Admissibility of Confession Evidence Law in India

Awarding punishment to the culprits is the main object of criminal justice system. There are various stages involved in prosecuting a person. Sometimes, during investigation by police, an accused confesses his/her fault/guilt. But all confessions are not voluntary. The bare confession of accused is sufficient evidence to warrant his conviction even though; there is no corroborative testimony of his having committed of crime with which the accused stands. But this maximum lurks, the cruellest fallacy, which has exhibited itself practically in the form of torture. A confession is a free and voluntary admission of guilt by an accused person. The reason for rejection of confessional statements is that when confessions are not voluntary, there is the danger of the accused falsely implicating himself. The different countries have different rules governing the admissibility of confessions. These rules serve to guarantee that wrongful convictions do not occur. They also serve as a deterrent to abusive interrogation by the police. Some interrogative techniques violate the defendant’s free-will or procedural rights.

In India, the law of evidence is sheltered under Indian Evidence Act, 1872, a pre-independence enactment. A bulk of theories and principles articulated in the Evidence Act are still fundamental in achieving its objectives, however there are some areas which contradict to embark upon the current realities. The provision of evidence relating to confession which is out-dated needs a grave overhaul to come into terms with backlog of criminal cases in India. To reform this technique of third degree methods is indispensable so as to invigorate the truth and faith of the people of India in Police. This paper considers the law on confession. It outlines illegally/improperly procured evidence and entrapment by the police during interrogation. The present paper explores the confession in relation to criminal law through concrete decisions by the Supreme Court it is attempted to enlighten the safeguards available to innocent sufferers in the hands of Police.

  1. Introduction

Confession is considered an explicit admission of guilt, rather than, it would be admissible in trial unless the trial court is expedient that confession, made to him, is voluntary or non-voluntary and it has been made freely or not freely from any inducement, threat or promise by the persons in authority. In the case of Selvi v. State of Karnataka,[1] it was held that, the process to extract confessional and thereafter to use them against the maker are against the rule of Section 24, 25 and 26 of Indian Evidence Act, 1872, because Section 24 provides that confessions caused by inducement, threat or promise etc., would be irrelevant in criminal proceedings, Section 25 ignores the confessions made to police officers and Section 26 also provides that confessions, made under police custody unless the presence of Magistrate, would be irrelevant.[2]

Confession should be used in trial after having discussed rule of law because all Sections 24 to 30 of Indian Evidence Act, 1872 as to confessional provisions have been co-related with ‘rule of law’ (equal protection of law) enshrined in Article 14 of Constitution of India, 1950. India is a common law country and here a person is to be innocent until proven guilty from which it may be noted that confession, made by a person suspected, should be taken into consideration by the Court or should be corroborated with other evidence collected during investigations under sections 161 &162 of the Code of Criminal Procedure, 1973. Even then, persons are tortured i.e., suspected/innocents were tortured by police officers in police station to confess a particular crime and compelled to self-incriminating, so that they could save themselves from the hard task of investigation. Another problem came into existence at present time that investigating agencies are using narco-analysis, brain-mapping and polygraphs or lie-detectors to extract confession from the suspects to procure vital information. The usage of them violates the personal liberty of person, enshrined in Article 21 of the Constitution of India as a fundamental right.

  1. General Concept of Confession

The term confession is not defined anywhere in Indian Evidence Act. But it is thought that an Admission in case of a criminal matter is Confession.  A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.  However, Privy Council, in case of Pakala Narayan Swami v. Emperor[3], did not accept this definition. In this case Lord Atkin observed that no statement that contains self-exculpatory matter can amount to a confession. Further, a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An offence of a gravely incriminating fact is not in itself a confession.

The decision in Pakala Narayan Swami’s case was approved by the SC in the case of Palvinder Kaur v. State of Punjab[4]. In this case, Palvinder was on trial for murder of her husband along with another, who all the time remained absconding. In her statement to the court, her husband was hobbyist photographer and used to keep handy photo developing material which is quick poison. On this occasion, he was ill and she brought him some medicine and the medicine was kept near the liquid developer and by mistake swallowed the liquid and died. She got afraid and with the help of the absconder, she dumped the body in the well. The statement, thus, partially admitted guilt and partially showed innocence. Here, the lower courts sorted out the exculpatory part and convicted her on the inculpatory part. However, the SC rejected this approach and held that the rule regarding confession and admission is that they must either be accepted or rejected as whole.

From the above discussion the difference between admission and confession can be drawn up as such that an admission is a statement that may or may not be a conclusive evidence of a fact in issue or relevant fact but to be a confession, the admission must conclusively prove the guilt of the maker of the admission. Thus, a statement which may not amount to confession may still be relevant as admission. Only a voluntary and direct acknowledgment of guilt is confession, but when confessions fall short of actual admission of guilt, it may nevertheless be used as evidence under Section 21.

