Dr. Y. Srinivasa Rao, Senior Faculty Member -II,
(District & Sessions Judge), A.P. Judicial Academy, y.srinu.judge@gmail.com.
Statement is genus, admission is a species and a confession is the sub-species1.
Introduction:
Admission is a statement which suggests an inference as to any fact. The word ‘Statement’ includes both oral and written statements. Admission is an oral statement or is a documentary statement or is contained in electronic form. Such statement must suggest any inference as to a relevant fact or a fact in issue, which is made by any of the persons and under the circumstances referred to in sections 18 to 22A of the Indian Evidence Act, 1872. This proposition of law, so far as criminal cases are concerned, is subject to sections 25 to 29 of the Evidence Act. To say in short, admissions are dealt with Sections 17 to 22A and 31 of the Evidence Act. In this present paper, the study is limited to sections 17 to 22A and 31 read with section 25 to 29 of Indian Evidence Act, 1872. A statement in relation to a fact or circumstance which is not in issue or relevant is not an admissible as laid down in Sita Rama Bhau Patil2’s case. Generally, admissions are hearsay. But, these provisions provide exceptions to rule against hearsay. The rule is probative value of an admission does not depend on the communication3. Self serving statement is not an admission4. ‘Statement’ only means what is stated. What is admitted by a person to be true may be presumed to be true unless the contrary is proved. Every confession is an admission, but not every admission is a confession. An admission cannot be split up. It must be read as a whole5. An admission on question of law has no effect6. An admission must be clear and unambiguous7. An admission by a party is relevant as substantive evidence. An admission even of gravely incriminating fact does not amount to a confession8. An admission the best evidence, despite it is not conclusive9. If admission is capable of two interpretations, the one which is unfavourable to the maker cannot be accepted. The word ‘Confession’ is not defined in the Indian Evidence Act, 1872. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession(infra).
Admissions and Confessions – Relevancy in criminal cases:
‘Admission’ is to be understood by studying sections 17 to 20 of the Evidence Act, 1872 together. Section 21 of the Evidence Act declares admission of a party relevant. The Admissions referred to sections 17 to 21 of Evidence Act, 1872 are evidentiary admissions and they have to be proved in a case just like any other fact, wh ich means that they should be tendered in evidence10. An admission is a very strong piece of evidence and is almost conclusive if not explained or not shown to be wrong11. An admission is a statement against the interests of the maker and prejudicial to him12. In a case of adultery or bigamy, mere previous admission of marriage is not sufficient13. An admission by an agent is never relevant in criminal cases, except to the extent contemplated in section 30 of the Evidence Act and also where the principal and agent are arrayed as accused in a criminal case.
The fundamental rule is such that accept by a plea of guilty, admissions dispensing with proof, as distinguished from admissions which are evidential, are not permitted in a criminal trial14. However, an elementary rule is that an accused is not bound by the admission made by his counsel in criminal case does not apply in a case where the counsel deposes in court on oath in contradistinction with a concession made by a counsel15.
1. A statement in a FIR can normally be used only to contradict its maker as provided in section 145 of the Evidence Act, 1872 or to corroborate his evidence as laid down in section 157 of the Evidence Act, 1872.
2. An admission is relevant and so it can be proved as against the maker or his representative in interest; but it cannot be proved by or on behalf of the maker or his representative in interest. This proposition has some exceptions such as 1) the maker is dead and the admission would be relevant as between third persons under sections section 32 of the Evidence Act; 2) if the admission is relevant otherwise than as an admission and 3) where the admission consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed and is accompanied by conduct rendering its falsehood improbable.
3. An admission may be proved by or on behalf of the persons making it or his successor. Example: Where an accused who is said to have committed an offence in Tirupati produces a letter written by himself and dated at Chennai on that day and bearing the Chennai post mark of that day, the statement in the date of the letter is relevant, why because, if the accused were dead, it would be relevant under section 32 (2) of the Evidence Act, 1872.
4. In case of an accused who is said to be a receiver of stolen goods, offers to prove that he refused to sell them below their value, he will be allowed to prove such statement of refusal, because it is explanatory of conduct influenced by fact in issue.
