Definition of Confession
The term confession has not been defined in the BSA. Confession can be defined as an admission made by a person accused of an offence suggesting an inference that he has committed the offence.
The term 'Confession' was defined by Lord Atkin in Pakala Narayan Swami v. Emperor, AIR 1949 PC 47. The definition given by Privy Council was approved by Indian Supreme Court in Palvinder Kaur v. state of Punjab., 1953 SCR 64. The Court held that 'a Confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. A statement made by the accused is not a confession if it does not contain a direct admission in terms of commission of offence.
A confession is a statement made by the person charged with a crime suggesting an inference as to any facts in issue or relevant facts. The inference should suggest that the person is guilty of crime [State of Maharashtra v. Kamal Ad Md Vakil Ansari, AIR 2013 SC 144]
Only voluntary and direct acknowledgement of guilt can be defined as confession. If it falls short of direct acknowledgement of guilt it may then also be used as an evidence against the person under Section 19 in form of admission. Supreme Court in Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1167 held that a statement which does not amount to confession may still be relevant as an admission.
Inculpatory and Exculpatory statements
The terms 'inculpatory' statements and 'exculpatory' statements of confessions are not defined in the Bhartiya Sakshya Adhiniyam. The inculpatory part of statement of accused is that which incriminates him whereas the exculpatory part of the statement absolves him from the liability.
In Palvinder Kaur v. State of Punjab, AIR 1952 SC 354, Supreme Court held that the confession must be taken as a whole. A mixed up statement which contains inculpatory as well as exculpatory part cannot be treated as confession. In this case the lady stated that her husband took poison by mistake and died and that she out of fear put his body in a trunk and threw it into the well. The trial court relied upon the latter part of her statement and convicted her under Section 201 of IPC (Section 238 of BNS) for destroying evidence. But the first part of her statement that the death of her husband was accidental, exonerated her from her liability and if taken into consideration, no offence under Section 238 of BNS is made out. The Supreme Court set aside the judgement of trial Court and held that the confession must be taken as a whole.
Supreme Court in Palvinder's case relied upon Emperor v. Balmukund, AIR 1931 All 1 (FB) in which it was held that where there is not other evidence to show affirmatively that any portion of the exculpatory element of the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory part as inherently incredible.
Under English law the whole statement is left to the jury and the jury may attach different weight to different parts of statements. This principle was established in R. v. McGregor and R v. Storey. Therefore, confessional statement cannot be rejected in English law because it also carries exculpatory statements.
Shift in Indian approach
In Nishi Kant Jha v. State of Bihar, 1959 SCR 1033, Supreme Court held that there was nothing wrong in relying on a part of the confessional statement and rejecting the rest. The court did not overrule Palvinder's case or Balmukund's case but distinguished the facts of this case from them. If there is evidence to reject the exculpatory part and inculpatory part can find support from other evidences then there is nothing wrong in relying on inculpatory part and discarding the exculpatory part. Inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable.
Supreme Court in Jayaseelan v. State of Tamil Nadu, AIR 2009 SC 1901 held that where the exculpatory part is inherently improbable and is contradicted by other evidence then the court can accept inculpatory part and reject exculpatory part.
Relevancy of confession
Confession is a species of admission and is relevant under Section 19 of the BSA because it is a statement made by the accused against his own interest. Such confession may be:-
i. Judicial Confession (made before court or a magistrate)
ii. Extra Judicial (made outside court to any person other than magistrate)
Confession can also consist of conversion to oneself [Sahoo v. State of U.P. AIR 1966 SC 40]
Relevancy and Admissibility of confession
Irrelevant / Inadmissible
i. If obtained by threat, inducement or promised by some person in authority in hope of getting some worldly benefit. [Section 22 Part 1]
ii. If made to police officer [Section 23(1)]
iii. If made in police custody [Section 23(2)]
iv. Confession equally implicating another co-accused if they are tried separately or for different offences [Section 24]
Relevant/Admissible
i. If such threat, inducement or promise is removed [First proviso to Section 22(1)]
ii. Admissible if made in police custody if made in the immediate presence of magistrate [Section 23(2)
iii. Confession leading to discovery of fact [Proviso to Section 23(2)]
Confession when irrelevant
Under the following circumstances, a confession becomes irrelevant and cannot be proved against the accused:
1. Confession obtained by threat, inducement or promise [Section 22] - According to Section 22, where the confession of an accused is obtained by practicing any inducement, threat, coercion or promise in reference to any charge or proceeding against him and such threat or promise or inducement emanates from the person in authority which causes a reasonable apprehension in the mind of the accused that he will gain certain advantage or avoid evide evil of temporal nature in reference to charge against him, then such confession cannot be proved against him. Therefore, following are the essentials for invoking Section 22:-
i. The confession must be as a result of inducement, threat, coercion or promise;
ii. Such inducement, threat, coercion or promise should proceed from the person in authority;
iii. It should be in reference to any charge or proceeding against him;
iv. It must cause an apprehension that the accused will be getting some wordly benefit from making the confession.
