Evidentiary Value Of Confession Or Disclosure Statement Made By Accused

Vishal Garg Narwana, Advocate
Punjab & Haryana High Court, Chandigarh
Email Id : adv.narwana@gmail.com

Date : 09/01/2023
Location : Kothi No. 2024, Sector 21-C, Chandigarh
📱 +91-9914420421

Evidentiary Value Of Confession Or Disclosure Statement Made By Accused

The subject of confession is not defined in the Indian law. As per Article 22 of Stephen's Digest of the Law of Evidence, Confession is defined as "an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime".

Article 20(3) of the Constitution of India mandates that no person accused of any offence shall be compelled to be a witness against himself. In the light to the aforesaid provision, the Indian Legal System does not accord much significance to confessions by an accused.

Section 25 of Indian Evidence Act, 1872 deals with confession made by any person to a police officer and states that no such statement can be proved against any person accused of any offence. This section works on the logic that if confessions to police were allowed to be used as evidence, the police would torture the accused and force him to confess to a crime which he might not have committed. The words "statement made to a police officer" necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to a police officer for the purposes of showing that the statement was made to a police officer.

Section 26 of Indian Evidence Act deals specifically with those confessions which are made by an accused whilst he is in the custody of a police officer and states that no such confession shall be proved against the person who is making it.

Section 27 of Indian Evidence Act lays down 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 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 was once a matter in controversy as the contents of it might appear to be contradictory to its preceding sections. It is more than a mere exception to all or any of the preceding sections; it deals with ''information" whereas the preceding sections deal with only confessions. Sections 25 and 26 of Indian Evidence Act overlap to some extent as a confession by a person in custody to a police officer is hit by both of them. Section 27 of Indian Evidence Act deals with any information confirmed by subsequent facts received from a person in custody whether such information is received by a police officer or by someone else.

A confession made by the accused, while he is in custody or not, to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. Confession made by the accused whilst in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered no more, is provable in a proceedings in which he is charged with the commission of an offence. A statement made a person to police officer in the course of an investigation of an offence under Chapter XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.

All these sections, the expression "accused person" in Section 24 of Indian Evidence Act and the expression "a person accused of any offence" have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. Even if it is an admission, if it is made in the course of investigation under the Cr.P.C. to a Police Officer, then the same will not be admissible under Section 162 of the Cr.P.C. as it clearly prohibits the use of the statement made to a police officer under Section 161 of the Cr.P.C. except for the purpose, which is mentioned therein.

A statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him.

Sections 25 and 26 of Indian Evidence Act were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. By the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts depends for its determination on the question whether he was in custody at the time of making the statement. The said statement is provable if he was in custody at the time he made it, otherwise it is not. Where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. After interrogation, the accused makes a statement and led the police to a field and thereafter produced certain articles which were the subject-matter of a criminal offence was sufficient to establish that there was submission on his part to police custody. The word 'custody' in Sections 26 or 27 of Indian Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police or can be said to have been under some sort of surveillance or restriction. Thus in all cases the 'police custody' is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. If the statement to police is hit under Sections 25 or 26 of Indian Evidence Act as tainted evidence.

The principle underlying Section 27 of Indian Evidence Act that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible. But if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of so-much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured.

In the light of these principles first consider whether the confession is hit by Sections 24 to 26 of Indian Evidence Act and thereafter consider the question of applicability of the proviso contained in Section 27 of Indian Evidence Act which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody.

Section 162 Cr.P.C. excludes a statement made to a police officer but would not exclude the incriminatory conduct of an accused decrypted and discerned. Section 162 Cr.P.C. bars the prosecution from relying on the statement of an accused, and not evidence relating to the accusing conduct, before, at the time of occurrence and thereafter, divulged and disseminated by the accused when confronted or questioned by the police officers. The said provision states that the conduct of a party, both antecedent and subsequent in reference to a proceeding or reference to any issue or relevant fact is relevant. Where inculpatory information or other clues are revealed by the accused, evidence of the Investigating Officer to this effect would be admissible under Section 8 of the Evidence Act, when the said fact is corroborated by a third person for the facts testified by the public witness would relate to the conduct of the accused. The information given by an accused that provides lead to the Investigating Officer that unravel facts relating to the accused's conduct, which were till then unknown to the Investigating Officer and which could not have been known, but for such information coming from the accused when sufficiently proved and corroborated by a public witness would fall under Section 8. This evidence can be relied to prove the accused's complicity. The evidence of conduct when led would carry the credibility and weight depending on the facts including nature of confirmation and back ground facts, as is the case of Section 27 of the Evidence Act. The probative value and weight are matters of assessment dependent upon the factual matrix of each case. Sometimes the disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act. The expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused.

Admission is defined in Section 17 of the Evidence Act, as a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21 of Evidence Act. A confession is a specie of an admission of an accused. It is an acknowledgment in express words of the truth of the guilty fact charged. It is admission of all the facts in issue and consists expressly or impliedly of as many admissions as there are facts in issue.

The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.

The 'right against self- incrimination' does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

Similarly, a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act.

The Hon'ble Supreme Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings for interpreting and exhibiting the disclosure statements. So, the Hon'ble Supreme Court has suo moto took the action to check and cure the anomaly. The Hon'ble Supreme Court has directed the Hon'ble High Courts to make the rules regarding the exhibiting of the disclosure statemnts of the accused. The hon'ble Supreme Court has observed that the Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number. This will make the uniformity regarding the interpretation, appreciation and exhibition of the disclosure statement in the trial.


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