BHARATI VIDYAPEETH DEEMED TO-BE

UNIVERSITY
NEW LAW COLLEGE, PUNE.

EVIDENCE LAW ASSIGNMENT

Submitted By:
Shashank Singh
Sengar
DIV-A
ROLL NO. - A - 21;
BBA-LLB; SEM-VIII
Que 1.
What is confession? Explain procedure and rules for recording of confession.

Ans1. INTRODUCTION
The term confession defined as a statement of an accused person in which he acknowledges
that he is guilty of committing any crime or any illegal action. It is always preferable to
distinguish a confession from any other kinds of self-incriminating actions since ancient
times confession has been used as evidence against criminal defendants.
Confession must be voluntarily & freely made by the accused person only & most important
is that he must be aware of his rights. Generally, a two-prong test is used to determine
whether the confession is voluntarily made, involving factors such as subjective and
objective, mostly One part of the test generally focuses upon the susceptibility of the suspect,
and the second part of the test focuses upon the environment & technique used. A confession
shown to be coerced does not lead to void a conviction.
An example of confession-
If C  is charged with the murder of Y, If C said that he has killed B, it is a confession.
Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:
• That the statement in question is a confession,
• That such confession has been made by the accused,
• That it has been made to a person in authority,
• That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,
• Such inducement, threat or promise must have reference to the charge against the accused,
and
• The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the
proceedings against him.

PROCEDURE AND RULES FOR RECORDING “CONFESSION”.

• An accused person himself can appear before a Magistrate for
recording his confession. An accused is free to make a confession voluntarily before
the Magistrate and he need not be followed or support by the Police totally unlike in
the case of a witness or victim. It is a Judge-made law. The supplement is that before
recording the confession of an accused person the Magistrate should be satisfied and
confirmed that the person who is going to confess is an accused and investigation is in
a progress against him and he is from any type of the external influence.
• At the time of recording the confession of the accused no Police or
Police official shall be present. Before proceeding towards the recording of a
confession , a enquiry must be made from the accused just to confirm the overall past
situation of an accused under the custody and the treatment he had been receiving in
such custody it will help to ensure that confession made by accused person is free
from any type of extraneous influence (Rabindra Kumar Paul @ Dara Singh v.
Republic of India).
• Section 24 of the Evidence Act lays down the rule that a confession
made under threat, inducement or promise becomes irrelevant in a criminal
proceeding. the Court will abstain from proceeding on such type of confession,
doesn’t matter whether a confession made in front of a Magistrate or a person other
than a Police officer, confession by a person should have been made with full
knowledge of the consequences of the confession. One side to be bear in mind is that
as per Section 26 of the Evidence Act a confession made while in Police custody is
not bad if it is made in the immediate presence of a Magistrate.
• It is necessary to warn the accused before making any confession. As
per Section 29 of the Evidence Act, a confession that is pertinent does not become
irrelevant purely because the person was not warned that he was not bound to make a
confession.
• Recording of confession is a “proceeding” within the meaning of
Section 303 Cr.P.C. and hence the accused has a right to consult a lawyer of his
choice. Before recording the confession, the Magistrate should, therefore, explain this
to the accused. If the accused is poor or belongs to an economically or socially
backward class, the Magistrate should inform the accused about his right to free legal
aid under Section 304 Cr.P.C. (Nandini Satpathy v. P.L. Dani), ( Kuthu Goala v.
State of Assam)
• At least 24 hours’ time should be given to the accused person to
consider whether he should make a confession, Enquiry under Section 164(2) Cr.P.C.
should not be conducted in a casual manner ( Ayyub v. State of U.P.)    
• Certifying by the magistrate that he “hoped”  not that he “believed” ,
the confession made by the accused person voluntary, would suggest a remaining
doubt and hence not accepted.  Chandran v. State of T.N.
• As per section 164(3) If before recording the confession an accused
person appearing before the Magistrate shows his will that he is not willing to make
any confession, then the Magistrate shall not authorize the detention of that accused
person in police custody. 
•  Confession should record by the magistrate only in open Court and
during Court hours U.P. Ram Chandra v. State U.P  and confession should be signed
 by the accused and magistrate as per section 281(5) Cr.P.C.The confession shall be
recorded in the language in which the accused is questioned or if that is not
practicable, in the language of the Court as per Section 281(3) Cr.P.C.)
• A confessional statement made by an accused person need not be
recorded through cameras But, statements of accused which also  includes witnesses
and non-confessional statements of accused persons should be recorded in-camera
(Varghese M.U. v. CBI, Cochin)
• As per Section 164(6) Cr.P.C after recording the confession the
Magistrate forward the same to the Magistrate by whom the case is to be inquired or
tired. 