For example, where a police officer says to the accused, "I will drop certain charges against you if you tell the truth", and the accused makes a confession upon such inducement, it will be inadmissible.
Reason: The reason behind making such statement of accused inadmissible under Section 22 is that he may not be induced by pressure of hope or fear to confess the guilt without regard to their truth in order to obtain relief or to avoid the threadtened danger. The confession must be free and voluntary.
Double test for acceptability of confession
Supreme Court in Mohd. Khalid v. State of West Bengal, (2002) 7 SCC 334 held that the court is to apply test for deciding the acceptability of a confession. i.e. (i) whether the confession is perfectly voluntary and (ii) if so, whether it is true and trustworthy. Satisfaction of the first test in sine qua non for its admissibility in evidence. If the confession appears to be caused by inducement, threat or promise, as mentioned in Section 24 [Now section 22 of BSA], it must be excluded and rejected.
Inducement, threat, coercion or promise: The inducement must be in reference to the charge against the accused. The accused should believe that by making the confession he would escapte from the charge. Therefore, mere religious or moral inducement will not vitiate the confession. For example, confession obtained in the name of God is admissible. Confession obtained on a promise to free the person from handcuffs or allow him to meet his wife will not be a bar to admissibility of confession.
In deciding whether a particular is hit by Section 22, the question which is to be considered is an to how such inducement, threat or promise would operate in his mind. In Reathu v. State of UP, AIR 1956 SC 56 the Supreme Court held that the burden if on the prosecution to prove positively that the confession was free and voluntary. The court has to satisfy that it was made freely and voluntarily.
Accused person: It is not necessary that the person who makes the confession should have been an accused at the time when he made the confession. What is necessary is that he should have been made an accused later, in respect of the charge regarding which he made the confession. In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 Supreme Court held that the word accused includes a person accused of an offence at the stage of trial whether or not he was accused at the time of making confession.
Person in authority: The threat, promise or inducement shall emanate from person in authority. The person in authority is the person who has the power to affect the charge or proceedings or influence the course of prosecution against the accused. It may also include any person who wield some kind of influence over the accused.
In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1904 Court held that threat, inducement and promise, on account of which the accused admits the guilt must come from the person who has got some authority of over the matter. For example, a police officer, a mukhiya of a village or a president of village vigilance committee, etc. Thus if confession is made upon the inducement of a friend of accused, it will not be hit by Section 24 [Now Section 22 of BSA]. However, if such threat, promise or inducement ceases to operate, confession made by the accused thereafter can be proved. [First proviso to Section 22]
In reference to the charge or proceedings: The accused should be under the influence that in reference to charge or proceedings in question, his position will be better or worse depending upon whether he confesses or not.
For example, a person charged with murder was made to confess before Panchayat which threatened his removal from the caste or village. Such confession was held to be relevant as it had nothing to do with the charge in question [Empress v. Mohal Lal]
Benefit of temporal nature: The inducement, threat or promise must be of such a nature which would give accused a reasonable ground to believe that by making the confession he would gain any advantage or avoid any evil of a temporal nature. Temporal nature means worldly nature, or opposed to spiritual nature. Mere moral or spritual benefits will not vitiate confessions.
2. Confession made to a police officer [Section 23(1)]
Section 23(1) clearly provides that confession made to a police officer cannot be proved against the accused.
Reason: Confessions to police officers are made inadmissible to prevent the torture of the accused at the hands of police in order to extract confessions. Confession obtained by torture and by using third degree methods would be involuntary.
Section 23(1) makes not distinction between a confession made before an investigation and confession made after the investigation. If a confession is made to the people officer it will be hit by Section 23(1) straightaway.
