Theme of the Paper– Confession is no Evidence
Reference Book –‘Law on Confession in India and Abroad’ authored by Mr. Y P Bhagat and published by LexisNexis
From the Author:
It is my pride privilege to introduce to you all, the legal luminaries of global society the concept about ‘confession,’ as elaborated in my book titled ‘Law of Confession in India and Abroad’. While working in court as a judicial officer, I had no occasion to express my own views on real status of a particular law, more so against a prevailing concept supported by judicial pronouncements. But from the very beginning I have been of the view that a confession may not be used as evidence. It being own version of the accused admitting the commission of offence or all necessary particulars constituting an offence may be more than mere evidence. I in my book under reference expressed the views that confession is no ‘evidence’. Before reaching a conclusion I strived to peruse and appreciate the worldwide concept about the term Confession.
History is not a tale of today. It is traceable in the primitive also and by the era of Greece civilisation 2500 years ago practice of force confession had come in to practice. It was heavily discussed there specially when the idea of obtaining forced confession grew. Thereafter, it went on spreading throughout the world and people started as strong evidence against the accused.
By and large confession has been universally taken as an admission of offence or of all particulars which constitute an offence. It is said that the technical definition of “confession” is the admission to all of the elements of an offence, including the mental element. The Supreme Court of India also said that a confession is an admission of guilt made by the accused. The Court in the case of Om Prakash explained that a confession is a statement by an accused which must either admit in terms, the offence or substantially all the facts constituting the offence: Om Prakash v. State, AIR 1960 SC 409. Status of Confession as an admission of the guilt made by the accused is well settled. It is equally settled that a confession may be admitted if it is found to be voluntary and true. One of the leading cases that developed this doctrine was the 1783 case of Rex v Warickshall. The principle of voluntariness was adopted during the establishment of the professional police force in England in 1829 also. A common law rule of evidence evolved holding that all involuntary statements are inadmissible at trial. The accused in that case made a full confession after the police made “promises of favour”. The Court held that such promises rendered the statement involuntary and for that reason the evidence would not be admissible. It went on to reason that such practice made the confession unreliable. While in Warickshall, the Court excluded the confession, it admitted the derivative evidence, the property which the authorities had recovered as a result of the confession. In justifying the admission of the property the Court stated a theory of admissibility which turned on the reliability of the evidence in question:
“Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt… but confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape…It is true that there had been confusion in the beginning about application of doctrine of voluntariness, but it is settled now that a confessional statement may be admitted only if it is voluntary and true. The book under reference has covered detailed studies in the matter at page 139 and onward. The thought prevailing all over the global society favour use of confession as evidence. It was in 1898 in England that the Criminal Evidence Act was adopted making the accused a competent but not compellable witness. This meant that the accused had the right to testify under oath but not a duty. There has been joint study about status of confession. A paper also followed it. This paper will explore the development and evolution of the privilege against self incrimination and the common law voluntariness rule in four jurisdictions, Canada, England, the United States and Australia. In so doing, the various underlying theories of the law of confessions that have also evolved over time in these jurisdictions may also be examined. Similar is the views in other places.
For centuries, the Latin phrase “Confessioest regina probationum” (In English: Confession is the Queen of evidence) justified the use of forced confession in the European legal system. There had been studies on the status of confession and a comparative look was given at the law of confession in Canada, England, U S A, and Australia. A paper of the study was taken out. This paper was intended to explore the development and evolution of the privilege against self incrimination and the common law voluntariness rule in four jurisdictions, Canada, England, the United States and Australia. In so doing, the various underlying theories of the law of confessions that have also evolved over time in these jurisdictions will also be examined. Looking at the history of the law of confessions, we see the age old dilemma between using police interrogation and abstracting confessions as a key method to investigating and prosecuting crimes and not improperly exploiting the individual for the information necessary to convict him or her. This dilemma is all the more starkly illustrated in the last part of this paper when examining the law of confessions in the age of terrorism.
We have seen so far that there has been strong advocacy supporting use of confession as evidence, but in the book under reference, I have explained that the confession cannot be used as evidence. Its status being own admission made by the accused is in a far privileged position. It has got a much higher status than a mere piece of evidence, but it may not be called evidence. The juristic principle in this respect is very clear that evidence comes from witness and the accused has a right to test the evidence. But confession comes from the accused himself and there is no question of testing by the accused his own version. Further, once a confession is found to be voluntary and true, nothing remains to be proved. The golden principle of jurisprudence is before us that facts admitted need not be proved and it being an admitted fact may be basis for conviction. For using confession as basis of conviction the procedural law regarding trial of criminal cases may be suitably amended. Here, a ‘Home Work’ is being place:
If it is brought to the notice of the court that the accused has confessed the commission of offence, the court should examine whether the said statement amounts to a confession:
If the court comes to the conclusion that the said statement amounts to a confession, it shall not proceed with the further trial of the case and shall hold an enquiry as to its voluntariness and truthfulness. and shall hear the parties and examine all necessary evidence related to these two aspects:
If the Court comes to the conclusion that the confessional statement was voluntary and true, it shall stop further trial and convict the accused of the offence made out by the said statements.