CASE LAWS
 Sanjay Dutt vs State Of Maharashtra … on 21 March 2013
Sanjay Dutt was arrested for illegal possession of firearms acquired from terrorist
acquaintances who were responsible for the blasts.

On April 26, 1993, he admitted to the charges in his confession. But later retracted the
confession. A TADA court had later sentenced 20 people to life imprisonment and 46 others,
including Sanjay Dutt were given varying terms of imprisonment
.
 Shankaria vs State Of Rajasthan on 26 April, 1978
In this case, it was held that the confession was not made voluntarily and it was the result of
pressure from the police side, coercion & inducement inference was deducible among others,
from several features of the case, after the preliminary questioning.
             The Magistrate  hardly give 20 min time to  the appellant for reflection before
recording his confession, which was according to  the ruling of Court in Sarwan Singh  v.
State of Punjab  the Magistrate should have  sent the accused back for at least 24hrs to jail 
to think and to decide, whether or not he should make any confession and   there must be an
actual reason to suspect that after recording the confession,  the appellant was handed back to
the Police Superintendent who then took him to Hanumangarh.  If that be a fact, it would
amount to a contravention of subsection (3) of Section 164 of the Code of  Criminal
Procedure, 1973, giving rise to an inference that the confession was not considered to be
valid.
Evidentiary value of confession
Value of judicial confession- a case where there is no proof of corpus delicti must be
distinguished from another where that is proved. In the absence of the corpus delicti a
confession alone may not suffice to justify conviction.

A confessional statement made by the accused before a magistrate is a good evidence and
accused be convicted on the basis of it. A confession can obviously be used against the maker
of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held
that the confession of an accused person is substantive evidence and a conviction can be
based solely on a confession.
If it is found that the confession was made and was free, voluntary and genuine there would
remain nothing to be done by the prosecution to secure conviction. If the court finds that it is
true that the accused committed the crime it means that the accused is guilty and the court has
to do nothing but to record conviction and sentence him. No question of corroboration arises
in this case. Normally speaking it would not be quite safe as a matter of prudence if not of
law to base a conviction for murder on the confession of the alleged murder by itself and
without more. It would be extremely unsafe to do so when the confession is open to a good
deal of criticism and has been taken in the jail without adequate reason and when the story of
murder as given in the confession is somewhat hard to believe. This observation was made by
the Supreme Court and therefore it cannot be said to be a good law in the case of judicial
confession.

Now the settled law is that a conviction can be based on confession only if it is proved to be
voluntary and true. If corroboration is needed it is enough that the general trend of the
confession is substantiated by some evidence which would tally with the contents of the
confession. General corroboration is enough.

Value of extra-judicial confession- extra-judicial confessions are not usually considered with
favour but that does not mean that such a confession coming from a person who has no
reason to state falsely and to whom it is made in the circumstances which support his
statement should not be believed.

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial

confession must be received with great case and caution. It can be relied upon only when it is
clear, consistent and convincing. The court has to decide whether the person before whom the
admission is said to have been made are trustworthy witnesses. The extra-judicial confession
is open to the danger of mistake due to the misapprehension of the witness before whom the
confession was made to the misuse of the words and the failure of the party to express his
own meaning. This is also open to another sort of danger. There being no record and there
being no sanction behind it is very easy for the prosecution to catch hold of any witness who
may come and depose that the accused admitted his guilt in his presence on some particular
time. Due to those reasons it is very dangerous for the courts to base conviction on the sole
basis of extra-judicial confession. Usually and as a matter of caution courts require some
material corroboration to an extra-judicial confession statement corroboration which connects
the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the
foundation of the conviction is the confession alleged to have been made by the accused there
are three things which the prosecution must establish. First, that a confession was made,
secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it
is true. Such a confession must be proved by an independent or satisfactory evidence.

CONCLUSION
It is much clear from the Pakla Narayan Swami case that confession refers to the direct
acknowledgment of guilt. A confession which has been duly recorded and suffers from no
legal infirmity can be used as a substantive piece of evidence against its maker though as a
matter of prudence it must be corroborated by some other evidence. A confession which is
voluntary and true can be acted upon that a confession which if free from any promise, threat
or inducement.
A confession may include various parts, as well as it is not permissible according to law to
admit one part of confession as evidence and remove the remaining part. The court is also
bound to accept the entire confession as evidence. It is vital that the confessions must either
be accepted as fully or dismissed as a whole, competency of the court is not included in a
matter to accept only the inculpatory part while dismissing the exculpatory part as doubtful.

