EVIDENTIARY VALUE OF CONFESSION

AUTHOR:

Javed Rafi

4th Year, BA.LLB.(Hons.)

Jamia Millia Islamia

CONFESSION

Definition: – The term “confession” is nowhere defined. But Stephen’s definition of “confession” which included admission “suggesting the inference that he committed the crime” and when was acted upon by most Courts for a very long time was modified by the Privy Council holding that only a direct acknowledgment of guilt should be regarded as confession.

PAKALA NARAYAN SWAMI v. EMPEROR [AIR 1939 P.C. 47]

In this case, LORD ATKIN observed that:

“A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively 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 or revolver which caused death with no explanation of any other man’s possession.”

Inculpatory and Exculpatory confession:- The confession to something wrong or which involves the accused of any guilt is inculpatory confession. And, the confession which absolves the accused of any guilt is exculpatory confession.

Form of Confession:- A confession may occur in any form. It may be made to the court itself, when it will be known as judicial confession or to anybody outside the court, in which case it is called an extra-judicial confession. It may even consist of conservation to oneself, which may be produced in evidence if overheard by another. 

For example, in Sahoo v. State of U.P. [AIR 1966 S.C. 40]

                 The accused who was charged with the murder of his daughter-in-law with whom he was always quarrelling was seen on the day of the murder going out of the home, saying words to the effect: “I have finished her and with her the daily quarrels.”

The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person.

Recording of Confessions and Statements

Section 164 of Cr.PC- 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 in force, or at any time afterwards before the commencement of the inquiry or trial :

                Provided that any confession or statement made under this subsection may be also recorded audio-video electronic means in the presence of the advocate of the person accused of an offence:

                Provided further that no confession shall be recorded by the 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 authorize 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 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.

                                                                                                                                                     Magistrate(Sign.)

(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.

Scope and application – This section empowers any Metropolitan or Judicial Magistrate whether or not he has jurisdiction in the case to record any confession or statement of a 

person made in the course of investigation by the police, or (when the investigation has been concluded) at any time afterwards but before the commencement of the inquiry or trial. It applies only to the statements recorded in the investigation under Ch. 12 [Shafi Ahmed, 49 B 632, 652] and is limited to the period before the inquiry or trial [Ramsaran, AIR 1945 N 72; Rishi v. State of Bihar, AIR 1955 Pat 425 : 1955 CrLJ 1377]

Who can record confession – Only the Magistrate specified in S. 164 can record a confession. When a Magistrate not authorized under the section purposes to record a confession, his oral evidence to prove the confession is not admissible.

Any special metropolitan Magistrate or any special judicial Magistrate being judicial Magistrate of the second class is competent to record confession. Magistrate directing police investigation [Marsi, 12 CrLJ 489], or who afterwards conduct the preliminary enquiry [Barindra, 37C 467 ; Mohinder, AIR 1932 L 103 ; In re : Karunthambi, AIR 1950 Mad 579 : 1950 CrLJ 1047 : 63 Mad LW 449 : 1950 (1) Mad LJ 659 : 1950 CrLJ 1047] may record. It is proper that the Magistrate recording confession who would be witness, should as far as possible be not the committing Magistrate [Karunthambi, sup].

RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INIDA [2011) 2 SCC 490]

Facts: Graham Stuart Staines, a Christian Missionary from Australia, was working among the tribal people especially lepers of the State of Orissa. His two minor sons, namely, Philip Staines and Timothy Staines were burnt to death along with their father in the midnight of 22.01.1999/23.01.1999. The deceased-Graham Staines was engaged in propagating and preaching Christianity in the tribal area of interior Orissa. In the mid-night of 22.01.1999, a mob of 60-70 people came to the spot and set fire to the vehicle in which Graham Staines was sleeping along with his two minor sons. The mob prevented 

the deceased to get themselves out of the vehicle as a result of which all the three persons got burnt in the vehicle.

