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Confession And Types Of Confession Under Indian Evidence Act, 1872

Every human has a right to speak his part of truth. This applies to both victim and the accused. Our constitution provided certain rights to the accused so that she can furnish her defense. Every vibrant democracy provides its citizens a right to be heard and casts the same obligation upon the judiciary as well.

The criminal law in India has provided various safeguards at all levels so that the real accused gated the punishment and not the one who is innocent or has been framed. When a person is arrested her confession plays a major role in soughing punishment for that person. This not only helps the prosecution in fetching punishment for the accused but also helps in discovery of new facts and evidences. According to the law, confessions are given to the magistrate and that becomes an essential piece of evidence.

But circumstances may turn out to be like the accused give her confession to a person other than a police officer. He turned out to be a private person. Then would such confession will amount to confession. Will such confession will be used against the party confessing? All these questions will be covered in this paper. The paper will also take about the weight and the significance attached to judicial and extra judicial confession and at last will provide an explanation as to which form of confession will be best as evidence.

In every criminal trial, confession plays a major role in deciding the fate of the accused. When a person is arrested the police try to extract information from the accused by using various methods which encompasses third degree torture as well. The accused out of excruciating pain and torture will either speak the truth or will take the guilt on his head. When the person takes the guilt on his head, the police considering it as confession record it.

But in reality such an admission will not amount to confession because here it was not an admission of the guilt of the crime for the said person never committed. The excruciating pain forced him to admit. So in general what is confession?

According to Black's Law Dictionary, confession is defined as "A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it."[1]

According to Police and Evidence Act 1984, confession is defined as," as any statement who is wholly or partly adverse to the person who made it."[2]

According to Britannica, it is defined as," in criminal law, a statement in which a person acknowledges that he is guilty of committing one or more crimes."[3]

In simpler words, when the statements of a person indicates about his guilt of a crime that would amount to confession.

There is a difference between confession and admission. Section 17 of the Indian Evidence Act[4] deals with admission whereas there is no particular section which defines confession.In admission, person accepts or admits the existence of any fact whereas in confession he accepts or admits his guilt arising out of a crime.

An admission may be used against the person who admits such facts whereas a confession is always used against the person confessing. In case of admission, certain exceptions can be applied (section 21) whereas there are no exceptions in confession. In a nutshell, it can be said that 'all confession are admission but all admission are not confession'.

In the case of Sahoo v State of U.P,[5] the accused has heated arguments with his daughter-in-law. He murdered his daughter-in-law and said that 'I finished her and now I am free from daily quarrels". The statements were heard by his neighbours as well. The court observed that the statements made by the accused after murdering his daughter-in-law would amount to confession because such statements indicated his guilt. Therefore such confession is a good evidence and is relevant for the present case.

Research methodology
This paper is of descriptive nature and the research is based on secondary sources for the deep understanding of judicial and extra judicial confession. Secondary sources of information like newspapers, and cases are used for the research.

Review of Literature
Section 24 - 29 of the Indian Evidence Act talks about confession. The Act says that if a confession is extracted by inducement, threat or promise by a person in authority then such confession will be irrelevant and also a confession given to a police officer shall not to be proved against the accused. In the case of Veera Ibrahim v State of Maharashtra[6]

It was held by the Supreme Court that a statement in order to amount to a 'confession' must either admit in terms of offence or at any rate substantially all the facts which constitute the offence. In the case of Ram Singh v Central Bureau of Narcotics[7] it was held that Section 25 of the Indian Evidence Act[8] makes confessional statements of the accused before police officers inadmissible and is a evidence which cannot be brought on record by the prosecution to obtain conviction.

In the case of Aghnu Nagesia v State of Bihar[9], it was held that if a First Information Report is given by the accused to the police officer and amounts to a confessional statement, proof of confession is prohibited by section 25 of the Act. Section 26 of the Act[10] says that a confession should be made in the immediate presence of a magistrate while the accused in the police custody.

When a person is arrested by the police and is kept in the police station or lockup, he is considered to be in police custody. When the accused is presented before the magistrate within the 24 hours of arrest, and is send to jail by the order of magistrate then the custody is judicial custody. Thus the time from arresting the accused to sending him before the magistrate is known as police custody. In R v Lester[11], the accused was being taken in a tanga by a police constable. In the absence of the constable, the accused confessed to the tanga driver that he committed the crime. The confession was said to be made in police custody and therefore was inadmissible.

In the case of case of Sehr v State of Karnataka,[12] it was held by the Supreme Court that, statements made in police custody are considered to be unreliable unless they have been subjected to cross examination or judicial scrutiny. In the case of Kamal Kishore v State (Delhi Administration)[13] was held that confession made while in the custody is not to be proved against the accused as the provisions of section 25 and 26 do not permit it unless, it is made before a magistrate.

