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Confessional FIR : All You Need to Know

"God removes the sin of the one who makes humble confession, and thereby the devil loses the sovereignty he had gained over the human heart" -

Saint Bernard

One who is guilty of sin must be punished, but, sometimes a person admits or confesses his guilt to purge his soul from sin. Sin is an act of transgression against divine law. In Hinduism, sin describes actions that create negative karma by violating moral and ethical codes, which automatically brings negative consequences Muslims see sin as anything that goes against the commands of Allah (God). Judaism regards the violation of commandments as a sin as long as the sinner is aware of the commandment. In Jainism, sin refers to anything that harms the possibility of the jiva (being) to attain moksha (supreme emancipation). Not all confessions reveal sin or wrongdoing. Some are often considered positive both by the confessor and by the recipient of the confession, for e.g. a confession of love, which is a common theme in literature. But, a legal confession involves an admission of some wrongdoing that has legal consequences. People may undertake confessions in order to relieve feelings of guilt or to seek forgiveness from a wronged party.

At present, in Indian law, majorly the Indian Evidence Act, 1872, hereinafter referred as Evidence Act, governs the principles of admissibility of confession made by an accused person and the Code of Criminal Procedure, 1973, hereinafter referred as CrPC, postulates the appropriate procedure to be followed by the Indian courts while dealing with the confessions of accused persons so as to ensure fair trial (see section 164 CrPC). Sections 24 to 30 of the Evidence Act deal with the confessions. Of these, Sections 24 to 26 deal with confessions which are irrelevant and Sections 27 to 30 enumerates confessions which the court will take into account. Now, the question is that what is a confession and in what way does it differ from an admission? The answer to this question is found in the classic judgement of the Judicial Committee of the Privy Council in Pakala Narayana Swami v. King Emperor, AIR 1939 PC 47 :

"No statement that contains self-exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit interms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other mans possession."

This shows that all confessions are admissions but not vice versa. Further, there can be an admission either in civil or criminal proceeding, whereas there can be a confession only in criminal proceeding.

Classification of Confessions

Confessions are classified as follows: 1) Plenary, and 2) Non-plenary, i.e. complete or incomplete. In view of the nature of a confession as explained in the Pakala Narayana Swami case supra, this classification is inapplicable in India. Another method of classifying confessions is into: 1) Judicial, and 2) Extra- judicial confessions. Judicial confessions are those made before a court or recorded by a Magistrate u/s 164 CrPC. Extra- judicial confessions are those made either to the police or to any other person other than judges and Magistrates as such.

But, the legal quagmire emanates when an accused himself gives the FIR to the police and admits his guilt therein, which poses a significant question that whether in such circumstances, the inculpatory portion of such statement should be excluded from evidence? Whether self- exculpatory statement can be admitted in evidence if otherwise relevant? This very much issue prompted me to write this article and in this article, we would discuss this issue in depth and try to reach at some reasonable conclusion.

Now, before proceeding further, we must take a glance at the Section 154 CrPc which deals with registration of FIR i.e First Information Report (though the section does not use the word First Information Report or FIR). The said section provides that every information relating to the commission of cognizable, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and shall be read over to the informant and must be signed by the person giving the information and the substance of such information shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The Constitution bench of the Supreme Court in the case Lalita Kumari v. Govt. of UP, held that registration of FIR is mandatory u/s 154 CrPC if the information discloses commission of a cognizable offence.

Evidentiary Value of FIR

The issue is no longer Res Integra that an FIR is not a substantive piece of evidence i.e. it cannot be used as evidence to prove a fact in issue or relevant fact, however, it is a relevant fact u/s 8 Evidence Act, as it is a statement which accompany and explain acts other than statements i.e. an FIR gives information, expresses grief and dissatisfaction in a hope that action would be taken against the person against whom the complaint was made. It can be used to corroborate or contradict the informant u/s 157 and 145 of Evidence Act, respectively, if such informant is called as a witness.