5. Inculparatory statements made by the accused to an approver cannot partake the character of ‘extrajudicial confession’ and such ‘inculpatory statement’ or as admissions vide section 21 of the Evidence Act and are not admissible in evidence.
6. Despite, if the FIR given by the accused contains any admission as defined in section 17 of the Evidence Act there is no bar in using such an admission against the maker thereof as permitted under section 21 of the Evidence Act, provided such admission is not inculpatory in character16.
7. What all the Supreme Court of India held is that the statement in the FIR given by an accused contains incriminating materials and it is difficult to sift the exculpatory portion therefrom the whole of it must be excluded from evidence. It is a note of caution has been struck by the Supreme Court17.
8. Under purview of section 22 of Evidence Act, 1872, oral evidence of contents of document is merely secondary evidence as seen from section 63 (5) of the Evidence Act. Contents of a document shall be proved by production of the document as seen from section 62 and 64 of the Evidence Act, unless secondary evidence is allowed under section 65 r/w 66 of the Evidence Act, 1872. Section 31 of the Evidence Act says that admissions are not conclusive proof of matters admitted but may operate as estoppel under purview of section 115 of the Evidence Act.
9. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession18. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.
10. No confession made to a police officer is relvant or shall be proved as against a person accused of any offence under section 25 of the Act, 187219.
Under this provision (Section 25) , the word ‘police officer’ shall be read not in any strict technical sense, but according to its more comprehensive and popular meaning20. One of the main points of distinction judicially recognised to distinguish a police officer from a non-police officer is the exclusive authority of the police officer to file a final report called the ‘police report’ under section 173 (2) of Cr.P.C21. There is no doubt that if the admission amounts to ‘confession’ it transgresses into the forbidden field designed in section 26 of the Evidence Act22. Section 26 of the Act provides that no confession made by any person while he is in custody of a police officer shall be relevant or proved against him; but a confession made by him, though in custody, but made in the immediate presence of a Magistrate is relevant. Here, the word ‘Magistrate’ means a Magistrate exercising powers under the Code of Criminal Procedure. Section 26 has wider scope that section 25 because a confession made to anyone, including a private person is affected by this section23.
Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent facts which was first enunciated in Warickshall’s case. Sections 24 to 27 were embodied in the Evidence Act, 1872 with some alteration from the Code of Criminal Procedure (Act XXV of 1861 which was altered by Act VIII of 1869)24. The essential of section 27 of the Evidence Act are 1). an accused is in custody; 2). accused provides information; 3). a fact is deposed to as discovered in consequence of such information, then; 4). so much of such information as relates distinctly to the fact thereby discovered, may be proved; and 5). this is irrespective of whether such information amounts to confession or not25. This section has been held to be an exception or proviso to sections 25 and 26 of the Evidence Act, 187226. The information must be proved like any other circumstance27. To understand section 29 of the Act, it is to be remembered that a confession which is otherwise relevant , inspite of section 24 of Evidence Act, will not cease to be relevant merely because of the presence of any one or more of the circumstances referred to in section 24 to 26. These circumstances do not attract the operation of section 24, a fortiori, section 164 (2) of Cr.P.C does not override section 29 of the Evidence Act28.
Confession of co-accused:
In a criminal case, where two or more persons are tried jointly for the same offence, where confession by one such person implicating himself and some other of such accused is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession, under purview of section 30 of the Evidence Act.
Example: In a criminal case, where H and K are jointly tried for murder of S, it is proved that H stated in his confession that he and K committed murder of S, the court may consider the effect of the confession as against K also. This cannot be done in a case where H and K are not jointly tried. The confession H can only be ‘taken into consideration’ against K; it does not have the force of ‘evidence’ against K. If there is other evidence against B, along with such evidence, court can as against K take into consideration, the self-inculpating confession of H which also implicates K.
Such a confession cannot take the place of proof, but it can only reassure the court in support of its conclusion deductible from other evidence. It cannot be used as substantive evidence29. Acquittal of H would not render his confession inadmissible if it corroborated the substantive evidence against K30.