Que 2. Explain in detail concept of expert under Indian evidence act.

Ans.
INTRODUCTION
When the court cannot form a correct judgement without the help of a person with special
skills or experience in a particular subject. When the court needs an opinion in a subject
which requires special assistance, the court calls an expert, a specially skilled person. The
opinion given by a third person is considered as relevant facts if the person testifying is an
expert.
For example, the court was confused that a letter has been written by person ‘X’ or not. The
court calls a handwriting expert to find out the same. This person will be known as an expert
and the opinion which he gives in the case is relevant.
The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts
or commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered
to when the Court has to form opinion pertaining to:
• -foreign law
• -science
• -identity of handwriting
• -finger impressions
In such cases, the Court seeks opinion of skilled persons i.e. experts in the aforementioned
fields. Matters commonly made the subject of such evidence include causes of death,
insanity, effects of poison, genuineness of works of art, value of articles, genuineness of
handwriting, proper navigation of vessels, meaning of trade terms and foreign law. A witness
who is qualified to speak on these matters is called an expert.
Importance of Expert Opinion
The Supreme Court in the case of State of H.P. v. Jai Lal and Ors. explained the substance
of expert opinion by stating that Section 45 of the Evidence Act which makes opinion of
experts admissible lays down, that, when the court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the
opinions upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in
order to bring the evidence of a witness as that of an expert it has to be shown that he has
made a special study of the subject or acquired a special experience therein or in other
words that he is skilled and has adequate knowledge of the subject.
Requirements of Expert evidence
The Supreme Court in the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. &
Ors. delineated the requirements of an expert evidence under Section 45 of the Evidence Act.
The Court stated that the first and foremost requirement for an expert evidence to be
admissible is that it is necessary to hear the expert evidence. The test is that the matter is
outside the knowledge and experience of the lay person. Thus, there is a need to hear an
expert opinion where there is a medical issue to be settled.
The scientific question involved is assumed to be not within the court’s knowledge. Thus
cases where the science involved, is highly specialized and perhaps even esoteric, the central
role of expert cannot be disputed. The other requirements for the admissibility of expert
evidence are:
• that the expert must be within a recognized field of expertise
• that the evidence must be based on reliable principles, and
• that the expert must be qualified in that discipline.
 
Who is an “expert”?
The Act does not enumerate any qualification or standard for being categorized as an expert
under Section 45 of the Evidence Act. The term used by the provision is “persons specially
skilled”. In order to have a broader understanding of the term it would be preferable to
illustrate the same through precedents.
The Supreme Court in the case of State of Himachal Pradesh Vs. Jai Lal and others in the
following words explained who an expert is and what his functions are.
• An expert witness, is one who has made the subject upon which he
speaks a matter of particular study, practice; or observations; and the must have a
special knowledge of the subject.
• In order to bring the evidence of a witness as that of an expert it has to
be shown that he has made a special study of the subject or acquired a special
experience therein or in other words that he is skilled and has adequate knowledge of
the subject.
• An expert is not a witness of fact. His evidence is really of an advisory
character. The duty of an expert witness is to furnish the Judge with the necessary
scientific criteria for testing the accuracy of the conclusions so as to enable the judge
to form his independent judgment by the application of this criteria to the facts proved
by the evidence of the case.
• The scientific opinion evidence, if intelligible, convincing and tested
becomes a factor and often an important factor for consideration along with the other
evidence of the case. The credibility of such a witness depends on the reasons stated
in support of his conclusions and the data and materials furnished which form the
basis of his conclusions.
One of the earliest cases which enumerated on the function of expert was Titli v. Jones,
wherein it was stated that the real function of the expert is to put before the court all the
materials, together with reasons which induce him to come to the conclusion, so that the
court, although not an expert, may form its own judgment by its own observation of those
materials.’

The Evidentiary value of Expert Opinion?