Confessional FIR

Suppose, a person A commits murder of his wife B and thereafter, goes to the police station and confesses his guilt and describe the factum and manner of said murder to the police and the police, thereafter, arrested him and registered an FIR u/s 302 Indian Penal Code, 1860, hereinafter referred as IPC, on the basis of the said confession made by A. This is called "Confessional FIR". The Indian Evidence Act does not define the word "confession". For a long time, the courts in India adopted the definition of "confession" given in Article 22 of STEPHENs DIGEST OF THE LAW OF EVIDENCE. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayana Swami case supra and the observations made therein were received the approval of Honble Supreme Court in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354; State of UP v. Deoman Upadhyaya, AIR 1960 SC 1125; Om Prakash v. State AIR 1960 SC 409; Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302; Jameel Ahmed v. State of Rajasthan AIR 2004 SC 588.

Evidentiary Value of Confessional FIR

The Supreme Court had examined the quagmire of evidentiary value of a confessional FIR in Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119. The brief facts of the case are that the appellant murdered Somra and later Chamin and then Ratni and Dilu. The FIR of the offences was lodged by the appellant himself at the police station, which was reduced to writing by the officer in charge and the appellant affixed his left thumb impression on it. Thereafter, the Sub-Inspector took cognizance of the offence and arrested the appellant.

In that case, the FIR was divided into 18 parts. Parts 1, 15 and 18 show that the appellant went to police station to make the report. Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 discloses the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi (murder weapon) and his ability to point out places where the dead bodies and tangi were lying. Part 14 discloses the previous confession by the appellant. The High Court admitted in evidence Parts 1, 2,3, 5, 7, 8, 10, 13, 15, 16, 17 and 18 and convicted the appellant.

While deciding this case, the Supreme Court made following observations:

(1) It is not permissible in law to separate one part and to admit it in evidence as a non- confessional statement, which may reveal motive, preparation, opportunity, intention, subsequent conduct of accused, etc. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. If the confession is tainted, the taint attaches to each part of it.

(2) If proof of the confession is excluded by any provision of law such as Sections 24, 25 and 26, Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating fact must also be excluded, unless proof of it is permitted by some other section such as Section 27, Evidence Act.

(3) If the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.

Hence, in Aghnoo Nagesia case, the Supreme Court held that save and except Parts 1,1 15 and 18 identifying the appellant as maker of the FIR and save and except the portions coming within the purview of Section 27, the entire FIR must be excluded from evidence. It implies that an FIR recorded on the basis of statement of the accused cannot be admitted in evidence to the extent to which it is a confession, in view of ban provided in Section 25 Evidence Act, which says that "No confession made to a police officer shall be proved as against a person accused of any offence."

It is important to note here that in the said Aghnoo Nagesia case supra, the Honble Supreme Court has acquitted the appellant from all the charges and set his life at liberty.

Epilogue

In summing up, it is hereby concluded that the observations by the Honble Supreme Court in Aghnoo Nagesia case supra, require reconsideration for the following reasons:

(a) The confession of an accused person should not be taken as whole. It has to be separated from other incriminating facts which may be self- exculpatory in nature but not inculpatory which point towards adverse inference against the accused showing his guilt of the crime.

(b) In a statement of an accused made especially in such peculiar circumstances where he himself lodges an FIR and confesses his guilt, such statement has to be divided into parts and should not be accepted as tainted in Toto, except confessional one, because such statement, if not made during investigation, does not hit by embargo provided u/s 162 CrPC and can be proved against an accused by invoking provisions of Evidence Act, if such fact is otherwise relevant under Indian Law of Evidence, such as Section 7, 8, 9, 14, 27 and others.

(c) While deciding such an issue, it has to be looked into the factor that in such circumstances, the accused cannot be in custody of the police and he himself approaches the police and lodges the FIR and confesses, which implies that such statement in the form of FIR is voluntary and cannot be said a tainted one.

(d) If the discovery of an article by an accused in consequence of his confessional statement made in police custody can be a relevant fact under section 27 Evidence Act, then why and for what reasons the non-inculpatory facts, though incriminating in nature, in a confessional statement should be excluded and brushed aside by not separating such facts from confessional one and considering it as a tainted one, if such facts are otherwise relevant under provisions of Evidence Act.

(e) The assumption whether the whole statement is a confession may also be re-examined in view of the observations of the Privy Council in the Pakala Narayana Swami case.

Therefore, it is respectfully submitted here that when the accused himself lodges FIR to the police and confesses his guilt, the inculpatory portion of statement only should be excluded from the evidence, but no other. It is, hence, most respectfully submitted that the view in Aghnoo Nagesia case that the entire statement is tainted may be reconsidered.

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