Topic: Whether oral evidence can be adduced to prove the confession?

Introduction

Evidence means for the proving of any fact any oral statement given by
witness and all document including electronic record produced in court
for inspection they are called evidence.

In English law, there is also a 3rd category of evidence know as Real

evidence, it means everything forfeit on the place of event as far as any
arms found etc, are real evidence but under Indian law real evidence is
not recognized separately instead they are included in documentary
evidence.

Evidence is a certain reliable and relevant set of facts which proves or

abstains from proving any matter; there is a prescribed manner on which
the cycle of evidence works which has been divided into two main
heads- Oral and Documentary evidence by the Evidence Act 1872.

Oral Evidence

Oral Evidence is dealt with under Section 59 and 60 of the Evidence

Act, 1872.

 Oral evidence is defined under section 3 which means: “All statements

which the court permits or requires to be made before it by witnesses, in

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relation to matters of fact under inquiry, such statements are called as
oral evidence.”

The word ‘Oral’ itself describes its meaning as something spoken or

expressed by mouth; so anything which is accepted in the court in
relation to the inquiry and expressed by any witnesses who are called in
the trial is termed as oral evidence. Oral Evidence also includes the
statements made by people in signs and writing forms (inclusive of
people who cannot speak).     

When evidence may be led to prove that accused duly made the
confession or statement:

Under Section 463 if any Court, before which a confession or other

statement of an accused person recorded or purporting to be recorded
under Section 164 is intended to be or has been received in evidence,
finds that any of the provisions of either of such sections have not been
complied with by the Magistrate recording the statement, it must take
evidence that such person duly made the statement recorded and such a
statement may then become admissible in evidence notwithstanding the
provisions of Section 91 of the Indian Evidence Act, provided the error
has not prejudiced the accused as to his defence on merits.

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In order to ensure that a statement or confession under Section 164 of
the Code of Criminal Procedure is made voluntarily, the following
precautions should be taken.

(A) Before the Magistrate proceeds to record the confession, he

should order all the person to leave the room who are likely to
influence him.
(B) Confession recorded should not be handed over to the Police—
The Magistrate who records a confession under Section 164,
Criminal Procedure Code, should not hand over the document
after completion to the Police Officer in charge of the prisoner,
but should forward it as required by sub-section (2) of that
section direct to the Magistrate by whom the case is to be
enquired into or tried.
(C) Copy of recorded confession may be given to Police—These
instructions do not prohibit a Magistrate who has recorded a
confession or statement from allowing the Police to take a copy
of it before it is forwarded to the trial Magistrate; and
Magistrates should always permit the Police to take a copy if
they express a desire to do so. When permission is so given the
Police copy should be written out by a Police Officer or clerk
from the dictation of an officer of the Court, in the actual
presence of the Magistrate who recorded the confession.

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The provisions of sections 164, 342 and 364 of the Criminal Procedure
Code should be studied in regard to confessions and statements of
accused persons .

Section 164 deals with the recording of statements and confessions at

any stage before the commencement of an enquiry or trial.

Section 342 deals with the examination of accused persons during

the course of the enquiry or trial.

Section 342-A now, enables the accused to appear as a defence witness

during the trial and to give evidence on oath in disproof of the charges
made against him or a co-accused.

Section 364 prescribes the manner in which the examination of an

accused person is to be recorded..

The object of Section 164. of CrPC is to provide a method of securing a

reliable record of statements or confessions made during the course of
the Police investigation, which could he used, if necessary, during the
enquiry or trial.

Under section 25 of the Indian Evidence Act, a confession to a Police

officer is inadmissible in evidence, and hence when an accused person
confesses during the Police investigation the Police get it record by a
Magistrate under section 164 Criminal Procedure Code, and it can then
be used to the extent to which it may be admissible under the Indian
Evidence Act.
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 Under section 80 of the Indian Evidence Act, a Court is bound to
presume that a statement or confession of an accused person, taken in
accordance with law and purporting to be signed by any Judge or
Magistrate, is genuine, and that the certificate or note as to the
circumstances under which it was taken, purporting to be made by the
person signing it, are true, and that such statement or confession was
duly taken.

The words "taken in accordance with law" occurring in this section

are very important and it is essential that in recording a statement or
confession under section 164; the provisions of that section should be
strictly followed.

Evidentiary value of Confession

The evidentiary value of a confession depends upon its voluntary

character and the precision with which it is, reproduced and hence the
section164 provides safeguards to secure this end.

These safeguards are of great importance, as confessions are often

retracted at a later stage and it becomes necessary for the Court to
ascertain whether the alleged confession was actually and voluntary
made. The mere fact that a confession is retracted does not render it in
admissible in evidence, but the Court has to scrutinize any such
confession with the utmost care and accept it with the greatest caution.

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It is a settled rule of evidence that unless a retracted confession is
corroborated in material particulars it is not prudent to base a conviction
in a criminal case on its strength alone unless from the peculiar
circumstances under which it was made or judging from the reasons
alleged or apparent, of retraction, there remains a high degree of
certainty that the confession; notwithstanding its having been realised
from, is genuine.

In order to know Whether oral evidence can be adduced to prove

confession we need to study the case of Singhara Singh vs. State of Uttar
Pradesh.