Judgement: In a charge sheet filed by CBI 14 accused persons were put to trial. Apart from these accused, one minor was tried by Juvenile Court.  By a common judgment and order Sessions Judge, Khurda convicted all the accused and sentenced them for offences punishable under various sections. The death sentence was passed against Dara Singh- and others were awarded sentence of life imprisonment.

Modification of Death sentence into life imprisonment by the High Court – The death reference and the appeals filed by the convicted persons were heard together by the High Court of Orissa and were disposed of by common judgment concluding that the witnesses were not trustworthy and no credence should be given to their statements and confessional statements were procured by the investigating agency under threat and coercion. The High Court, by the impugned judgment, modified the death sentence awarded to Dara Singh into life imprisonment and confirmed the life imprisonment imposed on Mahendra Hembram and acquitted all the other accused persons. Special Leave Petitions were filed by Rabindra Kumar Pal @ Dara Singh, Mahendra Hembram challenging the sentences awarded by the High Court.

Supreme Court on section 164 of Cr.P.C. – Supreme Court enunciated the following principles with regard to section 164Cr.P.C:

1. The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
2. 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 of any sort of extraneous influence proceeding from a source interested in the prosecution.
3. 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.
4. The maker should be granted sufficient time for reflection.
5. 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.
6. A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
7. Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.
8. During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
9. At the time of recording the statement of the accused, no police or police official shall be present in the open court.
10. Confession of a co-accused is a weak type of evidence.
11. Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement. 

After considering relevant evidence and verifying statements and requirements in terms of Section 164 Cr.P.C. the Supreme Court observed that in the certificate, there was no specific reference about the nature of the custody from which these persons were produced nor about the assurance that they would not be remanded to police custody if they declined. Concurring with the High Court, it held that, no exceptional circumstances could be brought by the prosecution in respect of the appellants other than Rabindra Pal and Hembrum. The Supreme Court also held the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, could not be faulted with.

Evidentiary Value of Confession

• A confession is substantive evidence against its maker, so that it has been duly recorded and suffers from no legal infirmity, it would suffice to convict the accused who made the confession, though as a matter of prudence, the Court expects some corroboration before acting upon it. Even then slight corroboration would suffice.
• But before acting upon a confession, the Court must be satisfied that it is voluntary and true.

1. Voluntaries depend upon whether there was any threat, inducement or promise.
2. Its truth is to be judged in the context of the entire prosecution case,- whether it fits into the proved facts and does not run counter to them.

If these two conditions are satisfied, it becomes the most portent piece of evidence against the maker.

• The confession would not ordinarily be considered the basic for conviction. However, it is admissible and conviction may also be based upon it if it is found truthful and voluntary and in a given case some corroboration is necessary. Confession which is not retracted even at the stage of trial and even accepted by the accused in the statement under section 313 Cr.P.C. can be fully relied upon. So, the conviction based thereon together with other circumstantial evidence is sustainable.
• The accused in his statement under section 313 Cr.P.C. or during cross-examination never suggested that his statement under section 164 Cr.P.C. is false. Allegation of presence of police officers at the time of recording the confession was without any material. Requirement of section 164(2) Cr.P.C. have been complied with. Such a confession statement was fit to be accepted.

Evidentiary Value of Retracted Confession

It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars, it is not prudent to pass a conviction on its strength alone. Corroboration should not be dispensed with merely because the confession contains a wealth of detail.

• When a confession is retracted, the Court must look for the reasons for making of the confession as well as for its retraction, and must weigh the two to determine whether or not the retraction affects the voluntary nature of the confession.
  

1. If the Court is satisfied that it was retracted because it was an after-thought advice, the retraction may not weight with the Court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant it user.
2. All the same, the Court would not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused.

In short, while a true confession voluntarily made may be acted upon with the slight evidence to corroborate it, a retracted confession requires the general assurance that the retracted confession was an after-thought and that the earlier statement was true.

