Confession is an Admission By a Person Charged

In legal parlance, a confession is defined as “a criminal suspect’s acknowledgment of guilt, usually in writing and often including details of the crime” [1]. The Indian Evidence Act, 1872 [2] which lays down the substantive law on confessions does not define the term ‘confession’, but distinguishes it from ‘admissions’. The Act, in ss. 17-31, deals with admissions generally, but in ss. 24-30, talks about confessions specifically. Thus, scholars on the subject are of the opinion that while all confessions are admissions, all admissions are not confessions. [3]

Case law defines ‘confession’ as an admission made at any time by a person charges with a crime, stating or suggesting the inference that he committed that crime. From this, one may conclude that a confessional statement includes not only admission of the offence, but also admissions of substantially all incriminating facts which constitute the offence. [4] Further, one may also infer that ‘confession’ refers to an admission made in criminal matters only.

Simple logic tells us that once a person admits that he committed the crime, he would be found guilty by the Court and punished accordingly. However, there have often arisen certain circumstances that question the veracity or reliability of a confession. The substantive law on confessions, given in ss.24-30 of the Indian Evidence Act, 1872, has foreseen some of these situations and determines the admissibility of evidence in these cases. S.24 lays down that a confession given involuntarily or unwillingly, such as when obtained by inducement, threat or promise, will be irrelevant in a criminal proceeding, but, according to s.28, a confession made once the duress is removed will be relevant. Further, a confession made to a police officer (s.25), or while in police custody (s.26), shall be inadmissible, unless it is made in the presence of a Magistrate. If supported by the discovery of a fact, a confession may be presumed to be true and not extracted to the extent of that fact (27). Moreover, s.29 provides that a confession otherwise relevant, does not become irrelevant merely because of a promise of secrecy, or any other conditions given in s.29. Lastly, as per s.30, confession by one accused, implicating his co-accused, is considered to be a confession by the co-accused too. [5]

It must be noted that textbooks have divided confessions into two classes: judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or the Court in the course of judicial proceedings. [6] Extra-judicial confessions are those made by a party elsewhere, i.e. not before a Magistrate or a Court. [7] The present paper attempts to undertake a critical study of ten Supreme Court cases, where confessions-judicial and extra-judicial were either relied upon or rejected and analyze the reasons behind the same. For this purpose, the paper, after introducing the subject, will present an analysis of the ten Supreme Court cases regarding confessions and finally, attempt to present a coherent picture of Indian jurisprudence on the admissibility of confessions.

Cases:

There exists a fairly large body of Supreme Court decisions wherein confessions—judicial or extra-judicial—were considered, but either relied upon or rejected by the Court. This segment contains a critical study of ten such decisions of the Supreme Court, three of which consider judicial confessions and the remainder, extra-judicial confessions and has been divided into two parts respectively.

Extra-Judicial Confessions

As defined earlier, extra-judicial confessions are those confessions that are made by the accused, not in presence of a Judicial Magistrate or in Court, in the course of proceedings, but elsewhere. As a result, courts have often considered extra-judicial confessions to be a weak piece of evidence. A number of questions then arise: should the Court admit such evidence? Can the Court convict the accused based on this evidence? Does it require corroboration in order to be relied upon? The following seven cases answer the above questions and settle some more points:

State of A.P. v. Kanda Gopaludu [8] (2006)

This case highlights the legal point that even though it is a weak piece of evidence, if an extra-judicial confession is true and is voluntarily made, it may be relied upon to convict the accused.

In the instant case, the accused, after having allegedly committed murder, went to the house of the village Sarpanch and confessed, before him and two others. An FIR was then lodged by the Sarpanch while the accused waited at his place, and from there, the accused was subsequently arrested and charged under s.302, IPC. Given the confession and prosecution’s reasoning showing the chain if circumstances pointed to the guilt of the accused, the trial court convicted him. On appeal, the High Court acquitted the accused on the ground that the Sarpanch and the others, before whom the accused made his confession, strangers and there was no reason for the respondent to make any confession before them. As a result, the High Court disregarded the confession as being hit by s.24 of the Evidence Act.

The Supreme Court, after going over a lengthy cross-examination of the Sarpanch and the two others, was of the view that there was no suggestion that the confession was “tainted and no-voluntary or that it was obtained by coercion, inducement or promise or favour.” [9] Citing previous judgments on the issue, the Court stated that, “an extra-judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the alleged crime.”

