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Extra Judicial Confession Must Be Of `Sterling Quality' - Supreme Court Of India

In criminal trials confession made by the people involved in the crime has significant importance, though it depends upon the admissibility of the confession made and also before whom such confession is made. A confession made by an accused can prove to be instrumental in proving his guilt but the same has be analyzed from all angles as to ascertain in what condition and circumstances the confession was actually made. The term "confession" per se has not been defined in the Indian Evidence Act, but the inference can be drawn from the definition of "admission" as given in section 17 of the Evidence Act, which defines admission as statement whether oral or in the form documentary which put forward for the consideration of any conclusion to the fact in issue or to the relevant facts.

The word `confession' appears in the Indian Evidence Act for the first time in Section 24 and it is deemed to be a species of admission made by an accused person which is sought to be proved against him in criminal proceedings to establish his guilt. Lord Atkin, in Pakala Narayan Swami v. Emperor (1939) 41 BomLR 428 defined the word "confession" to mean, "A confession must either be admitted in the context of any offence or in relation with any substantial facts which inaugurate the offence with criminal proceedings. And an admission of serious wrongdoing, even conclusively incriminating fact is not itself a confession". The definition given by the Privy Council in Pakala Narayan Swami (supra), was enhanced and deliberated in detail by the Hon'ble Supreme Court of India in the case of Palvinder Kaur v. State of Punjab AIR 1952 SC 354. The Apex Court held that the confession only comes to exist if there is admission in terms of the offence or admission to all such facts which constitutes the offence and further held that when the statement has different qualities i.e., both exculpatory and inculpatory statements and contains such a mixture of confessional statements which conclude to the acquittal of the person making the confession, then such statements cannot be considered as a confession.

Based on before whom the confession is being made, it can be divided into two parts i.e., judicial confession and extra-judicial confession. A confession made before a Magistrate or court in due course of the legal proceedings is a judicial confession and if such confession is being made before any person other than a judicial magistrate or court seized of the charge, such confessions are referred to as "extra judicial confessions." The article here emphasizes on the "extra judicial confession" and delineates about its relevancy and admissibility in the trial.

To say in simplest terms, without using any legal jargon, an extrajudicial confession takes place when a person admits his guilt of committing a crime to a private individual, such as a friend or family member. Such confession can be accepted during the criminal proceedings if it is found to be of sterling quality. It is no more res integra that an extra judicial confession must be accepted with great care and caution. There should not be any shadow of doubt on the same as due to the self-incriminating nature of such a confession such a piece of evidence is generally treated as a weak piece of evidence as has been held in Gopal Sah v. State of Bihar, (2008) 17 SCC 128 and Pancho v. State of Haryana, (2011) 10 SCC 165.

The concept of evidentiary value of extra judicial confession was discussed in detail in the Constitutional Bench judgment of Haricharan Kurmi v. state of Bihar AIR 1964 SC 1184 in which the court came to the conclusion that an extra-judicial confession can only be used to strengthen the opinion formed by the Court after perusing other pieces of evidence placed on record. It was held that the court cannot start with the confession, rather it has to begin with the other evidence and after it has formed an opinion with regard to the quality and effect of said evidence, can it turn to the confession for receiving an assurance to the conclusion of guilt which the judicial mind is about to reach from such other evidence. The judgment in the case of Haricharan Kurmi (supra) was considered in detail in the case of Pancho (supra) was discussed in detail while making following observations: -

"27. This Court in Haricharan case [AIR 1964 Supreme Court 1184 : (1964) 2 Cri LJ 344] further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right.

28. This Court in Haricharan case [AIR 1964 Supreme Court 1184 : (1964) 2 Cri LJ 344] clarified that though confession may be regarded as evidence in generic sense because of the provisions of Section 30 of the Evidence Act, the fact remains that it is not evidence as defined in Section 3 of the Evidence Act. Therefore, in dealing with a case against an accused, the court cannot start with the confession of a co-accused; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."

Thus, extra judicial confession that is suffered by the accused is a sword of Damocles that is hanging over his head as the same with the corroboration of the evidence presented to the Court by the prosecution can prove to be the last nail in the coffin and if not corroborated and found to be the one inspiring confidence, can be discarded altogether. Given the nature and volatility of such a confession the courts over the years,the Apex Court and the High Courts across the country have established guidelines which have to be followed before accepting such a confession into evidence and ultimately use it for conviction of the accused. In Sahadevan v. State of T.N., (2012) 6 SCC 403 the Apex Court culled out certain principles regarding the reliability of an extra-judicial confession, which have also been relied upon in Jagroop Singh v. State of Punjab, (2012) 11 SCC 768, Tejinder Singh v. State of Punjab, (2013) 12 SCC 503 and Vijay Shankar v. State of Haryana, (2015) 12 SCC 644. The principles as stated in Sahadevan (supra) are reproduced below:

"16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

Keeping all these facts in mind, recently Supreme Court in the case of Prabhatbhai Aatabhai Dabhi v. State of Gujarat 2023 INSC 1003 have examined the importance of the quality of evidence, particularly in cases where extra-judicial confession has been taken into account as evidence, most especially in a murder case. The Apex Court acquitted the convict while emphasizing the fact that for extra-judicial confession to be considered as evidence against the accused, the same should be of sterling quality and should be in line with the chain of evidence produced before the court. The Hon'ble Court while acquitting the convict observed that normally any accused person would make a confessional statement before a person in whom he has complicit faith, which is an important and relevant fact while determining the evidentiary value of the confession made for reaching to the conclusion of conviction.

For evidence that is of the nature of extra-judicial confession one has to be very careful and there cannot be any scope for doubt as the court should be instilled with the utmost confidence to accept the same on its face value alone. We have to clearly understand what is entailed by the term `sterling quality' which has been used time and time again to define the benchmark that has to be followed before accepting any confession into evidence that could ultimately lead to the conviction of the accused. One of the key benchmarks that have been upheld by the Apex Court is that the witness should be able to stand cross examination for any length of time and in no circumstances doubt can creep into the mind of the judge. The statement that is made by the accused in such circumstances has to be consistent from the start till the very end and should also be in consonance with the evidence that has been found during the investigation at the same time keeping it in mind that the confession that has been made by the accused is free from any kind of inducement. This Court in the case of Rai Sandeep @ Deepu alias Deepu v. State (NCT of Delhi) (2012) 8 SCC 21 has held:

"22. In our considered opinion, the "sterling witness" should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and 13 every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

Thus, it is imperative that the extra-judicial confession should be of sterling quality to be considered as evidence to hold an accused guilty as it has to be strong enough to withstand every test as liberty of a man hangs in the balance. For the extra judicial confession is a weak form of evidence and to rely upon same for holding the guilt of an accused, it comes at last only to supplant the cogent chain of evidence and cannot be a sole basis to hold the an accused guilty of a charge.

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