The fact that the confession was retracted not at the earliest opportunity but only when the accused was examined under section 313 (post) would be a circumstance to show that the confession had been voluntarily.

• What is sufficient corroboration of a retracted confession is to be decided in each case on its own facts and circumstances. It may, however, be generally stated that where the prosecution, by the production of reliable evidence which is independent of the confession and which is also not tainted evidence like that of an accomplice or of a co-accused establishes the truth of certain parts of the account given in the confession and these parts are so integrally connected with other parts of the accused’s confession, that a prudent judge of facts would think it reasonable to believe that what the accused has stated in the confession as regards his own participation in the crime is also true,- that is sufficient corroboration. More than this is not needed; less than this ordinarily sufficient.

What is required is substantial corroboration, i.e., a general corroboration of important incidents, and not an independent corroboration of each and every circumstance mentioned in the confession statement.

• If substantial corroboration is available, a valid conviction can be founded on a retracted confession.
• But corroboration is rule of prudence, not of law, so that there may be circumstances under which a conviction can be based solely on a retracted confession, provided the Court is satisfied that the confession was voluntary and true. The fact that the confession was retracted at a late stage- during examination under section 313 reinforces the conclusion that it was voluntarily. The fact that the statement was lengthy and covered minute details goes to ensure its truth.
• Its value weakens when it is sought to be used against a co-accused.
  
• But a confession cannot be taken as involuntary merely because it has been retracted and, therefore, in the absence of evidence as to coercion, the use of retracted confession would not be hit by Article 20(3) of the Constitution.
  
• Retracted evidence is a weak piece of evidence. So, conviction cannot be solely based on such confession, unless it is voluntary, truthful and is corroborated by independent and cogent evidence.

Cases related to Evidentiary Value of Confession

STATE OF MAHARASHTRA v. MOHD. AJMAL MOHD. AMIR KASAB [Confirmation Case No. 2 of 2010]

• Retracted Judicial confession – Reliability of – The Court held that reliance can be placed even on retracted confession if it is satisfactorily established that the confession is true and voluntary and corroborated on all material particulars – It is open for the Court to reject exculpatory facts and take into consideration inculpatory facts out of the same. [Paras 123 and 127]
• Principles as regards evidentiary value of confessional statement: [Para 126]

1. A confession can be acted upon, if the court is satisfied that it is true and voluntary.
2. It must fit into the proved facts and must not run counter to it.
3. The court may take into account the retracted confession, if the court is satisfied that retraction was an afterthought.  
4. A retracted confession may form the legal basis of a conviction, if the court is satisfied that it was true and voluntarily made.
5. It is not the rule of law, but a rule of prudence that a court shall not base a conviction on a retracted confession without corroboration.
6. It cannot, however, be laid down as an inflexible rule of practice or prudence that under no circumstances can such conviction be made without corroboration. In a given case, a court may be convinced of the absolute truth of a confession and prepared to act upon it without corroboration.
7. It is, however, unsafe to rely upon a confession much less a retracted confession, unless the court is satisfied that it is true and voluntarily made and has been corroborated in material particulars.
8. Corroboration in material particulars does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession.
9. If after examining and comparing the confession with the rest of the evidence, in the light of surrounding circumstances and probabilities of each case, the confession appears to be a probable catalogue of events and it naturally fits in with the rest of the evidence and the surrounding circumstances, it can be taken to be true and trustworthy.
10. The whole of the confession should be tendered in the court. It is not the law that it can either be taken as a whole or not at all. It may be open to the court to reject the exculpatory part and take into consideration the inculpatory part. Where a confession or an admission is separable, there can be no objection to taking one part into consideration which appears to be true and reject the other part which is false.
11. Whether a confession is voluntary or not is a question of fact and such a finding should not be interfered with unless the court is satisfied that it has been reached without applying the true and relevant tests in the matter.