Police officer: Section 23(1) provides a healthy protection against torture in the hands of police officers in order to extort confession. This section is thus, interpreted widely and is extended to every police officer who not only possess the power to make investigation of crime but also to file a report against the criminal and to prosecute him in trial.
Supreme Court in Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828, has held that expression 'police officer' should not be contrued in a narrow sense and it would include any person who is clothed with the powers of a police officer. The test for determining whether a person is a 'police officer' for the purpose of Section 25 of the Act [Now Section 23(1) of BSA] would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25 [Now Section 23(1) of BSA] would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25 [Now section 23(1) of BSA], i.e. recording of confession.
Power of investigation is considered to be most important power which establishes a direct relationship with prohibition enacted in Section 23(1). Supreme Court in State of Punjab v. Barakat Ram, AIR 1962 SC 276 and Surjeet singh Chhabra v. Union of India, (1977) 1 SCC 508, has held that 'custom officers' are not police officers for the purpose of Section 25 [Now Section 23(1) of BSA].
In Balkrishnan v. State of Maharashtra, AIR 1981 SC 379, Supreme Court has held that member of Railway Protection Force is not a police officer. The test for determining whether an officer is a police officer or not is whether the concerned officer has been conferred the powers of investigation of offences including the power to initiate prosecution by submitting charge sheet under BNSS.
In Tofan Singh v. State of T.N., 2020 SCC Online SC 882 Supreme Court held that officers who are invested with powers under Section 53 NDPS Act are 'police officers' within the meaning of Section 25 of IEA [now Section 23(1) of BSA]. On this point Supreme Court overruled its previous decision in Kanhaiyalal's case and Raj Kumar Karwal's case.
Position in English law: As a matter of rule English law does not discredit the statements made to the police officers. If the judge thinks that the statement is voluntary, free, fair and inspires confidence then he may admit it.
Other statements not barred: Section 23(1) makes only confessional statements made to a police officer as irrelevant. Other non-confessional statements are not hit by Section 23(1) even if made to a police officer. If such statements are made during the course of investigation, then Section 181 of BNSS will come into play and it can only be used for the purpose of contradiction under Section 148 of the BSA or under Proviso to Section 23(2) and 26 of the BSA.
In Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547, Supreme Court held that confessions made to police officer cannot be proved against the accused but such confession may still be used as admission of any fact under Section 21 [now Section 19 of BSA] subject to the bar of admissibility under Section 162 CrPC [Now Section 181 of BNS].
Statements made before investigation: As regards statements made before investigation, as in case of FIR, such statements, if confessional in nature, will be hit by Section 23(1) of BSA and if they are non-confessional in nature and only an admission of certain facts having a bearing on question to be determined by the court, they will not be hit by section 23(1) of BSA and will be admissible in court [Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119]
For example, where a person 'A' kills his aunt and himself lodges FIR narrating the facts to the police officer, only non-confessional statements can be admitted in evidence and not the inculpatory part. So, the conviction of the accused A merely on the basis of his confession made in the FIR is erroneous and bad in the eyes of law if not supported by other evidences.
Statements made before accusation: It is not necessary that at the time of making confession, the maker must be accused. But he must be an accused at the time when such confession is sought to be proved against him. Thus even if accusation is subsequent to the statement, the statement cannot be proved. [Bheru singh v. State of Rajasthan (1994) 2 SCC 467].
3. Confession made in police custody [Section 23(2)]
Section 23(2) of the BSA provides that any confession made by any person (to any person) in the custody of police officer will not be proved unless it is made in the immediate presence of the Magistrate. This section will be operative when the person in custody of police is in conversation with any person other than police officer. It is an extension of principle laid down in Section 23(1).
The difference between Section 23(1) and 23(2) is that in Section 23(1), the confession is made to the police officer. Even if the Magistrate is present, it makes no difference because the confession is directly made to police officer and it is not admissible. Under Section 23(2), the confession is made to a person other than a police officer.
In Raj Kumar v. UOI, AIR 1991 SC 45, Supreme court observed that the ban imposed by Section 23(1) and 23(2) of BSA is designed to prevent the practice of securing confessional statements of persons in police custody by means of threat, inducement, tortue, coercion etc.
What is police custody?
