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Section 27: Doctrine of Confirmation Theory by Subsequent Facts

Sir James Stephen defined confession: As an admission[1]made at the time by a person charged with the crime stating or suggesting the inference that he committed a crime.[2]Confession to a Police officer is not admissible in the court of law despite being a relevant fact pertaining to the fact in issue.[3]Sections from 24 to 27 deal with confession to a police officer. Section 24 rejects the admissibility of the confessions in a criminal proceeding, which appears to be the result of inducement, threat or promise.[4]Section 25 bars the confession made to the police officer.[5]Section 26 further clarifies and makes the confession made to the police officer, while being in the custody, inadmissible.[6]

If confessions to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a crime which he might not have committed. The Hon'ble Supreme court has observed that in the case ofDagduv.State of Maharashtra[7]

The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to start from a confession they should strive to arrive at it….

Admissibility of confession in criminal proceeding will have severe impacts and the law protector will ultimately become the law violators.[8]Despite its non-admissibility as an evidenceper se, a part of a confession, hit by Sections 25 and 26 of Evidence Act, may still be proved against the accused if it distinctly leads to discovery of any fact during the course of investigation by virtue of section 27.[9]

Section 27 is also called as doctrine of confirmation by subsequent events[10]because every part of the statement, made at the instance of the accused, in a police custody should necessarily be confirmed by the subsequent events of discovery, to make it admissible in court. The provision is couched in the form of a proviso, an exception, though it is not clear from its terms as to which provisions it qualifies.[11]The Judiciary was of the contrasting opinions, as to the nature of the section. The Question was whether it is it is an exception to section 25 and 26 or it is applicable to section 24 as well.[12]

This paper will try to shed light on the admissible part of section 27 with the latest developments in the law. The paper is divided in several parts; after the introduction Second part focuses on the admissibility of confession in the light of section 27 explaining its ingredients thoroughly. Third part deals with the analysis of the latest developments in the law. The last part will conclude the discussion regarding confession as a whole.

Doctrine of Confirmation by Subsequent Facts

The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events.[13]The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true.[14]The theory of confirmation by subsequent facts means the statements made in custody are admissible to the extent they can be proved by the subsequent discovery of facts.[15]

It is quite possible that the content of the custodial statement could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence, such statements could also be described as those which furnish a link in the chain of evidence needed for successful prosecution.[16]The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information.[17]

Section 27 is as follows:

How much of information received fromaccusedmay be proved.—Provided that, when any fact is deposed to asdiscovered in consequence ofinformation receivedfrom a person accusedof any offence, in the custody of a police officer,so much of such information, whether it amounts to a confession or not,asrelates distinctly to the factthereby discovered, may be proved.

Section 27 has been crafted very meticulously and each and every phrase needs utmost attention and has also been subject to various interpretation by the Apex Court. Following are the essential ingredients of the section:

2.1 The person giving the information must be accused of any offence;

The expression accused of any offence is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by this section.[18]It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability.[19]

The Patna High Court has held that the statements must be of a person who was then an accused. If at the time when the confession was made, the person making it was not an accused person; the statement would not be admissible.[20]The Bombay high court has dissented this view and has held that

The words information received from a person accused of any offence cannot be read to mean that he must be an accused when he gives the information but would include a person if he becomes subsequently an accused person, at the time when that statement is sought to be received in evidence against him. Where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police within this section.[21]

2.2 He must be in custody of a police officer;

This section does not apply to information given to police by an accused person who was not in custody at the time it was given.[22]The submission of a person to the custody of a police officer within the terms of Sec. 46(1)[23]of the Code of Criminal Procedure is ‘custody’ within the meaning of this section.[24]The word ‘custody’ in this section does not mean physical custody by arrest.[25]As soon as the accused or the suspected person comes into the hands of police officer, he is, in the absence of clear evidence to the contrary, no longer at liberty, and is therefore in custody within the meaning of Sec. 26 and 27.[26]

