Confession under Indian Evidence Law

Introduction

A confession is a statement in which a person admits committing a crime. Under Indian criminal law, a confession must be voluntary (made freely, without force, threats, or improper pressure) to be relied upon against the accused. The law provides safeguards for recording confessions to protect individuals from being forced to admit guilt.

Meaning and Definition of Confession

The Indian Evidence Act, 1872, did not define the term confession. The meaning of confession has therefore been explained through judicial decisions.

A confession is a statement in which a person admits the offence or substantially all the facts that make up the offence.

A statement that admits only one incriminating fact (a fact that may suggest guilt), without admitting the offence or substantially all its essential facts, is generally an admission and not a confession.

For example, admitting ownership of a knife used in a murder does not, by itself, amount to a confession to murder.

Difference Between Admission and Confession

An admission is a statement that suggests an inference about a fact in question. A confession is a statement that admits guilt of an offence or substantially all the facts that make up that offence.

Every confession is a form of admission, but every admission is not a confession.

Types of Confessions

Inculpatory Confession

An inculpatory confession is a statement in which a person admits facts that support their guilt of an offence.

Example: An accused states that they intentionally killed the victim.

Exculpatory Confession

An exculpatory statement is one in which the person makes a statement that appears to clear them of guilt or provides an explanation that, if accepted, would remove criminal responsibility.

Strictly speaking, a statement that denies guilt or completely explains away the alleged offence may not qualify as a confession. It must be examined as a whole to determine its legal effect.

Judicial Confession

A judicial confession is a confession made before a court or a Magistrate who is legally authorised to record it.

A confession recorded by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (CrPC), was subject to specific safeguards intended to ensure that it was made voluntarily.

Extra-Judicial Confession

An extra-judicial confession is a confession made outside a court, such as to a friend, relative, or another person.

Such a confession may be considered by a court, but its reliability must be carefully examined. The court considers the circumstances in which it was made and whether the statement appears truthful and voluntary.

Confession Made to Oneself

A confession need not always be addressed to another person. Words spoken by an accused person to themselves may be relevant if another person hears them and the law permits the statement to be used as evidence.

Recording a Confession Before a Magistrate

Under the former Section 164 of the Code of Criminal Procedure, 1973, a Metropolitan Magistrate or Judicial Magistrate could record a confession during an investigation or before the commencement of an inquiry or trial.

The provision was intended to ensure that confessions were recorded with proper safeguards and not merely obtained through police pressure.

Warning Before Recording

Before recording a confession, the Magistrate must explain to the person that:

• They are not bound to make a confession.
• If they make a confession, it may be used as evidence against them.
• They must be given the opportunity to decide freely whether to make the confession.

The Magistrate must be satisfied that the confession is voluntary. If the person states that they are unwilling to confess, the Magistrate must not authorise their detention in police custody merely for refusing to confess.

Recording Procedure

Under the former Section 164 CrPC, the Magistrate was required to follow the prescribed procedure, including:

• Recording the confession in the manner required by law.
• Ensuring that the person understands the warning and makes the statement voluntarily.
• Recording the confession in the prescribed form and having it signed as required by law.
• Adding the required memorandum confirming that the person was warned, that the Magistrate believed the confession was voluntary, and that it was recorded and read over as required.

If the Magistrate did not have jurisdiction to inquire into or try the offence, the recorded confession was to be forwarded to the Magistrate who had the required jurisdiction.

Failure to follow mandatory safeguards may make the confession inadmissible (not legally usable as evidence).

Current law: The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), came into force on 1 July 2024, subject to applicable transitional provisions. Section 183 BNSS now deals with recording confessions and statements and corresponds broadly to the former Section 164 CrPC.

Constitutional Safeguard Against Forced Confessions

Article 20(3) of the Constitution of India states:

No person accused of any offence shall be compelled to be a witness against himself.

This protection is known as the right against self-incrimination. It prevents the State from forcing an accused person to provide evidence against themselves.

A confession must be voluntary. A confession obtained through force, threats, or improper pressure cannot be treated in the same way as a freely made confession.

Object of Recording Statements Under the Former Section 164 CrPC

Statements of witnesses could be recorded by the police during an investigation under the former Section 161 CrPC. Such statements were governed by Section 162 and were subject to restrictions on their use in evidence.

Recording a witness's statement before a Magistrate under the former Section 164 served important purposes:

• It created an official record of the witness's version of events.
• It could help reduce the risk of the witness changing their version later.
• It provided a record made before a judicial officer rather than only before the police.
• It could help the court assess differences between the earlier statement and the witness's evidence during trial.