Police custody has to be understood in context of police control. As long as the accused is under the control of the police officer he will be considered being in police custody. Actual physical presence of police officer is not needed as long as the accused is in effective police control. The term 'custody' does not mean formal custody only. It includes such circumstances in which the accused can be said to have come into hands of police officer or can be said to have been in some sort of survelliance or restriction. It may be noted here that the term 'custody' and 'arrest' are not the same thing. In every arrest there is custody but not vice-versa.
For example: In Emperor v. Lester, ILR(1895) 20 Bom 165 a woman was arrested by police and was taken to a place on tonga. Her friend accompanied her. Police officer in charge left the accused with her freind for sometime. During that time the accused made confession to her friend. It was held that the confession was irrelevant because the police custody was maintained.
Confession made to anyone else except Magistrate while in a police custody in inadmissible. Police control can be exercised in an open place, and in a course of journey. It need not necessarily be confined to four walls of prison.
There is no distinction between lawful and unlawful police custody. The custody also does not envisage the immediate presence of police officers. Such custody may be actual or constructive i.e., a police officer might or might not in immediate presence of the accused.
Supreme Court in State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272, held that the word 'custody' under Section 26 [now Section 23(2) of BSA] is to be understood in pragmatic sense. It the accused is within the general surveillance of the police, then it can be regarded as custodial surveillance. If he makes any confession during that period to any person who is not a police officer then such confession will be hit by Section 26 [now Section 23(2) of BSA]. The custody need not necessarily be post arrest custody.
For example, where the accused was handed to a village Pradhan and left to get some work done, even though the accused is not in actual presence of police officer but he will be held to be in his constructive custody and any confession made by him to village Pradhan will not be proved against him [Kishore Chand v. State of Himanchal Pradesh, AIR 1990 SC 2140].
In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, Supreme Court held that the statements made to TV and press by the accused persons in presence of police and in police custody were in admissible.
Presence of Magistrate: If the confession is made in the police custody but in the immediate presence of Magistrate then such confession will be admissible. Presence of Magistrate rules out torture and ensures free and fair confession. Immediate presence means presence in the same room.
For example, if a confession is made to a police officer in presence of magistrate then it would come under the trapping of Section 23(1) and would become totally inadmissible. In such case Section 23(2) will not apply. However, if it is made to 'any other person' (other than police officer) in presence of Magistrate then Section 23(2) would apply.
This section is to be read along with Section 183 of BNSS. The kind of confession contemplated by this section are those recorded under Section 183 of BNSS. In Kehar Singh v. State, AIR 1988 SC 1883, Supreme Court held that the confession recorded by Magistrate will be admissible in evidence only if it is recorded in compliance with provisions of Section 164 of CrPC [now Section 183 of BNSS]. If there is any irregularity in recording the confession then it will be admissible only if the irregularities are curable under Section 463 CrPC [Now Section 509 of BNSS].
There is a change in this provision. Explanation to Section 26 of IEA has been omitted from Section 23(2) of BSA, 2023. It provided that Magistrate does not include head of a village, etc.
4. Confession of co-accused [Section 24]
According to Section 24, a confession made by one co-accused equally implicating another co-accused will not be relevant if they are tried separately or for difference offences.
Confession when relevant
Despite confession being irrelevant in above circumstances, yet in following cases, it will not become irrelevant and can be admitted by the Court:
1. Confession leading to discovery of fact: Proviso to Section 23(2) of the Bharatiya Sakshya Adhiniyam is an exception to Section 22 to 23(2) of the Adhiniyam which imposed a complete ban on admissibility of any confession made by the accused either to the police or in custody of police. Proviso to Section 23(2) lifts the ban if the statement is distinctly related to discovery of fact.
Reason: The reason why the ban is lifted under Proviso to Section 23(2) is because discovery assures the truth of the Statements. All the objections as to validity of the statements are washed off when the statement leads to the discovery of some facts.
In Mukesh v. State of NCT of Delhi, AIR 2017 SC 2161, Supreme Court held that recovery made under Section 27 [now Proviso to Section 23(2) of BSA] acts as a foundation stone for investigation and also helps in completing the chain of circumstances.
Supreme Court in State of UP v. Deoman Upadhyaya, AIR 1960 SC 1125 observed that Section 27 [now Proviso to Section 23(2) of BSA] is founded on the principle that even though the evidence relating to the confessional statement made to a police officer or in a police custody is tainted, if the truth of the information given by him is assured by the discovery of a fact then it may be presumed to be untained and therefore, declared probable in so far as it distinctly relates to the facts thereby discovered.