Custody, connotes some idea of restrain on the on the movement of person whether byword or action and does not means custody after formal restraint.[27]Even indirect control over the movements of the suspect by the police would amount to police custody.[28]Custody, does not necessarily mean detention or confinement. A person who makes a statement to a police officer voluntarily confessing that he had committed an act which the penal law regards as an offence submits himself to the custody of the said officer is within the meaning of this section.[29]

2.3 The fact of which evidence is sought to be given must be relevant to the issue;

The ‘fact’ must be a ‘relevant fact’. The fact said to have been discovered in consequences of information received from a person accused of an offence must be of a kind which such information really helps to bring the light and which it would be difficult to find out otherwise before it can be treated as of any substantial probative value.[30]

The fact discovered must be in consequences of the information received from the accused, and the fact should not have been already within the prior knowledge of the police. The information should be free from any element of compulsion.[31]Though the fact, of which the discovery is being done, is relevant; but the connection between the offence and the thing discovered may be established by evidence other than the statement leading to the discovery.[32]

2.4 Such information…as relates distinctly to the fact…discovered

The word distinctly, means indubitably, strictly and unmistakably.[33]The Apex Court has decided that information under section 27 would be every statement made by the accused to the police officer and the Police is precluded from proving that information or any part of that unless it fits in the section 27.[34]If the information had already been given by the main accused in his discloser statement the statement of the other accused persons were not admissible in evidence because at the best they were leading to the rediscovery of a fact already disclosed and capable of discovery.[35]

The information which distinctly relates to the fact discovered is only admissible.[36]But the statement should not be so truncated as to make it insensible.So much of the information as strictly relates to the discovery of facts is admissible even though the confession is elicited by improper inducement.[37]Information must be recorded and, it’s not recorded the exact information must be adduced through evidence.[38]No such statements relating to a relevant fact is admissible under the section if it is made after the discovery of that fact or if it does not relate distinctly to the fact discovered.[39]

Latest Developments
The Apex Court has recently laid down certain judgments which either lays down new interpretation or substantiate the existing pronouncements. Following are some of the judgements which are important to discuss in order to understand the concept into:

3.1 Silash Singh v. State[40]

In this case of a murder where no eye witness was there and the case was only based on the circumstantial evidences, but recovery of weapon and evidence on the basis of disclosure of the accused were there. The apex court said that recovery of weapon and evidence on the basis of disclosure of the accused alone would not automatically lead to the conclusion that the offence was also committed by the accused.

In fact, the burden lies on the prosecution to establish close link between discovery of the material objects and its use in the commission of the offence and what is admissible undersection27of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.The Supreme Court said that,

With regard toSection27of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence.What is admissible underSection27of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.

3.2 Navaneethakrishnan v. The State by Inspector of Police[41]

In this case, the phones along with other materials were discovered at the instance of the information given by the accused. Those recoveries did not have any connection with the crime committed and the fact of which the discoveries were made, could not be proved be a relevant one. The Apex Court observed that in the absence of any connecting link between the crime and the things recovered, the recovery on the behest of accused will not have any material bearing on the facts of the case.

The Court held,
….no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings 18 of John Bosco. The said statements are inadmissiblein spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police.

3.3Charandas Swami v. State of Gujarat[42]
In this case, the Apex Court decided on following issues which defined and expanded the scope of the section to even mental state of the accused.[43]The court decided upon the following issues:
(i) Whether the discovery of fact referred to in Section 27 should be confined only to the discovery of a material object and the knowledge of the accused in relation thereto or the discovery could be in respect of his mental state or knowledge in relation to certain things- concrete or non-concrete.

(ii) Whether it is necessary that the discovery of fact should be by the person making the disclosure or directly at his instance. The subsequent event of discovery by the police with the aid of information furnished by the accused — whether can be put against him under Section 27.

This Court has restated the legal position that the facts need not be self-probatory and the word fact as contemplated by Section 27 is not limited to actual physical material object. It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.’[44]

3.4Md. Kamrulv. The State of Bihar[45]
This case discusses the issue of the statement and the discovery of fact out of it. Patna HC said that it is not necessary to physically point out the place where the discovery should be made to make it come under section 27.

