Evidentiary Value of Confession to Police

Evidence – Semester VII Project

Submitted by:
Vimal Garva
Roll No. 178, Semester VII, B.A. LL.B. (Hons.),
H.N.L.U.

Submitted to:
Ms. Adhya Pandey
Assistant Lecturer, H.N.L.U.

Submitted on:
16 Aug 2016

Hidayatullah National Law University, Raipur

 CERTIFICATE OF ORIGINALITY
I, Vimal Garva, hereby declare that this written work is original work that I alone have written in my
own words, with the exclusion of works of others, which have been duly credited and cited as per fair
practices of authorship, and no form or practice of plagiarism has been indulged into in the completion
of this work. I further declare that I have not manipulated any data and I have truthfully identified all
persons who have substantially supported me in my work in the Acknowledgments.

Vimal Garva

Sec A

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 TABLE OF CONTENTS

CERTIFICATE OF ORIGINALITY 1

ACKNOWLEDGEMENTS 3

PRESENT STUDY 4
1. STATEMENT OF STUDY 4
2. RESEARCH METHODOLOGY & SOURCES OF DATA 4
3. OBJECTIVES 4

[A] INTRODUCTION 5

[B] SECTION 25 & THE GENERAL RULES OF EXCLUSION 6

SCOPE AND OBJECT 6
STATEMENTS DURING INVESTIGATION AND BEFORE ACCUSATION 7
CONFESSIONAL FIR 7
STATEMENTS NOT AMOUNTING TO CONFESSION ARE NOT BARRED 7
USE OF CONFESSIONAL STATEMENT BY ACCUSED 7
RULE UNDER SPECIAL LEGISLATIONS 8

[C] SECTION 26 & 27: PROVISOS TO SECTION 25 OF THE INDIAN EVIDENCE ACT, 1872
8
POLICE CUSTODY 11

[D] THE 185TH LAW COMMISSION OF INDIA REPORT ON THE INDIAN EVIDENCE
ACT, 1872 12

CONCLUSION 14

REFERENCES 15

2
 ACKNOWLEDGEMENTS
First and foremost I would like acknowledge Ms. Adhya pandey, Faculty, H.N.L.U., for the allocation
of the topic for the current study, in order to complete my project for the course of “Law of Evidence”.
I would also like to acknowledge his academic contributions of primarily made through discussions,
consultations and lectures throughout the course of the aforementioned subject. Furthermore, Ms
Adhya Pandey imparted invaluable suggestions as to the objectives, nature of study and analyses,
which could be taken up for the purpose of completing this study.

Secondly, I would like to acknowledge the institution of Hidayatullah National Law University, Raipur,
of which I am a student, inter alia for its library catalogue.

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 PRESENT STUDY

1.Statement of Study
The study encompasses provisions of the Indian Evidence Act, 1872, as well as other legislations on
the domain of confessions made to police officials. The scope of the study is limited to the objectives
mentioned herein below.

2.Research Methodology & Sources of Data

The researcher has based his research on doctrinal sources of information comprising of books,
journals, annual reports as well as Internet. The researcher has also partaken in research of primary
sources of data in the form of case analysis. The topic being contemporary as well comprehended
through the Faculty in-charge has been extensively researched upon so as to accomplish the goal of
completion of the current project report.

3. Objectives
The primary objectives of this study are:
 The analyse the scope and object of Sections 25, 26 & 27 of the Indian Evidence Act, 1872.
 To establish the principle of exclusion of such confessions as well as its exceptions.
 To study in depth the application of Sections 26 & 27 to the rule enshrined in Section 25 of the
Indian Evidence Act, 1872.
 To lay out cases which determine the four corners of the aforementioned rule of exclusion.
 To discuss the recommendations of the Law Commission of India with respect to amendments
required Sections 26 & 27 of the Indian Evidence Act, 1872.

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 [A] INTRODUCTION

For the procedure of criminal justice to work smoothly it is crucial for a protective and upright system
to prevail. The essence lies in bring about absolute transparency and fair treatment without any foul
play, especially by the investigative wing of the criminal justice system. For such purposes, protection
is provided by the Evidence Act, 1872 with regards to aconfessionmade to police officer; according to
the law of evidence such confession is not evidence of the facts stated therein and therefore it is not
considered as a substantive evidence.1The Act prohibits the use of the confessions made to the police
during the course of the investigation for the purpose of corroboration. It is based on the assumption
that the police cannot be trusted for recording the confession correctly and that the confession cannot
be elide on by the prosecution for corroboration of their witnesses as the statements recoded might be
of self serving nature.