What is discovery statement?
A statement given by the accused while in police custody wherein he discloses the place of hiding of a particular fact and subsequently on the basis of the statement an object is discovered.
In Charandas Swami v. State of Gujarat, AIR 2017 SC 1761 Supreme Court held that the word 'fact' contemplated under Section 27 [now Proviso to Section 23(2) of BSA] is not limited to 'actual physical material object'. The discovery of fact arises by reason of the fact that the information given by the accused exhibited knowledge or the mental awareness of the informant as to its existence at a particular place.
Supreme Court in Somasundaram v. State, (2020) 7 SCC held that a statement under Section 27 of the Indian Evidence Act [now Proviso to Section 23(2) of BSA] is not only about a thing as such which is discovered consequent upon the statement but the knowledge attributable to the person who makes the statement about the matter discovered based on the statement.
Essentials of discovery statement
Following are the essentials of a discovery statement:-
i. The person giving the information must be accused of an offence;
ii. He must be in the custody of a police officer;
iii. The fact must have been discovered in the consequence of the information received from the accused;
iv. Only that portion of the information is admissible which relates distinctly to the fact discovered;
v. The object must have been discovered from place of hiding.
In order that Proviso to Section 23(2) may apply, the prosecution must establish that the information given by the accused led to the discovery of some fact deposed by him. It is evident that the discovery must be of some fact which the police had not previously learnt from the other sources and that the knowledge of the fact was first derived from the information given by the accused.
In State of Rajasthan v. Bhup singh, (1997) 10 SCC 675 Supreme Court held that statements made by the accused in connection with the investigation in some other case which leads to the discovery of a fact is also relevant. Supreme Court in Mustakeen v. State of Rajasthan, AIR 2011 SC 2769 held that prosecution has to establish a close link between the material object discovered and its use in the commission of offence. Mere disclosure does not connect the accused with the crime. In Digamber Vaishnav v. State of Chattisgarh, (2019) 4 SCC 522 Supreme Court held that it is not discovery of every fact that is admissible but the discovery of relevant fact is alone admissible.
In Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, AIR 2022 SC 5273 Supreme Court held that expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of IEA [now Proviso to section 23(2) of BSA] in two parts i.e. first part of the panchnama for the purpose of Section 27 of the Evidence Act [now Proviso to section 23(2) of BSA] is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood -stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama.
What is admissible under Proviso to Section 23(2)?
Only that much of information which relates distinctly to the fact discovered is admissible. In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 the Supreme Court held that the statement that the accused had committed the offence or that he had hidden the object at some place are not admissible. What is admissible is only that portion of the statement that reveals the information about the place of hiding of the object.
Place of hiding
In Mohd. Inayatuallah v. State of Maharashtra, AIR 1976 SC 483, Supreme Court held that it is essential to prove that the object was discovered from a place of hiding. If the object is lying in an open place, there are chances that others may know about and it will be difficult to prove that object was discovered at instance of information provided by the accused. The court held that Section 27 [now Proviso to section 23(2) of BSA] is an exception to section 24 to 26 [now Sections 22, 23(1) and 23(2) of BSA].
In State of H.P. v. Jeet Singh, AIR 1999 SC 1293, Supreme Court observed that statement under Section 27 [now Proviso to section 23(2) of BSA] does not become inadmissible merely because the recovery was made from any place which is open or accessible to others. Object can be concealed in places which are open and accessible to others. The crucial question is that whether the object was ordinarily visible to others. If not, then it is immaterail that whether the place was accessible to others or not.
Accused of any offence
Supreme Court in Md. Dastagiri v. State, AIR 1960 SC 756 held that it is not necessary that the person should have been an accused when he made the confesssion. Accused of any offence means accused at the time of trial i.e. he must be an accused when discovery statement is sought to be proved against him.
In Panduranga Kallu Patel v. State of Maharashtra, the Supreme Court held that Section 27 [now Proviso to section 23(2) of BSA] is an exception to Section 25 and 26 [now Section 23(1) and (2) of BSA].
