Admissibility of confessions | Discuss the admissibility of the following confessions: The travelling auditor of a railway corn NUR’ having discovered defalcations in the account of booking clerk of the company, told him, “It would be better for you to tell the truth and refund the money”,…..

Question: Admissibility of confessions | Discuss the admissibility of the following confessions:

The travelling auditor of a railway corn NUR’ having discovered defalcations in the account of booking clerk of the company, told him, “It would be better for you to tell the truth and refund the money”, after which the booking clerk was brought before the traffic-manager in whose presence he confessed to having made defalcation and signed a receipt in token of his liability for return of the amount misappropriated.

Find the answer to the mains question only on Legal Bites. Admissibility of confessions | [Discuss the admissibility of the following confessions: The travelling auditor of a railway corn NUR’ having discovered defalcations in the account of booking clerk of the company, told him, “It would be better for you to tell the truth and refund the money”,…..]

Answer

In the present case at hand, the confession of the booking clerk made before the traffic manager is an extra-judicial confession which is a very weak piece of evidence to be admitted as evidence proving the guilt of the accused.

The object of section 25 of the Evidence Act, wherein it is mentioned that no confession made to a police officer, shall be proved as against a person accused of any offence, is that the officer would make every effort to collect the evidence of the commission of the crime and from the power he possesses, he has the capacity to influence, pressurize or subject the person to coercion to extract a confession.

An extra-judicial confession refers to those confessions that are made outside the Court or elsewhere than before the Magistrate. It includes all the self-harming statements and the acts of the accused that imply his guilt. A confession of this kind is admissible if it is made voluntarily. A voluntary confession means a statement given by the accused out of his own free will and has not been obtained by intimidation, force, or coercion.

When an extra-judicial confession is made voluntarily and is proved to be true there is no bar to convict the accused solely on the foundation of such confession without any corroboration, even if it was subsequently retracted by the accused. Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204

The reliability of the confession depends on the credibility of the person making the confession and the circumstances in which the confession was made. Therefore, an oral extra-judicial confession is a very weak type of evidence and hence it cannot form the sole basis for the conviction of the accused. But it can be relied upon by the court after due corroboration under section 157 of the Indian Evidence Act, 1872. It is imperative to note here that extra-judicial confessions have the same evidentiary value as that of judicial confessions and they are not be seen as an inferior category of confessions.

An unambiguous extra-judicial confession possesses a great probative value if it comes from the person who committed the offence and it is admissible in court as evidence if it is free from falsity and suspicion but it cannot be acted upon if it is contradictory and unstable. Therefore, an extra-judicial confession will also have to be proved like any other evidence.

The Apex Court has settled in the recent case law of Ram Lal v. State of Himachal Pradesh, 2018 SCC OnLine SC 1730 that a conviction could be based on a voluntary extra-judicial confession, but a rule of prudence requires that wherever possible, it should be corroborated by independent evidence. And the onus to prove the cogent chain of circumstances is on the prosecution

Therefore, there is no absolute rule that an extra-judicial confession can never be a sole foundation for conviction, although ordinarily an extra-judicial confession should be corroborated by some other material or circumstantial evidence it doesn’t require each and every circumstance in such confession to be corroborated separately and independently

While the accused was in the lockup in a pending trial, he was sent to the hospital for treatment. He was taken from the lock-up to the dispensary by two policemen, who waited outside in the verandah of the hospital during his examination by the doctor. During the course of the medical examination, the accused made a confession to a fellow patient within the hearing of the doctor.

As per the evidence act, only confessions made before the Magistrate is admissible. However, In the case of Chandubhai Abhesingbhai Chauhan v. State (2013), it was observed that if anyone has made a confession before the Doctor and the same is recorded and if that doctor has any substantial proof to submit it as evidence and he proved it before the Court by stepping into the Witness Box then there is a Chances that the Confession which was made before the Doctor can be used against the accused to prove him / her guilty.

