All “Disclosure Statements” By An Accused Are Not “Confessions”

A “disclosure statement” made by an accused person leading to the recovery of an object under Section 27 of the Indian Evidence, 1872, can attract the taboo under Sections 25 and 26 of the Evidence Act, only if such a statement includes or amounts to a “confession”.

“Confession” is an “admission” which in turn, is a “statement”

2. A closer examination of the scheme under the Evidence Act will show that “confessions” falling under Sections 24 to 27 are “admissions” which in turn are “statements” included under “Relevancy of Facts” (Sections 6 to 55) falling under Chapter II of Part I of the Evidence Act. That is why it is said that a “confession” is a species of “admission” as defined under Section 17 of the Evidence Act. (Vide paras 27 and 28 of State (NCT of Delhi) v. Navjot Sandhu (Parliament attack case) (2005) 11 SCC 600 = 2005 Cri.L.J. 3950 – P. Venkatarama Reddy, P. P. Naolekar – JJ; Paras 23 and 24 of Nazir Khan v. State of Delhi (2003) 8 SCC 461 – Doraiswamy Raju, Arijit Pasayat – J.)

What is stated above explains the proposition that while all “confessions” are “admissions”, all admissions are not confessions.

What is a confession ?

3. The expression “confession” has not been defined in the Evidence Act or in the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short). It was Lord Atkin at page 52 of the celebrated case, Pakala Narayana Swamy v. Emperor AIR 1939 PC 47, who gave a judicial definition of “confession” as follows—

“…..a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession.”

(Emphasis given by me)

The above definition was given by way of clarification of an earlier statement in the same verdict authored by Lord Atkin and which runs as under –

“…..no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.”

“Confession” in common acceptation means and implies acknowledgment of guilt. Its evidentiary value and acceptability, however, shall have to be assessed by the Court having due regard to the credibility of the witnesses. (Vide State of Punjab v. Gurdeep Singh AIR 1999 SC 3724 (1999) 7 SCC 714 - 3 Judges – K. T. Thomas, D. P. Mohapatra, Umesh C. Banerjee- JJ.)

When can the Court act on the confession and punish the accused ?

4. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that such confession was voluntarily made. Voluntary means one who makes such confession does so out of his own free will inspired by the sound of his own conscience to speak nothing but the truth. Such confessional statements are made mostly out of a thirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed the cloak of his guilt. Such feeling of guilt becomes so powerful that he is ready to face all consequences for clearing his conscience. (Vide paras 23 and 24 of Nazir Khan v. State of Delhi (2003) 8 SCC 461 – Doraiswamy Raju, Arijit Pasayat – J.)

A conviction on the strength of a “confession” is based on the maxim “habemus optimum testem, confitentem reum” which means that “confession of an accused is the best evidence against him.” (Vide Sahib Singh v. State of Haryana AIR 1997 SC 3247 = 1997 (7) SCC 231 – M. K. Mukherjee, S. Saghir Ahmad – JJ.)

Most of the “disclosure statements” are not “confessions”

5. In almost all murder cases, “disclosure statements” by the accused regarding the “weapon” or “dead body” or “blood stained clothes” etc. revealing the place of their concealment, are not “confessions” so as to attract the ban under Sections 24 to 27 of the Evidence Act. Take for example, the following “disclosure statements” by the accused –

1. “The dagger (with which I stabbed Vijay to death) has been hidden by me at……………(place mentioned).”
2. “The body of Vijay [whom myself and Rajesh (co-accused) murdered] has been taken by us to the forest area 3 kms away from my house and concealed underneath a teak tree.”
3. “I have hidden my bloodstained shirt and pants (which I was wearing while killing Vijay) in the attic above my mother’s bedroom.”

In all the above statements, strictly applying Section 27 as interpreted by Pulukkuri Kottaya v. Emperor AIR 1947 PC 67 – Sir John Beaumont – J, the highlighted portions within brackets are inadmissible since they are out and out “confessions” not “relating distinctly to the fact discovered” within the meaning of Section 27. Hence those highlighted portions will have to be eschewed from consideration by the Court. If so, what remains in those statements is only “disclosure of the place of concealment of those objects”. Since those “disclosure statements” are not “confessions”, they can never attract the ban under Sections 25 and 26 of the Evidence Act. The fallacy into which the High Court of Kerala in a recent decision of the Division Bench, fell is that what was marked as Exhibits in that case were only “disclosure statements” not amounting to “confession”. The investigating officer while giving evidence also narrated those “disclosure statements” in the words of the accused himself, thereby furnishing “primary evidence” as insisted by Section 27 itself. Those statements were, unfortunately held to be prohibited by Sections 25 and 26 of the Evidence Act. The distinction between an “admission” and a “confession” has been lost sight of in that decision.

A concrete instance highlighting the distinction between “admission” and “confession”

6. Suppose in a murder case (uxoricide) the accused husband who has been absconding, is arrested after 3 days. Noticing that at the time of arrest there were bite-marks on his chest and hand, the accused is sent in police custody to a doctor. To the query by the doctor as to what happened, the accused replies “These are the bite-marks of the lady who was murdered in this case”. The accused is finally charge-sheeted for murdering his wife. The Trial Court, Inter alia, relying on the above reply by the accused to the doctor while in police custody, held that the above reply amounted to a “confession” interdicted by Section 26 of the Evidence Act. The accused was accordingly acquitted of the charge of uxoricide. On appeal by the State the High Court held that the above reply by the accused to the doctor while in police custody was only an “admission” and not a “confession” banned under Section 26 of the Evidence Act.

But, if the reply by the accused to the doctor were –

“These are the bite-marks by the deceased woman during her struggle while I was strangulating her to death.”

then it would definitely amount to a “confession” which would be inadmissible under Section 26 of the Evidence Act. See the Full Bench decision of the Kerala High Court speaking through Justice K. T. Thomas in State v. Ammini and others 1987 (1) KLT 928 = AIR 1988 Ker. 1 = 1988 Cri.L.J. 107 – S. Padmanabhan, K. T. Thomas, K. G. Balakrishnan - JJ. The above verdict was approved by the Supreme Court in Ammini v. State of Kerala AIR 1998 SC 260 – G. T. Nanavati, M. Jaganadha Rao – JJ.

This distinction between “admissions” and “confessions” should be scrupulously borne in mind by Courts dealing with “recovery evidence” under Section 27 of the Evidence Act. Advocates appearing before the Constitutional Courts have a greater responsibility to ensure that the Judges are not taken for a ride and wrong precedents are not set for the subordinate courts to follow and perpetuate injustice.

Author is Former Judge, High Court of Kerala.

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