Constitutiona validity of Section 27[now Proviso to section 23(2) of BSA] was upheld in Deoman Upadhyay v. State of U.P. In State of UP v. Deoman Upadhyay, AIR 1960 SC 1125, the Court observed that Section 27 [now Proviso to section 23(2) of BSA] is an exception to the rules laid down under Section 24 to 26 of the Indian Evidence Act [now Section 22 to Section 23(2) of BSA] and if the fact/information deposed to by the accused leads to discovery of any fact, then so much of such information which led to discovery can be proved against him.
Burden of proof
In Jafarudheen & Ors v. State of Kerala, (2022) 8 SCC 440 Supreme Court held that the onus to prove, that the fact discovered from the information is obtained from the accused, is on the prosecution. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. The court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act [now Proviso to section 23(2) of BSA].
Section 27 [now Proviso to section 23(2) of BSA] incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused.
Proviso to Section 23(2) and Article 20(3) of Constitution
Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 held that where the self-incriminatory statement has been given by the accused without any threat or compulsion then that will be admissible in evidence and it will not be hit by Article 20(3) because there is no compulsion. It is therfore, held that Section 27 [now Proviso to section 23(2) of BSA] will not be hit by Article 20(3) unless compulsion has been used in obtaining the information. In Ashish Jain v. Makrand Singh, (2019) 3 SCC 770, Supreme Court observed that there is no evidentiay value to an involuntary confessional statement made undue pressure and compulsion from the investigating officer, even when it leads to the discovery of material objects in relation to a crime.
Proviso to section 23(2) and Section 23(2): Provisn to Section 23(2) and Section 23(2) do not deal with the evidence of same charachter. The ban imposed in Section 23(2) is against the proof of confessional statement. Proviso to Section 23(2) is concerned with the proof of the information whether it amounts to confession to confession or not.
In Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 Privy Council held that Section 27 [now Proviso to section 23(2) of BSA] will not nullify the principles of Section 26 [now section 23(2) of BSA]. 'Fact discovered' embraces the place from which the object is produced and the knowledge of the accused. The information given must relate distinctly to this fact. Court held that this section is based on the view that if fact is acutally discovered in consequence of information, then some guarantee is afforded that the information is true and accordingly can be given in evidence.
2. Confession after removal of influence [First Proviso to Section 22]
First Proviso to Section 22 is in the nature of exception to the rule laid down in Section 22. It provides that if confession referre to in Section 22 is made after the impression caused by any such inducement, threat, coercion or promise ahs been removed then the confession becomes relevant.
3. Confession made under promise of secrecy etc. [Second Proviso to Section 22]
Second Proviso to Section 22 provides that if confession is otherwise relevant, it will not become irrelevant merely due to following factors:
a. That it was taken by giving the accused promise of secrecy, or
b. That it was taken by deceiving the accused, or
c. That it was taken by making the accused drunk, or
d. It was made in answer to question he need not have answered, or
e. No warning was given that he was not bound to say anything and that whatever he will state will be used against him.
This section is based on the English law that the admissibility of evidence is not affected by the illegality of the means by which it is obtained. The expression 'if such a confession is otherwise relevant' indicate that the confession should not be vitiated by Section 22, 23(1) and 23(2). If confession is vitiated by these provisions then Proviso 2 to Section 22 cannot be invoked.
Thus, these provisions govern the relevancy of confession in a criminal trial ensuring that such confession is made voulntarily by him and not under any threat or pressure.
Evidentiary value of Confession
Supreme Court in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 held that confessions are regarded as highly reliable because no rational person would make an admission against himself. For adjudging the evidentiay value of confession there is not rigid formula of universal application. The courts should carefully examine the confession and compare it with rest of the evidence in light of surrounding facts and circumstances.
Confessions have been divided by English text writers into two classes:
a. Judicial confession: Judicial confessions are those which are made before the Magistrate or in Court in due course of legal proceedings. These confessions are presumed to be true and correct record of what is stated in it [Section 79, BSA] and it is a substantive piece of evidence.
