Evaluate the evidentiary weight of the confessional statement

Confession of the accused

In Aloke Nath Dutta and Ors. vs. State of West Bengal [(2006) 13 SCALE 467], Supreme Court noticed the law in regard to the effect of a confessional statement of the accused in the following terms :

“Sections 24 to 30 deal with confession. Section 24 speaks of the effect of a confession made by an accused through inducement, threat or promise proceeding from a ‘person in authority’. Whereas Section 25 and Section 26 deal with situations where such ‘person in authority’ is police. It is an institutionalized presumption against confession extracted by police or in police custody. In that frame of reference, Section 24 is the genus and Sections 25 and 26 are its species. In other words, Section 25 and Section 26 are simple corollaries flowing out of the axiomatic and generalized proposition (confession caused by inducement where inducement proceeds from a person in authority, is bad in law) contained in Section 24. They are directed towards assessing the value of a confession made to a police officer or in police custody.

The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that confessions whenever and wherever made to the police, or while in the custody of the police unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except sofar as is provided by Section 27 of the Act.

Section 164, however, makes the confession before a Magistrate admissible in EVIDENCE. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should some time, in our opinion, be more intrusive than what is required in law. [See Babubhai Udesinh Parmar v. State of Gujarat (2006) 12 SCALE 385].

In a case, where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself that whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police.

Judicial confession must be recorded in strict compliance of the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture.”

It was further opined :

“In a case of retracted confession, the courts while arriving at a finding of guilt would not ordinarily rely solely thereupon and would look forward for corroboration of material particulars. Such corroboration must not be referable in nature. Such corroboration must be independent and conclusive in nature.”

In State (N.C.T. of Delhi) vs. Navjot Sandhu @ Afsan Guru [(2005) 11 SS 600], this Court stated :

“As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarised in Bharat v. State of U.P. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus (SCC p. 953, para 7) :

“Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of EVIDENCE against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India, it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an afterthought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight EVIDENCE to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true…”

We may also notice that in Sidharth and Ors. vs. State of Bihar [(2005) 12 SCC 545], this Court opined :

“The confession made by the appellant Arnit Das is voluntary and is fully corroborated by the above items of EVIDENCE. The Sessions Judge was perfectly justified in relying on the confession made by the appellant Arnit Das.”

In a case where sufficient materials are brought on records to lend assurance to the Court in regard to the truthfulness of the confession made, which is corroborated by several independent circumstances lending assurance thereto, even a retracted confession may be acted upon. (See State of Tamil Nadu vs. Kutty @ Lakshmi Narsimhan [(2001) 6 SCC 550]; Bhagwan Singh vs. State of M.P. [(2003) 3 SCC 21]; and Sarwan Singh Rattan Singh vs. State of Punjab [(1957) SCR 953].)

At the same time it is well settled that statements under Section 313 of the Code of Criminal Procedure, cannot form the sole basis of conviction; but the effect thereof may be considered in the light of other evidence brought on record. (See Mohan Singh vs. Prem Singh [(2002) 10 SCC 236], State of U.P. vs. Lakhmi [(1998) 4 SCC 336], and Rattan Singh vs. State of HP. [(1997) 4 SCC 161].)

The expression ‘the court may take into consideration such confession’ is significant. It signifies that such confession by the maker as against the co-accused himself should be treated as a piece of corroborative EVIDENCE. In absence of any substantive EVIDENCE, no judgment of conviction can be recorded only on the basis of confession of a co-accused, be it extra-judicial confession or a judicial confession and least of all on the basis of retracted confession.

The question has been considered in State of M.P. through CBI and Ors. vs. Paltan Mallah and Ors. [(2005) 3 SCC 169], stating :

“…..Under Section 30 of the EVIDENCE Act, the extra-judicial confession made by a co-accused could be admitted in EVIDENCE only as a corroborative piece of EVIDENCE. In the absence of any substantive EVIDENCE against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession…..”

In Sidhartha (supra), this Court held :

“It is true that the confession made by a co-accused shall not be the sole basis for a conviction. This Court in Kashmira Singh v. State of M.P. held that the confession of an accused person is not EVIDENCE in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other EVIDENCE. The proper way is, first, to marshal the EVIDENCE against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other EVIDENCE as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other EVIDENCE and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”

In Ram Parkash vs. The State of Punjab [(1959) SCR 1219], it was held :

“That a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue of S. 30 of the Indian EVIDENCE Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime.

The amount of credibility to be attached to a retracted confession would depend upon the circumstances of each particular case.”

It was further opined :

“On the EVIDENCE in the case the confession of P was voluntary and true and was strongly corroborated in material particulars both concerning the general story told in the confession concerning the crime and the appellant’s connection with crime.”

(See also Navjot Sandhu (supra) and Jaswant Gir vs. State of Punjab (2005) 12 SCC 438].)

Conviction on the basis of Circumstantial evidence

It is settled that the conviction can be based solely on CIRCUMSTANTIAL EVIDENCE, but it should be tested by the touchstone of law relating thereto as laid down by this Court in Hanumant Govind Nargundkar vs. State of M.P. [AIR 1952 SC 343]. (See Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116].)

In Hodge’s case [168 ER 1136 at 1137], it was held :

“Alderson, B., told the jury, that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, “not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person.”

He then pointed out to them the proneness of the human mind to look for – and often slightly to distort the facts in order to establish such a proposition – forgetting that a single circumstance which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt.”

There are authorities for the proposition that if the EVIDENCE is proved by CIRCUMSTANTIAL EVIDENCE, ordinarily, death penalty would not be awarded.

AIR 2007 SC 848 : (2007) 1 SCR 916 : (2007) 11 SCC 467 : JT 2007 (2) SC 428 : (2007) 2 SCALE 42 : (2007) CriLJ SC 1145

Categories: CIVIL

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