If confessions to police wereto be admissible in evidence, the police would torture the accused and thus
would be able to force him to confess to a crime which he might not have a committed. A confession so
obtained would naturally be unreliable. It would not be voluntary. Such a confession will be irrelevant
whatever may be its form, direct, express, implied or inferred from conduct. The reasons for which this
policy was adopted when the act was passed in 1872 are probably still valid.In Dagdu v. State of
Maharashtra,2, the Hon’ble Supreme Court of India noted,

“the archaic attempt to secure confessions by hook or by crook seems to be the be-all and
end-all of the police investigation. The police should remember that confession may not
always be a short-cut to solution. Instead of trying to “start” from a confession they should
strive to “arrive” at it. Else, when they are busy on their short-route to success, good
evidence may disappear due to inattention to real clues. Once a confession is obtained,
there is often flagging of zeal for a full and through investigation with a view to establish
the case de hors the confession, later, being inadmissible for one reason or other, the case
fundles in the court.”

The exclusion is primarily based on the public policy that a confession made by an accused to a police
officer or when in police custody should not be trusted to convict him.3 It is to protect the accused both
against overzealous police officers and untruthful witnesses.4The project work entails the study of the
provisions of the Evidence Act, 1872 in this backdrop and with a view of ascertaining a legal analysis
of the same.

1
Sewaki v. State of H.P., 1981 Cri LJ 919, 920 (HP).
2
A.I.R. 1977 S.C. 1579
3
Nagesia v. State of Bihar, 1966 AIR 119.
4
Khatri (IV) v. State of Bihar, 1981 SCC (Cri) 503.
5
 [B] SECTION 25 &THE GENERAL RULES OF EXCLUSION
Section 25.—Confession to police officer not to be proved.—No confession made to a
police officer, shall be proved as against a person accused of any offence.

Scope and object

The enactment of this section encompasses the principle of untrustworthy confessions that are to be
treated as inadmissible in a court of law.5The principle of exclusion applies only to statements which
amount to a confession. If a statement falls short of a confession, that is, it doesn’t admit the guilt in
terms or sustainability all the facts which constitute the offence, it will be admissible even if made to a
policeman, for example, the statement of an accused to the police that he witnessed the murderer in
question. The statement being not a confession was received in evidence against him, as showing his
presence on the spot.

In R v. Murugan Ramasay,6 it was noted,

“Police authority itself, however, carefully controlled, carries a menace to those brought
suddenly under its shadow and the law recognises and provides against the danger of such
persons making incriminating confessions with the intention of placating authority and
without regard to the truth of what they are saying.”

The term “policeofficer” must not be construed narrowly, but it should be understood in popular and
wide perspective. But at the same time its interpretation should not be made in such a wide sense that
those persons who shouldn’t be included are included. However, the mere presence of the policeman
should not have this effect. Where the confession is being given to someone else and the policeman is
only casually present and overhears it that will not destroy the voluntary nature of the confession. But
where that person is a secret agent of the police deputed for the very purpose of receiving a confession,
it will suffer from blemish of being a confession to police. In a rather unusual case, the accused left a
letter recording his confession near the dead body of his victim with the avowed object that it should be
discovered by the police, the confession to be relevant since there was not even the shadow of a
policeman when the letter was being written, and planted.7

As an exception, a statement made to a police officer in a civil case is admissible. Thus, this concept
finds significance mostly in criminal cases.Additionally, with the advent of changes in Code of
Criminal Procedure, the normal rule of evidence has been modified by Section 162 which states that
no statement made by any person to a police officer in the course of an investigation, shall, if reduced

5
Paulose v. State of Kerala, 1990 Cr.Lj 108 Ker.
6
(1964) 64 C.N.L.R. 265 (P.C.) at 268
7
Chunni v. Emperor, AIR 1934 All. 132.
6
to writing, be signed by the person making it; nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose
at any inquiry or trial in respect of any offence under investigation at the time when such statement was
made. However when any witness is called for the prosecution in such inquiry or trial whose statement
has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the
accused, and with the permission of the Court, by the prosecution, to contradict such witness and when
any part of such statement is so used, any part thereof may also be used in the re- examination of such
witness, but for the purpose only of explaining any matter referred to in his cross- examination.

Statements During Investigation and before Accusation

A confessional statement made by a person to the police even before he is accused of any offence is
equally irrelevant. The section clearly says that such a statement cannot be proved against any person
accused of any offence. This means that even if the accusation is subsequent to the statement, the
statement cannot be proved.