State of Rajasthan v. Kashi Ram [10] (2006)

This case shows us that the Supreme Court has viewed extra-judicial confessions as being a weak piece of evidence. It has held that though it is possible to base a conviction on an extra-judicial confession, the confessional evidence must be proved like any other fact and the value thereof depends upon the veracity of the witnesses to whom it was made.

In this case, Kashi Ram was accused of having murdered his wife and two daughters. While convicting the accused, the trial court, among other things such as the recovery of the weapon following a statement of the accused under s.27, relied upon the extra-judicial confession said to have been made by the respondent to two people, who became Prosecution Witnesses (PW) 3 and 4. On appeal, the High Court reversed the conviction on the ground that the circumstantial evidence relied upon by the prosecution was not strong enough to sustain the conviction of the Respondent. Moreover, it doubted the veracity of the confession since neither PW-3 nor PW-4 was known to the accused, nor was either of them a Sarpanch or ward member and therefore there was no reason for the accused to repose any confidence in them. The Supreme Court, having regarded these facts and circumstances, was of the opinion that the veracity of the witnesses was questionable and following the principle of law given above, agreed with the High Court and rejected the extra-judicial confession before PW-3 and PW-4, although it ultimately convicted the accused.

Surinder Kumar v. State of Punjab [11] (1999)

Though an earlier case, this case illustrates the point made by the Supreme Court in Kashi Ram, and shows us that the Court has largely recognized the need to test and prove the veracity of the witness to whom an extra-judicial confession has been made.

The facts of the case are as follows: It was alleged that within a week of the murder of one Vijay Pal, a veterinary doctor, the four accused met Shangara Singh (PW-6), the Chairman of the Market Committee and confessed that they had committed the murder. However the accused, during their trial, denied the accusation and stipulated that they were in fact in police custody on the date the confession was allegedly made. In the absence of any other incriminating evidence, the prosecution’s case rested on the evidence adduced to the alleged confession. Accepting this evidence, the trial court convicted two of the accused (the other two having passed away since) and on appeal, the High Court convicted the appellant, but acquitted his brother.

The Supreme Court, after going through the evidence on record, rejected the extra-judicial confession. Since PW-6 was the only one who testified about it, the Court found it improbably that all four accused should “be seized, at the same time, by a mood to approach PW-6 and make a joint confession”, especially given the fact that none of them had any significant connection or relationship to him. The confession being thus, suspicious, improbable and uncorroborated, was rejected by the Court. Following the lack of any other evidence, the Court acquitted the appellant.

Maghar Singh v. State of Punjab [12] (1975)

Being a weaker type of evidence than judicial confessions and thereby, requiring poof just like any other piece of evidence (refer Surinder Kumar and Kashi Ram), do extra-judicial confessions need to be corroborated? The Supreme Court gave a clear answer in this case.

The facts of the case are as follows: The accused, along with one Baldev Singh (who later turned approver) and one Smt. Surjit Kaur, killed the husband of Smt. Surjit Kaur since he objected to the illicit relationship between the accused and Smt. Kaur. The accused confessed to his guilt to the Sarpanch and another person. On appeal to the Supreme Court, the appellant argued on the point of the extra-judicial confession, that the statements by the two witnesses were tainted and therefore, neither one could be used to corroborate the other.

On the need for corroboration of extra-judicial confessions, the Court held that if it believes the witnesses before whom the confession is made and is satisfied that the confession is voluntary, then the conviction can be founded upon such evidence alone. Finding that the evidence furnished by the extra-judicial confession made by the accused to the witnesses was not tainted, the Court was of the opinion that if corroboration was required it was only by way of ‘abundant caution’. Thus, the Court, inter-alia, relied upon the confession in order to affirm the order of conviction of the appellant.

Kishore Chand v. State of H.P [13] (1990)

This case illustrates the operation of s.25 and s.26 as a bar on extra-judicial confessions. It also illustrates a situation wherein a confession was rejected for lack of corroboration.

In the present case, the accused was charged, along with two others who did not file an appeal, under s.302 and s.201 of the IPC. On the basis of the evidence against him, the accused was held, convicted. This evidence, inter-alia, consisted of an extra-judicial confession made by the accused to the Pradhan who had accompanied the police officer when the accused had been identified as the last person seen with the deceased. The Court found it hard to believe that the police officer, once having identified the accused as the last person seen with the deceased, would have just left him and not take him into custody. Thus, the Court concluded that the officer, with a view to avoid s.25 and s.26, created an artificial scenario of his leaving and thereby, kept the accused in the custody of the Pradhan to obtain the extra-judicial confession. Moreover, the other person to whom it was made, was not examined to corroborate the testimony of the Pradhan. Finding thus, that the extra-judicial confession was made while in custody and without the presence of a Magistrate, the Court rejected it, and ultimately, allowed the appeal.