However, the Court shall proceed with further trial of any part of the offence or offences not covered
By the confession.
This Part – Particularly for India and Indian Courts
Our judicial society has gone one step further to use confession to prove guilt of the co accused. Sir James Stephen while drafting law of evidence for India known as The Indian Evidence Act, 1872 codified a provision under section 30. The phrase ‘the Court may take in to consideration……’has been the source of controversy because of which status of confession as a whole, and particularly confession made by a co accused has been in serious debate of the Courts. Different Courts have expressed their different views. But the Courts are unanimous at least to the extent that a confession if reliable may be basis of conviction of the accused. The Judges have been of the views that it may be used as evidence against the maker, though they are not unanimous regarding its status as evidence. Some views are that it is a weak evidence, some say that it can be sole basis of conviction as a substantive piece of evidence, some stresses on requirement of its sufficient corroboration. Regarding use of confession made by a co-accused against another co-accused also the Judges have been of divergent opinion. They have also examined status of confession by a co-accused vis-a-vis evidence of an accomplice. But the author intends to raise a moot question “Whether a confession is an evidence”, and “can a confession of a co-accused be used against a co-accused as an evidence”. It may be noted that a confession if otherwise acceptable may be basis for conviction of the maker on the premises of principle that there cannot be a better material than own admission of guilt made by the accused himself to hold him guilty. A confession, of course subject to the scrutiny by the concept of voluntariness and truthfulness may be used against the maker. But it will be against the juristic principles, if it is used equally against a person who did not make it, keeping it at par with an evidence coming from an accomplice. When an accomplice is examined, his statement comes on oath and the another accused, popularly known as co-accused has an opportunity to cross-examine the said accomplice. Hence, both may not be kept at par with each other.
As already pointed out, status of a confession by a co-accused cannot be kept at par with a statement coming from an accomplice. So far use of confession made by the co-accused against another co-accused is concerned, it is felt that it may not be used against the co-accused either as an evidence to prove the charge or to corroborate other evidence against him The term ‘may take in to consideration’ must be strictly construed to mean that if the charge is otherwise proved the confession made by the co-accused may be taken in to consideration by the court to judge the nature and gravity and manner of participation of that another co-accused so as to appreciate the quantum of punishment.
It may thus be illustrated:
A, B, and C are tried jointly for having committed robbery in the house of X and also for committing his murder. A makes a confession that he, B and C under a criminal conspiracy committed robbery in the house of X and committed his murder also. He further confesses that he was busy in looting the properties while B and C dashed X on the ground, sat on his chest and buttered him with knife in presence of wife of X. The prosecution adduced ample evidence to prove the charges of robbery and murder against them. Now, under section 30 of the Act, the Court may take into consideration the confession made by accused A against B and C to appreciate the gravity of their involvement and manner of committing the murder. Here, the Court may take a different view in awarding the punishment and while awarding imprisonment for life to A, for murder of X, may award Death Penalty to B and C. In one another case, A, B and C are jointly tried for one and the same offence. A makes a confession that he and B and C committed the offence. The prosecution fails to prove the charge. Even the Court may while acquitting B and C may catch hold of accused A on the basis of the confession made by him.
Thus concluded, a confession may not be used as evidence, though greater value may be attached to it as an admission of guilt by the accused himself and a confession made by one accused may not be proved against the co-accused to hold him guilty. Releasing this paper, I invite your attention to take a view in the matter.
Author`s view on section 27—I am of the view that if it can be settled by judicial scrutiny that section 27 operates as an exception not only to section 26 but equally to section 24 and 25, it may also be settled by the Courts that section 27 promotes the cause of discovery information even if it comes from a person not being in police custody or not being made to a police officer. Therefore, if a man, not in police custody informs a private individual that he has kept certain weapon after committing the offence at a particular place and that person informs the police who proceeds and recovers the weapon that the information given by the accused should be admitted in evidence u/s 27. There may be one argument that such information may be admitted in evidence as an extra-judicial confession. But here also there are many difficulties. First the information must be self incriminating; otherwise it would not be a confession. Secondly, an extra-judicial confession is weak evidence and has to satisfy a lot for being taken in, whereas the application of section 27 is based on the concept that at least that part of the statement that leads to discovery is true. Further, if the provisions of section 27 are talked of, the situation is clear that there is provision to say that “so much of information as it distinctly leads to discovery” may be admitted in evidence, without let and hindrance, even if it is made to a private individual. Therefore, I feel that the situation deserves judicial interference, if the legislature does not come forward.