Following is the relevant excerpt from the case:
There is one more point which we would like to discuss i.e. whether pointing out a material object by the accused furnishing the information is a necessary concomitant ofSection27. We think that the answer should be in the negative. Though in most of the cases the person who makes the disclosure himself leads the police officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible underSection27.

3.5 Kishore Bhadke v. State of Maharashtra[46]

In this case, the issue of validity of two simultaneous and separate statements by two accused, came into consideration. The Apex Court held that if two or more accused, when inquired separately and simultaneously, give the same information leading to the discovery of the fact, it does not affect the applicability of section 27. Following is the relevant excerpt from the case:
This Court has held that a joint disclosure or simultaneous disclosures, per se, are not inadmissible under Section 27 of the Evidence Act. A person accused need not necessarily be a single person, but it could be a plurality of the accused.

The Court held that a joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in chorus. When two persons in custody are interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact which was reduced into writing, such disclosure by two or more persons in police custody do not go out of the purview of Section 27 altogether.

Conclusion
A statement of an accused or part thereof as made admissible in evidence by section 27 assumes a great significance both because it provides for a well justified relaxation to the total exclusion rule in case of confirmation of the statement be subsequent facts and also may, more so, because this is one provision which is susceptible to the most blatant misuse by the police.[47]Both the aspects of the section are of utmost importance, one is providing the speedier leeway for the judicial machinery to arrive at conclusion and the other one is significant from the point of view of human rights that may be violated grossly in the process.

The section is drafter very meticulously but at the same time, subjected to very interpretations and criticisms. Law commission Reports have even recommended to re-draft the whole section and to make it even wider to include the statements not given in custody to a police officer.[48]Over the time, with the development of judicial pronouncements, the concepts under section 27 are being refined and it is better not to accept the recommendation of the 185th Law Commission Report. Otherwise it would become even more vulnerable and exploitable section which will totally be in the hands of the Police on which much reliance cannot be placed.

However, with the recent judgements, on the admissibility of even the mental state of the accused giving the information, as a relevant fact; the scope of the section not only gets wider but also gets very tough and complicated to decide upon. This section allows the information received by improper means also as far as those pieces of information are corroborated and substantiated by the discovery of fact.[49]This makes it even more vulnerable because it gives unfettered freedom in the hands of the police to implicate someone, if they manage to implant the prerequisites in the eyes of law.