Aghnoo Nagesia v. State of Bihar [14] (1966)

This case explores in detail, the body of law regarding confessions. It also illustrates how s.27 operates.

The accused was charged under s.302, IPC for the murder of four persons. His conviction and death sentence was confirmed by the High Court of Patna and the case came up before the Supreme Court by way of special leave. In this case, the FIR was lodged by the appellant himself, whereupon the officer-in-charge took immediate cognizance and arrested the appellant. Later, in the company of the appellant and another witness, the police officer went to the scene of the crime and as per the appellant’s directions, recovered the bodies of the murdered persons and other incriminating items. It was argued on behalf of the appellant that the entire statement was a confession made to a police officer by the accused and therefore attracted the bar of s.25.

The Supreme Court discussed the law on confessions and decided against the appellant. It reasoned that the FIR (dealt with under s.154, CrPC) is not substantive evidence and if given by the accused himself, is admissible under s.8 of the Evidence Act. Further, if it is a non-confessional statement, it is admissible under s.27 of the Evidence Act. The Court however, was of the opinion that the entire confessional statement was hit by s.25, save the portions that came within the purview of s.27 [15] . Thus, some portions of the evidence were admitted, although ultimately, they were found insufficient to convict the accused.

State of UP v. Boota Singh [16] (1978)

This case details the jurisprudence on a retracted extra-judicial confession. Does a retraction negate the confession altogether?

In this case, the three accused were convicted and sentenced under s.302 read with s.34 of the IPC. The Respondent, Boota Singh, one of the accused, had been interrogated two months before the confession was made. Immediately after making the confession, the respondent was sent to jail. From this, the High Court opined that a reasonable inference could be drawn that the police had used ‘third degree methods’ to obtain the confession. However, the Supreme Court found that no such methods had been used and the confession had been freely given. The Court held that the testimony of the witness and an entry in the relevant registers stating that there were no injuries on the person of Boota Singh at the time he entered the prison was proof that the confession had been voluntarily given. The Supreme Court also rejected the committing Magistrate’s report that Boota Singh had been beaten to obtain the confession.

However, Boota Singh retracted his confession when he claimed that his signature had been taken on a blank piece of paper and this had been converted into a confession. The Court noted that since the confession had been retracted, it could be considered only if it was substantially corroborated by independent circumstances. It was not necessary that each and every part of the confession be corroborated, but the confession in general must be. Following this principle, the Court concluded that the circumstances proved by the prosecution completely corroborated of the confession. On this ground, and on additional evidence against the respondent, the Supreme Court affirmed the conviction.

Judicial Confessions

As stated earlier, judicial confessions are those confessions which are made before a Magistrate or a Court in the course of judicial proceedings. Judicial confessions are considered as a stronger piece of evidence than extra-judicial ones and can be relied upon as proof of guilt against the accused person if it appears to the Court to be voluntary and true and the person to whom such confession has been made need not be called as witness to prove it. [17]

State of Maharashtra v. Damu Gopinath Shinde (2000) [18]

This case shows us that even in the case of a judicial confession, the confession must be given voluntarily by the accused.

In the instant case, the four accused were charged with the abduction and killing of three infants and the abduction of a fourth. The Division Bench was suspicious of the judicial confession given by one of the accused since he had been in police custody for a considerable period of time, and therefore, sidelined it. The Supreme Court, on the other hand opined that in reality, the accused had been moved from police custody to judicial custody about a month before the confession and the close geographical proximity of the two buildings to one another could not be considered as a ground to infer that the police were exercising control over the detainee. Following this reasoning, the Court accepted the confession and convicted the accused.

Preetam v. State of Madhya Pradesh (1996) [19]

When a judicial confession is made, the Magistrate must comply with the provisions laid down in s.164 of the CrPC, which ensures the truthfulness and veracity of the statement. If these provisions are not properly complied with, the Supreme Court rejects the confession on the ground that its veracity cannot be determined.