The data given by the expert are relevant and admissible. If any oral evidence contradicts the
data/ report; it will not make the data evidence obsolete. But, as per section 46, in case any
fact is in contradiction to the opinion of the expert, that fact becomes relevant. If the opinion
of the expert is relevant, the contradictory fact becomes relevant even though it was not
relevant as such. The value of expert opinion depends upon the facts on which he is based
and the competency of such expert in forming a reliable opinion.
However, the personal appearance of the expert in the court can be excused unless the court
expressly asks him to appear in person. In such a case, where the expert is excused, he can
send any responsible officer who is well versed with the facts of the case and the report and
can address the court with the same.
If a judge relies upon the opinion of the expert only and not on the facts and the testimony of
ordinary witnesses to give judgement then is the weakness of the case. This is because even if
a person is an expert in his field, he cannot be termed as a direct witness and cannot give a
statement on the facts of the case. He is just giving an opinion as per the evidences given to
him and cannot draw a conclusion regarding the guilt of the accused in all the cases.
The evidence given by the expert is just an opinion and is not a fact-based testimony and thus
are given slight value. This is the reason that eye-witnesses or other factual witnesses are
given a priority over the expert’s opinion. This is because opinion evidence cannot supersede
substantive evidence. No expert can claim that he could be absolutely sure that his opinion
was correct, expert depends to a great extent upon the materials put before him and the nature
of the question put to him. [15]
However, the evidentiary value of an expert’s opinion depends upon the facts and
circumstances. For example, if there is a dispute as to who is the biological parent of a child,
the DNA report of the Medical expert is of great importance. If the expert says that the DNA
of the child or parents matches, than it is a relevant fact in deciding the case.
But in case if a handwriting expert says that the signatures matches or not matches with the
person; this fact does not hold much value because there can be a possibility that the person
has practiced a lot to copy the signature. But on the other hand, DNA cannot be copied or
changed.
Privy council once observed that ‘there cannot be any more unsatisfactory evidence than that
of an expert.” In the case of Emperor v. Kudrat [16], the court held that when the expert is
giving an opinion upon the age by observing only the height, weight and tooth; it cannot be
relied upon.
The court must be satisfied that the accused is guilty. The court cannot hold him guilty mere
because an expert has said that in his opinion, the person is guilty. The court needs to look
into the evidence along with the opinion of the expert before giving any judgement or order.

Is it necessary to corroborate Expert Evidence?

This legal aspect has been considered by the Judiciary in several cases and there has been a
dichotomy of opinion. However, the Supreme Court in the case of Murari Lal v. State of
M.P. appears to have settled the issue by stating that on the facts of a particular case, a court
may require corroboration of a varying degree. There can be no hard and fast rule, but
nothing will justify the rejection of the opinion of an expert supported by unchallenged
reasons on the sole ground that it is not corroborated. The approach of a court while dealing
with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons
for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
Evidence of handwriting expert (Section 47)
When the court has an opinion that who has written or signed a document the court will
consider the opinion of a person who is acquainted with the handwriting. That person will
give an opinion that particular handwriting is written or not written by that particular person
or not.

The issue relating to evidence of a handwriting expert has been expounded by the Courts in
plethora of judgments. In the case of State of Maharashtra v. Sukhdeo Singh, the Apex
Court opined that before a Court can act on the opinion evidence of a handwriting expert two
things must be proved beyond any manner of doubt, namely, (i) the genuineness of the
specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a
competent, reliable and dependable witness whose evidence inspires confidence.

Opinion for Electronic evidence (Section 45A):

When a piece of information is transmitted or stored in a computer system and the court
needs assistance or opinion for the same in any case; they refer an examiner of electronic
evidence. This examiner of electronic evidence is known as the expert in such cases.
For this section, electronic evidence includes any information transmitted or stored in any
computer resource or any other electronic or digital form for which the opinion of electronic
evidence examiner is required as per section 79A of the Information Technology Act, 2000.

Opinion for foreign law (Section 38 r/w Section 45)

When there is a law of prevailing in any foreign country which needs to be considered for
giving judgement in any case, the court needs an expert who is well versed with that law.
Otherwise, the court can take opinion from a law-book which contains the answer regarding
any foreign law. These books must be printed or published under the authority of the
government of that country. Other reports of the ruling of the courts can also be taken as
relevant which are given in such books of foreign law.
Foreign law in India is always considered as a question of fact. There have been cases where
the court has interpreted personal laws as Indian laws and thus are the laws of the land.
Therefore, the court does not require a person to interpret the law as the courts can do that
task on their own.
Opinion for fingerprint
Generally, finger impression expert’s opinion is given more value because:
• The fingerprints of any person remain the same from their birth till
death, and
• No two individuals’ are ever found to have the same finger
impressions
Footprint studies are gaining importance nowadays but the courts have been reluctant to
accept that as a piece of evidence. A person, who is a fingerprint expert, is called to match
two or more fingerprints, than the opinion of such an expert is relevant and admissible in the
court.