End-Notes
[1]§17 defines the term admission. According to the definition an admission: (i) is a statement, oral or documentary or contained in electronic form, (ii) which suggests any inference as to any fact in issue or relevant fact, and (iii) which is made by any person under the circumstances hereinafter mentioned. Such circumstances as hereinafter mentioned have been mentioned in Sections 18 to 30 of Indian Evidence Act, 1872.
[2]Article 21, Sir James Stephen, Digest of the Law of Evidence, p. 52,
https://ia802304.us.archive.org/24/items/chasedigestoflawof00step/chasedigestoflawof00step.pdf
[3]§§ 25-26, Indian Evidence Act, 1872; §§ 161-162, Code of Criminal Procedure, 1973.
[4]§ 24, Indian Evidence Act, 1872.
[5]§ 25, Indian Evidence Act, 1872.
[6]§ 26, Indian Evidence Act, 1872.
[7]AIR 1977 S.C. 1579
[8]Looking at the past experiences of atrocities done by the Police, it would not be unreasonable to say that too much liberty and unaccountability in the hands of the police will significantly affect the judicial sanctity.
[9]§ 27, Indian Evidence Act, 1872
[10]State of Maharashtra v. Damu Gopinath Shinde, AIR 2000 SC 1691
[11]185th Law Commission Report, Government of India, Part I, p. 142,
http://10.21.88.204/lawcommissionofindia/reports/185thReport-PartI.pdf
[12]Id.
[13]State of Karnatakav.Davkd Razario,(2002) 7 SCC 728:AIR 2002 SC 3272
[14]Supra , 10.
[15]Sarkar, Law of Evidence, pp. 790, (19th Ed., Vol. 1)
[16]Selviv.State of Karnataka,(2010) 7 SCC 263
[17]Rumi Bora Dutta v. State of Assam, (2013) 7 SCC 417
[18]Woodroffe and Amir Ali, Law of Evidence, pp.1470 (19th Ed., Vol. IV)
[19]State of U.P.v. Deoman, AIR 1960 S.C. 1125: (1960) Cr. L.J. 1504
[20]Sarabjit Singhv. State, (1998) Cr. L.J. 2231 (P&H), recovery made in consequences of discloser statement made at a time when the maker of the statement was neither accused of any offence nor under arrest, the statement and recovery were held to be not admissible.
[21]Memon Mohmad,(1958) 61 Bom. L.R. 715; Bakshia Mukinda, (1959) 62 Bom. L.R. 80
[22]Chunda Murmuv. State of West Bengal, AIR 2012 S.C. 2160
[23]In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.
Providedthat where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.
[24]Anter Singhv. State of Rajasthan, (2004) 10 SCC 657
[25]State of Biharv. Madanlal, AIR 1967 Pat. 63
[26]Sanatan Naskarv. State of West Bengal, AIR 2010 SC 3570
[27]Hakamv. the Crown, (1940) 21 Lah. 242
[28]Paramhansav. State of Orissa,AIR 1964 Ori. 144
[29]Ashish Bathamv. State of M.P., AIR 2002 S.C.3206;Aghnoo Nageshiav. State of Bihar, AIR 1966 SC 119;State of Rajasthanv. Vinod Malhotra, 1997 CrLJ 1488, 1497
[30]Nga Shwe Tatv. Queen-Empress, (1897) 1 UBR (1897-1901) 152
[31]State (NCT) of Delhiv. Navjot Sandhu, (2005) 11 S.C.C. 600: A.I.R. 2005 S.C. 3820
[32]Durga Burman (Roy)v. State of Sikkim, AIR 2014 SC 2993
[33]Jodha Khoda Rabariv. State of Gujrat, 1992 Cr. L.J. 3298 (Guj)
[34]Ramkishan Mithanlalv. State of Bombay, (1954) 57 Bom. L.R. 600, the court can exhibit and look into only that portion of the statement which is related to disclosure, and not the whole statement.
[35]Sukhvider Singhv. State of Punjab, (1994) 5 S.C.C. 152
[36]Palukuri Kotayya v. Emperor, AIR 1947 PC 67
[37]State of Rajasthanv. Bhup Singh, (1997)10 S.C.C. 675;Rv. Gould, (1840) 9 C&P 364).
[38]Bodhrajv. State of J&K, (2002) Cr. L.J. 4664, (S.C.)
[39]Paramsivamv. State through Inspector of Police, AIR 2014 SC 2936.
[40]2017 SCC Cal 18769
[41]AIR 2018 SC 2027
[42](2017) 7 SCC 177
[43]Mohd. Inayatullah v. State of Maharashtra, 1976 1 SCC 828; Udai Bhan Rai v. State of U. P. and others, AIR 1994 SC 1603; State of Maharashtra v. Damu Gopinath Shinde and Ors, AIR 2000 SC 1691.
[44]Udai Bhanv.State of U.P., AIR 1962 SC 1116
[45]2017 SCC 1571
[46](2017) 3 SCC 760
[47]Vijay Singh v. State of M.P., 2005 Cr. L.J. 299 (M. P. High Court).
[48]185th Law Commission Report, Government of India, Part I, p. 142
http://10.21.88.204/lawcommissionofindia/reports/185thReport-PartI.pdf.
27. Notwithstanding anything to the contrary contained in sections 24 to 26, when any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact so discovered may be proved, but not the information, whether it amounts to a confession or not:
Provided that facts so discovered by using any threat, coercion, violence or torture shall not be provable.
[49]Statev. NMT Joy Immoculate, AIR 2004 S.C. 2282,State of Rajasthanv. Bhup Singh, (1997)10 S.C.C. 675

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