  1. Admissibility of Scientific Evidence in Criminal Trials

Extraction of confession, at present time, accused/ suspects are undergoing to narco-analysis, brain mapping and polygraph tests by the investigating agencies or police to extract truth from them for collection of evidence concerning a particular crime which are violation of fundamental rights enshrined in Article 20(3) and 21 of the Constitution of India. In Dinesh Dalmia v. State[5] and Sh. Shailender Sharma v. State[6], it was held by the Madras High Court that scientific investigation methods may have to be carried out to find the truth. Narco-analysis test is a step to aid of an investigation. It forms an important basis for further investigation as it may lead to collection of further evidences. In both cases the court ignored the constitutional rights of the persons suspected and violated their fundamental rights.

In Selvi & Ors. v. State of Karnataka[7], it was held that narco-analysis, polygraph (also called Lie-detectors) and brain mapping tests to be unconstitutional as they violate Article 20(3) of the Constitution. A three-judge Bench of Chief Justice K.G. Balakrishnan, Justices R.V. Raveendran and J.M. Panchal observed that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. It is also argued that the use of Narco-analysis was of particular relevance in the context of terrorist- related cases, conspiracy to commit murder and other serious offences in which probe agencies got vital leads for follow up action. The judgment assumes significance as probe agencies have used narco-analysis, brain-mapping and polygraph tests in a number of high-profile cases i.e., fake stamp paper kingpin Abdul Karim Telgi, Nithari killing’s accused  and Arushi murder case suspects as well as parents of the teenager.

  1. Admissibility of Confession in Anti-Terrorism Laws

The 69th Report of Law Commission of India, 1977 recommended that all confessions made to police officers should be made admissible subject to certain conditions. In response to this, the legislations like Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and thereafter Prevention of Terrorism Act, 2002 (POTA) had been passed, wherein confessions made to police officer were made admissible subject to certain safeguards. But the 185th Law Commission Report, 2003 held that in the light of the earlier observations such a provision would be unconstitutional and opposed to Article 20(3) and Article 21 of Constitution of India. POTA, 2002 was repealed in 2004 on the basis of violation of human rights and fundamental rights enshrined in the Indian Constitution, and then amended the Unlawful Activities (Prevention) Act, 1967 in 2004 into a new law namely Unlawful Activities (Prevention) Amendment Act, 2004 and discarded an obnoxious provision in POTA which made confessions to the police admissible in evidence.[8]

In the case of People’s Union for Civil Liberties v. Union of India[9], the constitutional validity of the Prevention of Terrorism Act, 2002 was discussed. TADA, 1987 also lapsed in 1995 because when TADA was enacted it came to be challenged before the Apex Court of the country as being unconstitutional. The Supreme Court of India upheld its constitutional validity on the assumption that those entrusted with such draconic statutory powers would act in good faith and for the public good in the case of Karta Singh v. State of Punjab.[10]

In Jameel Ahmed & Anr. v. State of Rajasthan,[11] the Supreme Court has laid down that in regard to use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co- accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co- accused. The next question was raised whether the confession of the accused which cannot be proved against a co-accused either under Section 32(1) of POTA or under Section 30 of the Evidence Act, would be relevant evidence against the co- accused involved in the conspiracy by reason of Section 10 of the Evidence Act. Then Supreme Court reiterated the decision of Bhagwan Swaroop v. State of Maharashtra,[12] in which it was held that, retracted confession cannot be acted upon unless it is voluntary and can be corroborated by other evidence; that a confession of the accused can be used against a co- accused only if there is sufficient evidence pointing to his guilt; a confession made under POTA cannot be used against co-accused as POTA operates independently of Indian Evidence Act and Indian Penal Code; a confession made involuntary is in admissible evidence and Section 10 of Evidence Act has no applicability as confessionary statement has not been relied on for rendering conviction.

In reference of the admissibility of Section 27 of Indian Evidence Act, 1872, the court held that the fact discovered on the basis of information supplied may qualify for relevancy if it is the immediate and proximate cause of the information. It is not necessary that the accused should be taken to the spot to point to the place of hiding though this fact may be taken into account for evolution of evidentiary value. The fact that disclosure statement was signed by the accused does not detract it from its admissibility. A joint and simultaneous disclosure is also relevant. But such a thing being rare, it will be on the factors to go towards evolution.[13]

  1. Comparative Study of Confession Law

Countries like the U.S., U.K. or Australia possessing adversarial criminal justice systems assume Miranda Rights[14]as right to remain silent, anything you say or do may be used against you in a court of law, right to counsel etc. during interrogation by police and at the time of extracting confession from the suspects/ accused. Besides, China had no rights like those discussed above while in China, most criminal cases had been decided on the basis of whatever confessions had been obtained forcefully or extracted after the suspects were tortured in police custody. All confessions made to police officers in any condition had been inadmissible in trial court of China because in China, police dominated the judiciary and the Courts are regarded as weak and subordinate to the Communist Party and the National People’s Congress. Chinese justice is not based on the idea of innocent until proven guilty. For the most part one is guilty until proven innocent. But after the Criminal Procedure law Amendment 2013 came into existence, China also banned on the forcefully obtaining confession and barred those confession in Court of law admissible evidence against the accused.