Opinion for Science or Art

The words ‘Science and Art’ are to be broadly constructed. The term ‘science’ is not limited
to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses
of handicraft, trade, profession and skill in work.
To construe that if any expertise comes under the head of ‘art’ or ‘science’; the following
tests can be applied:
• Is the subject matter of the injury such that inexperienced people are
not capable of forming a correct judgement without the assistance of experts?
• Is the character of a science or art as such that it requires a course or a
study to obtain a competent knowledge or skill.
Science and Art signify the activities which include the fields which require special
knowledge or expertise form an opinion. Before designating that a person is an expert, it
needs to be checked that the field or the matter on which we are seeking the opinion should
not be something which can be easily understood by layman or court without any special
knowledge or skill.
The scientific question involved is assumed to be not within the court’s knowledge. Thus
cases, where the science involved, is highly specialized and perhaps even esoteric, the central
role of an expert cannot be disputed.
Every science has its own technical terms, which are so much Greek or Hebrew to the
average juryman. What would the Ordinary man make of this answer to a question whether a
certain dose of a prescription containing chloral would have been dangerous!
There can be various categories which can be treated under art and science. Some of them are
discussed below for better understanding.
Opinion of Medical Expert
In many cases, the opinion of medical experts is required. Especially in criminal cases, the
medical examination of accused and victim is necessary. When in a case, the court requires
some opinion which involves medical technicalities, they ask medical officers.
Opinions of a medical officer can be used to prove:
1 The Physical condition of the person,
2 Age of a person
3 Cause of death of a person
4 Nature and effect of the disease or injuries on body or mind
5 Manner or instrument by which such injuries were caused
6 Time at which the injury or wounds have been caused.
7 Whether the injury or wounds are fatal in nature
8 Cause, symptoms and peculiarities of the disease and whether it is
likely to cause death
9 Probable future consequences of an injury etc.
Say in a rape case, the medical report of the victim and accused are of great importance. If the
medical officer says that he thinks that act was not consensual referring to the injuries on the
body of the victim and the nail scratches on the body of the accused, this opinion carries a lot
of importance.
But the problem with these experts is that they are always called by one party only who has
evidenced in their favour. This is the reason that the court is reluctant to rely completely upon
the views and opinions of the expert though they consider the same while imparting their
judgement.
In other cases, if the court finds that the expert’s opinion is in contradiction with the opinion
of an eye-witness then for obvious reasons, the normal witness’s opinion is given preference
over the expert’s opinion. This is because the expert’s statement is just opinionative whereas
the other witness’s statement is based upon the facts of the case.

Opinion of Ballistic Expert

Ballistic experts, also known as firearms expert are people who are experts in the study of
projectiles and firearms. Their help is taken is cases say where guns are involved.
A ballistics expert may trace a bullet or cartridge to a particular weapon from which it was
discharged. Forensic ballistics may also furnish opinion about the distance from which a shot
was fired and the time when the weapon was last used.
It must be noted that the opinion of the ballistics expert can be taken into consideration only
when he himself has given the report. In the case where the expert gives opinion only by
looking at the picture of the wound, the court denied relying upon such opinion.

Evidence of Tracking Dog

Trained dogs are used for the detection of crime. The trainer of tracking dogs can give
evidence about the behaviour of the dog. The evidence of the tracker dog is also relevant
u/s 45.

Moreover, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-
• Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
• The Chief Controller of explosives
• The Director of the Fingerprint Bureau
• The Director of Haffkein Institute, Bombay
• The Director, Dy. Director or Asstt. Director of the Central and State
Forensic Science Laboratory.
• The Serologist to the Govt.
• Any other Govt. Scientific Experts specified by notification of the
Central Govt.

Conclusion
Unlike an ordinary witness, expert witnesses have a separate standing as a witness in a court.
It is interesting to note that an expert’s report cannot be questioned in the court. The report is
questioned when the ability and knowledge of the expert to make that report is in question.
The experts are judged with a different eye by the court since they are just giving an opinion
and are not aware of the facts of the case. But still, an expert’s opinion matters as the court
has no knowledge of that particular field of expertise and they will not be able to impart
justice without seeing the other side of the coin.