However, a statement recorded under Section 164 did not automatically become substantive evidence (evidence that directly proves a fact). The witness would ordinarily need to testify in court, and the statement would be used according to the applicable rules of evidence.

Evidentiary Value of a Confession

A confession may be important evidence, but the court must examine whether it is voluntary, truthful, and legally admissible.

Voluntary and Truthful Confession

A court may rely on a voluntary and truthful confession. A conviction may, in an appropriate case, be based on a confession alone if the court is satisfied that it is reliable and legally admissible.

Depending on the circumstances, the court may look for supporting evidence before relying on the confession.

Confession Recorded by a Magistrate

A confession recorded by a Magistrate does not automatically prove guilt. The court must examine whether the required procedure was followed and whether the accused made the statement freely.

The court should consider whether there was any threat, pressure, inducement (an improper offer or promise), or other circumstance that affected the person's freedom to decide.

Confession and Substantive Evidence

A confession that is legally admissible may be substantive evidence against its maker. However, a witness's statement recorded under the former Section 164 CrPC is not, merely because it was recorded by a Magistrate, substantive evidence of the facts stated in it.

The distinction between a confession by an accused and a statement made by a witness is therefore important.

Retracted Confession

A retracted confession is a confession that the accused later denies or withdraws.

Retraction does not automatically make the confession inadmissible. The court must examine whether it was voluntary and reliable. Depending on the circumstances, supporting evidence may be needed before the court safely relies on it.

Important Case Law

Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

The court explained that a confession must admit the offence itself or substantially all the facts that constitute the offence.

An admission of a seriously incriminating fact alone is not necessarily a confession. For example, admitting ownership or recent possession of a weapon used in a murder, without admitting the other essential facts, does not by itself amount to a confession to murder.

Principle: A statement must amount to a substantial admission of guilt to qualify as a confession.

Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40

The accused was charged with murdering his daughter-in-law. He was heard saying words to the effect of, “I have finished her and with her the daily quarrels.”

The Supreme Court treated the statement as a confession relevant to the case. It explained that a confession does not have to be communicated to another person to be relevant.

Principle: Words spoken by an accused person to themselves may be relevant if they amount to a confession and are otherwise admissible.

Kartar Singh v. State of Punjab, 1994 Cri LJ 3139

The case emphasised the importance of following the safeguards applicable to recording a confession under the former Section 164 CrPC. The accused must be clearly informed that they are not bound to confess and that any confession may be used as evidence against them.

Principle: Mandatory safeguards for recording a confession must be followed in substance, not merely in form. Failure to comply with essential requirements may render the confession inadmissible.

Parmananda v. State of Assam, 2004 (2) ALD (Cri) 657

The supplied material refers to this case in connection with the court's duty to examine whether a confession recorded under the former Section 164 CrPC was voluntary and whether the required safeguards were followed.

Principle: Before relying on a confession, the court must examine the circumstances in which it was made and ensure that the prescribed procedure was complied with.

Practical Example

Suppose A is accused of murder and is brought before a Magistrate. Before recording A's confession, the Magistrate explains that A is not required to confess and that any confession may be used as evidence against A.

The Magistrate gives A an opportunity to decide freely. After ensuring that A is not acting under pressure, the Magistrate records the confession according to the prescribed procedure.

During the trial, the court examines whether the confession was voluntary, truthful, and legally admissible before deciding what weight to give it.

If A was threatened or forced into making the confession, or if mandatory legal safeguards were not followed, the confession may not be admissible.

Summary

• A confession is a statement admitting the offence or substantially all the facts that make up the offence.
• Every confession is an admission, but every admission is not a confession.
• Confessions may be inculpatory, judicial, or extra-judicial. An exculpatory statement must be examined carefully to determine whether it qualifies as a confession at all.
• Article 20(3) of the Constitution protects an accused person against being compelled to testify against themselves.
• Under the former Section 164 CrPC, a Magistrate had to explain that the accused was not bound to confess and that the confession could be used as evidence.
• Section 183 of the BNSS now deals with recording confessions and statements, subject to applicable transitional provisions.
• A confession must be voluntary and reliable before a court can safely rely on it.
• A witness's statement recorded before a Magistrate is not automatically substantive evidence of the facts stated.
• Pakala Narayana Swami v. Emperor explains the distinction between an admission of an incriminating fact and a confession.
• Sahoo v. State of Uttar Pradesh establishes that a confession need not be communicated to another person to be relevant.