.
(f) 1996 SCC Crl. 59 – Balwinder Singh v. State of Punjab – it has been held that extra judicial Confession requires great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it. In Pakiri samy v. state of Tamil Nadu 1997 SCC (Crl.) 1249 and in Kavita v. State of Tamil Nadu 1998 SCC Crl. 1421 the same view has been reiterated.
(g) (2012) 6 SCC 403 – Sahadevan v. State of Tamil Nadu - Extra judicial Confession is very weak piece of evidence before acting upon the same court must ensure the same inspires confidence and it is corroborated by other evidence.
(h) (2015) 1 SCC (Crl.) 462 – Pargan Singh V. State of Punjab – (Para. 24) – since the extra judicial confession made before PW1 was corroborated the evidence of PW’s 2 & 3 and there was no suspicious circumstances projected the same was acted upon.
(i) (2016) 3 SCC (Cri) 452 – Kadamanian@ Manikandan V. State – extra judicial Confession of accused to the VAO found reliable and conviction was confirmed. (Para 11 to 20).
Since nose pin was recovered at the instance of the appellant from a remote place under the electric transformer, no one but the appellant aware of the place – it was also identified by the witnesses. Hence, conviction was confirmed.
(j) (2016) 3 SCC (Crl.) 464; Kala @ Chandrakala v. State – extra judicial confession – prima-facie unusual and doubtful – no corroboration – hence rejected. Extra judicial Confession is very weak piece of evidence before acting upon the same court must ensure the same inspires confidence and it is corroborated by other evidence.
Six Principles of Extra-judicial Confession:
(i) The Extra-judicial Confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be trustful.
(iii) It should inspire confidence.
(iv) Extra-judicial Confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidences.
(v) For an Extra-judicial Confession to be on the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be provided like any other fact and in accordance with law.
Rule 72 0f Criminal Rules of practice was framed by the Highcourt madras.
According to Rule 72, after the commencement of police investigation the village Munsifs are absolutely prohibited from recording confession statement or any statement from an accused.
Placing reliance on the above Rule number of cases has been ended in acquittal for example Raja & Ors. V. State. 1995 (2) LW (Crl.) 513 DB; Muthan @ nabiyan v. State 1997 (1) CTC 339 (DB)
In Sivakumar v. state reported in 2006 (1) CTC 150 SC,
The Hon’ble Supreme Court was pleased to held that the post of village Munsif had been abolished long back and the post of village Munsif and village Administrative Officer are not one and the same, so the confession recorded by the Village Administrative Officer is admissible in evidence and the same is known as extra judicial confession.
VI. CONFESSION BEFORE POLICE OFFICER:
The word ‘Police Officer’ has not been defined – but it is settled that the expression should not be confined to police officers, Section 1 of the Police Act. It should be given a liberal construction. Thus, a Gram Rakshi functioning under Orissa Gram Rakshi Act is a police officer and confession made to him is not admissible.
1) In Madan Vs. State of Orissa – 1977 Crl.LJ NOC 132; Rajkumar Kanwal Vs. Union of India – 1991 Crl.LJ 97 SC:
The important attribute of police power is not only the power to investigate into the commission of cognizable offence, but also power to prosecute the offender by filing a report u/s. 173 Cr.P.C.,
2) Retired Police Officer is not police officer, 2017 (3) MWN Criminal 355 Madras High Court.
3) Madan Vs. State of Orissa (Para 19) That the statement of suspect recorded under Section 50 of the Prevention of Money Laundering Act by an Enforcement office it admits the commission of an offence, is admissible as a piece of confession during trial, since officers of the enforcement Directorate are not police officers within the meaning of section 25 of Evidence Act. Illiyas V. Collector of Customs, Madras AIR 1970 SC 1065 :: 1970 Cri.L.J 998 SC
4) For the purpose of Sections. 24 & 25 of Indian Evidence Act, the officers from customs and central excise are not equivalent or similar to those of police officers. State of Punjab V. Barkath Ram AIR 1962 SC 276 :: 1962 (1) Cri.L.J 217
5) An Assistant Inspector of Customs is not a police officer 1946 MWN 766. Statements made to a Customs Officer is an enquiry under Section 104 or 108 of Customs Act are not some as investigation by Police Officer and are admissible in evidence. 1967 MLJ Crl. 381 FB Mad.