Evidentiary value: In case of judicial confession Supreme Court in Shankaria v. State of Rajasthan, AIR 1978 SC 1248 held that if the confession is recorded under Section 164 CrPC [Now Section 183 of BNSS] then the Courts must apply double test:
1. Whether the confession was voluntary;
2. If so, whether it is true and trustworthy.
The confessional statement made by the accuse before a Magistrate is a good evidence and accused can be convicted on the basis of it.
b. Extra judicial confession - It is made by the accused admitting his guilt to any person other than the court or a Magistrate. Thus, it is a confession made outside the court or judicial proceeding. It may also include confession made in soliloquy. [Sahoo v. State of U.P., AIR 1966 SC 40]
Proof of extra judicial confession: An extra judicial confession can be proved by either:
a. Examining the person to whom confession is made orally, or
b. Inspecting the document in which the confession is recorded if confession is made in writing.
Thus, extra judicial confession is required to be proved before the Court to the extent that not only confession was made to such person but that it is true and correct record of what is stated therein.
Evidentiary value: As regards evidentiary value of extra-judicial confession, in State of MP v. Paltan Mallah, (2005) 3 SCC 169, the Court held that it is good piece of evidence and there is no harm in relying on such confession if found trustworthy. However, as a rule of prudence, since extra judicial confession is not made after taking due precautions, it is desirous that such confession should be corroborated with other independent evidences.
Supreme Court in Pancho v. State of Haryana, AIR 2012 SC 523 held that extra-judicial confessioin is a weak kind of evidence and it is prudent for the court to first ascertain whether it inspires confidence and then find out whether there are cogent circumstances to support it.
In Devi Lal v. State of Rajasthan, AIR 2019 SC 688 Supreme Court held that it is advisable for the court to look for corroboration with other evidence on record. Extra judicial confession has lesser evidentiary value than judicial confessions.
In Kushal Toppo v. State of Jharkhand, (2019) 13 SCC 676, Supreme Court observed that an extra judicial confession is a weak piece of evidence. Generally, it should not be relied in absence of corroborative evidence. An extra judicial confession cannot be treated as substantive piece of evidence against co-accused.
Supreme Court is State of Karnataka v. P.Ravikumar, (2018) 9 SCC 614 held that extra judicial confession made by accused can be relied upon and conviction can be recorded only when the following conditions are fulfilled:-
1. The witness proving extra judicial confession must state in his testimony exact words used by the accused or in words nearly as possible in making extra judicial confession to such witness.
2. Prosecution should prove the motive, occasion or reason for making extra judicial confession by the accused.
3. The testimony of the witness deposing about the confession should be credible.
4. The cirucmstances under which extre-judicial confession was made by the accused must be established.
5. It must be proved that extra-judicial confession was made voluntrarily.
6. It should be proved as to why the accused reposed confidence in the witness proving extra-judicial confession.
Retracted confession
Meaning - When a person once having recorded a confession, goes back from it at the stage of trial stating either that he did not make the confession or made in under fear or misconception, is known as retracted confession.
Evidentiary value of retracted confession: The confession would not cease to be a piece of evidence only because it has been retracted. The only difference which will occur is in its evidentiary value.
In Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094, the Supreme Court held that a retracted confession may form the basis of conviction if the court is satisfied that it was true and voluntarily made. Thereby as a matter of law, corroboration is not necessary if court if convinced about truthfulness and voluntary nature of confession; however prudence requires that retracted confession should not be acted upon without corroboration.
In Manoharan v. State (2020) 5 SCC 782, Supreme Court observed that on conjoint reading of the confessional scheme comprising Section 164 CrPC [now Section 183 of BNSS] and Section 24 of IEA [now Section 22 of BSA], in case of retraction of confessional statement made to Magistrate, the courts adopt a rule of prudence and reduces the probative value of such confessional statement and seek corroborating evidence.
Difference between Admission and Confession
A statement is a genus, admission being the specie and confession is the sub-specie. All the confessions are admissions but vice-versa is not true. Supreme Court in CBI v. VC Shukla, AIR 1988 SC 1406 observed that only direct acknowledgement of guilt is confession. But when confession falls short of actual admission of guilt then it may nevertheless be used as evidence against the person who made it or his authorized agent as an admission under Section 21 [now Section 19 of BSA].
Confession by co-accused
Section 24 states the circumstances when confession of an accused can be used against other co-accused. Following are the essentials of Section 24:
i. Two or more persons are being tried jointly.
ii. They are being tried for the same offence or for its abetment or attempt.
iii. Confession is made by one of the co-accused.
iv. Confession equally implicates the maker and the other accused.
v. Confession is duly proved against the maker.