Judicial confession
Judicial confession may be defined as a confession made in the court or before the magistrate in the legal proceeding. In a legal proceeding, when a confession is made by an accused which is 'voluntary' and 'true' then such confession will be relevant. Section 80 of the Act[14] attaches evidentiary value to the judicial confession given by the accused. Judicial confession alone cannot be the sole basis for the conviction of the accused because it jeopardizes the interest of the justice.

It may happen that the accused confesses a crime out of inducement, threat or promise or sometimes may be out of frustration. Then in such cases the real criminal will evict from the hands of law and innocent will be punished. Therefore such a conviction is unsafe. The court must go thought the merits of the case and then decide whether confession can be a sole evidence for the conviction.

Extra judicial confession

It may happen that an accused may give his confession to his family or to a stranger. Such confession is known as extra judicial confession. Indian Evidence Act nowhere talks about extra judicial confession. An extra judicial confession may be defined as a confession made outside the court or not in the immediate presence of the magistrate. Such confession are given to a private person. A confession made to oneself is also considered as an extra judicial confession.

Since such confession are given outside the court, they required a lot of corroboration because they are considered as a weak piece of evidence. Extra judicial confession has less evidentiary value than judicial confession. In such confession, there is a wide scope of various interpretations and therefore the court must ensure that the confession are properly interpreted. Such confession are subjected to cross-examination so as to extract the relevant information and also to ensure that such a confession is truthful and is made voluntary by the accused.

In the case of C.K. Raveendran v State of Kerala[15] the Supreme Court said that it is difficult to rely upon extra judicial confession as the exact words or even the word as nearly as possible have not been reproduced. Such statement cannot be said voluntary so that the extra judicial confession has to be excluded from the preview of consideration to bring home the charges.

In the case of Laxman v State of Rajasthan[16] it was held that an extra judicial confession, if is voluntary, truthful, and reliable and beyond reproach is an efficacious piece of evidence to establishes the guilt of the accused and material facts. An extra judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The court usually look for independent reliable corroboration before placing any reliance upon an extra judicial confession.[17] So it is safe to say that, extra judicial confession are considered as a weak piece of evidence but if corroborated its evidentiary value increases. The extra judicial confession is not trustworthy and cannot be used for corroboration of any other evidence.[18]

The Supreme Court has observed in the case of Chandrapal vs State of Chhattisgarh[19] extra judicial confession made by co-accused could be admitted in evidence only for corroboration.[20] In this case, alleged extra judicial confession were made by the accused where there were considerable inconsistencies and therefore the conviction cannot be made solely upon the extra judicial confession made by a co-accused as an extra judicial confession is considered as a weak piece of evidence in law.

The state countered this argument by saying that there are evidences which will corroborate the guilt of the accused. The court observed that the repeatedly is has been held that an extra judicial confession is considered as weak piece of evidence unless it inspires confidence or corroborated. It not ordinarily that an accused is convicted for the offence of murder solely on the extra judicial confession given by a co-accused.

The court referred to the case of State of M.P. Through C.B.I. v Paltan Mallah[21] in which the Supreme Court said that an extra judicial confession will be admitted only if it is corroborated. The extra judicial confession made by an accused drops its substance in the absence of a substantial evidence, and therefore conviction cannot be made on the extra judicial confession given by a co-accused. This was confirmed by the Madras High Court.[22] Recently Allahabad High Court upheld the acquittal of a murder-robbery accused the extra judicial confession allegedly made by all accused were highly unnatural in nature and such confession were not corroborated by another substantial evidence.[23]

Retracted confession

Imagine a situation in which the person has given his confession to a magistrate, and later in a proceeding he says that he never said such things. He turns hostile. Then what will be the nature of that confession? What will you call it? Such confession in the parlance of law are known as retracted confession. The word 'retracted' simply means that to say that something you have said is not true. According to third edition of Advanced Law Lexicon, retracted is defined as an act of recanting.[24]

In India, such confessions are very common in criminal cases. It happens because of the poor protection of the witness, or the use of power and influence by the high profile people, if the accused belonged to them. It also happens because of the pressure created upon the witnesses by these high class people. Over a period of time, confessions are not flowing out of guilt or remorse but are flowing out of threat, inducement and promise.

By the time such confessions has now became a right of the accused.[25] Article 20 (3) of the constitution[26] provides that no person shall be forced to make a confession against his will. This makes the right to retract even more important. If the accused will retract, it will cast an obligation upon the court to make an inquiry into the nature of confession.[27]

If it is found that the confession made was not voluntary, the court will straight away reject such confession. Section 24 - 30 of the Evidence Act are crafted so cautiously as to take due care of the right provided under Article 20 (3) of the constitution.[28] The Indian Evidence Act draws no line of difference between a retracted confession and a non - retracted confession. Both types of confession are equally significant and are admissible in the court of law.