Compared to India, all countries mentioned above did not ignore the confessions made to police officers from being admissible against the maker at the time of trial but not to be obtained forcefully or extracted through third degree sources used. But India rejected the confession made to police officers as admissible at the time of trial against the suspects/ accused in court of law. In the United States, a confession is admissible if a judge deems it to have been made voluntarily. In Brown v. Mississippi,[15] the U.S. Supreme court first excluded confessions procured and introduced in a state criminal case concluding that admission of the confessions would violate due process. English Law, like American law, requires a finding of voluntariness before the admission of the confession.[16] The prosecution has the burden of proof to show that the confession was voluntarily made. The judge must decide on the issue of the voir dire hearing, which is outside the presence of the jury. Confessions are governed by Section 76(2) of the Police and Criminal Evidence Act (PACE) of 1984.

In Australia, this principle is reinforced in the Evidence Act of 1995, Section 84, which reads that a confession was not influenced by violent, oppressive, inhumane or degrading conduct or a threat of any kind. On the other hand, in India no confession made to police officer is valid as evidence at trial. All confessions must be made to a Magistrate not below the rank of Judicial Magistrate. The Magistrate taking the confessions must give the accused due time out of the custody of police, and make an effort to ensure that the accused was not coerced or intimated in anyway, before receiving the confession. At the bottom of the confession the Magistrate must write out that he has informed the accused that this confession may be used against him and he is not obligated in any way to incriminate himself.[17]Under English Law, a confession of co-accused against other co-accused is not admissible at all but in India it can be taken into consideration as described, the principle being that because a person implicates himself there must be truth in the statement.

  1. Conclusion

It is concluded that, only such information or statements would admit as a confession that were direct or immediate cause of the discovery or offence, although the statement made by a person should not be self-incriminating to the crime. This study shows that, all statements made by a party would not be a confession and not all information relating to fact discovered would be proved against the person accused/suspect. In lieu of this, it is pertinent that provisions of criminal law be changed so as to reduce the time needed for a common person to get justice. After all, Justice should not only be done, but also be seen to be done.


This Article is written by Dr. Faizanur Rahman, Assistant Professor at Faculty of Law, Jamia Millia Islamia, New Delhi.


References:

[1] AIR 2010 SC 1974

[2]The SC declared that all narco-analysis, brain mapping and polygraph tests are unconstitutional as they violate Article 20(3) on the ground that these tests are dangerous to the persons’ life and affect the mind of persons indulged, so it also intrudes personal liberty enshrined under Article 21 of the Constitution and held that narco-analysis, polygraph and brain mapping tests cannot be conducted on any person, whether an accused or a suspect, without their consent.

[3] (1939) 26 AIR PC 47.

[4] AIR 1952 SC 354.

[5] 2006 Cri. L.J. 2401.

[6] Crl. WP No. 532 of 2008.

[7] AIR 2010 SC 1974, furthermore it was observed that, the results obtained from each of the impugned tests bear a testimonial character and they cannot be categorized as material evidence. Narco-Analysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. The subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act.

[8] Section 32 of the POTA state that confession made by a person before a before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical or electronic device like cassettes, tapes or sound tracks from out of which sounds or images could be reproduced shall be admissible in trial of such person for the offence under this Act.

[9] (2004) 9 SCC 580.

[10] (1994) 3 SCC 569.

[11] 2003 (9) SCC 673.

[12] AIR 1965 SC 682.

[13] State (NCT) of Delhi v. Navjot Sandhu (2005) 11 SCC 600.

[14] Miranda Rights, is a warning given by police in the Unites States to criminal suspects in police custody (or in custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings. These had been referred in the case of Miranda v Arizona, 384 US 436 (1996).

[15] 297 US 278 (1936).

[16] Gordon, Van Kessel, ‘The Suspect as a Source of Testimonial Evidence: A comparative of the English and American Approaches’, 38 Hastings LJ. 1, 121 (1986).

[17] The Criminal Procedure Code, 1973, s. 51.

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