A confessional statement if not made by the accused under inducement, threat, or promise, is admissible in evidence. An extra-judicial confession though admissible is considered a weak piece of evidence and ordinarily, the Courts would look for other corroboration in order to record a conviction on the strength of such extra-judicial confession.

Section 26 of the Indian Evidence Act, 1872 goes a step further and provides that no confession made by any person whilst he is in the custody of a police officer unless such confession is made in the immediate presence of a Magistrate can be proved as against such person.

For the rigours of section 26 of the Indian Evidence Act, 1872 to apply, therefore, what is required is that there is a confessional statement by an accused, that when he made such a statement, he was in the custody of the police officer and such statement was not made in the immediate presence of a magistrate. If these three ingredients are satisfied, rigours of section 26 of the Indian Evidence Act, 1872 would apply which would render the confession wholly irrelevant. A confessional statement made by an accused to a Doctor while he is in the custody of a police officer would also be thus covered by section 26.

In the case of Kanda Padayachi v. State of Tamil Nadu reported in AIR 1972 Supreme Court 66, the question regarding admissibility of the statement made by the accused before the doctor in view of section 26 of the Indian Evidence Act, 1872, came up for consideration. In his statement, the accused had stated that it was the deceased who had caused injury on his toe on a fatal night. Such a statement was made while the accused was in the custody of the police. The Supreme Court held that the statement in question did not amount to a confession. It was an admission of fact no doubt incriminating and which established the presence of the accused in the deceased s room, but such statement was not barred under section 26.

In the case of Mohammad Dwara Rawther Ismail v. State of Kerala reported in 1982 Cri. L.J. 2102, Kerala High Court also examined a similar question. It was held and observed as under:

Extra-judicial confession is normally said to be a weak piece of evidence. It could not be acted upon if it is found lacking in the probability or if it does not inspire confidence. If a confession does (not) violate any one of the conditions operative under Sections 24 to 26 of the Evidence Act, it would be admissible in evidence even then, the court has a duty to consider whether it could be accepted as true.

If it casts doubt on the veracity or voluntariness, normally the court would refuse to act upon the confession even if it is found to be admissible in evidence. One important question, in regard to which the court has to be satisfied with, is whether, when the accused made the confession, he was a free man or his movements were controlled by the police, either by themselves or through some other agency employed by them for the purpose of securing such a confession.

Police custody in the real perspective commences from the time when the movements of the accused are restricted or controlled and he is kept in direct or indirect police surveillance it is not necessary that there should have been a formal arrest.

It is not the presence of one particular person or officer or of any one of these circumstances that would by itself decide the question as to whether the accused was in police custody: it is, on the other hand, the concomitance of the various facts and circumstances, which are relevant and material, immediately preceding the making of the statement by the accused that has to be taken into account in making a proper assessment as to whether the statement alleged to have been made by the accused is not hit by the provisions of Section 26 of the Evidence Act.

The paramount consideration of the Court should be to see that the statement is not hit by any of the provisions contained in Sections 24 to 26 of the Evidence Act or Section 162 of the Criminal P.C. that it was made voluntarily, was a true statement which could be acted upon even when found admissible in evidence.

Therefore, in the present case, Section 26 of the Evidence Act provides that no confession made by any person, while in the custody of the police, shall be proved as against such person.

The legislature was of the view that any kind of confession made by an accused, while he is under the custody of the police, cannot be used as evidence against him at the time of the trial of the offence charged with. Such “custody” need not necessarily be post-arrest custody.

The word ‘custody’ used in section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of this Section. If he makes any confession during that period to any person, be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.

Admittedly, in the present case, the said confession was made by the accused, when he was under the custody of the police. In view of the above bar in the statute, the extra-judicial confession alleged to have been made by the accused-appellant, being hit by Sections 25 and 26 of the Evidence Act cannot be used against him.

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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