A was accused of the murder of her newly born son. She was sent in the custody of a police constable to a doctor for examination. When being examined, she made a confession to the doctor… Is the confession admissible in evidence against A?

Question: A was accused of the murder of her newly born son. She was sent in the custody of a police constable to a doctor for examination. When being examined, she made a confession to the doctor. At that time police constable was standing outside the room in which A was being examined by the doctor. Is the confession admissible in evidence against A? [U.P.A.P.O. 1997]

Find the answer to the mains question only on Legal Bites. [A was accused of the murder of her newly born son. She was sent in the custody of a police constable to a doctor for examination. When being examined, she made a confession to the doctor… Is the confession admissible in evidence against A?]

Answer

Under section 26 of the Indian Evidence Act, no confession made by a person in custody to any person other than a police officer shall be admissible unless made in the immediate presence of a Magistrate.

In the present case it is to be held that there was sufficient evidence at all to suggest from the facts that a police constable was present when the accused, A made the confessional statement before the doctor. Such extra-judicial confession shall be held to be admissible against the accused by virtue of section 26 of the Indian Evidence Act.

The reason for the judgment is that the word Custody used under section 26 is used herein in a wide sense. A policeman may lay his hand on a person, hand-cuff him, or tie his waist with a rope and may take him with him. Again a police officer may not even touch a person but may keep such control over him that the person so controlled cannot go any way he likes. His movement is in the control of the police officer. A police officer comes to A and asks him to follow to the police station as he is wanted in connection with a dacoity case. A follows him. He is in the custody of the police officer.

In Ram Singh v. Sonia, AIR 2007 SC 1218, the accused was in the hospital at the time of his statement. There was nothing to show any custody established on him by the police. The court discussed that the words “in custody” which are to be found in this and other sections of the Act only denote surveillance or restriction on the movements of the persons concerned, which may be complete as, for instance, in the case of an arrested person, or maybe partial

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act, is no mere physical custody.” A person may be in the custody of a police officer though the other may not be physically in possession of the person of the accused making the confession.

There must be two things in order to constitute custody. Firstly, there must be some control imposed upon the movement of the confession, he may not be at liberty to go any way he likes, secondly, such control must be imposed by some police officer indirectly.

The crucial test is whether at the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them for the purpose of securing such confession.

The word ‘custody’ in the following section 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 officer, or can be said to have been some sort of surveillance or restriction.

Since technically the accused in the present case at hand was in police custody because she was brought to the Doctor by Police, but she has given her extra-judicial confession to the doctor in the custody, her confession shall not be held to be admissible against her.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X