However, less significance is attached to the retracted confession.[29] Since less significance is attached to the retracted confession, a conviction entirely based upon such confession cannot be made unless corroborated. It is well settled now that a retracted extra - judicial confession, though a piece of evidence on which reliance can be placed, but the same has to be corroborated by independent evidence.

If the evidence of witness before whom confession made was unreliable and his conduct was also doubtful and there is no other circumstance to connect the accused to the crime, conviction based solely on retracted extra judicial confession is not proper and the accused is entitled to acquittal.[30]

Confession being the most significant part of a criminal proceeding has to be handled with caution and care by the court. Confession made must be scrutinized carefully by the court. In criminal cases, it becomes pertinent for a court to scrutinize the relevance of a confession. The safeguard provided in the constitution of India must be practised diligently by the judiciary. The judiciary must cast special attention to the extra judicial and retracted confession.

Such confession are considered as a weak piece of evidence and needs substantial material for corroboration. Conviction solely based on such a piece of confession is dangerous and must be avoided at every cost. In risk involved in extra judicial confession are many. It may happen that the witness to which the confession was made hostile or it appears from his conduct that he is not trustworthy. It may also happen that the opposite party may ask any irrelevant person to pose as a witness in front to whom the accused made the confession.

It may happen that the witness may fail to express the real intention of the accused by misinterpretation the words of the accused. Courts in such situations must make an effort to find out the truth by asking for corroborative evidence. Retracted confession are also equally important as they help the court in finding out the relevance of the confession. Whether confession made was voluntary or not and the reason for retraction. Such types of confession draws its relevance from the Article 20 (3) of the constitution.

So, it can be said that every for confession it is necessary for the court to make an inquiry regarding the nature of such a confession. The law and the constitution mandates that every confession to be made under the consent of the confessor and the confession made under inducement, threat, promise or are simply made involuntarily are to be straight away rejected by the court of law, even if it tells the true tale of the felony.

  2. LEXIS NEXIS,, (last visited date November 26, 2022)
  3. Kenneth C Haas, Confession, Britannica,, ( November 26, 2022)
  4. The Indian Evidence Act, 1872, 17, No, 1, Acts of Parliament, 1872, India
  5. 1966 AIR 40
  6. AIR 1976 SC 1167
  7. AIR 2001 SC 2490
  8. The Indian Evidence Act, 1872, 17, No, 1, Acts of Parliament, 1872, India
  9. AIR 1966 SC 119
  10. The Indian Evidence Act, 1872, 17, No, 1, Acts of Parliament, 1872, India
  11. (2008) A Crim R 468
  12. AIR 2010 SC 1974
  13. (1997) 2 Crimes 169 (Del)
  14. The Indian Evidence Act, 1872, 80, No, 1, Acts of Parliament, 1872, India
  15. AIR 2000 SC 369
  16. (1997) 2 Crimes 125 (Raj)
  17. Balwinder Singh v State of Punjab (1995) Supp (4) SCC 259
  18. Heramba Brahma v State of Assam, AIR 1989 SC 1595
  19. Criminal Appeal No(s).378/2015
  20. Ashok KM, Extra judicial confession made by co- accused could be admitted in evidence only for corroboration, LiveLaw,, (May 27, 2022, 4.46pm)
  21. (2005) 3 SCC 169
  22. Upasana Sanjeev, Conviction Cannot Be Solely On Extra Judicial Confession Unless Supported By Chain Of Cogent Circumstances: Madras High Court, LiveLaw,, (June 30, 2022, 1.14pm)
  23. Sparsh Upaydhay, "Extra-Judicial Confession Not Corroborated": Allahabad High Court Upholds Acquittal Of Murder-Robbery Accused, LiveLaw,,(March 15,2022, 4.04pm)
  24. P Ramanatha Aiyar, Advanced Law Lexicon, 4122 (3rd Edition, Volume IV, Wadhwa and Co, Nagpur, 2005)
  25. State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778; Rajen Boro v. State of Assam, 2003 (2) GLT 632
  26. INDIA CONST. art.20 (3)
  27. Emperor v. Krishna Babaji, (1933) 35 BomLR 728
  28. Ram Lalwani v. The State, 1981 CriLJ 97 (Del)
  29. Re: Kodur Thimma Reddi and Ors, AIR 1957 AP 758
  30. Shakhram Shankar Bansode v State of Maharashtra AIR 1994 SC 1594

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