As is noted above, the statement in the FIR given by an accused contains incriminating materials and it is difficult to sift the exculpatory portion therefrom the whole of it must be excluded from evidence. It is a note of caution has been struck by the Supreme Court31. A statement contained in the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as against the accused who made it, the statement cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial32, a fortiori, the very limited use of it is as an admission under section 21 of the Evidence Act, 1872 against its maker alone unless the admission does not amount to confession.
Confession of co-accused does not come within the definition of ‘evidence’ contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be by cross-examination. It is much weaker type of evidence that the evidence of an approver, which is not subject to any of these infirmities33.
Extra-judicial Confession:
Every inducement, threat, or
promise does not vitiate a confession34.
The test to decide whether a confession attracts the frown of section 24 of the Evidence Act, 1872, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind35. A mere possibility of some inducement, threat or promise is not sufficient to attract section 24 of the Act36. A promise is always attached to the confession alternative while a threat is always attached to the silence alternative. Therefore, in one case, a prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; in another case, prisoner is measuring the net advantages of present unsatisfactory situation, minus the general undesirability of the confession against the threatened harm.
Under section 24 of the Evidence Act, 1872, a confession made by an accused person is irrelevant in a criminal case, if the making of confession, 1) appears to have been caused by threat, inducement, or promise having reference to the charge against the accused; 2) such threat, inducement, or promise proceed from a person in authority; and 3) such threat, inducement, or promise are sufficent, in the opinion of the court, to give the accused grounds which would appear to him reasonable for supposing that by making it he would gain an advantage or avoid an evil of a temporal nature in reference to the proceeding against him37.
Statement to the accused in departmental inquiry that if he did not reveal the truth, the matter would be placed in the hands of police is not a threat38. Mere warning of possibility of prosecution for perjury in case the accused did not make truthful statements is not a threat39. The words ‘a person in authority’ is to be understood to know the scope of section 24 of the Evidence Act, 1872. ‘Someone engaged in the arrest, detention, examination, or prosecution of the accused; or by someone acting in the presence, and without the dissent, of such person’ can be understood as to the meaning of ‘a person in authority’ under purview of section 24 of the Evidence Act, 1872.
1. The use of the word ‘Accused’ does not mean that an accusation of a crime must necessarily has been in existence at the time of making of a confession, under section 24 of the Act40.
2. Under section 24 of the Act, it is the duty of the Court to place itself in the position of the accused and to form an opinion as to the state of mind in the circumstance of a case41.
3. Extra-judicial confession can only form basis of conviction if it is voluntary and person to whom confession is made should be unbaised and not inimical to the accused42.
4. Extra-judicial confession should not have been obtained by coercion, promise of favour and it should be voluntary in nature acknowledging the guilt43.
5. Extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal fo care and caution.
6. When an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its significance44.
7. If extra-judicial confession is voluntary and true and made a fit state of mind, it can be relied upn by the court. Such extra-judicial confession have to be proved like any other fact. Such a confession can be relied upon45.
8. There is no absolute rule that extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material46.
9. Section 24 of the Act attracts even though the maker of the confession was charged only subsequently. It is enough that criminal proceedings was at the time a possibility. If an accused had been admnistered oath by his departmental superior who is not empowered to administer oath before recording his confession that circumstance would amount to concealed threat47.
10. A confession recorded under the Code of Criminal Procedure, 1973 (Cr.P.C) is also subject to section 24 of the Evidence Act, 1872.
11. Section 28 of the Evidence Act is to be read along with section 24 of the Evidence Act, 1872.
12. Section 163 of Cr.P.C bars a Police Officer or any person in authority from offering or causing to be offered any inducement, threat or promise as is referred to in section 24 of the Evidence Act, 1872.
13. Section 164 of Cr.P.C provides the mode of recording confessional statements, a fortiori, the Supreme Court of India in Sarwan Singh vs. State of Punjab48 recognized the importance of circulars or instructions of the High Courts in India in which it was held that the instructions issued by the High Courts must be followed by the Magistrates while recording confessional statements.
14. Section 28 of the Evidence Act, 1872 to an extent overcomes the restraint under section 24 of the Evidence Act, 187249.