6) Statement made to Forest Range Officer is admissible in evidence – 1957 II MLJ 624
VII. APPRECIATION OF CONFESSION BY CRIMINAL COURT:
Before acting upon a confession statement, the confession has to be affirmatively proved to be free and voluntary. Before recording conviction on the basis of confession, it has to be shown that the confession was truthful and voluntary.
1. Sahib singh v. state of Haryana 1997 (7) SCC 231
2. Nazeer khan and ors. Vs. Delhi 2003 (8) SCC 461
The confession should be a voluntary one, that means not caused by any inducement, threat or promise. Whether a confession is a voluntary or not is essentially a question of fact. Shankar & ors. V. state of Tamilnadu 1994 (4) SCC 478.
Confession in common means and includes acknowledgment of Guilt its evidentiary value and acceptability shall have to be assessed by the court having due regard to the credibility of the witnesses.
The evidence of witnesses before whom the alleged confession has been made has to be appreciated by the court of law by giving due regard to the attending circumstances of the case. If the confession is voluntary and free from doubts, the same can be foundation for conviction. State of Punjab v. Gurdeep Singh (1999) 7 SCC 714 :: AIR 1999 SC 3274
Relevancy of Material Objects recovered and Crime :-
(2013) 1 MLJ (Crl) 435 – Vasanthi & Anr. V. State of Tamil Nadu
Section 302 Murder – Section 27 Indian Evidence Act – relevancy of material object recovered under section 27 of IEA with crime – held that the connection between the objects and the crime has not been established and therefore the very disclosure statement allegedly given by A2 is inadmissible.
2013-1-L.W.(Crl.) 633 – Kattu Raja v. State of T.N
Section 27 of Evidence Act – Link between MO3 and Crime not established by any other evidence – recovery of M.O.3 is not a relevant fact – disclosure statement is inadmissible (para 12)
(2011) 3 SCC (Cri) 620 – SK. Yusuf. V. State of West Bengal
Section 302 Murder – Circumstantial Evidence – weapon of crime – not sent- chemical analysis – extra judicial confession (Para 34) – relevancy of material object recovered and connecting the weapon with the crime – if there is no evidence connecting the weapon with the crime – the recovery is inadmissible.
(2011) 3 SCC (Crl.) 473 – Muskeen alias Sirajudeen v. State of Rajasthan
Section 27 Indian Evidence Act – Murder – Circumstantial Evidence – prosecution failed to establish as to why none of the local persons were called to be the witnesses for recovery – the mere recovery of a weapon is not admissible U/s 27 of the Indian Evidence Act. In fact, burden lies on the prosecution to establish a close link between recovery of material object and its use in the commission of the Offence.
VIII. IMPORTANT CONCEPTS IN CONFESSION:
A. CONFESSION OF CO-ACCUSED:
In Senthil @ Senthilkumar Vs state 2017 (1) MWN Criminal 62. Relevancy of judicial confession of co-accused – judicial confession made by A2 can be used against him as substantive evidence but not against co accused.
1. Judicial magistrate administering oath on the accused and recorded confession of accused.
2. No certificate given by the judicial magistrate regarding the voluntariness of confession as contemplated under Section 164 Cr.P.C.
Whether proper ? can it be acted upon ?
No, learned magistrate did not record whether the accused was willing to make confession voluntarily or not. Since there was no satisfaction on the part of the learned judicial magistrate regarding the voluntariness of the accused the confession cannot be acted upon.