In support of my contention, I derive force from the views of the High Court of Allahabad and also the Supreme Court. A Full Bench of Allahabad High Court in Deoman v. State AIR 1960 A1: 1959 ALJ 651 said that the distinction between a “person in police custody and “a person out of custody” cause discrimination and it violate article 14 of constitution of India. The plea could be that there is discrimination as regards admissibility of the information u/s 27. But the Supreme Court overruled the decision by a majority view and held that section 27 intervenes and does not contravene article 14. Though the Supreme Court also said that cases of ‘persons not in custody’ who gave information to the police leading to discovery of facts are of rare occurrence and so the rule, in section 27 about the admissibility of abnormal instances to which the legislature might have but has not excluded the rule. The Court further said that with regard to person not in custody who approaches a police officer investigating an offence and offers to give information leading to the discovery of fact, he may appropriately be deemed to have surrendered himself to the police under section 46 Cr.P.C.
Apparently, the Supreme Court has brushed aside the cases of persons “out of custody” as uncommon and relied upon the provisions of section 46 of the code of criminal procedure. It may be noted that under section 46, a person may volunteer to surrender before the police investigating into the case and it does not make any provisions for admissibility of the information given by the accused to the police who is otherwise barred by statutory provisions of the code. Even if we go into the background of section 27 we find that the provision corresponded from section 150 of criminal procedure code of 1861 when there was no Evidence Act in India. That section 150 did not make any distinction between “a person in police custody” and “a person out of police custody”. The words used in that section are very interesting. It read, “Information received from a person accused of any offence, or in the custody of a police officer”, but when the Evidence Act 1872 came into force the word “or” was dropped with the result the provisions have been drafted as “Information received from a person accused of an offence, in police custody” which gave much controversies to rise. No reason is conceivable for dropping this word “or”. At the same time presence of a ‘coma’ there presupposes that something like a word ‘or’ should also be there even according to the rule of English grammar regarding composition of sentence.
The real test for admissibility of the information is discovery of a relevant fact, no matter whether the maker is or is not in custody of police. Hence, if the real test is to be satisfied, there was no reason for deletion of that word which made a big difference between a person in custody and a person out of custody.
According to the dissenting judgment in Deoman v. State AIR 1960 A. the discrimination in section 27 between a person in custody and a person not in custody is accidental. When section 150 of Cr.P.C. was bodily transferred in the Evidence Act of 1872 as section 27, the drafts man accidentally omitted the word “or” with the result “a person accused of any offence, or in the custody of a police officer” which was physically present in section 150 Cr.P.C. 1861 reads as, “a person accused of any offence, in the custody of a police officer”. If “or” has been omitted deliberately, the “comma” also should have been omitted, otherwise even English Grammar does not permit a ‘comma’ to remain there, as it stands. It is very pertinent here that in section 150 there were provisions in two parts being alternative to this effect of “either”, in other words it was provided that the information received either from a person, an accused in police custody or out of it. Now as section 27 reads there is no relevance for “either, or”. Therefore, retaining “comma” would be redundant. It also shows that “comma” was no doubt, retained deliberately and it was rather the word “or” which had been omitted accidently. It may therefore, be said that leaving of the word “or” is a case of omission, and not deletion.
There are instances of such vital omission otherwise also. The exception enacted in section 27 had to be engrafted on section 162 of Cr.P.C. 1882, as section 162 contained a general prohibitory provision against the use of any statement of the accused given during investigation. But in 1898, this exception was dropped somehow or the other. About 40 yrs after, a controversy arose regarding the provision of section 27 Evidence Act and section 162 Cr.P.C. The reason was that in the case of Paklanarayan v. R 43 CWN 473, the Privy Council explained the phrase “any person” as used in section 162 as inclusive of an accused person. After the verdict of the Privy Council the judges were divided in their opinion. The majority of the judges had held that section 162 did not apply to accused, but same Courts had said that section 162 had overridden section 27. Then the legislature had to intervene and by Act 15 of 1941 the words which were omitted were restored in sub-section (2) of section 162 and inserted the words “or to effect the provision of section 27 of that Act”.
It may be noted further that there is no question of discrimination within the meaning of article 14 of constitution between ‘a person in custody of police’ and ‘a person out of custody’ on account of omission of the word “or”, as discussed above. The section is affirmative by laying down that section 27 applies to the statement of a person in police custody. It no where prohibits its application to the statement made by a person out of custody. A mere omission does not amount to causing discrimination or violating the rule of equality under article 14. But yet it can be safely said that irrespective of the arguments made above, the gap in the provisions still draw attention of legal activists and legislature.
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