STATE v. RAM AUTAR CHAUDHRY [AIR 1955 All 138]

In this case the confession was recorded after the preliminary inquiry against the accused had commenced, and it was in this context that the Bench consisting of Raghubar Dayal and James, JJ. held that:

“We are therefore of opinion that a Magistrate could not have recorded the confession of Budhoo purporting to exercise the powers conferred on him under Section 164 Cr. P. C. and that a confession so recorded by him could not be taken in evidence.”

BACHCHAN LAL v. STATE [AIR 1957 All 184]

In this case also the confession was recorded during the preliminary enquiry, and, in fact, after the Committing Magistrate had recorded the statements of certain witnesses. Purporting to rely upon their earlier decision in State v. Ram Autar Chaudhry, [AIR 1955 All 138], Raghubar Dayal and James, JJ. held that:

“…..this confession cannot be taken in evidence as a Magistrate can record a confession under Section 164 Criminal Procedure Code during the investigation of the crime by the police and not subsequent to the closing of the investigation and submission of the charge-sheet.”

RAJA RAM v. STATE [AIR 1966 All 192, 1966 CrLJ 386]

Refering to earlier two cases of Allahabad High Court, State v. Ram Autar Chaudhry and Bachchan Lal v. State, it was held by the Full Bench consisting J Takru, D Mathur, D Uniyal that:

 “a confession recorded by a Magistrate under Section 164 of the Code of Criminal Procedure after the police had completed its investigation and submitted a charge-sheet, but before the Magisterial enquiry has commenced, is inadmissible in evidence.”

 STATE OF UTTAR PRADESH v. SINGHARA SINGH & ORS. [AIR 1964 SC 358, [1964] 4 SCR 485]

The case debated on the admissibility of the oral evidence of magistrate, who had recorded the confession of the respondents, who were accused of murder charge. The magistrate had no power to record the confession. The records of confession were not admitted by the Trial Court.

             It was held that confession was not recorded as per Section 164 of the Code of Criminal Procedure, 1898 and the record could not be put in evidence as per Sections 74 and 80 of the Evidence Act to prove confession. Hence the oral evidence of the magistrate was not admissible.

ANIL alias RAJU NAMDEV PATIL v. ADMINISTRATION OF DAMAN & DIU [(2007) 1 MLJ (Crl.) 753 (SC)]

The accused was in judicial custody. He was produced before the Magistrate and Magistrate took precaution in not recording his statement on that day. He was asked to come on the next day. A note of caution as envisaged in law was again administered. His statement was recorded on the next day. The requirements of Section 164 Cr.P.C., thus, fully been compiled with. The confession was not retracted during the course of trial. It was purported to have been done only in examination under Section 313 of Cr.P.C. The confession can be relied on.

 BABUBHAI UDESINH PARMAR v. STATE OF GUJRAT [(2007) 1 MLJ (Crl.) 747 (SC)]

 In this case the accused was charged with the offence of rape and murder of a girl. The confession of the accused was recorded by the Magistrate under Section 164 of Cr.P.C. The provisions of Section 164 must be strictly complied with. No legal assistance was provided to the accused. Magistrate recorded confession immediately after production of accused before him. No time to reflect was given to the accused. The prosecution case found to be inconsistent with the confessional statement. No other evidence was produced to convict the accused. The conviction based on confession set aside.

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REFERENCES

• Criminal Procedure Code, 1973. 4^th Edition-2010, Vol.1, by Durga Das Basu, Published by- Lexis Nexis Butterworths Wadhwa, Nagpur.
• The Code of Criminal Procedure, 10^th Edition-2012, Vol. 1, by S.C. Sarkar, Published by- Lexis Nexis Butterworths Wadhwa, Nagpur.
• Principles of the law of evidence, 19^th Edition-2011, by Dr. Avtar Singh, Published by Central Law Pubplications
• Bare Act, The Code of Criminal Procedure,1973
• National Investigation Agency’s official website- www.nia.gov.in