Confessional FIR

Only that part of a confessional First Information Report is admissible which does not amount to a
confession or which comes under the scope of section 27. The non-confessional part of the FIR can be
used as evidence against the accused as showing his conduct under section 8.

Statements not amounting to Confession are not barred

The bar of Section 25 does not hit a statement that does not amount to a confession. A statement in the
course of investigation was that the design was carried out according to the plan. The statement did not
refer to the persons who were involved in the murder, nor did the maker of the statement refer to
himself. This was held to be not a confessional statement. Hence, not hit by section 25. The statement
of inspector(crimes) that the accused accepted before him that he got the counterfeit currency notes
from a stranger but the accused denying to have so stated was not admissible in evidence.

Use of Confessional Statement by Accused

Though the statements to police made by the confessing accused cannot be used in evidence against
him, he can himself rely on those statements in his defence. The statement of the accused in FIR that he
killed his wife giving her a fatal blow when some tangible proof of her indiscretion was available was
not usable against him to establish his guilt. But once his guilt was established through other evidence,
he was permitted to rely upon his statement so as to show that he was acting under grave and sudden

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provocation. There is nothing in Evidence Act that precludes an accused person from relying upon his
own confessional statements for his own purposes.

Rule under Special Legislations

A special legislation may change the system of excluding police confessions. For example, under the
Terrorists and Disruptive Activities (Prevention) Act, 1987, (S15) confessional statements were not
excluded from evidence on grounds that the persons making them were in police custody. The court
said in another case that section 15 was an important departure from the ordinary law and must receive
that interpretation which would achieve the object of that provision was that a confession recorded
under S.15 of TADA was a substantive piece of evidence and could be used against a co-accused also.

[C] SECTION 26 & 27: PROVISOS TO SECTION 25 OF THE INDIAN EVIDENCE

ACT, 1872
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

Explanation.—In this section “Magistrate” does not include the Head of a village
discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless
such Headman is a Magistrate exercising the powers of Magistrate under the Code of
Criminal Procedure, 1882.

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

In Kishore Chand v. State of Himachal Pradesh,8 the extra judicial confession was made to Pradhan
who was accompanied by Police (enquiry) Officer. The only interference, which could be drawn from
the circumstance of the case, is that, the confession was made at the time when the accused was in the
custody of police and it could not be proved against the accused. It could not be believed that, when a
police officer has seen the accused with deceased at last occasion, he will not take the accused in the
custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and 26, the
Police Officer has left the accused in the custody of village headman (pradhan).The Police Officer in

8
AIR 1990 SC 2140.
8
this case has no difficulty to take the accused to the Judicial Magistrate and to take extra-judicial
confession under section 164 of Cr.P.C which has got more probable value and it gives an opportunity
to make the required warning, that this confession will be used against the accused and after this
warning he records the confession. Under section 26, no confession made by an accused to any person
while in custody of a police officer shall be proved against him.

As per Section 27 of the Act,

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 it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

This section of the act is founded on the principle that if the confession of the accused is supported by
the discovery of a fact then it may be presumed to be true and not to have been extracted. It comes into
operation only

 If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody, and
 If the information relates distinctly to the fact discovered.

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

In Pandu Rang Kallu Patil v. State of Maharashtra,9 it was held by Supreme Court that section 27 of
evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26, which
imposed a complete ban on admissibility of any confession made by accused either to police or at any
one while in police custody. Nonetheless the ban would be lifted if the statement is distinctly related to
discovery of facts. The object of making provision in section 27 was to permit a certain portion of
statement made by an accused to Police Officer admissible in evidence whether or not such statement is
confessional or non confessional.

Section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24 lays down that if a
confession appears to have been caused by threat, promise or inducement from some man in authority
it will be irrelevant and cannot be proved against the confessioner. Section 25 excludes a confession

9
AIR 2004 SC 3562.
9
made to a police officer. Section 26 lays down that if a person while in custody of a policeman,
confesses his guilt to any other person not being a Magistrate, his settlement will not be proved against
him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was discovered
in consequence of the information given by the accused of an offence in custody of the police officer,
so much of the information as relates to the facts discovered by that information, may be proved
irrespective of the facts discovered by that information, may be proved irrespective of the facts whether
that information amounts to confession or not. The conditions necessary for the application of section
27 are:

 The fact must have been discovered in the consequence of the information received from the
accused.

 The person giving the information must be accused of an offence.

 He must be in custody of a police officer.

 That portion only of the information which relates distinctly to the fact discovered can be
proved. The rest is inadmissible.