Case Analysis

Singhara Singh Vs state of Uttar Pradesh (1963) SC

Issue 1) whether compliance with Section 164 is mandatory or

not?

Had the procedure been mandatory then there had no provision

like Section 463 CrPC. There is a penesia or solution for the non
compliance of the procedure under section 164 in the form of
section 463 which enables the prosecution to lead oral evidence
in certain contingencies.

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The advocate for the prosecution states that section 164 is not
mandatory ,had it been mandatory then there had no provision
like Section464 CrPC.

The Supreme Court state:

When we read section 463 we come to an opposite conclusion

that means that procedure under section164 is mandatory and we
cannot escape from that because Section 463 CrPC has enable
the prosecution to lead oral evidence in 2 grounds:

 That such non compliance has nit injured the accused in his
defence on the merit, and
 That he duly made the statement recorded, admit such
statement.

Duly made means that the procedure must have been followed
and if such procedure itself is not followed then obviously
Section 463 is of no use and is not applicable

In which condition oral evidence under section 463 shall be

allowed?

In condition where you complied with the procedure but the

document before the magistrate is a public document which

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shows that the procedure is not followed but the trial magistrate
want to say that he had complied with the procedure, that he
duly recorded the confession.

That means that the document is ambiguous, but the magistrate

who recorded the confession argues that he complied with the
procedure in this context only oral evidence is permissible.

The supreme court is trying to say that when there are some
statutory safeguard, then those statutory safeguards cannot be
bypassed by enabling the prosecution to lead oral evidence
because if you can prove the confession through oral evidence
the, what is the need to have elaborate procedure under section
164 and it will be rendered useless, the very protection given to
the accused whose confession is recorded in course of
investigation is the procedure that he should be warned that he
does not have any duty to make confession and that his
confession may also be used against him and that he voluntarily
gives the confession

These are the statutory safeguards and cannot be ignored by

enabling the prosecution to lead oral evidence.

Thus section 164 is mandatory

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The Supreme Court came to the conclusion that the
procedure under section 164 need to be complied with and is
mandatory and it is not directory.

Issue 2) Do Section 74 and 80 of the evidence act given

privileges?

Public prosecution said that:

Section 74 states that the document must prove itself and the
statement /confession recorded by the Judicial Magistrate is
deemed to be true and the magistrate must not be called upon to
prove the truthiness of the statement or confession

Public prosecution said we do not want these privileges and

want the magistrate to come to court and give oral evidence.

Supreme court states that

these are not privileges these are statutory safeguards and the
statutory safeguards are very important to protect the interest if
the accused and prosection cannot say that your honour
whatever the privileges conferred upon the prosecution by virtue
of Section 74 and Section 80, we do not want that Now the
magistrate will come to court of law and prove that particular

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confession through oral evidence and he will take that much
burden on himself.

We do not want the privileges, let the magistrate come and give
oral evidence. Supreme court said that , no that cannot be
permitted because section74 and 80 are not giving privileges ,
these are basically for the interest of the accused ,these are
statutory safeguard and if these statutory safeguards are ignored
then it would be dilution of the procedural law . Procedural law
is equally important sometime more important than the
substantive law. It is the procedure which guarantees justice to
the accused. If they are mere procedure then what is the need to
have such elaborate procedure

Issue 3) The 2nd Class judicial Magistrate who is not empowered

under section 164 has recorded the confession that mean the
procedure is not followed.

Suppose the magistrate who is competent to record confession

had he recorded the confession then oral evidence is not
permissible but in this case the 2nd Class Judicial Magistrate who
is not empowered by virtue of Section 164 ,basically he is not
empowered to record the confession even then he had recorded

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the confession and because the 2nd class judicial magistrate
recorded the confession the procedure is not followed and only
the procedure is said to be followed when a competent
magistrate recorded and in this as Mr. Dixit recorded who was a
2nd class Judicial magistrate and that is the reason please enable
us to record oral evidence.

Arguments raised by prosecution:

Had it bee recorded by the competent magistrate the oral

evidence had not been admissible but because it was recorded by
incompetent magistrate so obviously Section 164 is nit followed
in letter and spirit the only way out is to enable the prosecution
to lead oral evidence to put confession’s true value.

Supreme Court said that his is a very faint argument, when a

competent magistrate under section 164 cannot give oral
evidence, obviously a magistrate who is not empowered to
record the confession if he had recorded the confession
deliberately or by mistake for sure it is something prime facie
the 2nd class Judicial magistrate must not be permitted to give
oral evidence.

The Supreme Court said:

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that procedure laid down under section164 is mandatory and you
cannot give oral evidence only to prove that the procedure has
been followed. So to enable the prosecution to lead oral
evidence they have to convince the court that the procedure is
followed thought the document is not clear on whether the
procedure is followed or not.

Conclusion:

In general statement or confession recorded under Section 164

CrPC cannot be proved by citing oral evidence but to prove that
procedure under section164 has been followed the prosecution
can lead oral evidence on two grounds:

 That such non compliance has nit injured the accused in his
defence on the merit, and
 That he duly made the statement recorded, admit such
statement.

But in any case it can not merely be used to proves confession.

In situation where the magistrate had complied with the
procedure under section 164 but it is not clear from the

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document then only oral evidence be allowed to prove that the
procedure had been followed while recording confession.

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