15. Threat, inducement, promise render the confession untrustworthy and therefore is irrelevant, as His Lordship VR Krishna Iyer, j, held in Nandini Satpathy vs. PL Dani50.
Retracted confessions.
The Apex Court in Shankar vs State Of T.N51 referred to the principles governing the evidentiary value of retracted confession. The confession is a form of admission consisting of direct acknowledgement of guilt in a criminal charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact charged or some essential part of it and a statement that contains a self-exculpatory matter cannot amount to a confession. The confession should be a voluntary one, that means not caused by inducement, threat or promise. Whether a confession is voluntary or not is essentially a question of fact. The judicial confessions are those which are made before a Magistrate or in court in due course of legal proceedings and when such a confession is retracted, the courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. The rule of prudence namely requiring corroboration does not mean that each and every circumstance mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approver’s evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction. It may not be necessary to refer to remaining aspects governing the use of retracted confession for the purposes of this case. Suffice it to say that it is also laid down that it is not illegal to base a conviction on an uncorroborated confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the courts do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined in the light of the circumstances of the case. (See Balbir Singh vs. State of Punjab52, Sarwan Singh Rattan Singh case’, Ediga Anamma v. State of A.P53 and State of U.P vs Boota Singh54).
Conclusion:
An admission the best evidence, despite it is not conclusive and may be decisive unless successfully withdrawn or proved to be erroneous. All confessions are admissions but all admissions are not confessions. One unfavourable admission to the maker cannot be accepted. Self serving statement is not an admission. An admission is a statement against the interests of the maker and prejudicial to him. Weight is to be attached for an admission with the knowledge and delibiration of the maker or the solemnity of the occasion when it was made. Section 24 of the Act attracts even though the maker of the confession was charged only subsequently. It is enough that criminal proceedings was at the time a possibility. There is no absolute rule that extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. Confession of co-accused does not come within the definition of ‘evidence’ contained in section 3 of the Evidence Act and that it is not required to be given on oath, nor in the presence of the accused, and it cannot be by cross-examination. It is much weaker type of evidence that the evidence of an approver, which is not subject to any of these infirmities. Section 26 of the Act provides that no confession made by any person while he is in custody of a police officer shall be relevant or proved against him; but a confession made by him, though in custody, but made in the immediate presence of a Magistrate is relevant. Section 27 of the Evidence Act is based on the doctrine of confirmation by subsequent facts which was first enunciated in Warickshall’s case. Inculparatory statements made by the accused to an approver cannot partake the character of ‘extrajudicial confession’ and such ‘inculpatory statement’ or as admissions vide section 21 of the Evidence Act and are not admissible in evidence. It is not illegal to base a conviction on an uncorroborated confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the courts do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined in the light of the circumstances of the case. To say in short, a confession must either admit in terms the crime, or at any rate substantitally all the facts which constitute the offence. No statement that contains self-exculpatory matter can amount to confession.
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1. Appavu Chettiar vs. Nanjappa Goundan, (1913) 25 Mad L J 329. Sahoo vs. State of U.P., AIR 1966 SC 40; Aghnoo vs. State of Bihar, AIR 1966 SC 119.