 Before the statement is proved, somebody must depose that articles were discovered in
consequence of the information received from the accused. In the example given above, before
the statement of the accused could be proved, somebody, such a sub-inspector, must depose that
in consequence of the given information given by the accused, some facts were discovered.

 The fact discovered must be a relevant fact, that is, to say it must relate to the commission of
the crime in question.

 In Suresh Chandra Bahri v. State of Bihar,10 it is the discovery and the seizure of articles used
in wrapping the dead body and the pieces of Sari belonging to the deceased was made at the
instance of one accused. Articles recovered were neither visible nor accessible to the people but
were hidden under the ground. No public witness was examined by the prosecution in this
behalf. However, the evidence of Investigation Officer did not suffer from any doubt or
infirmity. Articles discovered were duly identified by the witness. It was held that in these
circumstances, failure of Investigating Officer to record the disclosure of statement was not
fatal.

In State of Maharashtra v. Bharat Ehagan Lal Raghani,11 it was held by Supreme Court that, the fact
that seized weapons were displayed by police in press conference was not a ground to disbelieve the
factum of recovery

10
AIR 1994 SC 2420.
11
AIR 2002 SC 1409.
10
Police Custody

The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-cuff
him or tie his waist with a rope and may take him with him. Again a police officer may not even touch
a person but may keep such a control over him that the person so controlled cannot go any way he
likes. His movement is in the control of the police officer. A police officer comes to A and asks him to
follow to the police station as he is wanted in connection with a dacoity case. A follows him. He is in
custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act, is no
mere physical custody.” A person may be in custody of a police officer though the other may not be
physically in possession of the person of the accused making the confession. There must be two things
in order to constitute custody. Firstly, there must be some control imposed upon the movement of the
confessioner, he may not be at liberty to go any way he likes, secondly, such control must be imposed
by some police officer indirectly. The crucial test is whether at the time when a person makes a
confession he is a free man or hid movements are controlled by the police by themselves or through
some other agency employed by them for the purpose of securing such confession. The word ‘custody’
in this the following section does not mean formal cutody but includes such state of affairs in which the
accused can be said to have come into the hands of a police officer, or can be said to have been some
sort of surveillance or restriction.

In R. v. Lester, 12 the accused was being taken in a tonga by a police constable. In the absence of
constable, the accused confessed to the tanga-driver that he committed the crime. The confession was
held to be in police custody as the accused was in the custody of constable and it made no difference of
his temporary absence. Where a woman, charged with the murder of her husband, was taken into the
custody of the police, a friend of the woman also accompanied her. The policeman left the woman with
her friend and went away to procure a fresh horse. The woman confessed her guilt to her friend while
the policeman was away. The confession would not be admissible against the accused as the prisoner
should be regarded in custody of the police in spite of the fact that he was absent for a short time. But
where the accused is not arrested nor is he under supervision and is merely invited to explain certain
circumstances, it would be going further that the section warrants to exclude the statement that he
makes on the grounds that he is deemed to be in police custody.

12
ILR (1895) 20 Bom. 165.
11
Where the accused had consumed poison and so she was removed to the hospital for treatment and
from the moment of her admission to the hospital till her discharge from there, the police personnel
were neither present in the room wherein the accused was kept for treatment or even in the vicinity of
the hospital nor they frequently visited the hospital, it could not be said that the accused’s movements
were restricted or she was kept in some sort of direct or indirect police surveillance and she was in
police custody for the purpose of section 26 of the Evidence Act.

[D] THE 185TH LAW COMMISSION OF INDIA REPORT ON THE INDIAN

EVIDENCE ACT, 1872
The 185th Report not only approves it but it even goes a step further so far as Section 27 is concerned
that in order to avoid the police authorities in using Section 27 indirectly violating Sections 25 and 26,
it will be advisable to confine Section 27 to the facts discovered alone and states that the facts so
discovered may be proved but not the information whether it amounts to a confession or not,provided
that the facts discovered by using threat, coercion, violence or torture shall not be admissible. Coerced
confessions are unreliable but the fruits posed no problem. To exclude these fruits simply in order to
prevent a suspect being made the instrument of his own conviction would be novel in theory,
dangerous in practice and repugnant to the general principles of criminal law.

In the case of State of Uttar Pradesh v. Deoman Upadhyaya,13 it was held by Justice Hidayatullah (as
he then was) that the discoveries from statements were all admissible under Section 27 even if the
statements as to confession were inadmissible because they were made by threats, inducements or
promise, even fell out of Section 24. It was finally held that the information obtained in cases falling
under Section 24 was admissible. Section 27, which are framed, as an exception has rightly been held
as an exception to Sections 24 to 26 and not only to 26 alone. If what is discovered is true and a fact
independently in existence, the fact that it was discovered pursuant to a confession made under threat,
inducement or promise was relevant, according to the above finding of the Court. If the fact discovered
existed, it existed even without and induced confession.