In this case, the appellant and his brother were on trial for the murder of one Chitta, and for the removal of ornaments from his person. The trial court acquitted the accused, and on appeal, the High Court dismissed the appeal insofar as it related to the brother, but convicted the appellant. Among other things, the prosecution rested its case on the judicial confession of the appellant. The High Court had found the confession to be voluntary and true as it believed that the evidence corroborated the confession. The Supreme Court, after reviewing the actions of the Magistrate leading upto the confession, was of the view that it had been recorded in utter disregard of the statutory provisions of s.164(2) of the CrPC, which outlines the procedure to be adopted by a Judicial Magistrate when the accused is making his confession. In this instance, the Magistarte had cautioned the accused as required, i.e, he had informed him that he was not required to make a confession and that if he did, it could be used against him. However, he failed to ask the accused the questions necessary to determine whether the confession was being made freely. Thereby unable to hold the confession as a valid piece of evidence, the Court acquitted the accused.

Ammini v. State of Kerela [20]

Finally, we have seen that the Court prefers a judicial statement to be voluntary and true, but what happens in the event of discrepancies in judicial confession—does it become inadmissible?

In the instant case, the four accused were charged under s.302 read with s.34 of the IPC, for the murder of one Merli and her two little children. With regard to the issue on the confession made by one of the accused before a Judicial Magistrate, the trial court had held that it was neither voluntary nor true since, inter-alia, there existed some discrepancies between the confession as recorded by the Judicial Magistrate and what was recorded with respect to it by the Investigating Officer in his case diary. The High Court and Supreme Court, on the other hand, opined that in comparing the confession with the record of it in the case diary, the trial court had made an error because it was difficult for the trial court to appreciate the circumstance in which the Judicial Magistrate had started recording the confession. Furthermore, the Supreme Court also held that the confession could be used against the co-accused. Finally, the Court convicted the accused.

Analysis and Conclusion

From the cases studies above, it can be concluded that where the accused made an extra-judicial confession, the Supreme Court considered it as a weak form of evidence and was of the view that if a conviction is to be based on an extra-judicial confession, the confessional evidence must be proved like any other fact. Further, the value of such evidence depends upon the veracity of the witnesses to whom it was made. It is vital that the confession be true and be made voluntarily. With respect to the need for corroboration, the Court, in Maghar Singh and Kishore Chand held that if it believes the witnesses before whom the confession is made and is satisfied that the confession is voluntary, then the conviction can be founded upon such evidence alone. Thus, corroboration is not essential in all circumstances even though the evidence is weak. Indeed, while Maghar Singh illustrates a situation wherein the Court considered the corroboration to be unnecessary given the large amount of incriminating evidence against the accused and would have convicted him even without it, Kishore Chand talks about the opposite situation, where in the confession was rejected for lack of corroboration, and eventually acquitted the accused. In the case of Surinder Kumar also, the Court rejected the confession for lack of corroboration. However, as Aghnoo Nagesia demonstrates, this is subject to ss.25-27 which, together, say that a confession made to a police officer or while in police custody cannot be proved against the accused, unless certain parts of it are corroborated by independent circumstances. Thus, in such circumstances, corroboration is essential for admissibility. Furthermore, Boota Singh holds that if an extra-judicial confession is retracted, it must be generally corroborated.

Despite it being stronger evidence than extra-judicial confessions, all cases on judicial confessions also hold that it must be true and voluntarily made. Further, the Magistrate must follow the procedure laid down in s.164, CrPC to ensure that the confession is being voluntarily given. If this is not followed then, as happened in Preetam v. State of Madhya Pradesh, the Court will be forced to reject the confession. The case of Ammini v. State of Kerela is an example of other situations, not foreseen by the Evidence Act, where the Supreme Court relied upon a judicial confession and the lower court rejected it.

A number of other conclusions may also be inferred from the cases mentioned above. The Supreme Court has often placed confidence on the evidence of a Sarpanch as witness to an extra-judicial confession. In Kashi Ram and Kanda Gopaludu (both judgments delivered in 2006), the Court stated that if the witness is a Sarpanch, then there exists reason for the accused to have reposed faith and confidence in him, and thus, the confession may be relied upon. Ammini v. State of Kerela is also an illustration of the operation of s.30, in that the Supreme Court used the confession of one accused against the other three in order to convict them.

Thus, even though the Supreme Court has always looked upon extra-judicial confessions as being weaker than judicial confessions, it has, due to a variety of circumstances, often rejected judicial confessions and often relied upon extra-judicial confessions. Whether or not the Supreme Court will reject or rely upon a particular confession depends on the individual facts surrounding the case, and the events that preceded the recording of the confession.