2. Sita Rama Bhau Partil vs. Ramachandra Nago Patil, AIR 1977 SC 1712.
3. Sahoo vs. State of U.P., AIR 1966 SC 40 (Ibid, in note 1)
4. Krishnawati vs. Shri Hans Raj, AIR 1974 SC 280.
5. Hanuman Govind, Nargundkar vs. State of Madhya Pradesh, AIR 1952 SC 343.
6. Seth Kanshi Ram vs. Kanshi Ram, AIR 1963 SC 1165.
7. Dolatsinghji Jaswantsinghji vs. Khachar Mansur Rukhad, AIR 1936 PC 150.
8. Pakala Narayana Swamy vs. Emperor, AIR 1939 PC 47.
9. Kishori lal vs. Chaltibai, AIR 1959 SC 504.
10. Abdul Azeez vs. Nedungadi Bank Ltd., 2017 (2) KLJ 603.
11. Ramji Dayawala and Sons Pvt Ltd. vs. Invest Import, AIR 1981 SC 2085.
12. ibid note. 4 Krishnawati vs. Shri Hans Raj, AIR 1974 SC 280
13. Kanwal Ram vs. Himachal Pradesh Admn., AIR 1966 SC 614
14. Rangappa Goundan vs. Emperor, AIR 1936 Madras 426.
15. Raghunath vs. State of UP, AIR 1973 SC 1100.
16. Faddi vs. State of Madhya Pradesh, AIR 1964 SC 1850.
17. Aghnoo Nagesia vs State of Bihar, AIR 1966 SC 119.
18. ibid, Pakala Narayana Swamy’s case (supra)
19. Narayana Rao vs. State of Andhra Pradesh, AIR 1957 SC 637.
20. The Queen vs. Hurribole Chunder Ghose, (1876) ILR 1 Cal 207.
21. Ramesh Chandra vs. State of West Bengal, AIR 1970 SC 940.
22. Kanda Padayachi vs. State of Tamilnadu, AIR 1972 SC 66.
23. Udai Bhan vs. State of Uttar Pradesh, AIR 1962 SC 1116.
24. Queen-Empress vs. Balu Lal, (1884) 6 All 509.
25. Mohmed Inayatullah vs. State of Maharasthra, AIR 1976 SC 483.
26. MP Sharma vs. Satish Chandra, District Magistrate, Delhi, AIR 1954 SC 300.
27. Chandran vs. State of MADRAS, AIR1978 SC 1574.
28. Dagdu vs. State of Maharasthra, AIR 1977 SC 1579
29. See. To know section 30 of IEA, Kashmira singh vs. State of MP, AIR 1952 SC 159.
30. See. The dicta in Haricharan Kurmi vs. State of Bihar, AIR 1964 SC 1184.
31. Ibid, foot note 17.
32. Bandlamuddi Atchuta Ramaiah vs. State of A.P, AIR 1997 SC 496.
33. Bhuboni Sahu vs. The King, AIR 1949 PC 257.
34. Mohd. Azad @ Samin vs. State of West Bengal, AIR 2009 SC 1307.
35. Satbir Singh vs. State of Bihar, AIR 1977 SC 1294.
36. Hashmat Khan vs. The Crown, ILR (1934) Lah. 856.
37. Persy Rustomoji Basta vs. State of Maharasthra, AIR 1971 SC 1087.
38. RK Dalmia vs. Delhi Admn., AIR 1962 SC 1821.
39. Veera Ibrahim vs. State of Maharasthra, AIR 1976 SC 1167.
40. State of Uttar Pradesh vs. Deoman Upadhyaya, AIR 1960 SC 1125
41. Pyare Lal Bharagava vs. State of Rajasthan, AIR 1963 SC 1094.
42. Ajay Singh vs. State of Maharasthra, AIR 2007 SC 2188.
43. Madal Gopal Kakkad vs. Naval Dubey, 1992 (3) SCC 204.
44. Sahadevan vs. State of Tamilnadu, (2012) 6 SCC 403.
45. State of Rajasthan vs. Raja Ram, 2003 (8) SCC 180.
46. Thimma and Thimma Raju vs. State of Mysore, 1970 (2) SCC 105.
47. Brijbasi Lal Shrivatsava Vs State of Madhya Pradesh, (1979) 4 SCC 521.
48. Sarwan Singh vs. State of Punjab, AIR 1957 SC 637.
49. Section 28 of Indian Evidence Act, 1872 reads as follows: 28. Confession made after removal of impression caused by inducement, threat or promise relevant.—If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.
50. Nandini Satpathy vs. PL Dani, AIR 1978 SC 1025, in this ruling, His Lordship Krishnaiyer, V.R, j, observed as follows: ‘ And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in peoples’ esteem through firm and friendly, not foul and sneaky strategy. The police reflect the State, the State society.’
51. Shankar vs State Of T.N, 1994 (4) SCC 478.
52. Balbir Singh vs. State of Punjab, AIR 1957 SC 216
53. Ediga Anamma vs State Of Andhra Pradesh, 1974 AIR 799, 1974 SCR (3) 329
54. State Of U.P vs Boota Singh & Others, 1978 AIR 1770