As a matter of policy, the question arises whether a confession caused by an undesirable inducement,
threat or promise and hence inadmissible under Section 24, should become admissible under section
27, because a fact was discovered in consequence thereof. The view is that the paramount rule of policy
embodied in Section 24 must override Section 27. Section 24 enacts a rule, which should have
universal application. That rule is not based on any artificial or peculiar considerations relatable to the
supposed excesses of the police. It is intended to discourage the “tendering of hopes or promises or the

13
AIR 1960 SC 1125.
12
exercise of coercion”, in order to induce or compel the making of confessions. These considerations
weigh against Section 27 overriding Section 24. Section 24 is not based merely on the criterion of truth.
It is intended to discourage coercion in the wide sense for securing confessions. So if such facts were
part of the statements made in circumstances stated in Section 24 like threat, coercion or inducement
that would encourage police to set arbitrarily. Hence facts revealed from statements falling under
Section 24 are not being made admissible.

The Law Commission has already in the 69th Report referring to this issue felt that if such facts were
admissible, it would definitely encourage third degree methods being employed by the police. It may
even be felt by the police that Section 27 indirectly permits use of threats, inducement or promises. It
agreed for Section.25 and 26 facts’ to be admissible but not to ‘Section 24 facts’. Here, on the one
hand, we have the prisoner’s human right under Section 24 that he should not be subjected to any
threats or physical violence. In its view a right balance must be struck between the right of the accused
on the one hand and the public interest involved in making such facts relevant. Section 27 is a proviso
to Sections 25 and 26 and statements even by way of confession which distinctly relates to the facts
discovered is admissible as evidence against the accused in the circumstances stated in Section 27. But
the Commission finally said that circumstances under Section 24 must be excluded.

The Law Commission in its 185th Report elaborately did an overall review of the Indian Evidence Act.
The Commission figured out many changes in the Act keeping the present needs in the mind. All the
suggestions and changes made by the Commission are of utmost importance for present day scenario.
With respect to Section 27, the approach of the courts is that it is a proviso to Section 25 and 26.
Section 27 removes partially the ban imposed by these two Sections. However, the scope of Section 27
cannot be extended to cover Section 24 because wherever the confession is given by an accused due to
threat, undue influence or promise, such a confession shall be inadmissible even though it may lead in
the discovery of certain relevant facts. It is urged that Section 27 should not remove even the bar of
Sections 25 and 26 as it violates the Article 20(3) of the Constitution but the courts have not held such
thing. So, in this way the scope of Section 27 is up to Sections 25 and 26 only and in no condition it
can be extended to 24 so as to cover confession made by promise, threat or undue influence.

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 CONCLUSION
Justice cannot be delivered with heavy handedness, thus such confessions are made inadmissible as one
may suspect that the police might have not taken the facts down correctly or there may be even
instances of foul play. The law provides for an atmosphere through which justice can maneuver
however the same shall not be attained at the altar of deceit, coercion and fear. This provision is in light
of public policy and safety and sanctity of witness and protection of the rights of the accused against
self-incrimination. The legislation thus acts as a check on the investigating functionaries thus
preventing any sort of confusion or injustice at the trial level. However one may not deny the fact that
such information may be useful. It is thus provided by the Evidence Act, the Code of Criminal
Procedure and other special legislations that the exceptions to such statements and confessions by
allowing them only in limited aspects; for instance, in case of contradictions made by witness in earlier
statements and those which are made during trial. Secondly to test the hostility of a witness if one is
deemed to be hostile. Thirdly it plays a crucial role in case of cross-examination. Fourthly, it brings
into role dying declarations, which have been recorded by police officers in a particular matter. The law
stands equal for equals; it is to provide this footing to every accused and to ensure every witness is
upright in the eyes of law. It provides valuable safeguard to theaccused and denial thereof may be
justified only in exceptional circumstances. It is this spirit the Evidence Act enshrines in the procedural
requirements of penal law and is to be respected and adhered in all circumstances contemplated by the
law.

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 REFERENCES
 185th& 69th Law Commission Reports

 D.D. BASU, Criminal Procedure Code, Vol.1, 4th edition 2010, 1973.

 Sarkar on Evidence (2011)

 Batuk Lal, Law on Evidence (2012)

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