Whether confession of co-accused is substantive evidence? 2017 (2) MWN Crl. 338 Banu, N. v. State - Confession of A3 as against A2 being confession of co-accused cannot be used as substantive evidence but can be used against A2 as corroborative evidence. (Paras. 97 & 109)
Joint confession of four accused is not admissible – 1942 MWN 377 Crl.81.
B. TEST TO FIND OUT WHETHER STATEMENT OF ACCUSED IS AN CONFESSION OR NOT:
· A statement which contains an exculpatory assertion of some fact, which is true would negative the offence alleged cannot amount to confession Veera Ibrahim v. state of Maharastra AIR 1976 SC 1167 :: (1976) 2 SCC 302.
· The confession is a form of admission consisting of direct acknowledgment of guilt in a criminal charge. A self exculpatory matter cannot amount to confession Shankar & ors. V. state of Tamilnadu 1994 (4) SCC 478.
· Confession would mean incriminating statement made to police suggesting inference of the commission of the crime and it therefore it is confined to evidence to be adduced in a court of law. Commissioner of Police v. Narendar Singh AIR 2006 SC 1800.
C. CONFESSION IN FIR:
A confession in an FIR is wholly inadmissible because it is a confession to a police officer and it is an FIR by an accused so it wholly inadmissible. Babu @ Babau v. State of Madhya Pradesh; 1985 Cr. LR 161.
D. PROPERTY RECOVERED FROM OPEN PLACE:
1. PURANLAL V. State of U.P; 1997 Cr.L.J 3813: recovery made at the instance of the accused – from public place accessible to all – accused could not be said to have exclusive knowledge of the same.
2. State of Himachal Pradesh v. Jeet Singh; 1999 Cr.L.J 2025 :: 1999 SCC (Crl) 539: recovery made from place open and accessible to all – unless incriminating articles are hidden or concealed, its discovery at the instance of the accused shall not be admissible.
E. ARREST AND CUSTODY – DISTINCTION:
There is a remarkable distinction between police custody and arrest by police. The term arrest has been defined in Section 41 of Code of Criminal Procedure, 1973, but what is meant by custody has not been defined in the Code of Criminal Procedure.
In every arrest there must be a custody but not vice versa. Arrest is a mode of formally taking a person into police custody, but a man may be in police custody in other ways.
The word “in custody” used in Section. 27 of the Indian Evidence Act only denotes surveillance or restriction on the movements of the person concerned. Harbans Singh v. State AIR 1970 BOM 79 :: 1970 Cr.L.J 325; K.M. Cheriyan v. D. Johnson 1969 MLJ (Crl.) 765:
F. WHETHER SIGNATURE OF THE ACCUSED IS NECESSARY IN RECOVERY MEMO OR CONFESSION STATEMENT.
No, the absence of the signature of the accused in the confession statement or the in the recovery Mahazar will not make the said documents inadmissible because;
1) No law mandates that signature of the accused has to be obtained in the confession statement and the recovery Mahazar
2) The said documents can be proved in the absence of the signature of the accused by examining independent witnesses.
2012 Crl.L.J 4657 Dr. Sunil Clifford Daniel v. State of Punjab; absence of signature of accused on recovery memo does not make the recovery improper.
G. DISTINCT RECOVERY:
1) In pursuance of statement of accused dead body was recovered – the said statement was already in FIR – Sec. 27 is not attracted 1985 Crl.L.J 1416 Inder Das v. State of Rajasthan.
2) The word distinctly means directly, indubitably, strictly, unmistakably AIR 1976 SC 483 Mohammed Inayadullah V. State of Maharashtra: AIR 2004 SC 2865 :: 2004 (10) SCC 657 Anter Singh v. State of Rajasthan.
IX. CONCLUSION:
Thus, all the facts discovered in consequence of information / confession by the accused is not admissible into evidence. Since in most of the cases, the Prosecuting Agency is coming forward with the confession and material objects, the study on the subject confession and recovery in the light of the above judgments will give light on the path of the advocates.