Evidentiary Value Of Confession To Police

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

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ACKNOWLEDGEMENTS

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PRESENT STUDY

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

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[A] INTRODUCTION

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[B] SECTION 25 & THE GENERAL RULES OF EXCLUSION

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

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

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

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CONCLUSION

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REFERENCES

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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.

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Sewaki v. State of H.P., 1981 Cri LJ 919, 920 (HP). 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. 2

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[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. (1964) 64 C.N.L.R. 265 (P.C.) at 268 7 Chunni v. Emperor, AIR 1934 All. 132. 6

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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 7

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.

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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.

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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

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AIR 1994 SC 2420. AIR 2002 SC 1409.

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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.

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ILR (1895) 20 Bom. 165.

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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

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AIR 1960 SC 1125.

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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

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

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Sarkar on Evidence (2011)

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Batuk Lal, Law on Evidence (2012)

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