If the above conditions are satisfied, confession by an accused can be used against other co-accused. Section 24 allows use of confession of one accused against co-accused if the maker of confession implicates himself also. Where the accused pleads innocence and throws the blame on co-accused, such statements are not relevant under this section. Section 24 is an exception to the rule that confession of one person is entirely inadmissible against other. In Bhuboni Sahu v. The King, AIR 1949 PC 1257 court held that Section 30 [now Section 24 of BSA] applies to confessions and not to the statements which do not admit the guilt of confessing party.
Under English law, such kind of confession is not admissible at all. But in India, it can be taken into consideration. The principle is that if the accused implicates himself, there must be truth in the statement.
It should be remembered that it is a weak kind of evidence against the other co-accused and it can only be used for the purpose of corroboration or served as indicative evidence.
For example: A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". The Court may consider the effect of this confession as against B as they were jointly tried for the offence of murder. On the other hand, if A is on his trial for murder of C and there is evidence to show that B and A murdered C and that B said - A and I murdered C, this statement may not be taken into consideration by the Court against A as B is not being jointly trial [see Illustration a and b to Section 24].
Such confession shall have the effect of implicating equally the other co-accused tried jointly with him. In Balbir Singh v. State of Punjab, AIR 1957 SC 216, the court held that for applicability of Section 30 [now section 24 of BSA], the confession must be duly proved that it is made by co-accused. If it is not proved by cross-examination or otherwise, then such confession cannot be used against any accused.
For example. A and B are co-accused of the crime of kidnapping and killing a child. A denies his guilt but B confesses that he along with A has committed the crime. This confession of B substantially implicates A and if duly proved, it can be considered against A.
Who is co-accused?
The term co-accused is not defined under the BSA, 2023 but Section 24 of the Adhiniyam provides that confession of a co-accused can be considered against other co-accused. By reading Section 24 of the BSA, we can say that for a person to be a co-accused, the following two conditions must be fulfilled:
a. Same offence: He must be tried for the same offence for which the other accused is being tried. The expression 'same offence', though not defined, but it means the offences which are punishable under the same section with same amount of punishment. Explanation 1 to Seciton 24 further provides that attempt to commit or abetment of any offence will also amount to offence for the purpose of this section.
For example: A and B committed offences of theft and murder respectivly in the same transaction, since the offence committed by them are not the same, they are not co-accused for the purpose of Section 24.
b. Joint trial: Another pre-condition for a person to be a co-accused is that he must be tried jointly of a singly trial with other accused. This, if A and B both are tried jointly for committing theft, then they will be said to be co-accused. But if they are tried separately, they will not be said to be co-accused even though they committed the crime together.
Further, it is also important that the person shall remain a co-accused throughout the trial. If he is granted pardon, then he will cease to be a co-accused.
Trial in absence of accused
Explanation II to Section 24 provides that a trial of more persons that one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the BNSS, 2023 shall be deemed to be a joint trial for the purpose of this section.
Evidentiary value of confession of co-accused
Section 24 does not talk of evidentiary value of the evidence of co-accuse. In Bhuboni Sahu v. The king, AIR 1949 PC 1257, Privy Council held that the confession may be considered by the court but Section 30 of IEA [now Section 24 of BSA] does not say that confession amounts to proof. There must be some other evidence. Such confession along with other evidences can be put inot the scale and weighed with other evidences.
By using the expression 'taken into consideration' in Section 24, the intent of legislature is made clear that confession made by co-accused equally implicating the other co-accused cannot be treated as a strong piece of evidence.
In the case of Kashmira Singh v. State of MP., AIR 1952 SC 159 the Court observed that even though the confession of a co-accused against another co-accused is allowed to be given in evidence, but its value is very feeble and its purpose is only to satisfy the court as to the conclusion drawn on the basis of other indepenent evidences. Thus, conviciton cannot be made solely on the basis of such confession. The reason is that the confession made by the accused is not on oath and since the co-accused is himself tried for that offence, his credibility is alo questionable.
There is a change in this provision. Explanation to Section 30 of IEA has been re-numbered as explanation 1 to section 24 of BSA. A new Explanation 2 has been added to section 24 of BSA, 2023. It provides that a trial of more persons than one hel in absence of the accused who has absconded or who failed to comply with the proclamation issued under Section 84 of BNSS, 2023 shall be deemed to be joint trial for the purpose of this section.
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